{ "id": 11238533, "name": "STATE OF NORTH CAROLINA v. ROGER DALE BROOKS", "name_abbreviation": "State v. Brooks", "decision_date": "1999-12-21", "docket_number": "No. COA98-1576", "first_page": "124", "last_page": "134", "citations": [ { "type": "official", "cite": "136 N.C. App. 124" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "512 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "450" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 440", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238512 ], "year": 1999, "pin_cites": [ { "page": "452-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0440-01" ] }, { "cite": "399 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "379", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 317", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527669 ], "year": 1991, "pin_cites": [ { "page": "322", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0317-01" ] }, { "cite": "324 S.E.2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526837 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0387-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 5, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] }, { "cite": "372 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "535", "parenthetical": "citation omitted" }, { "page": "538" } ], "opinion_index": 0 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0339-01" ] }, { "cite": "283 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "304 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567671 ], "year": 1981, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0349-01" ] }, { "cite": "501 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "67" } ], "opinion_index": 0 }, { "cite": "348 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659821 ], "year": 1998, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0510-01" ] }, { "cite": "52 S.E.2d 908", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "913" } ], "opinion_index": 0 }, { "cite": "230 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629214 ], "year": 1949, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/230/0205-01" ] }, { "cite": "340 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "315 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715465 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0599-01" ] }, { "cite": "158 S.E. 406", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1931, "pin_cites": [ { "page": "407-08" }, { "page": "407-08" } ], "opinion_index": 0 }, { "cite": "200 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625732 ], "weight": 2, "year": 1931, "pin_cites": [ { "page": "719" }, { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/nc/200/0715-01" ] }, { "cite": "154 S.E. 730", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1930, "pin_cites": [ { "page": "731", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "199 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603127 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/nc/199/0429-01" ] }, { "cite": "478 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "511" } ], "opinion_index": 0 }, { "cite": "345 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54214 ], "year": 1996, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0119-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "483 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "434-35", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "345 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53881 ], "year": 1997, "pin_cites": [ { "page": "716-17", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0713-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1994, "opinion_index": 0 } ], "analysis": { "cardinality": 975, "char_count": 22354, "ocr_confidence": 0.749, "pagerank": { "raw": 2.751568795598517e-07, "percentile": 0.8327732620704914 }, "sha256": "60660040a82f5104517f8d6e829680a4ee0d7bce30f5473387378b753d60a185", "simhash": "1:a548b036b76e9590", "word_count": 3652 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROGER DALE BROOKS" ], "opinions": [ { "text": "HUNTER, Judge.\nRoger Dale Brooks (\u201cdefendant\u201d) appeals his conviction for the second degree murder of Lee Thornburg (\u201cThornburg\u201d) who died of massive head trauma on 1 October 1995. Defendant assigns error to the trial court in its: (1) failure to dismiss the charge of first degree murder at the close of all the evidence due to insufficient evidence presented to show that Thornburg\u2019s assault was committed by defendant; (2) denial of defendant\u2019s pretrial motion to dismiss on the grounds that his right to a speedy trial was violated under the Sixth and Fourteenth Amendments of the United States Constitution; (3) submission of second degree murder as a possible jury verdict due to the lack of evidence presented which negated premeditation and deliberation; and (4) sentencing defendant without finding mitigating factors. We find no error.\nEvidence at trial tended to show that on 17 August 1995, defendant had been drinking vodka since approximately 7:30 a.m. at his mother\u2019s home. Later that morning, he cashed his paycheck, purchased a 12-pack of beer and went to his friend Crawley\u2019s house \u2014 \u2022 only minutes away from Thornburg\u2019s machine shop, in an area which locals called \u201cuptown\u201d \u2014 where he continued drinking beer and wine and smoking crack cocaine throughout the day. Defendant used the remainder of his paycheck to purchase the crack cocaine.