{ "id": 2510833, "name": "STATE OF NORTH CAROLINA v. ROWLAND ANDREW HEDGEPETH", "name_abbreviation": "State v. Hedgepeth", "decision_date": "1991-10-03", "docket_number": "No. 614A87", "first_page": "38", "last_page": "56", "citations": [ { "type": "official", "cite": "330 N.C. 38" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "1 ALR3d 1461", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "343 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "316 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703691 ], "year": 1986, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0387-01" ] }, { "cite": "362 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "year": 1987, "opinion_index": 0 }, { "cite": "359 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726653 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0581-01" ] }, { "cite": "327 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2494725 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0439-01" ] }, { "cite": "230 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558651, 8558604, 8558621, 8558638 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0450-04", "/nc/291/0450-01", "/nc/291/0450-02", "/nc/291/0450-03" ] }, { "cite": "228 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547813 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0111-01" ] }, { "cite": "84 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "234 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549130 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0262-01" ] }, { "cite": "236 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 163", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562385, 8562353, 8562276, 8562323 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0163-04", "/nc/293/0163-03", "/nc/293/0163-01", "/nc/293/0163-02" ] }, { "cite": "234 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547819 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0061-01" ] }, { "cite": "298 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "392" }, { "page": "392" }, { "page": "392" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519491 ], "weight": 4, "year": 1982, "pin_cites": [ { "page": "97" }, { "page": "97" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0092-01" ] }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "308 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522320 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0107-01" ] }, { "cite": "365 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2572052 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0676-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" }, { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "25 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "223 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600687 ], "opinion_index": 0, "case_paths": [ "/nc/223/0129-01" ] }, { "cite": "254 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568581 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0247-01" ] }, { "cite": "279 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "year": 1981, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "373 S.E.2d 426", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "428" }, { "page": "457" }, { "page": "428" }, { "page": "458" }, { "page": "428" } ], "opinion_index": 0 }, { "cite": "323 N.C. 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560540 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0455-01" ] }, { "cite": "377 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "62", "parenthetical": "Expert witness not precluded from testifying as to whether defendant able to formulate prerequisite intent." } ], "opinion_index": 0 }, { "cite": "324 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486736 ], "year": 1989, "pin_cites": [ { "page": "159", "parenthetical": "Expert witness not precluded from testifying as to whether defendant able to formulate prerequisite intent." } ], "opinion_index": 0, "case_paths": [ "/nc/324/0146-01" ] }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 6, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] } ], "analysis": { "cardinality": 1316, "char_count": 39732, "ocr_confidence": 0.76, "pagerank": { "raw": 3.5697597037590026e-07, "percentile": 0.8862221310972184 }, "sha256": "d996baf4da72a204085177c8315e96540c8ba45e13dbebf577cc64861af57869", "simhash": "1:da6ed322561f1c68", "word_count": 6556 }, "last_updated": "2023-07-14T21:55:04.423674+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ROWLAND ANDREW HEDGEPETH" ], "opinions": [ { "text": "EXUM, Chief Justice.\nOn proper bills of indictment, defendant was tried and convicted of assault with a deadly weapon with intent to kill inflicting serious injury upon his estranged wife, Beverly Hedgepeth, and of first-degree murder of Richard Casey. Defendant was sentenced to death on the murder conviction and to twenty years imprisonment on the felonious assault conviction.\nDefendant appeals, assigning numerous errors to all phases of his trial.\nWe find no error in defendant\u2019s murder conviction or in his conviction on the felonious assault charge. However, we vacate the sentence of death and remand to the trial court for a new capital sentencing proceeding pursuant to McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990).\nI.