{ "id": 6788193, "name": "STATE OF NORTH CAROLINA v. CORNELIUS JEVON CLARK", "name_abbreviation": "State v. Clark", "decision_date": "2013-12-17", "docket_number": "No. COA13-561", "first_page": "421", "last_page": "426", "citations": [ { "type": "official", "cite": "231 N.C. App. 421" } ], "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": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "280 S.E.2d 454", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "Trial judge did not err when he asked defense counsel in the presence of the jury whether there were any affirmative defenses of which counsel wished the judge to inform the jury" } ], "opinion_index": 0 }, { "cite": "303 N.C. 182", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572356, 8572297, 8572240, 8572274, 8572319 ], "year": 1981, "pin_cites": [ { "parenthetical": "Trial judge did not err when he asked defense counsel in the presence of the jury whether there were any affirmative defenses of which counsel wished the judge to inform the jury" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0182-05", "/nc/303/0182-03", "/nc/303/0182-01", "/nc/303/0182-02", "/nc/303/0182-04" ] }, { "cite": "275 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "Trial judge did not err when he asked defense counsel in the presence of the jury whether there were any affirmative defenses of which counsel wished the judge to inform the jury" } ], "opinion_index": 0 }, { "cite": "51 N.C. 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Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "132 L. Ed. 2d 818", "category": "reporters:federal", "reporter": "L. 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App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] } ], "analysis": { "cardinality": 728, "char_count": 12821, "ocr_confidence": 0.722, "pagerank": { "raw": 4.60167783687625e-08, "percentile": 0.2887185700787961 }, "sha256": "984de1b6cc7f0bb92a6ff61d95371861340e6e36610f19ada0850094ef481c0f", "simhash": "1:c0283534d276d47c", "word_count": 2114 }, "last_updated": "2023-07-14T19:32:40.304740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEPHENS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CORNELIUS JEVON CLARK" ], "opinions": [ { "text": "ELMORE, Judge.\nThis appeal presents questions concerning the correctness of the trial judge\u2019s jury instructions and his denial of defendant\u2019s motion to dismiss the first degree murder charge for insufficient evidence of premeditation and deliberation. On 4 June 2011, Cornelius Jevon Clark (defendant) was charged in the stabbing death of Jakwan Esquire Pittman. After a jury trial, defendant was found guilty of first degree murder and sentenced to life imprisonment without parole. Defendant subsequently gave notice of appeal in open court on 16 January 2013. After careful consideration, we find no error.\nThe State\u2019s evidence tended to show the following: Officer Robert Smith of the Rocky Mount Police Department testified that on 4 June 2011 he was at Club Rain working security detail when he was alerted that there was going to be a fight. He and Officer Anthony Creech approached a growing crowd. He saw defendant \u201cget into the face\u201d of Pittman and then \u201cstrike [him] in the throat, almost like he pushed him with two hands in the throat area.\u201d As Officer Smith removed Pittman from the club, he tasted blood in his mouth and felt a warm liquid spray in his eyes. He then saw Pittman lying on the ground \u201cbleeding out.\u201d\nMr. Russell Ray Rouse, Jr. testified that on 4 June 2011 he was working security when he heard a fight was about to break out between two black males over money. Mr. Rouse saw defendant and Pittman \u201cface off\u2019 for approximately 20 seconds before defendant made a swiping motion \u201ctowards [defendant\u2019s] mouth and around the neck area of Pittman.\u201d Defendant then struck Pittman in the throat, and Pittman was \u201cholding his neck and when he moved his hand, blood shot out of his neck.\u201d\nOfficer Creech of the Rocky Mount Police Department testified that he saw defendant and Pittman standing approximately three feet apart from each other, but he did not hear them arguing. To be safe, he told the men to \u201cback up.\u201d He noticed that Pittman started backing up when defendant \u201clunge [d] at him with his thumb and he pushed him with his left hand and jabbed it towards the throat section.\u201d Dr. William Oliver performed an autopsy on Pittman and concluded that the cause of death was a single slit-like stab wound perforating inward near the trachea that cut the jugular vein and the carotid artery.