{ "id": 8523128, "name": "STATE OF NORTH CAROLINA v. GEORGIA JACKSON TORRES", "name_abbreviation": "State v. Torres", "decision_date": "1990-07-17", "docket_number": "No. 892SC510", "first_page": "364", "last_page": "380", "citations": [ { "type": "official", "cite": "99 N.C. App. 364" } ], "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": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "789" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "316 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "280" } ], "opinion_index": 0 }, { "cite": "311 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681330 ], "year": 1984, "pin_cites": [ { "page": "219-20" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0214-01" ] }, { "cite": "365 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "321 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566239 ], "year": 1988, "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0689-01" ] }, { "cite": "306 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "256 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "year": 1979, "pin_cites": [ { "page": "536-37" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0524-01" ] }, { "cite": "308 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "307" } ], "opinion_index": 0 }, { "cite": "309 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763381 ], "year": 1983, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0570-01" ] }, { "cite": "319 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687238, 4680845, 4684206, 4682901, 4686333 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0406-03", "/nc/311/0406-01", "/nc/311/0406-05", "/nc/311/0406-02", "/nc/311/0406-04" ] }, { "cite": "308 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 101", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522267 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0101-01" ] }, { "cite": "300 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519726 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0132-01" ] }, { "cite": "298 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562412 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0370-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "911" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "345 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "216" } ], "opinion_index": 0 }, { "cite": "317 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778861 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0308-01" ] }, { "cite": "264 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550279 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0574-01" ] }, { "cite": "166 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558305 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0198-01" ] }, { "cite": "268 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564096 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0578-01" ] }, { "cite": "378 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "324 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2481966 ], "year": 1989, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0253-01" ] }, { "cite": "305 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762828 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0001-01" ] }, { "cite": "455 U.S. 1038", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11385393, 11385354 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/455/1038-02", "/us/455/1038-01" ] }, { "cite": "283 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567383 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0201-01" ] }, { "cite": "429 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7010 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/429/0492-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "581" } ], "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "377 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "Defendant plainly invoked the right to counsel when he unequivocally stated, \"I want my lawyer.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482016 ], "year": 1989, "pin_cites": [ { "parenthetical": "Defendant plainly invoked the right to counsel when he unequivocally stated, \"I want my lawyer.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0118-01" ] }, { "cite": "302 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "308 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707923 ], "year": 1983, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0272-01" ] }, { "cite": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 3, "year": 1981, "opinion_index": 1, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 1, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "660 P.2d 505", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10429746 ], "year": 1983, "pin_cites": [ { "page": "509", "parenthetical": "\"an ambiguous indication of an interest in having counsel requires cessation of police interrogation\"" } ], "opinion_index": 2, "case_paths": [ "/p2d/660/0505-01" ] }, { "cite": "57 L.Ed.2d 1123", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "pin_cites": [ { "parenthetical": "interrogation must stop when defendant asks interrogating officers whether they thought she needed an attorney" } ], "opinion_index": 2 }, { "cite": "436 U.S. 958", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1490475, 1490188, 1490316, 1490190, 1490235, 1490642, 1490227, 1490676, 1490228, 1490646, 1490619 ], "year": 1978, "pin_cites": [ { "parenthetical": "interrogation must stop when defendant asks interrogating officers whether they thought she needed an attorney" } ], "opinion_index": 2, "case_paths": [ "/us/436/0958-04", "/us/436/0958-05", "/us/436/0958-07", "/us/436/0958-10", "/us/436/0958-06", "/us/436/0958-11", "/us/436/0958-02", "/us/436/0958-01", "/us/436/0958-08", "/us/436/0958-09", "/us/436/0958-03" ] }, { "cite": "261 