\nThe State\u2019s evidence tends to show the following:\nDuring the night of 12-13 February 1987 defendant\u2019s estranged wife, accompanied by Richard Casey and Dennis and Ruth Morgan, was at Howard Johnson\u2019s restaurant for breakfast. Defendant entered the restaurant and sat at a booth near the others. Seeing that defendant had a gun, Dennis Morgan went over and sat with him. Morgan, who had known defendant for years, believed defendant was \u201cangry\u201d and under the influence of alcohol. Referring to his estranged wife and Casey, defendant told Morgan that he \u201cwas going to kill both of them and he was going to kill himself.\u201d Defendant said \u201c[t]hat son-of-a-bitch has had \u2022 every woman in Roanoke Rapids, but he won\u2019t have her.\u201d Defendant balled up a pack of cigarettes and threw it toward the booth where his wife was seated, saying \u201c[s]moke that cigarette bitch, it\u2019ll be your last one.\u201d He said to Morgan, \u201cI\u2019ve been thinking about this for seven months now.\u201d\nDefendant told Morgan, \u201cI love that woman.\u201d Defendant also said that Mrs. Hedgepeth had already caused one man to kill himself, referring to her first husband. Morgan told defendant Mrs. Hedgepeth\u2019s first husband had raped a child, and defendant became angrier because he had not been previously informed of this. Morgan \u2022repeatedly attempted to discourage defendant from shooting his wife and from committing suicide.\nDefendant went over to the booth where his wife and Casey were sitting. Casey told defendant he wanted no trouble. Defendant responded, \u201cLet me show you trouble\u201d or \u201cThis is trouble.\u201d Defendant drew a pistol and fired at Casey. Defendant fired several more times at Casey and once at Mrs. Hedgepeth.\nA police officer entered the restaurant and ordered defendant to freeze. Defendant threw out' his gun, said \u201cI quit,\u201d and was arrested.\nCasey died from the effects of four gunshot wounds. Mrs. Hedgepeth suffered a gunshot wound to her left ear which was closed with stitches. The ear has since caused problems, including pain and ringing.\nDefendant\u2019s evidence tends to show the following:\nDefendant suffered a serious head injury in 1976 when he fell from a second story window onto a concrete sidewalk. The accident altered his personality, rendering him less patient and more prone to act on impulse; it reduced his tolerance for alcohol.\nDefendant testified as follows: Before 1976, he had been convicted of \u201cengaging in an affray in public, simple assault, a few driving tickets, speeding or something like that, one public drunkenness, that\u2019s all.\u201d He had spent no time in prison before 1976. After his head injury in 1976, he was convicted of simple assaults, damage to personal property, damage to real property and drunk and disorderly conduct. He had never been convicted of any crime involving use of a knife or gun. Neither had he been convicted of a felony, although he did spend some time in prison at the Triangle Correctional Facility for- a pre-sentence study. This study included psychiatric evaluation.\nEach time he had been in trouble with the law, drinking was involved. He would successfully abstain from alcohol for long periods of time but occasionally suffered relapses.\nWhile defendant and Mrs. Hedgepeth were separated they discussed reconciliation, and he maintained a close relationship with their son and his stepdaughter. Mrs. Hedgepeth told defendant she was dating other men and who they were. Defendant learned in late January 1987 that his wife was seeing Richard Casey..\nOn 12 February 1987 Mrs. Hedgepeth told defendant she was not going to reconcile with him. After she told defendant where she was going that night, defendant asked who she would be dating. She replied, \u201cThat\u2019s none of your business. If you want to see, you come see, but don\u2019t come anywhere near us.\u201d\nAfter defendant entered Howard Johnson\u2019s restaurant and sat down, Morgan joined him and said defendant should not be there. Defendant replied that his wife had told him he could come to see who she was dating. Defendant, maintaining he still loved his wife, expressed his belief that she was seeing other men even before their separation. Morgan responded, \u201cI know.\u201d This made defendant even angrier than he had initially been. Defendant got \u201cmadder by the minute\u201d because of these and other comments by Morgan.\nDefendant also told Morgan about how his wife had laughed at him when he told her he was thinking about committing suicide. Morgan told defendant to think about his son. Defendant replied that he had been thinking about his son for seven months. Morgan explained that Beverly wasn\u2019t, worth all this trouble.\nMorgan asked defendant if he knew why Beverly\u2019s first husband had killed himself. According to Morgan, defendant\u2019s response was wrong. Morgan then told defendant that the first husband had sexually molested the couple\u2019s daughter. Defendant immediately flew into a rage at Beverly for not having told him the truth about her first marriage especially when, according to Mr. Morgan, many other people knew the reason.\nDefendant got up from the booth and Morgan asked why defendant didn\u2019t just take \u201chim\u201d (Casey) outside. Defendant replied that he would bust Casey up a little if he got smart. Defendant then confronted his wife for lying to him about the sexual molestation. Casey told him to shut up and get out, and defendant responded that he was talking to his wife. Casey told defendant several times to leave, and refused to accompany him if he did, saying \u201c \u2018I\u2019m not going anywhere with you. Why don\u2019t you just shut up and go on. All you are is mouth.