\nDefendant testified that he and Pittman had been acquaintances since the early 1990s, and had no troubles with one another. Defendant went to Club Rain around midnight; he admitted to sneaking a pocket knife through security, explaining that he carried one every day for protection. Defendant was drinking heavily. At some point, defendant felt himself get pushed; he turned and saw that Pittman was behind him. The men started fighting: defendant said, we \u201cwas face to face and we arguing and to me like it seemed like he was taking a step forward. So, that\u2019s when I - I pushed him with both hands. And that\u2019s when the incident occurred.\u201d Defendant pulled out the knife because he \u201cdidn\u2019t know what his intentions were[.]... I pulled it out for my protection.\u201d In an alleged effort to defend himself, defendant pushed Pittman \u201cjust hard enough to get him off me. Like to get him from out of my - out of my arm reach.\u201d At the close of the State\u2019s evidence and after the defense rested, defendant moved to dismiss the charge of first degree murder based on a lack of premeditation and deliberation. The trial court denied both motions.\nII. Denial of Motion to Dismiss\nDefendant argues that the trial court erred in denying his motion to dismiss the charge of first degree murder because the State presented insufficient evidence that he acted with premeditation and deliberation. We disagree.\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). On a motion to dismiss for insufficiency of evidence, \u201c \u2018the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIn making its determination, the trial court must consider all evidence admitted, 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.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nFirst degree murder is the intentional and unlawful killing of another human being with malice and with premeditation and deliberation. See N.C. Gen. Stat. \u00a7 14-17 (2011).\n\u201cPremeditation\u201d means that the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing. \u201cDeliberation\u201d means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.\nState v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991) (citations omitted).\n\u201cGenerally, premeditation and deliberation must be proved by circumstantial evidence because they are not susceptible of proof by direct evidence.\u201d State v. Misenheimer, 304 N.C. 108, 113, 282 S.E.2d 791, 795 (1981) (quotation and citation omitted). \u201c[A]lthough there may have been time for deliberation, if the purpose to Mil was formed and immediately executed in a passion, especially if the passion was aroused by a recent provocation or by mutual combat, the murder is not deliberate and premeditated.\u201d Id. (alteration in original).\nOur courts have found the following circumstances to be instructive as to whether circumstantial evidence of premeditation and deliberation exists: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the Mlling; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the Mlling was done in a brutal manner. State v. Joplin, 318 N.C. 126, 130, 347 S.E.2d 421, 423-24 (1986).\nDefendant argues that \u201cnone of these factors was present here to a degree that a reasonable mind would accept as adequate to support a conclusion of premeditation and deliberation beyond a reasonable doubt.\u201d We are not persuaded.\nBased on the criteria set forth above, the State presented sufficient circumstantial evidence of premeditation and deliberation. First, there was want of provocation on the part of the deceased because no evidence showed that Pittman threatened or otherwise provoked defendant, other than possibly bumping into him. The cause of the fight is uncertain and Pittman was unarmed.\nSecond, defendant\u2019s conduct was inconsistent with a man acting in self-defense. Defendant testified that he pulled out his knife \u201cfor my protection\u201d and admitted to pushing Pittman \u201cjust hard enough to get him off me.\u201d However, the State presented evidence to the contrary. Officer Smith saw defendant \u201cget into the face\u201d of Pittman before striking him. Mr. Rouse saw defendant make a swiping motion towards his own mouth and then around Pittman\u2019s throat area, likely signaling that he was carrying a small weapon. Most notably, when Officer Creech asked the men to \u201cback up,\u201d defendant lunged and delivered the fatal blow as Pittman was backing away - undermining defendant\u2019s theory of self-defense. Defendant\u2019s conduct and the want of provocation on the part of the deceased constituted substantial evidence to put the issue of premeditation and deliberation before the jury. The trial court did not err in denying defendant\u2019s motion to dismiss.