N.W.2d 63", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1977, "pin_cites": [ { "page": "64" } ], "opinion_index": 2 }, { "cite": "50 L.Ed.2d 76", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "pin_cites": [ { "parenthetical": "when the accused asked interrogating officers \"do you think we need an attorney,\" officers were required to cease questioning" } ], "opinion_index": 2 }, { "cite": "429 U.S. 816", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6048, 7911, 7850, 5771, 6447, 8111, 6835, 7093, 6300, 6559 ], "year": 1976, "pin_cites": [ { "parenthetical": "when the accused asked interrogating officers \"do you think we need an attorney,\" officers were required to cease questioning" } ], "opinion_index": 2, "case_paths": [ "/us/429/0816-10", "/us/429/0816-03", "/us/429/0816-07", "/us/429/0816-05", "/us/429/0816-09", "/us/429/0816-06", "/us/429/0816-02", "/us/429/0816-01", "/us/429/0816-08", "/us/429/0816-04" ] }, { "cite": "542 P.2d 1390", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1975, "pin_cites": [ { "page": "1394-95" } ], "opinion_index": 2 }, { "cite": "100 L.Ed.2d 927", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "pin_cites": [ { "parenthetical": "appropriate response to ambiguous assertion of right to counsel should be a request by police interrogators for clarification" } ], "opinion_index": 2 }, { "cite": "486 U.S. 1057", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6368160, 6370018, 6370954, 6370540, 6370765, 6369038, 6369677, 6368755, 6369267, 6369463, 6370200, 6369849, 6370392, 6368508, 6368319 ], "year": 1988, "pin_cites": [ { "parenthetical": "appropriate response to ambiguous assertion of right to counsel should be a request by police interrogators for clarification" } ], "opinion_index": 2, "case_paths": [ "/us/486/1057-01", "/us/486/1057-10", "/us/486/1057-15", "/us/486/1057-13", "/us/486/1057-14", "/us/486/1057-05", "/us/486/1057-08", "/us/486/1057-04", "/us/486/1057-06", "/us/486/1057-07", "/us/486/1057-11", "/us/486/1057-09", "/us/486/1057-12", "/us/486/1057-03", "/us/486/1057-02" ] }, { "cite": "524 A.2d 685", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7878812 ], "year": 1987, "pin_cites": [ { "page": "700-01" } ], "opinion_index": 2, "case_paths": [ "/a2d/524/0685-01" ] }, { "cite": "479 U.S. 523", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219506 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "529" }, { "page": "928" } ], "opinion_index": 2, "case_paths": [ "/us/479/0523-01" ] }, { "cite": "475 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6206467 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "633" }, { "page": "640" } ], "opinion_index": 2, "case_paths": [ "/us/475/0625-01" ] }, { "cite": "298 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "334" } ], "opinion_index": 2 }, { "cite": "307 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562375 ], "year": 1983, "pin_cites": [ { "page": "362" } ], "opinion_index": 2, "case_paths": [ "/nc/307/0357-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "484-85" }, { "page": "386" }, { "page": "387" } ], "opinion_index": 2, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "583" }, { "page": "581" }, { "page": "583" } ], "opinion_index": 2 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "414-15" }, { "page": "415" } ], "opinion_index": 2, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "479" }, { "page": "726" } ], "opinion_index": 2, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1294, "char_count": 36470, "ocr_confidence": 0.773, "pagerank": { "raw": 3.955622697319349e-07, "percentile": 0.9039945958239264 }, "sha256": "c69a20bcc3c89583744c5b3ca200fbd112d413cc4470d4839ec45f95e97edec7", "simhash": "1:8a28c222015bac74", "word_count": 6027 }, "last_updated": "2023-07-14T22:38:52.620321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge PARKER concurs in the result.", "Judge Greene dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGIA JACKSON TORRES" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe State\u2019s evidence tended to show that Sheriff Joe Sykes was called to the home of Tino and Georgia Torres at approximately 6:30 p.m. on 28 February 1988 to investigate a shooting. Upon arrival, Sheriff Sykes found the victim, Tino Torres, in the living room lying on his back. Shortly thereafter, the rescue squad arrived, placed Mr. Torres on a stretcher and transported him to the emergency room of the Beaufort County Hospital. Mr. Torres, however, died some time later.\nDefendant, Georgia Torres, was transferred to the Sheriff\u2019s Department for purposes of investigation, but was not under arrest. When she asked whether she needed an attorney, she was told that \u201cshe did not need one at that time.\u201d Defendant then awaited questioning in a conference room with two of her daughters and two family friends. Just prior to being questioned by the investigating officers, defendant was advised of her Miranda rights, as prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), asked if she wanted an attorney present and informed that she could stop answering questions whenever she desired. Defendant indicated that she understood her rights and that she did not want an attorney present. Irrespective of the fact that no promises or assurances were made, defendant made a statement. Georgia Torres was later charged with second-degree murder.