State v. Norman

WEBB, Justice.

The defendant’s first assignment of error is to the court’s denial of his motion to dismiss the charge of first degree murder on the ground that the State failed to prove premeditation and deliberation or a specific intent to kill. Whatever the defendant’s intent, there was substantial evidence that it was formed after premeditation and deliberation. The defendant said that as he was arguing with his wife, he remembered what a friend had told him about his son’s passing out after holding his breath and the defendant decided to choke his wife until she passed out. This is evidence from which a jury could find the defendant formed the intent to kill his wife for some period of time before the killing. See State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981). It is also evidence from which a jury could find the intent was formed in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation. See State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981). There was sufficient evidence of premeditation and deliberation to submit to the jury.

In determining whether there was sufficient evidence of intent to kill it is necessary to look at all the circumstances. The deliberate strangling of a person to death is some evidence that the strangler intended to kill. The defendant denied such an intent, but the jury did not have to believe this testimony. When this evidence is coupled with the statements of the victim that if her son left the room the defendant would kill her, and with her plea to the defendant to let her write a letter to her son before he killed her, there is sufficient evidence of intent to kill to submit to the jury. See State v. Artis, 325 N.C. 278, 384 S.E.2d 470, death sentence vacated, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990); State v. Cauley, 244 N.C. 701, 94 S.E.2d 915 (1956). The statements of the victim were not the statements of the defendant, as to his intent, but they were evidence of what the victim thought was. the intent of the defendant and the jury could consider this evidence.

The defendant’s first assignment of error is overruled.

The defendant contends, under his second assignment of error, that the court improperly allowed several questions by the prosecuting attorney. When the defendant testified, the prosecuting attorney asked him on cross-examination about several pictures which were found in his briefcase. The defendant identified one of the pictures, which the prosecutor described as a picture of a girl “with her breast hanging out,” as a picture of his brother’s girlfriend. He identified three pictures of a nude woman as pictures taken at a club he had operated. The prosecuting attorney asked the defendant if he had been involved with this woman and the defendant denied that he had been so involved. The prosecuting attorney also questioned the defendant about a letter found in his briefcase from a Teresa Kolka in which Miss Kolka said, “[w]ell, I’ve been staying out of the candy, unfortunately,” and “[y]es, I am still interested and I really enjoy pictures. I’ll be waiting.” The defendant denied he had ever been involved with Teresa Kolka.

The defendant says that the testimony which these questions were intended to elicit was irrelevant and should have been excluded under N.C.G.S. § 8C-1, Rules 401 and 402. He also says the probative value of this testimony was substantially outweighed by the danger of unfair prejudice and it should have been excluded under N.C.G.S. § 8C-1, Rule 403. The defendant also says this testimony was admitted to prove his character in order to show he acted in conformity therewith and was inadmissible under N.C.G.S. § 8C-1, Rule 404(b). Finally, the defendant says the specific instances about which the prosecuting attorney inquired were not probative of truthfulness or untruthfulness and should not have been admitted under N.C.G.S. § 8C-1, Rule 608(b). See State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).

The defendant answered in the negative as to all the questions about which he now complains. It is not clear that he was prejudiced by these questions. The defendant had testified that he loved his wife and did not intend to kill her. This opened the door to questions by the State as to matters which would show the defendant did not love his wife, as evidenced by his affairs with other women. See State v. Darden, 323 N.C. 356, 372 S.E.2d 539 (1988). The defendant, by his testimony, made this subject relevant under Rule 401 and admissible under Rule 402.

This assignment of error is overruled.

No error.

Justice LAKE did not participate in the consideration or decision of this case.