\u2019 \u201d\nDefendant started to leave but turned back. While looking toward Morgan, defendant saw Casey stand up. Defendant drew his gun and shot Casey. After firing several shots at Casey, defendant leaned into the booth and heard his wife scream, \u201cI\u2019m hit.\u201d\nA police officer arrived on the scene and forced defendant to lie facedown on the floor of the restaurant. Defendant was still clicking off empty rounds of his gun. He testified that only then did he realize what he had done. He denied going into the restaurant in order to kill either his wife or Casey.\nDr. Stanley Preston Oakley testified that defendant\u2019s fall in 1976 caused persistent nerve damage and cerebral bleeding. This resulted in organic brain syndrome, which causes disorganized thinking and confusion. Several other doctors diagnosed defendant as having extreme difficulty in controlling his impulses due to the brain trauma. Dr. Oakley concluded that defendant\u2019s ability to conform his conduct to the requirements of the law was \u201cdefinitely impaired\u201d by the head injury at the time he shot Richard Casey.\nThe State presented rebuttal evidence, which tends to show the following:\nAfter the shootings, defendant underwent testing at Dorothea Dix Hospital by Dr. Bob Rollins. Although Dr. Rollins did not dispute the possible effects of organic brain damage, he believed, based on tests he conducted on defendant, that defendant\u2019s impairment was minimal. Dr. Rollins believed the head injury exacerbated defendant\u2019s already poor judgment. Even though he thought defendant was intoxicated at the time of. the shootings, Dr. Rollins believed that defendant could form the specific intent to kill. On cross-examination, Dr. Rollins testified that defendant was under the influence of a \u201cmental or emotional disturbance\u201d at the time of the shooting and that his \u201cability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law\u201d was impaired.\nAt the close of all evidence, the trial court instructed the jury and submitted possible verdicts. On the murder charge, the trial court submitted alternatives of first-degree murder, second-degree murder, manslaughter, and not guilty. The jury found defendant guilty of first-degree murder. On the felonious assault charge, the trial court submitted alternatives of assault with a deadly weapon with intent to kill inflicting serious injury, assault with a deadly weapon inflicting serious injury, assault with a deadly weapon, and not guilty. The jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury.\nThe trial court then conducted a capital sentencing proceeding on defendant\u2019s first-degree murder conviction. After hearing evidence of both aggravating and mitigating circumstances, the jury found unanimously and beyond a reasonable doubt the only aggravating circumstance' submitted to it: that the \u201cmurder [was] part of a course of conduct in which the defendant engaged . . . [which] included the commission by the defendant of crimes of violence against other persons.\u201d\nThe trial court also submitted eleven proposed mitigating circumstances to the jury with the instruction that the jury must find each mitigating circumstance unanimously. The jury did not unanimously find any of the eleven mitigating circumstances submitted. Having found no mitigating circumstances, the jury then found unanimously and beyond a reasonable doubt that the aggravating circumstance was sufficiently substantial to call for the death penalty; and it recommended a sentence of death which the trial court imposed.\nThe trial court also conducted a sentencing hearing on defendant\u2019s assault conviction. The trial court concluded that certain found aggravating factors outweighed certain found mitigating factors. The trial court sentenced defendant to the maximum term of twenty years imprisonment on the assault conviction.\nII.\nBecause we are ordering a new sentencing hearing pursuant to McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990), we need not address defendant\u2019s assignments of error regarding the jury selection proceedings, all of which relate to juror attitudes to the death penalty. We turn, therefore, to the guilt phase issues.\nA.\nDefendant first contends the trial court erred in excluding his brother\u2019s testimony concerning defendant\u2019s relationship with his children and attempts to reconcile with his wife. The trial court excluded the following testimony by defendant\u2019s brother Billy, elicited on voir dire:\nIt was as if both kids belonged to [defendant] and it was a lot of love there, and always a good relationship they had from the standpoint I wished I had kids of my own. They looked up to me as if they did to him. And it was a good relationship.\nThe trial court also excluded Billy\u2019s testimony, again elicited on voir dire, that, \u201c[defendant] didn\u2019t change much after the separation other than he tried harder after the separation than he did before the separation to reconcil\u00edate the marriage, to bring things back together.\u201d\nAssuming, without deciding, that the testimony should have been admitted, we must determine if its exclusion was harmless. Since the error, if any, in excluding this evidence, is not of constitutional dimension, the burden is on defendant to show a reasonable possibility that the jury would have reached a different result had the evidence been admitted. N.C.G.S. \u00a7 15A-1443(a) (1977). Defendant has not carried this burden.