\nAn autopsy subsequently performed by Dr. Stan Harris revealed that Mr. Torres had been shot five times. Gunshot entrances were observed to the left upper arm, the front left chest, the right chest, the left lower abdomen and just below the rib cage. Based upon the paths of the bullets, it was concluded that the bullet to the victim\u2019s left upper arm shattered a bone thereby making it doubtful that he (Mr. Torres) could have used his arm after receiving that particular gunshot wound and that the fatal shot could have been fired while Mr. Torres was on the floor. Since the autopsy did not reveal evidence of powder residue on the wounds, it was further concluded that the shots were fired some distance away from victim. The results of a blood alcohol test suggested that Mr. Torres was intoxicated during the altercation.\nDefendant\u2019s account of the events of 28 February was wholly contradictory to that of the State\u2019s and tended to show the following. Defendant, after marrying Tino Torres in October, 1986, became a victim of his long history of drinking and abusive behavior. On the night prior to the shooting, defendant and Mr. Torres drove to a Beaufort County bar where the couple got into a verbal disagreement and physical fight. The police were summoned by the bartender and Mr. Torres went to a friend\u2019s house, leaving defendant at the bar.\nOn 28 February, Mr. Torres arrived at defendant\u2019s house at approximately 6:15 p.m. to pick up his belongings. Upon his arrival, an argument between defendant and Torres started and moments later a fight ensued. Defendant, allegedly concerned about her safety and the safety of her family, picked up a rifle and shot her husband three times. (Contrary to the defendant\u2019s assertion that she only shot her husband three times, medical reports conclusively establish that Mr. Torres was, in fact, shot five times.) Defendant alleges that her actions were not premeditated and deliberated and that she shot her husband in self-defense.\nOn appeal, defendant brings forth nine questions for this Court\u2019s review. By Assignment of Error number one, defendant contends that the trial court erroneously denied her motion to suppress statements that were obtained in violation of her constitutional rights. Defendant bases her contention on the fact that she believes that she was in custody once the officers transported her from her house to the Beaufort County Sheriff\u2019s Department and that the officers interrogated her without the presence of counsel. Following a careful review of the evidence, we conclude defendant\u2019s constitutional rights were not violated.\nUnquestionably, a suspect in custody must be informed of his constitutional rights before being questioned by law enforcement officers. State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). Where \u201can accused requests the presence of counsel, he may not be subjected to further interrogation by the police until counsel has been made available to him, unless the accused himself initiates further communication with the officers.\u201d State v. Ladd, 308 N.C. 272, 285, 302 S.E.2d 164, 173 (1983). If, however, an accused merely makes an inquiry as to whether he needs an attorney, he has not invoked his constitutional privilege to counsel. See State v. McQueen, 324 N.C. 118, 377 S.E.2d 38 (1989) (Defendant plainly invoked the right to counsel when he unequivocally stated, \u201cI want my lawyer.\u201d); State v. Ladd, supra. (Defendant undeniably invoked his right to counsel when he stated \u201cI will tell you where the rest of the money is after I talk to my lawyer.\u201d) The warnings required by Miranda v. Arizona, supra, are not necessary where a person is not in custody or not being questioned. State v. Braswell, supra. On appeal, the reviewing court must first determine whether the person was in custody at the time of questioning and then whether the person was, in fact, interrogated for Miranda purposes. If it is concluded that the person was not in custody during the time of questioning, any confession made will be admissible. State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982). The reviewing court must utilize\nan objective test of whether a reasonable person in the suspect\u2019s position would believe that he had been taken into custody or otherwise deprived of his freedom of action in any significant way or, to the contrary, would believe that he was free to go at will.\nId. at 410, 290 S.E.2d at 581. See also Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).\nThe record in the case sub judice indicates that: (1) a voir dire hearing was conducted on the admissibility of defendant\u2019s confession; (2) findings of fact and conclusions of law were made by the trial court; and (3) the motion to suppress defendant\u2019s statements was thereafter denied. If supported by competent evidence in the record, the trial court\u2019s findings of fact following a voir dire hearing on the voluntariness of a confession are conclusive on appeal and may not be modified or set aside by the reviewing court. State v. Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455 U.S. 1038 (1982).\nInasmuch as we are bound by the record, we are unable to adopt defendant\u2019s position that she would have been detained had she chosen to get up and leave the Sheriff\u2019s Department prior to the time she gave her statement. Testimonial evidence suggests that defendant would have only been detained after she was advised of her Miranda rights, asked if she wanted an attorney present and informed that she could stop answering questions whenever she desired. For it was at this point that she was considered \u201cin custody,\u201d despite defendant\u2019s assertions that she was under arrest when she was transported to the Sheriff\u2019s Department; during the time she waited in the conference room with her daughters and family friends; and during the time she asked if she needed an attorney present. Furthermore, defendant\u2019s reliance upon State v. Ladd, supra, and State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983), is misplaced since in both instances the defendant clearly indicated his decision to invoke his right to counsel. Here, defendant merely inquired as to whether she needed an attorney present. Thus, defendant\u2019s constitutional rights were not violated and the trial court\u2019s findings of fact and conclusions of law on the volun-tariness of defendant\u2019s statements were not in error. This assignment of error is overruled.