\nAbout 2:00 p.m., defendant left Crawley\u2019s house stating that he had spent all his money on crack cocaine and he was going to get more money. Defendant returned between 5:00-6:00 p.m. with blood covering his shirt. When asked what happened, defendant said two black men jumped him and busted his nose. After changing shirts, defendant left again and upon returning brought with him more crack cocaine than he had purchased earlier with his paycheck.\nLater that night, defendant returned home to his mother\u2019s house wearing a different t-shirt from the one he had left home in that morning. Defendant told his daughter\u2019s boyfriend that he had been in a fight \u201cuptown.\u201d \u201cSomebody jumped him from behind\u201d and \u201che knocked [the] man down and got on top of him and beat him in the head\u201d but the man \u201cwouldn\u2019t die.\u201d Defendant then proceeded to put his shoes and jeans in the washer and pour bleach over them, saying he had to wash out drops of blood. However, the next morning, defendant told his mother it was not blood, but vomit on his clothes; and when she pulled defendant\u2019s clothes from the dryer, she noted that his jeans had bleach blotches on them.\nOn 17 August 1995 about 7:50 p.m., Thornburg was found, by his sister and brother-in-law, unconscious with his head bludgeoned and lying in a pool of blood in his machine shop. He died on 1 October 1995 without ever regaining consciousness. Evidence was offered by the State, and uncontradicted by defendant, that Thornburg was assaulted before 5:50 p.m., the time his sister went to the machine shop to deliver dinner and was unable to get in.\nUpon obtaining an arrest warrant for defendant on 24 August 1995, Detective Robert Hallman brought defendant back to the police station and advised him of his rights. Detective Hallman further advised defendant of his conversations with several people, including statements made that defendant had been seen at Crawley\u2019s house with blood on him; that defendant had washed his clothes that same night when he arrived home; and, that defendant had said \u201che beat a man in the head and he would not die.\u201d Defendant responded to Detective Hallman by stating, \u201cYes, sir, I told you that. It sounds overwhelming. Go ahead and serve the warrant. I want to talk to a lawyer.\u201d\nOn 31 August 1995, SBI Agent Brian Delmas, a latent fingerprint specialist, processed the crime scene looking for footwear impressions observed by officers during the initial crime scene search where Thornburg was assaulted. Using amido black, a chemical which reacts with protein and hemoglobin to stain blood making it visible to the naked eye, Agent Delmas was able to lift, photograph and enhance footwear impressions left at the crime scene. These impressions were not clear enough to make an identical match with defendant\u2019s shoes; however, they were consistent in sole design, size, shape, and general wear as the Rugged Outback right shoe taken from defendant at the time of his arrest. The State presented additional evidence showing that none of the law enforcement officers, emergency medical service providers or Thornburg\u2019s sister and brother-in-law had on shoes with a sole design similar to defendant\u2019s right shoe.\nAdditional evidence presented tended to show that Major Jerry Hallman of the Lincolnton Police Department secured the crime scene from the time the body was discovered on 17 August through 31 August 1995 when the footwear impressions were taken. The director of 911 communications for Lincoln County testified that there was only one assault reported on 17 August 1995, and that call came from Thornburg\u2019s place of business.\nDefendant was indicted on 9 October 1995 and the case went to trial on 2 March 1998 (twenty-eight months later). Between 14 November 1995 and 11 September 1996, defendant went through four court-appointed attorneys and yet continued to demand that the court appoint another. Defendant requested an attorney from outside of Lincoln or Cleveland counties suggesting, without reason, that all attorneys in those counties would have a conflict of interest with his case. It was defendant\u2019s fifth court-appointed attorney (\u201cMr. Teddy\u201d) who carried the case to trial.\nDefendant\u2019s first assignment of error is that his motion to dismiss the charge of first degree murder was erroneously denied by the trial court. We disagree.\nFirst degree murder is the unlawful killing of a human being with malice and with premeditation and deliberation. N.C. Gen. Stat. \u00a7 14-17 (1994). There are several elements necessary to establish a prima facie case. However, in the case sub judice, because defendant argues only that the State\u2019s evidence lacked any showing that defendant committed the crime, that is the only element with which this Court will concern itself.\nOur Supreme Court has long held that in order to withstand a defendant\u2019s motion to dismiss, the State must present\nsubstantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator. . . .