\nThere is plenary and convincing evidence of all elements of first-degree murder, including premeditation and deliberation. This evidence centers on the events which occurred on the evening of the shootings. Evidence of defendant\u2019s good relations with his children and his earlier efforts at reconciliation with his wife has little probative value on what happened at the time of the shootings themselves. Further, defendant testified without contradiction about his desire for reconciliation and his relationship with his children. The jury was thus able to consider evidence of like import to that which was excluded. That the jury did so and nonetheless found defendant guilty of first-degree murder negates any reasonable possibility that the jury would have reached a different conclusion had it heard the excluded evidence. This assignment of error is therefore overruled.\nB.\nDefendant next contends the trial court should have excluded the testimony of Dr. Rollins, an expert for the State, that defendant was capable of forming the specific intent to kill. Dr. Rollins testified:\nQ: What is your opinion as to whether or not the defendant on February 13th, 1987 based on your examinations and talking with him, what is your opinion as to whether or not he on February 13th, whether his mind and reason were so completely intoxicated and overthrown that he could not form a specific intent to kill[?]\nMr CRANFORD: Objection.\nCOURT: Overruled.\nA: My opinion is that at that time Mr. Hedgepeth was intoxicated to some degree with alcohol. He was suffering from his basic personality problems, but it was my opinion that he wasn\u2019t so impaired that he was unable to form a specific intent.\nThere is no error in the admission of this testimony. State v. Clark, 324 N.C. 146, 159, 377 S.E.2d 54, 62 (1989) (Expert witness not precluded from testifying as to whether defendant able to formulate prerequisite intent.); State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428 (1988) (\u201c[T]rial court properly allowed [psychiatric] testimony that . . . defendant could not form the specific intent to kill . . .\nC.\nDefendant next assigns as error the trial court\u2019s instructions to the jury concerning the inference of malice arising from defendant\u2019s use of a deadly weapon.\nThe trial court initially instructed the jury as follows:\nNow I instruct you that in order for you to find the defendant guilty of first degree murder, the State must prove six things beyond a reasonable doubt:\nFirst, the defendant intentionally and with malice killed Richard Casey with a deadly weapon.\nMalice means not only hatred, ill will, or spite, as it is ordinarily understood to mean \u2014 to be sure, that is malice \u2014 but malice also means that condition of the mind which prompts a person to take the life of another intentionally or to inflict intentionally serious bodily harm which proximately results in the victim\u2019s death without just cause, excuse, or justification. If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the death of Richard Casey, you may infer first, that the killing was unlawful, and second, that it was done with malice, but you are not compelled to do so. You may consider this along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.\nA firearm such as a .22 caliber revolver which has been introduced into evidence in the trial of this case is a deadly weapon.\nSecond, the State must prove that the defendant\u2019s acts was [sic] a proximate cause of the death of Richard Casey. A proximate cause is a real cause, a cause without which the death of Ricky Casey would not have occurred.\nThird, the State must prove the defendant intended to kill Richard Casey. Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties and other relevant circumstances.\nFourth, the defendant acted with premeditation, that is, that he formed the intent to kill the victim over some period of time, however short, before he acted.\nFifth, the defendant acted with deliberation, which means that he acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion. If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.\n(Emphasis added.)\nAfter the jury had deliberated for some time it returned to request that the trial judge instruct it again concerning the elements of first- and second-degree murder. The trial court instructed as follows regarding first-degree murder:\nNow I instruct you that in order for you to find the defendant guilty of first degree murder, the State must prove six things beyond a reasonable doubt:\nNow I had to define self-defense because it is one of the six things, but it\u2019s the last one I\u2019ll mention.\nThe six things the State must prove beyond a reasonable doubt is [sic]:\nFirst, the defendant intentionally and with malice killed the victim with a deadly weapon.\nSecond, the defendant\u2019s act was a proximate cause of the victim\u2019s death.\nThird, the defendant intended to kill the victim.\nFourth, the defendant acted with premeditation.\nFifth, the defendant acted with deliberation.\nAnd sixth, the defendant did not act in self-defense or that the defendant was the aggressor in bringing on the fight with the intent to kill or with the intent to inflict serious bodily harm upon the deceased.