\nDefendant next contends that the second-degree murder conviction must be vacated since there was insufficient evidence of malice and since she acted in imperfect self-defense. We disagree.\nNorth Carolina recognizes that under certain circumstances, the right to kill becomes an inherent right of natural law, but that such recourse is only justifiable where there is a real or apparent necessity. It is further recognized that\na defendant is entitled to have the jury consider acquittal by reason of perfect self-defense when the evidence, viewed in the light most favorable to the defendant, tends to show that at the time of the killing it appeared to the defendant and she believed it to be necessary to kill the decedent to save herself from imminent death or great bodily harm.\nState v. Norman, 324 N.C. 253, 259, 378 S.E.2d 8, 12 (1989). However, if the defendant is the initial aggressor, but is without intent to kill or seriously injure the decedent, and the decedent intensifies the confrontation to the point where it is reasonable for the defendant to believe that she must kill the decedent to save herself from imminent death or great bodily harm, such defendant is not justified in the killing, but is guilty of a lesser charge. Id.\nIn the present case, no evidence was introduced necessitating a jury instruction on imperfect self-defense. The evidence instead tended to show that the victim was intoxicated at the time of the altercation, unarmed and posed no immediate harm to the defendant or any member of her family. Thus, the trial court\u2019s instruction to the jury on self-defense was proper.\nSecond-degree murder is defined as the unlawful killing of a human being with malice, but without evidence of premeditation and deliberation. State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980). The element of malice may be either expressed or implied. As a general rule, malice exists as a matter of law whenever there has been an unlawful and intentional homicide without an excuse or mitigating factors. State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969). Malice, nonetheless, may be implied from the use of a deadly weapon, individual circumstances, or the actions of the defendant. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348 (1980).\nIn light of the fact that the evidence presented at the sentencing hearing shows defendant, without a justifiable excuse or mitigating factors, shot Mr. Torres five times at some distance away with a rifle, we remain unpersuaded that the defendant shot her husband with anything less than malice and therefore overrule this assignment of error.\nBy Assignment of Error number three, defendant contends that the trial court erred by overruling her objections to the testimony of Dr. Harris, an expert in pathology, that one of the shots could have been fired while the victim was on the floor. Defendant argues that Dr. Harris expressed an opinion on issues to be decided by the jury. We disagree.\nIn considering defendant\u2019s contention, we must apply the general guidelines enunciated in State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986), and State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). As articulated in both cases, \u201c[t]he admissibility of expert opinion depends not on whether it would invade the jury\u2019s province, but rather on \u2018whether the witness ... is in a better position to have an opinion . . . than is the trier of fact.\u2019 \u201d State v. Saunders, supra at 314, 345 S.E.2d at 216, quoting State v. Wilkerson, supra at 568-69, 247 S.E.2d at 911.\nHere, Dr. Harris\u2019 testimony was properly admitted pursuant to G.S. \u00a7 8C-1, Rule 702 which provides that:\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\nHis opinion as to the positioning and path of the bullets was based upon his examination of the bullet entrances during an autopsy. Clearly, as the pathologist who performed the autopsy of the victim, Dr. Harris was in the best position to assist the jury in understanding the characteristics of the victim\u2019s wounds and determining whether the defendant acted in self-defense when she shot her husband. Thus, the trial court did not err in allowing Dr. Harris to testify that in his opinion one of the shots could have entered the victim while the victim was on the floor. This assignment of error is overruled.\nBy Assignments of Error five and six, defendant challenges the trial court\u2019s consideration of premeditation, deliberation and the victim\u2019s mental state as aggravating factors in her sentencing.\nAs previously stated by this Court and our Supreme Court,\n[t]he primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender\u2019s culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.\nG.S. \u00a7 15A-1340.3; see also State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983), and State v. Hough, 61 N.C. App. 132, 300 S.E.2d 409 (1983). Where, as here, the preponderance of the evidence shows that the victim was intoxicated and the defendant knew it, the trial court must find that the victim was mentally infirmed at the time he was killed. See State v. Potts, 65 N.C. App. 101, 308 S.E.2d 754 (1983), disc. rev. denied, 311 N.C. 406, 319 S.E.2d 278 (1984).