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Criminal Practice – Murder – Circumstantial Evidence – Motive & Opportunity

State v. Miles (Lawyers Weekly No. 12-07-0888, 50 pp.) (Douglas McCullough, J.) (Ann Marie Calabria, J., dissenting) Appealed from Wilkes County Superior Court. (Ronald E. Spivey, J.) N.C. App.

Holding: Even though the state presented no direct evidence that defendant killed the victim, the state presented sufficient circumstantial evidence. The state proved motive in the form of a $40,000 debt and opportunity via cell phone records and testimony as to defendant’s threats and his possession of a gun like the one that killed the victim.

We find no error in defendant’s conviction of first-degree murder.

The victim owed defendant – his subcontractor – more than $40,000 for work performed in July 2007. Defendant began calling the victim’s cell and home phones demanding payment.

Between Sept. 20, 2007 and Oct. 18, 2007, defendant called the victim’s home or cell phone at least 94 times, including seven times on October 16, 11 times on October 17, and seven times on October 18, the day the victim was killed. After October 18, defendant never called the victim again.

Cell phone records showed defendant making his way from the Raleigh-Durham area, west to Wilkesboro – where the victim lived – around the time of the murder, and then back east to Durham.

The victim was shot in the back of the head at close range. The bullet was consistent with a gun that a witness had seen in defendant’s possession.

Where, as here, defendant does not dispute that the victim died by virtue of a criminal act, asserting only that the evidence presented was insufficient to support a reasonable finding that defendant was the perpetrator of the offense, we review the evidence for proof of motive, opportunity, capability and identity, all of which are merely different ways to show that a particular person committed a particular crime. Evidence of either motive or opportunity alone is insufficient to carry a case to the jury.

The state produced substantial circumstantial evidence from which the jury could conclude that defendant was the perpetrator of the offense and that defendant possessed the motive, means, and opportunity to murder the victim. The victim owed defendant over $40,000 for a subcontracting job performed several months before the murder. Defendant persistently contacted the victim over the summer demanding his money. Additionally, Alfreddie Roberson testified that defendant, defendant’s business, and defendant’s family were experiencing financial troubles. Thus, a rational juror could reasonably conclude that defendant’s strong financial interest in receiving payment from the victim constituted a financial motive.

Further, on the morning of the murder, defendant left the victim an angry voicemail stating that he would be retaining a lawyer, but not for the purposes of collecting his money, and threatening that the defendant would ultimately get “a hold of” the victim. A rational juror could reasonably infer that defendant was intentionally threatening the victim’s life. Similarly, Roberson stated that on the morning of the murder, defendant confided that if he did not obtain his money soon, he would kill the victim.

Roberson testified that later that same day, defendant told him that he was going to Wilkesboro to either collect his money from the victim or kill the victim. Roberson also testified that he had previously seen defendant with a handgun, the size of a 9 millimeter or .45 caliber firearm, which defendant stowed in the door of his truck. Roberson’s testimony constituted positive evidence of defendant’s motive and intention to murder the victim, but also established a question of fact as to whether defendant possessed a firearm equivalent to the .40 caliber murder weapon, which would establish the means by which defendant perpetrated the crime.

The victim’s daughter observed a vehicle similar to an R.V. owned by defendant’s wife in front of their home, an observation which was corroborated by cell phone records.

Taking the state’s evidence as a whole and resolving all contradictions in favor of the state, a reasonable juror could conclude that defendant was in the vicinity of the victim’s home and the scene of the crime at the time of death, thereby establishing defendant’s opportunity to commit the murder. Additionally, when first interviewed by the police defendant denied being in Wilkesboro.

The trial court did not err when it denied defendant’s motion to dismiss.

Even though the victim’s wife knew that he was having extramarital affairs, she would receive his life insurance benefits, and they were planning to divorce, defendant proffered only conjecture as to the wife’s possible actions – she needed only to step outside her home to murder her husband – whereas the state contradicted these speculations with the explicit testimony of the couple’s daughters that they were with their mother all night. Further, there was no direct, physical evidence to indicate the wife’s guilt. The trial court did not err in disallowing evidence or argument implicating the wife in the murder of her husband.

Although the victim had an elevated blood alcohol reading and a wound on his face, this evidence would not have supported a jury instruction on second-degree murder. In addition to defendant’s threats against the victim, evidence that the victim died as a result of a close-range gunshot wound to the center back of the head shows that the victim’s back was to defendant. Even if defendant and the victim had been fighting, the victim was fleeing from defendant or turning away from a fight at the time of his death. All the evidence in this case supports the jury’s conclusion that defendant murdered the victim with malice after premeditation and deliberation. The trial court did not err in failing to instruct the jury on second-degree murder.

No error.

Dissent

(Calabria, J.) The trial court erred by denying defendant’s motion to dismiss.

The state produced evidence of motive, suspicion and conjecture but failed to produce sufficient evidence of opportunity to identify defendant as the perpetrator.

The fact that the victim’s daughter briefly glimpsed the back of an unknown vehicle is insufficient to establish that defendant had the opportunity to murder the victim.

The scenario proposed by the state and accepted by the majority suggests that the victim left his home after 7:30 p.m. and consumed enough alcohol to raise his BAC to .11. Defendant was then waiting on the victim’s street at precisely the time the victim stepped outside. Then the victim walked to defendant’s vehicle, defendant shot the victim one inch from the back of his head, then drove off in his R.V., and all of this happened while defendant was using his cell phone. This scenario, along with several other pieces of evidence including defendant’s phone records, merely raise a suspicion of defendant’s guilt and make it improbable that defendant murdered the victim.

The state failed to prove that defendant had sufficient opportunity to commit the crime to identify him as the perpetrator; therefore, the trial court should have granted defendant’s motion to dismiss.


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