\nNow that is the bare bones minimum of the six elements. Now in the course of my instructions to you as I gave you each of those elements I supplemented my instructions by adding this as to the first element:\nThe defendant intentionally and with malice killed the victim with a deadly weapon.\nI went on to instruct you initially; Malice not only means hatred, ill will, or spite, as it is ordinarily understood to mean \u2014 to be sure, that is malice \u2014but malice also means the condition of the mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily harm which proximately results in the death of the victim without just cause, excuse or justification. If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon or that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the victim\u2019s death, you may infer first, that the killing was unlawful, and second, that it was done with malice, but you are not compelled to so infer. You may consider this along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.\n(Emphasis added.)\nDefendant assigns error to the italicized portions of the above instructions. He argues that it was error for the trial court to omit the word \u201cintentionally\u201d before the word \u201ckilled\u201d in each instance that the court instructed on the inference of malice. Defendant did not object at trial to these instructions. We review the alleged error, consequently, under the plain error doctrine.\nIt was error for the trial court to omit the word \u201cintentionally,\u201d as defendant contends. \u201cUpon a showing that there has been an intentional killing with a deadly weapon, the law permits the jury to infer that the homicide was committed with malice.\u201d State v. Hutchins, 303 N.C. 321, 346, 279 S.E.2d 788, 804 (1981); accord State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979). In State v. Barrage, 223 N.C. 129, 25 S.E.2d 393 (1-943), defendant was convicted of first-degree murder and sentenced to death. The State\u2019s evidence was that defendant killed the victim by shooting her with a pistol. Defendant\u2019s evidence tended to show that he did not intend to kill the victim but that she was shot in a struggle over the pistol. This Court found reversible error in the trial court\u2019s instructions to the jury that malice could be presumed \u201cfrom the us\u00e9 of a deadly weapon.\u201d The Court said, \u201cThe vice common to these instructions is the failure to instruct that it is the intentional killing of a human being with a deadly weapon which raises the presumption of malice. . . . [T]he law is well established in this state that the intentional killing of a human being with a deadly weapon implies malice, and, if nothing else appears, constitutes murder in the second degree.\u201d Id. at 133, 25 S.E.2d at 396.\nWe are confident that while the omission of the word \u201cintentionally\u201d at the places in the instruction about which defendant complains was error, it( falls far short of rising to the level of plain error. Plain error arises\nin the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding-that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).\nHere the instructions required the jury to find as an essential element of first-degree murder that defendant intentionally killed Richard Casey with a deadly weapon. The instructions, taken as a whole, make it clear that the killing of Casey must have been intentional in order for defendant to be convicted of first-degree murder. By its verdict of guilty of this crime the jury must have found an intentional killing. Essentially all the evidence, both that of the State and defendant, shows that the killing of Casey was intentional, as opposed to accidental. Had the error not been committed the outcome of the trial would have been the same. The error, therefore, had no probable impact on the jury\u2019s verdict. This assignment of error is overruled.\nD.\nDefendant next assigns error to the trial court\u2019s instruction on the legal effect of his mental and emotional condition at the time of the shooting. During the instructions, the trial court told the jurors that:\n[y]ou may consider any or all of the evidence introduced relating to the mental and emotional condition of the defendant at the time of the shooting on the following issues: whether the defendant acted with premeditation at the time of the shooting; and whether the defendant acted with deliberation, that is in a cool state of mind at the time of the shooting.\nDefendant did not object to the instruction at trial but raises the issue for the first time on appeal. The question, therefore, is whether the instruction amounted to plain error.\nDefendant argues the instruction was erroneous because it did not permit the jury to consider defendant\u2019s mental or emotional condition on the issue of defendant\u2019s specific intent to kill his victim. He relies primarily on State v. Rose, 323 N.C. 455, 373 S.E.2d 426. In Rose, the trial court refused to submit the defendant\u2019s requested jury instruction, supported by the evidence, that it \u201cmay consider the Defendant\u2019s mental condition in connection with his ability to form the specific intent to kill.\u201d Id. at 457, 373 S.E.2d at 428. We held that the trial court\u2019s failure to give the instruction was reversible error \u201cin light of the centrality of the issue of defendant\u2019s state of mind . . . .\u201d Id. at 458, 373 S.E.2d at 428.