\nWe do not believe that the prosecutor\u2019s election to charge defendant with second-degree murder rather than first-degree murder prevented the trial court from finding that the defendant acted with premeditation and deliberation. We also do not believe that the preponderance of the evidence establishes something less than premeditation and deliberation. Accordingly, the trial court properly found as aggravating factors that the defendant\u2019s actions were both premeditated and deliberated and that the victim was mentally infirm\u00e9d at the time he was killed.\nDefendant\u2019s next two Assignments of Error challenge the trial court\u2019s failure to find as mitigating factors defendant\u2019s good standing in the community and her alleged mental condition that significantly reduced her culpability.\nAt a sentencing hearing, a defendant bears the burden of persuasion on the issue of mitigating factors. He, in essence, is asking the court to find that \u201cthe evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn.\u201d State v. Taylor, 309 N.C. 570, 577, 308 S.E.2d 302, 307 (1983), quoting North Carolina National Bank v. Burnette, 297 N.C. 524, 536-37, 256 S.E.2d 388, 395 (1979). As defined by statute, the mitigating factor of good character refers to the defendant\u2019s good character and reputation in the community in which he lives. See G.S. \u00a7 15A-1340.4(a)(2)m. We note that\n[determining the credibility of evidence is at the heart of the fact-finding function. Nevertheless, ... we must find the sentencing judge in error if he fails to find a statutory factor when evidence of its existence is both uncontradicted and manifestly credible.\nState v. Jones, 309 N.C. 214, 220, 306 S.E.2d 451, 456 (1983).\nIn the case under discussion, defendant\u2019s evidence of her good character and reputation is uncontradicted, however, it is not manifestly credible. With the exclusion of one witness, the other witnesses were acquaintances from work and had no knowledge of defendant\u2019s character and reputation in the community in which she lived. The only defense witness that could express an opinion as to defendant\u2019s reputation in the community testified that defendant \u201cenjoys having a good time.\u201d Such testimony is not overwhelmingly persuasive on the question of defendant\u2019s good character or good reputation in the community where she lives. We therefore conclude that the testimony is not manifestly credible.\nDefendant further contends that the testimony of Dr. Sharon Willingham concerning the \u201cbattered wife syndrome\u201d required the sentencing judge to find, as a mitigating factor, that she suffered from a mental condition as provided in G.S. \u00a7 15A-1340.4(a)(2)d. While we note that the term \u201cmental condition\u201d pursuant to G.S. \u00a7 15A-1340.4(a)(2)d has been held to include the abused spouse syndrome, we also note that a \u201c[failure to find a nonstatutory mitigating factor, even when it is supported by uncontradicted, substantial, and manifestly credible evidence, will not be disturbed absent an abuse of that discretion.\u201d State v. Holden, 321 N.C. 689, 697, 365 S.E.2d 626, 630 (1988). We have reviewed the evidence, but detect no abuse of the trial judge\u2019s discretion.\nFinally, we have considered, but find it unnecessary to discuss defendant\u2019s last Assignment of Error that the trial court erred by failing to find, as mitigating factors, that defendant acted under strong provocation or that her relationship with her husband was extenuating. Suffice it to say that \u201c[ujncontradicted, quantitatively substantial, and credible evidence may simply fail to establish, by a preponderance of the evidence, any given factor in aggravation or mitigation.\u201d State v. Michael, 311 N.C. 214, 219-20, 316 S.E.2d 276, 280 (1984), quoting State v. Blackwelder, 309 N.C. 410, 419, 306 S.E.2d 783, 789 (1983). This assignment of error is overruled.\nWe conclude that defendant received a fair trial, free of prejudicial error, and that the sentence imposed on her conviction was proper.\nNo error.\nJudge PARKER concurs in the result.\nJudge Greene dissents.", "type": "majority", "author": "JOHNSON, Judge." }, { "text": "Judge PARKER\nconcurring in the result.\nI concur in the result only for the reason that in my opinion defendant was in custody while she was detained at the Sheriff\u2019s Department before questioning. Under the objective standard in State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982), the question is whether a reasonable person in the suspect\u2019s position would believe that he was in custody or free to leave. The sheriff\u2019s deputy testified that if defendant had attempted to leave, she would not have been allowed to do so. The record also reveals, however, that prior to any questioning by any law enforcement officials, defendant was not only read her constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), but she was specifically asked if she wanted a lawyer at that time. After consulting with a friend who was present, defendant responded that she did not. In view of this specific exchange concerning defendant\u2019s desire for counsel, defendant\u2019s earlier question in the patrol car as to whether she needed a lawyer and the response that she did not need a lawyer at that time were of no consequence. Unlike in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed. 2d 378 (1981), defendant did not make a specific request for counsel, and the question was asked and answered several hours before any interrogation took place. Defendant made no incriminating statements prior to being informed of her rights, and the evidence reveals no indication of pressure or coercion for her to talk. Defendant was obviously cognizant of the importance of counsel. She had several hours not only to consider but also to talk with friends and relatives who were in and out as to whether she should have a lawyer. Under these circumstances defendant, in my opinion, freely, voluntarily, and knowingly waived her right to remain silent and to have counsel present before being interrogated or giving her statement. For this reason the trial court did not err in denying the motion to suppress.", "type": "concurrence", "author": "Judge PARKER" }, { "text": "Judge Greene\ndissenting.