\nIn ruling on the motion to dismiss, the trial court must view all of the evidence, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor. The trial court need not concern itself with the weight of the evidence. In reviewing the sufficiency of the evidence, the question for the trial court is whether there is \u201cany evidence tending to prove guilt or which reasonably leads-to this conclusion as a fairly logical and legitimate deduction.\u201d Once the court decides a reasonable inference of defendant\u2019s guilt may be drawn from the evidence, \u201cit is for the jurors to decide whether the facts satisfy them beyond a reasonable doubt that the defendant is actually guilty.\u201d\nState v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434-35 (1997) (citations omitted).\nTherefore, the ultimate question for the Court is whether a reasonable inference of the defendant\u2019s guilt may be drawn from the evidence presented at trial. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If a reasonable inference of defendant\u2019s guilt may be inferred from the evidence, his motion to dismiss should be denied. However if, upon consideration of all the evidence, only a suspicion of guilt is raised, then the evidence is insufficient, and the motion to dismiss should be granted. State v. Wilson, 345 N.C. 119, 125, 478 S.E.2d 507, 511 (1996).\nIt is uncontroverted that the State has indeed raised a suspicion of defendant\u2019s guilt. In fact, several witnesses, including defendant\u2019s own mother, questioned whether defendant had something to do with Thornburg\u2019s murder. However, suspicion alone is not enough. In State v. Johnson, 199 N.C. 429, 154 S.E. 730 (1930), North Carolina\u2019s then Chief Justice Stacy wrote:\nIt is sometimes difficult to distinguish between evidence sufficient to carry a case to the jury, and a mere scintilla, which only raises a suspicion or possibility of the fact in issue. The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.\nId. at 431, 154 S.E. at 731 (citations omitted).\nIn the case at bar, the State presented evidence that Thornburg probably knew his assailant, that Thornburg knew defendant, that defendant had many times borrowed money from Thornburg and pawned his mother\u2019s things to Thornburg without his mother\u2019s permission, that Thornburg had a note on his desk stating \u201cBrooks\u201d owed him money, that no one was with defendant around the time Thornburg was murdered, and that a right shoe print found at the crime scene was consistent in sole design, size, shape and general wear as the right shoe defendant was wearing at the time of his arrest. We find it a logical deduction that defendant again went to Thornburg for money as he had many times before.\nFurther, the State presented uncontroverted evidence that on the day of the murder defendant spent his entire paycheck on beer and crack cocaine before the time of the murder and that after the time of the murder, defendant not only came back to Crawley\u2019s house with more cocaine than he had purchased at the beginning but also with his shirt covered in blood. Additionally, three witnesses testified to different stories told them by defendant regarding the blood on his clothes; one of which was that defendant had been in a fight \u201cuptown\u201d and had \u201cbeat a man in the head\u201d but the man \u201cwouldn\u2019t die.\u201d In conjunction with the evidence showing motive and opportunity, this Court holds that a reasonable inference could be drawn that defendant made false statements in an effort to exculpate himself. State v. Marion, 200 N.C. 715, 719, 158 S.E. 406, 407-08 (1931).\nDefendant argues that because the State\u2019s expert was unable to definitively find \u201cunique identifiable characteristics\u201d in the print to match with defendant\u2019s shoe, the print was unreliable. He further contends that the print along with the State\u2019s other evidence were \u201ctoo tenuous and speculative to have justified submitting the case to the jury.\u201d We disagree.\nThe record before this Court reveals that defendant neither argues now nor preserved at trial the right to argue that the submission of the shoe print to the jury was erroneous. Had this been his contention, this Court would have been required to \u201cdetermine whether the Palmer \u2018triple inference\u2019 test ha[d] been met.\u201d State v. Ledford, 315 N.C. 599, 611, 340 S.E.2d 309, 317 (1986). See also State v. Palmer, 230 N.C. 205, 213, 52 S.E.2d 908, 913 (1949). Instead, this Court must determine only whether the print along with all the other evidence combined is sufficient to support defendant\u2019s conviction. State v. Ledford, 315 N.C. 599, 340 S.E.2d 309.\nTaken in the light most favorable to the State, we conclude that the evidence set out above against defendant was substantial, creating more than a suspicion as to the element that defendant was the perpetrator of the crime. Thus, it was a question for the jury to decide. State v. Marion, 200 N.C. 715, 719, 158 S.E. 406, 407-08. Therefore, we find the trial court properly denied defendant\u2019s motion to dismiss.\nDefendant\u2019s second assignment of error is that the trial court erred in submitting murder in the second degree as a possible jury-verdict. Again, we disagree.