\nIn Rose, the defense was that defendant was either legally insane or, if sane, then mentally incapable of forming a specific intent to kill and premeditating and deliberating. Because the issue of defendant\u2019s mental capacity was so crucial in Rose, we held that failure to submit the requested instruction was prejudicial error pursuant to the standard of review in N.C.G.S. \u00a7 15A-1443(a) (1977).\nSince defendant did not request any particular instruction or object to the charge as given, we apply the \u201cplain error\u201d standard of review previously discussed. Under this standard, defendant must demonstrate that the defect in the jury instruction was so fundamental as to have had a probable impact on the guilty verdict. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378.\nWe are confident no plain error occurred in the challenged instruction. Unlike in Rose, the instructions here did direct the jury to consider evidence of defendant\u2019s mental state on the elements of premeditation and deliberation. The jury, nevertheless, found beyond a reasonable doubt the existence of these elements. There can be little doubt that had the jury been told to consider this evidence on the specific intent to kill el\u00e9ment of the crime, it would have, nevertheless, found the existence of the element. The error complained of, therefore,- was not fundamental to the fairness of the trial and had no probable impact on the jury\u2019s verdict.\nE.\nDefendant next assigns error to the peremptory instruction given by the trial court on the \u201cserious injury\u201d element of the felonious assault charge. Defendant argues that the trial court, in effect, directed a verdict for the State on this element of the offense. We find no merit in defendant\u2019s argument.\nBased on the State\u2019s evidence, the trial court instructed the jury on assault with a deadly weapon with intent to kill inflicting serious injury, and several lesser included offenses. During the course of these instructions, the trial court told the jurors that a \u201cserious injury\u201d under N.C.G.S. \u00a7 14-32(a) is \u201csuch physical injury as causes great pain and suffering.\u201d During its deliberations, the jury returned to the courtroom and requested that the trial judge define serious injury. The court responded:\nWhen I was instructing you, I advised you that serious injury is such physical injury as causes great pain and suffering. In the case you are considering, I would instruct you that a bullet wound which is through and through, that is enters the flesh and exits the flesh is a serious injury.\n(Emphasis added.) Defendant\u2019s objection to the charge was overruled. The jury returned to its deliberations and, approximately eight minutes later, decided on a verdict of guilty.\nDefendant contends the highlighted portion of the instruction invades the province of the jury by requiring it to find that a shot passing through the victim\u2019s ear constitutes a serious injury. Although we have never directly addressed this issue, we find no error in what was effectively the trial court\u2019s peremptory instruction on the serious injury element of the crime.\nWhether a serious injury has been inflicted depends upon the facts of each case and is generally for the jury to decide under appropriate instructions. State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988). A jury may consider such pertinent factors as hospitalization, pain, loss of blood, and time lost at work in determining whether an injury is serious. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494 (1983). Evidence that the victim was hospitalized, however, is not necessary for proof of serious injury. State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978).\nAlthough this Court has never considered whether the trial judge may peremptorily instruct the jury on the serious injury element of N.C.G.S. \u00a7 14-32, the Court of Appeals has long upheld such peremptory instructions. See State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494; State v. Pettiford, 60 N.C. App. 92, 298 S.E.2d 389 (1982); State v. Springs, 33 N.C. App. 61, 234 S.E.2d 193, disc. rev. denied, 293 N.C. 163, 236 S.E.2d 707 (1977); State v. Davis, 33 N.C. App. 262, 234 S.E.2d 762 (1977). In Pettiford, the C\u00f3urt of Appeals said \u201cwe find support for [this] reasoning in the historical position taken by our appellate courts in deadly weapon cases, upholding the authority of our courts to classify weapons as deadly as a matter of law.\u201d 60 N.C. App. at 97, 298 S.E.2d at 392. This Court also likens the peremptory instruction on serious injury to the case where a trial court refuses to submit a lesser included charge not including the serious injury element. State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954); State v. Williams, 31 N.C. App. 111, 228 S.E.2d 668, disc. rev. denied, 291 N.C. 450, 230 S.E.2d 767 (1976).\nAccordingly, we find merit in the standard espoused in Pettiford. The Pettiford court held that a trial court may peremptorily instruct the jury on the serious injury element of N.C.G.S. \u00a7 14-32 if the evidence \u201cis not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.\u201d 60 N.C. App. at 97, 298 S.E.2d at 392. We adopt this standard today. In the absence of conflicting evidence, a trial judge may instruct the jury that injuries to a victim are serious as a matter of law if reasonable minds could not differ as to their serious nature.