\nThe trial court entered the following pertinent findings of fact and conclusions of law:\nFindings of Fact\n4. That on the evening of February 28th, 1988, the defendant, Georgia Jackson Torres, was at her residence, this being after the death of one Florentine Conteras Torres, and that several deputy sheriffs had arrived at said premises, Deputy Sheriff Joe Sykes being one of the early arrivals; that Deputy Sheriff Sykes made inquiry about what happened the night before and that subsequently Deputy Sheriff Joe Sykes transported the defendant, Georgin [sic] Ann Torres, along with the defendant\u2019s close friend, Brenda Purser, to the Sheriff\u2019s Department in the City of Washington.\n5. That the defendant at that time was not under arrest.\n6. That the defendant was placed in a conference room in the Sheriff\u2019s Department and that two of the defendant\u2019s daughters, along with Brenda Purser and Charles Purser, were at the Sheriff\u2019s Department.\n7. That before the interview of the defendant by S.B.I. Agent Lewis Young and Deputy Sheriff Donald Deese, the defendant was in the conference room of the Sheriff\u2019s Depart- > ment in the company of Deputy Sheriff Sykes and was subsequently in the office of Sheriff Sheppard.\n8. That her children were in and out and at the point where the defendant made inquiry about an attorney she was advised that she did not need one at that time.\n9. That the defendant had not been placed under arrest during any such inquiry.\n12. That while the defendant was in Sheriff Sheppard\u2019s office she was advised that Officer Donald Deese and S.B.I. Agent Lewis Young would question her and she asked if somebody could be with her stating that she wanted Charles Purser and Brenda Purser to be with her and that was arranged; that thereafter S.B.I. Agent Lewis Young and Deputy Sheriff Donald Deese went to Sheriff Sheppard\u2019s office to begin the interview with the defendant, Georgia Jackson Torres, and that present with her throughout the complete interview that extended from 10:35 p.m., February 28, 1988 to 12:40 o\u2019clock a.m. the next day were five individuals, to-wit: Young, Deese, Torres and Mr. and Mrs. Purser, with Charles Purser leaving only temporarily to obtain a soft drink for the defendant, Georgia Torres.\n14. That the defendant prior to the commencement of the interview by S.B.I. Agent Young and Deputy Sheriff Deese was advised of her constitutional rights in conformity with the Miranda decision (Miranda v. Arizona, 384 U.S. 436).\nConclusions of Law\n1. None of the constitutional rights, either federal or state, of the defendant were violated by her detention, interrogation or statements.\n4. That the defendant was in full understanding of her constitutional rights to remain silent and right to counsel and all other rights and that she freely, knowingly, intelligently and voluntarily waived each of those rights and thereupon made a statement to Officers Young and Deese.\n5. That the statement made by the defendant to Officers Young and Deese on February 28, 1988 and February 29, 1988 was made freely, voluntarily and understandingly.\n\u201cThe determination of whether an individual is \u2018in custody\u2019 during an interrogation so as to invoke the requirements of Miranda requires an application of fixed rules of law and results in a conclusion of law and not a finding of fact.\u201d State v. Davis, 305 N.C. 400, 414-15, 290 S.E.2d 574, 583 (1982). Determination of custody is based \u201cupon an objective test of what a reasonable person in the suspect\u2019s position would believe that he had been taken into custody or otherwise deprived of his freedom of action in any significant way or, to the contrary, would believe that he was free to go at will.\u201d Davis, at 410, 290 S.E.2d at 581. Here, the trial court made no finding or conclusion concerning the issue of \u2018custody.\u2019 The findings of the trial court that the defendant was \u201cnot under arrest,\u201d while relevant to the issue of whether a person is in custody, are not determinative of that issue. See State v. Freeman, 307 N.C. 357, 362, 298 S.E.2d 331, 334 (1983).\nNevertheless, the trial court\u2019s failure to enter a conclusion on the issue of whether the defendant was in \u2018custody\u2019 at any relevant time does not preclude this court from making a conclusion on the issue \u201cwhe[n] the historical facts are uncontroverted and clearly reflected in the record. . . .\u201d Davis, 305 N.C. at 415, 290 S.E.2d at 583.\nCombining the uncontradicted facts in the record with the findings of fact entered by the trial court, it is revealed that the defendant, at the request of Deputy Sheriff Sykes, traveled from her home in a sheriff\u2019s patrol car to a conference room at the sheriff\u2019s department. She was picked up at her home at 6:30 p.m. and arrived at the sheriff\u2019s department at approximately 7:00 p.m. She was placed in a conference room in the sheriff\u2019s department and remained in the presence of Deputy Sykes until 10:30 p.m., at which time two S.B.I. agents arrived and entered the room and remained in the room until 12:40 a.m. the following morning. Deputy Sykes, without advising the defendant of her Miranda rights, questioned the defendant \u201cabout what happened the night before.\u201d Sykes testified that if defendant had attempted to leave the conference room, he would have detained her. At some point between 7:00 p.m. and 10:30 p.m. the defendant made inquiry of either or both Deputy Sykes and Sheriff Nelson Sheppard as to whether she needed an attorney, and she was told that \u201cshe did not need one at that time.