\nNorth Carolina law has long settled that a jury instruction of a lesser included offense is required \u201cif the evidence would permit the jury rationally to find defendant guilty of the lesser offense and acquit him of the greater.\u201d State v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 67 (1998). The test is whether there \u201cis the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.\u201d State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981).\nIn the case at bar, the evidence tends to establish that at the time the murder was committed, defendant had been drinking heavily and smoking crack cocaine for several hours. It is not unreasonable then that a rational trier of fact could find that defendant lacked the requisite state of mind \u2014 that is, the necessary specific intent of premeditation and deliberation \u2014 for first degree murder. In State v. Mash, 323 N.C. 339, 372 S.E.2d 532 (1988), the defendant there, as here, had been seen heavily drinking for several hours before the assault. Witnesses described him as obviously drunk or high, just as in the case at bar. There, our Supreme Court ruled it was proper for the jury to be instructed as follows:\n\u201c[I]f upon considering the evidence with respect to the defendant\u2019s intoxication you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first degree murder, you will not return a verdict of first degree murder. You will then consider whether or not he would be guilty of second degree murder.\u201d\nId. at 344, 372 S.E.2d at 535 (citation omitted). The Court went on to explain that:\nWhile there is some evidence to the contrary, when viewed in the light most favorable to defendant, the evidence of [this] defendant\u2019s state of intoxication is enough to require the voluntary intoxication instruction.\nId. at 348, 372 S.E.2d at 538. Accordingly, due to defendant\u2019s voluntary intoxication, we find the trial court\u2019s instruction of second degree murder was proper.\nRegarding defendant\u2019s assertion that he was denied his Sixth and Fourteenth Amendment rights to a speedy trial, we find this argument to be meritless.\nThe record shows that over the course of the first year, defendant was appointed five attorneys, four of which defendant requested be removed although the court found one not to have received actual notice of appointment for almost two months. Defendant\u2019s third attorney, Ms. Killian, whom he \u201cfired\u201d four times, finally petitioned the court to allow her to withdraw. Additionally, while defendant was represented by the first four attorneys, he continued to file pro se motions with the court. Mr. Teddy, the attorney who finally represented defendant at trial, was defendant\u2019s fifth court-appointed attorney.\nIn Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101 (1972), the United States Supreme Court outlined the four factors to be considered when a defendant claims his right to a speedy trial has been violated: (1) length of delay; (2) reasons for delay; (3) defendant\u2019s assertion of his right to a speedy trial; and (4) the prejudice to defendant resulting from the delay. In considering these factors, the court noted that they must be considered together, and that the different factors and the reason for the delay may be weighed differently.\nIn this light, defendant\u2019s own actions must be considered with regard to the length and reason for delay. Out of the approximately twenty-eight months it took for defendant\u2019s case to come to trial, twelve months were spent by him firing his court-appointed attorneys (from indictment on 9 October 1995 until Mr. Teddy was appointed on 24 September 1996).\nDuring that time but never after, defendant twice motioned the court for a speedy trial; however, both were pro se motions even though defendant had counsel. The first motion came between his second and third firings of Ms. Killian. Defendant\u2019s second motion was filed as part of his complaint that he was not getting effective assistance of counsel. We therefore, find defendant\u2019s complaint of lack of a speedy trial was fallacious because he wanted court-appointed counsel but refused to accept any counsel appointed to him at the time. Without defendant asserting his right to proceed pro se, a claim that his right to a speedy trial was violated is untenable. The record clearly reflects defendant\u2019s continued requests for new court-appointed counsel. We hold that defendant is estopped from requesting a speedy trial while not accepting the counsel appointed to him. Therefore, that delay of time is excludable from consideration. Id.\nHowever, we now analyze the remaining delay period. In determining whether defendant was prejudiced by the remaining sixteen-month delay, the burden is placed on the defendant to show that he was, in fact, prejudiced. Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101. Where the defendant presents a prima facie case showing the delay to be directly attributable to the State\u2019s negligence or willfulness, the burden then shifts to the State to show that the delay (or periods of the delay) were excludable. State v. Pippin, 72 N.C. App. 387, 324 S.E.2d 900 (1985).