\nNext, we must determine whether the facts of the present case support the trial court\u2019s peremptory instruction that Mrs. Hedgepeth\u2019s injuries were serious as a matter of law. Since defendant presented no evidence contradicting the State\u2019s evidence on Mrs. Hedgepeth\u2019s injuries, we need only consider whether reasonable minds could differ as to the seriousness of her injuries.\nBeverly Hedgepeth testified that she was struck by a bullet which traveled through the thickness of her ear, causing a laceration requiring six or seven stitches to close. When she was taken to the emergency room for treatment she was covered in blood, some of which was hers and some of which was Casey\u2019s. She also had lacerations and burns behind her ear. Since the shooting, she has had daily trouble with ringing in the ear.\nDr. Elliott Mantahali testified that he treated Beverly Hedgepeth in the emergency room after she was shot. Her head was covered with blood. She had a laceration and powder burns on her left hand. Another laceration requiring stitches extended from the front of her ear to the back, through its thickness. There was also an abrasion in the back of the ear in the mastoid area.\nWe think that reasonable minds could not differ as to the seriousness of Mrs. Hedgepeth\u2019s physical injuries. A bullet ripped through her ear mere inches from her skull. She required emergency room treatment for a gunshot wound, powder burns and lacerations on her hand and head. Her testimony indicates that her physical injuries may have some permanency since she was still suffering from daily ringing in her ear at the time of trial. We overrule this assignment of error.\nIII.\nIn the sentencing proceeding, we conclude there is reversible error in the trial court\u2019s jury instructions under McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369. The trial court\u2019s instructions and the verdict form required the jury to find unanimously the existence of each of eleven submitted mitigating circumstances, two of which were statutory, the mental or emotional disturbance circumstance, N.C.G.S. \u00a7 15A-2000(f)(2), and the impaired capacity circumstance, N.C.G.S. \u00a7 15A-2000(f)(6). The. jury failed to find unanimously any of the mitigating circumstances submitted. There was substantial evidence to support at least some, if not all, of the mitigating circumstances submitted to, but not unanimously found by, the jury, including those defined by statute. As we said in State v. Jones, 327 N.C. 439, 396 S.E.2d'309 (1990), \u201c[o]ne or more jurors may have believed some or all of [the submitted] circumstances existed and that the non-statutory circumstances had mitigating value.\u201d Id. at 449, 396 S.E.2d at 315. Therefore, we cannot conclude beyond a reasonable doubt that the McKoy error was harmless.\nIV.\nIn summary, we find no error in the guilt phase of defendant\u2019s trial for either the murder or the felonious assault conviction. For error in the sentencing proceeding on the first-degree murder conviction we remand for a new sentencing proceeding.\nNo. 87CRS775 \u2014 first-degree murder: death sentence vacated; remanded for new capital sentencing proceeding.\nNo. 87CRS776 \u2014felonious assault: no error.\n. While this Court has found no plain error, State v. McCoy, 320 N.C. 581, 359 S.E.2d 764 (1987), and no error, State v. Forrest, 321 N.C. 187, 362 S.E.2d 252 (1987), in instructions similar to the one at bar, the precise argument which defendant makes here was not made in those cases, and the Court did not consider the omission of the word \u201cintentionally\u201d in those cases as it might have affected the correctness of the instructions.\n. The North Carolina pattern instructions on N.C.G.S. \u00a7 14-32(a) provides that \u201c[s]erious injury may be defined \u2018as such physical injury as causes great pain and suffering.\u2019... If there is evidence as to injuries which could not conceivably be considered anything but serious, the trial judge may instruct the jury as follows: \u2018(Describe injury) would be a serious injury.\u2019\u201d N.C.P.I. \u2014 Crim. \u00a7 208.10 (repl. Oct. 1989). In the present case, the trial judge used essentially the same charge to the jurors.\n. \u201c[Wjhether the trial court may properly determine that an injury constitutes \u2018serious bodily injury\u2019 as a matter of law has not been settled by this Court.\u201d State v. Kuplen, 316 N.C. 387, 420, 343 S.E.2d 793, 811 (1986). The trial court in Kuplen had given a peremptory instruction that the injury under consideration was \u201cserious\u201d pursuant to a charge of first-degree rape under N.C.G.S. \u00a7 14-27. The defendant, however, failed to object and this Court found against him under the plain error standard. Id.\n. In a footnote to Pettiford, the majority opinion also noted that the trial court could, in appropriate circumstances, resolve this issue by simply refusing to submit a lesser included offense not including serious injury. 60 N.C. App. at 97, 298 S.E.2d at 392.", "type": "majority", "author": "EXUM, Chief Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Tiare B. Smiley, Special Deputy Attorney General, for the State.", "Thomas K. Maher for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROWLAND ANDREW HEDGEPETH\nNo. 614A87\n(Filed 3 October 1991)\n1. Homicide \u00a7 15,2 (NCI3d)\u2014 defendant\u2019s relationship with children and reconciliation attempts \u2014 exclusion harmless\nIn a prosecution for the first degree murder of a man who was dating defendant\u2019s estranged wife, error, if any, in the court\u2019s exclusion of testimony by defendant\u2019s brother concerning defendant\u2019s good relationship with his children and his attempts to reconcile with his wife was harmless where the jury heard similar testimony by defendant; such evidence had little probative value on what happened at the time of the murder; there was plenary and convincing evidence of all elements of first degree murder, including premeditation and deliberation; and there was no reasonable possibility that the jury would have found defendant not guilty of first degree murder had it heard the excluded evidence. N.C.G.S. \u00a7 15A-1443(a).