\u201d S.B.I. Agents Lewis Young and Donald Deese advised defendant of her Miranda rights at approximately 10:30 p.m. Specifically, Agent Young testified:\nQ. All right. Prior to the time of asking her any questions, was she advised of her Miranda warnings?\nA. Yes sir, she was.\nQ. What did you . . . what did you tell her and what was her response?\nA. I advised her she had the right to remain silent and not make any statement; that anything you say can be used against you in Court; you have the right to talk to a lawyer for advice before we ask you any questions and have him or anyone else with you during questioning. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish one. Next I asked her if she wanted a lawyer now and . . .\nQ. What . . . what did she tell you?\nA. Well, at first she acted like she didn\u2019t know which . ... what she wanted to do and I indicated to her that that question meant did you want a lawyer right now in this very room while we talked; it doesn\u2019t mean you can\u2019t have a lawyer at another time or stop any time you want to, and she seemed hesitant as to what she wanted to do. She turned to the Pursers and they had some conversation about it and I told her all we needed was a \u201cyes\u201d or \u201cno,\u201d that we could not advise her what to do. She ultimately answered \u201cno,\u201d and then we went on and I advised her, if you decide to answer questions now without a lawyer present you have the right to stop answering them at any time. I asked her, \u201cdo you understand each of these rights I have explained to you?\u201d she answered, \u201cyes, I do.\u201d I asked her, \u201chaving these rights in mind, do you wish to talk to us and answer questions now.\u201d She answered, \u201cyes, I will.\u201d\nI believe these facts require the conclusion that the defendant was in custody and was subjected to interrogation not only when she was in the presence of the S.B.I. agents but also at the time she made her inquiry of Deputy Sykes as to whether she needed an attorney present at the time. A deputy sheriff requested defendant to travel to the sheriff\u2019s department in a patrol car. She was placed in a conference room at the sheriff\u2019s department under the guard of a sheriff\u2019s deputy for almost six hours and was questioned by both Sykes and the two S.B.I. agents regarding the events of the homicide. The defendant was at no time advised that she did not have to travel to the sheriff\u2019s department with Deputy Sykes, nor was she ever told that she was free to leave the sheriff\u2019s department. In my opinion, a reasonable person in the defendant\u2019s position would have believed that she had been taken into custody and would not have believed that she was free to go at will. In fact, the events occurring made a belief that she was not free to leave the more reasonable belief.\nThe Fifth and Fourteenth Amendments require that any custodial interrogation of defendant be preceded by advising the defendant that she has a right to the presence of an attorney. Miranda v. Arizona, 384 U.S. 436, 479, 16 L.Ed.2d 694, 726 (1966). Once a defendant invokes her right to have counsel present during the custodial interrogation, the defendant \u201cis not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.\u201d Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L.Ed.2d 378, 386 (1981). This is so even if defendant has been further advised of his Miranda rights and waived those rights. Id.\nHere, the defendant did not specifically request a lawyer but instead inquired of a custodial law enforcement officer whether she needed a lawyer at the time. The officer responded in the negative. Because the State has the burden of establishing a valid waiver and all doubts must be resolved in favor of protecting constitutional claims, Michigan v. Jackson, 475 U.S. 625, 633, 89 L.Ed.2d 631, 640 (1986), \u201ca broad, rather than a narrow, interpretation [must be given] to a defendant\u2019s request for counsel.. . .\u201d Id.; Connecticut v. Barrett, 479 U.S. 523, 529, 93 L.Ed.2d 920, 928 (1987). In my opinion, when the custodial officer refused to seek clarification of whether the defendant specifically wanted a lawyer present prior to any questioning, the inquiry of the defendant regarding her need for a lawyer must be accepted as a request for a lawyer. See Ruffin v. United States, 524 A.2d 685, 700-01 (D.C. 1987), cert. denied, 486 U.S. 1057, 100 L.Ed.2d 927 (1988) (appropriate response to ambiguous assertion of right to counsel should be a request by police interrogators for clarification); People v. Superior Court of Mono County, 542 P.2d 1390, 1394-95 (1975), cert. denied, 429 U.S. 816, 50 L.Ed.2d 76 (1976) (when the accused asked interrogating officers \u201cdo you think we need an attorney,\u201d officers were required to cease questioning); People v. Alexander, 261 N.W.2d 63, 64 (1977), cert. denied, 436 U.S. 958, 57 L.Ed.2d 1123 (1978) (interrogation must stop when defendant asks interrogating officers whether they thought she needed an attorney); People v. Fish, 660 P.2d 505, 509 (1983) (\u201can ambiguous indication of an interest in having counsel requires cessation of police interrogation\u201d); LaFave & Israel, Criminal Procedure \u00a7 6.9, at 532 (1984) (\u201can inquiry whether the police officer could recommend an attorney\u201d is an assertion of right to counsel by implication). Accordingly, all further police-\u201cinitiated custodial interrogation\u201d should have ceased until such time as counsel was made available to the defendant or until such time as defendant initiated further conversation with the deputies or S.B.I. agents. Edwards, at 485, 68 L.Ed.2d at 387.