\nIII. Notice of Self-defense\nDefendant argues that the trial court committed reversible error when it informed the jury pool, without objection, that he gave notice of self-defense. \u201cAs a general rule, defendant\u2019s failure to object to alleged errors by the trial court operates to preclude raising the error on appeal.\u201d State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985); N.C.R. App. P. 10(a). However, defendant avers that this issue is properly before us despite his failure to object at trial because the trial judge acted contrary to statutory mandate. We disagree and hold that defendant has waived his right to appeal this issue by failing to object at trial.\nThe North Carolina discovery statutes are codified in Chapter 15A, Article 48 of our general statutes. These statues mandate our discovery procedures. Specifically, N.C. Gen. Stat. \u00a7 15A-905(c) (2011) provides that, upon motion by the State, a defendant must give notice of his intent to offer certain defenses at trial, including notice of self-defense. The notice of defense is inadmissible against the defendant at trial. N.C. Gen. Stat. \u00a715A-905(c) (2011).\nChapter 15A, Article 72 contains the statutory procedures for selecting and impaneling a jury. N.C. Gen. Stat. \u00a7 15A-1213 (2011) specifically addresses the trial court\u2019s duty to orient the prospective jurors as to the case:\nPrior to selection of jurors, the judge must identify the parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge, the date of the alleged offense, the name of any victim alleged in the pleading, the defendant\u2019s plea to the charge, and any affirmative defense of which the defendant has given pretrial notice as required by Article 52, Motions Practice. The judge may not read the pleadings to the jury.\nN.C. Gen. Stat. \u00a7 15A-1213 (2011) (emphasis added). Defendant argues, inter alia, that the trial judge had a duty to exclude evidence from the jury of his notice of self-defense sua sponte because such disclosure violated N.C. Gen. Stat. \u00a7 15A-905(c). Again, \u00a7 15A-905(c) is a discovery statute, not a statute included within Article 72 for selecting and impaneling a jury.\nWhile speaking to the prospective jury pool, the trial judge made the following statement, likely pursuant to N.C. Gen. Stat. \u00a7 15A-1213: \u201cDefendant, ladies and gentlemen, has entered a plea of not guilty and given the affirmative defense of self-defense.\u201d There is no evidence that the trial court acted contrary to statutory mandate. In fact, the opposite is true. The trial judge properly informed the prospective jurors of the' affirmative defense defendant noticed. See N.C. Gen. Stat. \u00a7 15A-1213; see generally State v. Berry, 51 N.C. App. 97, 102, 275 S.E.2d 269, 273 cert. denied, 303 N.C. 182, 280 S.E.2d 454 (1981) (Trial judge did not err when he asked defense counsel in the presence of the jury whether there were any affirmative defenses of which counsel wished the judge to inform the jury). As defendant failed to preserve this issue for our review, we decline to address the merits of his argument on appeal.\nIV. Conclusion\nIn sum, the trial court did not err in denying defendant\u2019s motions to dismiss. The State presented substantial evidence to put the issue of premeditation and deliberation before the jury. We conclude that defendant received a trial free from error.\nNo error.\nJudges CALABRIA and STEPHENS concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.", "Kathryn L. VandenBerg for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CORNELIUS JEVON CLARK\nNo. COA13-561\nFiled 17 December 2013\n1. Homicide \u2014 first-degree murder \u2014 sufficient evidence\nThe trial court did not err in a homicide case by denying defendant\u2019s motion to dismiss the charge of first-degree murder. The State presented sufficient evidence of each element of the charge, including that defendant acted with premeditation and deliberation.\n2. Appeal and Error \u2014 preservation of issues \u2014 failure to object at trial\nDefendant waived his right to appeal the issue of whether the trial court erred by informing the jury pool that defendant had given notice of self-defense by failing to object to the instruction at trial.\nAppeal by defendant from judgment entered 17 January 2013 by Judge Marvin K. Blount, III in Nash County Superior Court. Heard in the Court of Appeals 9 October 2013.\nAttorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.\nKathryn L. VandenBerg for defendant." }, "file_name": "0421-01", "first_page_order": 431, "last_page_order": 436 }