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State v. Hyatt6/28/2002
rgues that joinder in this case was unfairly prejudicial, he makes no showing of prejudice in his brief to support his assertion, and he has therefore abandoned this issue on appeal. See N.C. R. App. P. 10(b)(1), 28(b)(6). Furthermore, because the facts amply establish the existence of a transactional connection, we leave undisturbed the decision of the trial court to consolidate the offenses.
Defendant next argues the trial court erred in denying his request for an instruction on second-degree murder. Defendant asserts that because reasonable doubt existed on the issue of whether defendant premeditated and deliberated the Simmons and McConnell homicides, the trial court must instruct on the lesser-included offense of second-degree murder. We find no merit in defendant's argument.
We have stated the rule for determining whether an instruction for the lesser-included offense of second-degree murder is required as follows:
f the State's evidence is sufficient to satisfy its burden of proving each element of first-degree murder, including premeditation and deliberation, and there is no evidence other than defendant's denial that he committed the crime to negate these elements, the trial court should not instruct the jury on second-degree murder. State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995); see also State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 925 (2000).
The state's evidence showed that defendant kidnapped both victims, accompanied both victims into the woods with a knife, and returned alone. This evidence was sufficient to establish that the multiple-stabbing deaths of McConnell and Simmons were committed by defendant with premeditation and deliberation. Defendant presented no evidence to negate the state's evidence other than his denial of guilt. Because there was no evidence upon which the jury could find defendant guilty of second-degree murder and because defendant did not negate any of the elements of first-degree murder, including the elements of premeditation and deliberation, there was no basis upon which the trial court could submit an instruction on second-degree murder. Thus, the trial court properly refused to submit defendant's requested instruction.
In his next argument, defendant argues the trial court erred in admitting the testimony of Carolyn Brigmon under N.C.G.S. ยง 8C-1, Rule 404(b). During voir dire on 25 January 2000, Brigmon testified that she was kidnapped by defendant at knifepoint as she was walking home from work at 4:00 a.m. on 19 October 1979. Brigmon stated that defendant threw her into his truck and took her to a remote area. She said that as they drove, defendant kept a knife by his side and repeatedly ran his finger over the blade. Brigmon testified that although defendant told her to take her clothes off, she convinced him not to rape her. He told her, "I'm going to do something I've never done before. I'm going to give you back your life." He also said, as they were crossing a bridge over the river, that he "had put a lot of bodies in there" and that he would do the same to her if she told anyone. Defendant robbed her of forty-four dollars and threw her purse out the window. Brigmon went to the police immediately and identified defendant as her attacker. Defendant was charged with armed robbery and kidnapping, and he subsequently pled guilty.
The trial court permitted Brigmon to take the stand and admitted her testimony as evidence of motive, intent, plan, and identity under Rule 404(b). Defendant argues that the prior crime involving Brigmon was so remote in time and so dissimilar that any probative value was substantially outweighed b
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