\nSince the confession was the result of police initiated custodial interrogation which occurred after the defendant had invoked her right to counsel, the confession was not admissible, and in my opinion the defendant is entitled to a new trial.\n. Assuming arguendo that the defendant was not subjected to custodial interrogation until the S.B.I. agents arrived, the defendant\u2019s assertion of a desire to speak with an attorney prior to their arrival was nonetheless a sufficient invocation of her right to counsel barring any police initiated interrogation. See LaFave & Israel, Criminal Procedure \u00a7 6.9, at 109 (Supp. 1990).", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Steven F. Bryant, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGIA JACKSON TORRES\nNo. 892SC510\n(Filed 17 July 1990)\n1. Criminal Law \u00a7 75.7 (NCI3d)\u2014 defendant not in custody \u2014no interrogation without benefit of counsel\nThere was no merit to defendant\u2019s contention that she was in custody once officers transported her from her house to the sheriff\u2019s department and that officers interrogated her without the presence of counsel, since defendant was not in custody until she was advised of her Miranda rights, asked if she wanted an attorney present, and informed that she could stop answering questions whenever she desired, despite her assertions that she was under arrest when she was transported to the sheriff\u2019s department, during the time she waited in a conference room with her daughters and family friends, and during the time she asked if she needed an attorney present.\nAm Jur 2d, Evidence \u00a7\u00a7 555-557.\n2. Homicide \u00a7 28 (NCI3d) \u2014 imperfect self-defense \u2014instruction not required\nThe trial court in a second degree murder case did not err in failing to instruct on imperfect self-defense where the evidence tended to show that the victim was intoxicated at the time of the altercation, was unarmed, and posed no immediate harm to defendant or any member of her family.\nAm Jur 2d, Homicide \u00a7\u00a7 157, 519.\n3. Homicide \u00a7 21.7 (NCI3d)\u2014 second degree murder \u2014 sufficiency of evidence of malice\nThere was sufficient evidence of malice in a second degree murder case where the evidence tended to show that defendant, without a justifiable excuse or mitigating factors, shot her husband five times at some distance away with a rifle.\nAm Jur 2d, Homicide \u00a7 438.\n4. Homicide \u00a7 15.4 (NCI3d)\u2014 position of victim when shot \u2014 expert testimony admissible\nThe trial court in a second degree murder case did not err in allowing the testimony of an expert in pathology that one of the shots which entered the victim could have been fired while he was on the floor.\nAm Jur 2d, Homicide \u00a7 397.\n5. Criminal Law \u00a7 1166 (NCI4th)\u2014 sentencing \u2014 aggravating factor of victim\u2019s intoxication\nWhere the preponderance of the evidence showed that the victim was intoxicated and the defendant knew it, the trial court, in determining factors which would aggravate defendant\u2019s sentence, was required to find that the victim was mentally infirm at the time he was killed.\nAm Jur 2d, Homicide \u00a7\u00a7 552, 554.\n6. Criminal Law \u00a7 1123 (NCI4th>\u2014 sentencing \u2014 aggravating factor of premeditation and deliberation\nIn a second degree murder prosecution the trial court properly found as an aggravating factor that defendant\u2019s actions were premeditated and deliberate, since the prosecutor\u2019s election to charge defendant with second degree murder rather than first degree murder did not prevent the court from finding that defendant acted with premeditation and deliberation, and the preponderance of the evidence established nothing less than premeditation and deliberation.\nAm Jur 2d, Homicide \u00a7\u00a7 552, 554.\n7. Criminal Law \u00a7 1266 (NCI4th)\u2014 sentencing \u2014 mitigating factor of good standing in community \u2014insufficient evidence\nThe trial court did not err in failing to find as a mitigating factor defendant\u2019s good standing in the community, though defendant\u2019s evidence of her good character and reputation was uncontradicted, since the evidence was not manifestly credible in that it consisted of testimony by defendant\u2019s acquaintances at work who had no knowledge of defendant\u2019s character and reputation in the community in which she lived, and the only defense witness who could express an opinion as to defendant\u2019s reputation in the community testified that defendant \u201cenjoys having a good time.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(2)m.\nAm Jur 2d, Homicide \u00a7\u00a7 552, 554.\n8. Criminal Law \u00a7 1222 (NCI4th) \u2014 sentencing \u2014 mitigating factor of mental condition \u2014 court not required to find\nExpert testimony concerning the battered wife syndrome did not require the sentencing judge to find as a mitigating factor for defendant\u2019s second degree murder of her husband that she suffered from a mental condition that significantly reduced her culpability, since failure to find a nonstatutory mitigating factor, even when it is supported by uncontradicted, substantial, and manifestly credible evidence, will not be disturbed absent an abuse of discretion.\nAm Jur 2d, Homicide \u00a7\u00a7 552, 554.\nJudge PARKER concurring in the result.\nJudge Greene dissenting.\nAppeal by defendant from judgment entered 14 October 1988 by Judge James R. Strickland in BEAUFORT County Superior Court. Heard in the Court of Appeals on 10 January 1990.\nAfter a trial by jury, defendant was convicted of second-degree murder in violation of G.S. \u00a7 14-17. Upon conviction, the trial court imposed an active prison term of thirty years. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Steven F. Bryant, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0364-01", "first_page_order": 394, "last_page_order": 410 }