\nAm Jur 2d, Homicide \u00a7 274.\n2. Homicide \u00a7 15.2 (NCI3d)\u2014 specific intent to kill \u2014 capability of defendant \u2014 expert testimony\nThe trial court did not err in allowing an expert for the State to testify that defendant was capable of forming the specific intent to kill on the date of an alleged murder.\nAm Jur 2d, Homicide \u00a7\u00a7 395, 397.\n3. Homicide \u00a7 24.1 (NCI3d)\u2014 presumptions from use of deadly weapon \u2014 omission of \u201cintentional\u201d in instructions \u2014no plain error\nWhile it was error for the trial court in a first degree murder case to omit the word \u201cintentionally\u201d before the word \u201ckilled\u201d in its instructions permitting the jury to infer unlawfulness and malice from proof \u201cthat the defendant killed the victim with a deadly weapon,\u201d this omission did not rise to the level of plain error where the instructions, taken as a whole, made it clear that the killing of the victim must have been intentional in order for defendant to be convicted of first degree murder; all the evidence showed that the killing was intentional as opposed to accidental; and the jury found an intentional killing by its verdict of guilty of first degree murder.\nAm Jur 2d, Homicide \u00a7\u00a7 265, 509.\n4. Homicide \u00a7 25.2 (NCI3d)\u2014 specific intent to kill \u2014 consideration of defendant\u2019s mental state \u2014 failure to instruct not plain error\nThe trial court\u2019s failure to instruct the jury in a first degree murder case that it could consider defendant\u2019s mental or emotional condition on the issue of defendant\u2019s specific intent to kill his victim did not constitute plain error where the court\u2019s instructions did direct the jury to consider evidence of defendant\u2019s mental and emotional state on the elements of premeditation and deliberation; the jury found the existence of those elements beyond a reasonable doubt; and there can be little doubt that the jury would have found the existence of the specific intent to kill element had it been told to consider evidence of defendant\u2019s emotional state on that element.\nAm Jur 2d, Homicide \u00a7 501.\n5. Assault and Battery \u00a7 32 (NCI4th|\u2014 felonious assault\u2014 peremptory instruction on serious injury \u2014 when permitted\nA trial court may peremptorily instruct the jury on the serious injury element of felonious assault, N.C.G.S. \u00a7 14-32, if the evidence is not conflicting and reasonable minds could not differ as to the serious nature of the victim\u2019s injuries.\nAm Jur 2d, Assault and Battery \u00a7 48; Homicide \u00a7 579.\n6. Assault and Battery \u00a7 32 (NCI3d)\u2014 felonious assault\u2014 peremptory instruction on serious injury \u2014 sufficient evidence\nThe trial court in a prosecution for felonious assault did not err in instructing the jury that a bullet wound that \u201centers the flesh and exits the flesh is a serious injury\u201d where the defendant presented no evidence contradicting the State\u2019s evidence on the victim\u2019s injuries, and reasonable minds could not differ as to the seriousness of the victim\u2019s injuries where the evidence showed that a bullet ripped through the victim\u2019s ear mere inches from her skull, the victim required emergency room treatment for a gunshot wound, powder burns and lacerations on her ear and hand, and the victim still suffered from daily ringing in her ear at the time of trial.\nAm Jur 2d, Assault and Battery \u00a7 48; Homicide \u00a7 579.\n7. Criminal Law \u00a7 1352 (NCI4th)\u2014 capital sentencing proceeding \u2014 McKoy error \u2014 death sentence vacated\nThere was prejudicial McKoy error in the sentencing phase of a first degree murder trial entitling a defendant who was sentenced to death to a new sentencing hearing where the court\u2019s instructions and the verdict form required the jury to find unanimously the existence of each of eleven submitted mitigating circumstances, two of which were statutory; the jury failed unanimously to find the existence of any of the mitigating circumstances submitted; and there was substantial evidence to support at least some, if not all, of the mitigating circumstances submitted.\nAm Jur 2d, Criminal Law \u00a7 600; Trial \u00a7 1113.\nUnanimity as to punishment in criminal case where jury can recommend lesser penalty. 1 ALR3d 1461.\nAPPEAL of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from judgment imposing death sentence entered by Small, J., at the 26 October 1987 Criminal Session of Superior Court, HALIFAX County. Defendant\u2019s motion to bypass the Court of Appeals on his related assault conviction was allowed 13 January 1988. Heard in the Supreme Court 15 November 1989.\nLacy H. Thornburg, Attorney General, by Tiare B. Smiley, Special Deputy Attorney General, for the State.\nThomas K. Maher for defendant-appellant." }, "file_name": "0038-01", "first_page_order": 66, "last_page_order": 84 }