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Criminal Practice – Solicitation to Murder – Joker’s Harley – Kill List – Closing Argument – Mass Shooting References

Even though defendant’s girlfriend, “Patty,” did not know about defendant’s kill list and so did know the identity of defendant’s intended targets, since defendant asked Patty if she wanted to be the Harley to his Joker (defendant: “You know how Joker and Harley kill people? That’s what I’m getting at.”), defendant nonetheless solicited Patty to commit murder.

We dismiss defendant’s appeal in part, find no error in part, and find no prejudicial error in part.

For the state to demonstrate the underlying mens rea in a solicitation case, it is not necessary for it to show the solicitor fully communicated the details of his or her plan to the listener; rather, the solicitor conceives the criminal idea and furthers its commission via another person by suggesting to, inducing, or manipulating that person.

As long as defendant’s kill list tended to demonstrate to the jury that the killings he proposed to Patty were, as they existed in his own mind, unlawful, malicious, and specifically intended after a measure of premeditation and deliberation, the evidence was sufficient to survive a motion to dismiss. And, in this case, the kill list evidenced each of these elements. Indeed, defendant’s conveyance of his desire to kill others fits the general malice requirement, and his having asked Patty to kill necessarily contemplates the killings he asked her to perform being premeditated and deliberated.

Defendant’s motion to dismiss based on a supposed fatal variance between the indictment allegations and the proof offered at trial is in actuality a mis-named attack on jury instructions. The indictment set out the initials of the 13 victims on the kill list, while the trial court instructed the jury in singular terms (“another person,” “the alleged victim”). Defendant did not object to the jury instructions and does not request plain-error review. We dismiss this challenge.

Defendant challenges the trial court’s admission into evidence of defendant’s drawings depicting the Joker and testimony from 11 of the 13 people on the kill list and a relative of a 12th person from the list.

The drawings would help the jury determine defendant’s state of mind and evaluate whether the proposed crime, as he imagined it, met the requirements for solicitation. This is especially pertinent in a case where, as here, a jury may have understood defendant’s proposition as a joke or otherwise been skeptical about his sincerity without a fuller glimpse into his state of mind at the time of his discussion with Patty.

Furthermore, the testimony was relevant to show that the people described on defendant’s kill list were real and to further demonstrate that he had the requisite specific intent to have solicited Patty to commit first-degree murder. As a result, the admission of the two groups of evidence was proper.

Although it is likely that the jury’s passions were stirred by the drawings and testimony, since the evidence served a probative function arguably above and beyond inflaming the jury’s passions, we cannot say the trial court abused its discretion in admitting such evidence.

During closing arguments, the prosecutor described the evil nature of the Joker and insinuated that defendant was planning a mass shooting. To at least some degree, these remarks were improper, as they were clearly designed to instill in the jury the idea that defendant’s conviction would prevent another in a string of nationally salient acts of mass violence. However, defendant did not object. Given the evidence presented by the state – guns and knives, testimony about defendant’s intent, and a written record of messages establishing the act of solicitation itself – we cannot say the state’s improper remarks prejudiced defendant.

No error in part, dismissed in part, no prejudicial error in part.

State v. Norris (Lawyers Weekly No. 011-249-22, 29 pp.) (Hunter Murphy, J.) Appealed from Randolph County Superior Court (William Wood, J.) Steven Mange for the state; Kimberly Hoppin for defendant. 2022-NCCOA-908

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