\nAt the pre-trial hearing, Mr. Teddy asserted that the State had not been forthcoming with his discovery requests. However, he admitted that the blame could not solely be laid on the State, that his client\u2019s uncooperativeness had been a contributing factor. Further, Mr. Teddy found that the most prejudicial fact in the speedy trial claim was that defendant was still in jail. However, Mr. Teddy again readily admitted that none of defendant\u2019s attorneys before him had requested bond. At that hearing, upon Mr. Teddy\u2019s request, defendant was released on bond to await trial. We find that defendant has failed to meet his burden of showing that the State negligently or willfully delayed trial. Thus, the defendant\u2019s claim is without merit. Id.\nDefendant\u2019s final assignment of error is based on the trial court\u2019s failure to find that certain mitigating circumstances existed and thus should have lowered his sentence. Under N.C. Gen. Stat. \u00a7 15A-1340.16(a), a trial court\u2019s consideration of mitigating or aggravating circumstances in light of the presumptive sentence is discretionary, \u201cand the offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.\u201d N.C. Gen. Stat. \u00a7 15A-1340.16(a) (1997).\nOur courts have long held that \u201cthe trial court must consider all mitigating and aggravating factors before imposing a sentence other than the presumptive term.\u201d State v. Green, 101 N.C. App. 317, 322, 399 S.E.2d 376, 379 (1991) (citation omitted) (emphasis added). \u201cNevertheless, where the trial court imposes sentences within the presumptive range for all offenses of which defendant was convicted, he is not obligated to make findings regarding aggravating and mitigating factors.\u201d State v. Rich, 132 N.C. App. 440, 452-53, 512 S.E.2d 441, 450 (1999). In the case at bar as in Rich, the trial court sentenced defendant within the presumptive guidelines for his offense; therefore, no findings of mitigating or aggravating factors were required. Thus, there was no abuse of discretion as to the trial court\u2019s sentencing of defendant.\nNo error.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General G. Patrick Murphy, for the State.", "Brenda S. McLain for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROGER DALE BROOKS\nNo. COA98-1576\n(Filed 21 December 1999)\n1. Homicide\u2014 first-degree murder \u2014 defendant as perpetrator \u2014 sufficiency of evidence\nThe trial court did not err in a homicide case by failing to dismiss the charge of first-degree murder based on insufficient evidence to show that the victim\u2019s assault was committed by defendant because taken in the light most favorable to the State: (1) it is a logical deduction that defendant went to the victim\u2019s place of business for money, as he had many times before; (2) in conjunction with the evidence showing motive and opportunity, a reasonable inference could be drawn that defendant made false statements in an effort to exculpate himself; and (3) the evidence was substantial, creating more than a suspicion as to the element that defendant was the perpetrator of the crime.\n2. Homicide\u2014 second-degree murder \u2014 lesser included offense \u2014 state of mind\nThe trial court did not err in a homicide case by submitting the lesser included offense of second-degree murder as a possible jury verdict because it is not unreasonable to conclude that a rational trier of fact could find that defendant lacked the requisite state of mind to be convicted of first-degree murder when the evidence tends to establish that defendant had been drinking heavily and smoking crack cocaine for several hours before committing the murder.\n3. Constitutional Law\u2014 speedy trial \u2014 estoppel\u2014burden to show State negligently or willfully delayed\nThe trial court did not err in a homicide case by denying defendant\u2019s pretrial motion to dismiss on the grounds that his right to a speedy trial was violated under the Sixth and Fourteenth Amendments when his trial began approximately twenty-eight months after he was indicted because: (1) defendant is estopped from requesting a speedy trial for at least twelve of the twenty-eight months when the record reflects his continued requests for new court-appointed counsel and his failure to accept four of the five counsel appointed to him; and (2) for the remaining sixteen-month delay, defendant has failed to meet his burden of showing that the State negligently or willfully delayed the trial when defendant\u2019s uncooperativeness had been a contributing factor, and even though the most prejudicial fact in the claim was that defendant was still in jail, none of defendant\u2019s prior four attorneys had requested bond.\n4. Sentencing\u2014 mitigating factors \u2014 not found \u2014 sentence within presumptive range\nThe trial court did not err in a homicide case by sentencing defendant for second-degree murder without finding mitigating factors because the trial court sentenced defendant within the presumptive guidelines for his offense, and therefore, findings of mitigating or aggravating factors were not required.\nAppeal by defendant from judgment entered 11 March 1998 by Judge J. Marlene Hyatt in Lincoln County Superior Court. Heard in the Court of Appeals 19 October 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General G. Patrick Murphy, for the State.\nBrenda S. McLain for defendant-appellant." }, "file_name": "0124-01", "first_page_order": 158, "last_page_order": 168 }