State v. Broom

736 S.E.2d 802

STATE of North Carolina

v.Robert Thompson BROOM.

No. COA12–209.

Court of Appeals of North Carolina.

Jan. 15, 2013.

Appeal by defendant from judgments entered 13 October 2010 by Judge J.B. Allen, Jr. in Alamance County Superior Court. Heard in the Court of Appeals on 10 October 2012.

Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

Rudolf Widenhouse & Fialko, Chapel Hill, by M. Gordon Widenhouse, Jr., for defendant-appellant.

HUNTER, ROBERT C., Judge.

Robert Thompson Broom (“defendant”) appeals from the judgments entered after the jury found him guilty of first-degree murder of his daughter, as well as the attempted first-degree murder and first-degree kidnapping of his wife, and assault with a deadly weapon with intent to kill inflicting serious injury on his wife. On appeal, defendant argues that the trial court erred in: denying his motion to dismiss the charges of first-degree murder, felony murder, kidnapping, and attempted first-degree murder; limiting his voir dire of prospective jurors; denying his request for a jury instruction prior to voir dire of prospective jurors; denying his request for an instruction on second-degree murder; and allowing the jury to return separate verdicts of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury for the same underlying actions. After careful review, we find no error.

Background

The State's evidence tended to establish the following facts. Defendant and Danna Broom (“Danna”) married in 2001 and, in 2003, Danna gave birth to their first child. In May 2008, Danna learned that she was pregnant with the couple's second child. By that time, however, defendant was having an extramarital affair and was considering leaving his wife. When Danna told defendant of her pregnancy, defendant became angry and suggested that Danna have an abortion. Danna refused to do so and told defendant he could “get out” if he insisted on her having an abortion. As their relationship continued to deteriorate, Danna explained to defendant that if he wanted a divorce she would do what was in the best interest of their children, which could include Danna's taking them to New York to live closer to her family.

On 3 October 2008, defendant asked Danna to stay home from work so that the couple could discuss their relationship. Danna was 27 weeks pregnant at the time. She agreed to not go to work, and she spent the day at home with defendant. At approximately 3:30 p.m., Danna and defendant were in their bedroom discussing their marriage and looking at old photographs. Over the course of the day, Danna had received several work-related emails on her cell phone. Defendant stated he wanted her to focus on their conversation, and he put Danna's phone on a nightstand out of Danna's reach. Shortly thereafter, defendant said, “ ‘I'll be right back. We're doing good. We're on the right path. Just stay here.’ ” Defendant exited the room and returned moments later. As defendant came towards Danna, she believed that defendant was going to give her a hug. She felt defendant's arms around her and, at that moment, Danna was shot in the abdomen with a .45 caliber hollow point bullet. After she fell back onto the bed, defendant told Danna that “he just couldn't take it anymore.” She pleaded with defendant to call for help, but defendant refused to call 911; he collected all phones and kept them out of Danna's reach. After hours of pleading for help, Danna agreed to tell law enforcement and emergency personnel that the shooting was accidental in order to persuade defendant to call 911. Defendant called 911 at 3:11 a.m. At the hospital, Danna's doctors discovered that the gunshot had punctured her colon, spilling fecal matter into her abdomen. This necessitated a cesarean section in order to treat Danna's injuries and give her child the greatest chance of survival.

After the delivery, the child, Lillian Grace Broom, was put on a ventilator. Over the first four days of her life, Lillian was taken on and off of the ventilator, until 7 October when Lillian was able to breathe on her own. Over the next several weeks, Lillian opened her eyes, moved her limbs, fed, and gained weight. On 4 November 2008, however, Lillian presented symptoms of necrotizing enterocolitis (“NEC”), a condition in which the cells of the intestine die. Lillian's NEC caused her health to deteriorate rapidly. That evening, after the doctors realized there was nothing more they could do for her, Lillian was taken off the respirator and allowed to die in her mother's arms. Danna survived.

On 10 August 2009, defendant was indicted for first-degree murder for the unlawful, willful, and felonious killing of Lillian with malice aforethought in violation of N.C. Gen.Stat. § 14–17. As to crimes against Danna, defendant was indicted for attempted first-degree murder, first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. The charges were joined for trial. A jury trial was held during the 27 September 2010 Criminal Session of the Superior Court for Alamance County, Judge J.B. Allen, Jr. presiding. The jury found defendant guilty of first-degree murder of Lillian on the basis of premeditation and deliberation and on the basis of felony murder. The jury also returned guilty verdicts for the charges of attempted first-degree murder of Danna, as well as first-degree kidnapping, and assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced defendant to life imprisonment without parole for first-degree murder and 157 to 198 months for attempted first-degree murder. The trial court entered a prayer for judgment continued on the convictions for first-degree kidnapping and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant gave oral notice of appeal in open court.

Discussion

A. First–Degree Murder

Defendant makes multiple arguments to contend that the trial court erred in denying his motion to dismiss the charge of first-degree murder based on premeditation and deliberation. First, defendant contends that Lillian cannot be the subject of a first-degree murder charge because she had not been born at the time Danna was shot. Second, defendant argues that Lillian's death was not caused by the gunshot wound to Danna. Third, defendant claims that the State failed to show substantial evidence of premeditation and deliberation. We disagree.

We review the trial court's denial of a motion to dismiss de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). In doing so, we must determine “whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied,531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). When considering defendant's motion to dismiss, “the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995).

In support of his argument that Lillian was not the proper subject of a homicide offense, defendant relies on State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989). In Beale, the defendant was charged with the felonious murder of “a viable but unborn child” with malice aforethought in violation of N.C. Gen.Stat. § 14–17. Id. at 88, 376 S.E.2d at 1. The Beale Court concluded that the defendant could not be prosecuted for the killing of a viable but unborn child under section 14–17, as the statute then existed. Id. at 93, 376 S.E.2d at 4. Despite the amendments to N.C. Gen.Stat. § 14–17 that have been enacted since that decision, the provisions of the statute relevant to Beale and this case remain substantively unchanged. ¹ Thus, defendant insists that Beal is controlling and precludes his conviction for first-degree murder of Lillian based on premeditation and deliberation. Yet, Beale is readily distinguishable as the case involved the death of an unborn child. The evidence here established that Lillian was born alive and lived for one month before dying. Thus, the holding of Beale as it pertains to the killing of an unborn child affords defendant no relief.

Alternatively, defendant contends that the common law definition of murder as recognized by Beale does not support his prosecution for first-degree murder. In reaching its holding in Beale, the Supreme Court recognized that murder under section 14–17 is murder as defined by the common law, id. at 89, 376 S.E.2d at 2, and under the common law “the killing of a fetus is not criminal homicide unless it was born alive and subsequently died of injuries inflicted prior to birth.” Id. at 92, 376 S.E.2d at 4 (emphasis added). Despite the legislature's amendments to section 14–17 since its original enactment, the Court discerned no intent by the legislature to provide for any change to this common law rule. Id. at 93, 376 S.E.2d at 4.² Defendant therefore argues that the common law definition of murder is inapplicable here as Lillian did not die of “injuries inflicted prior to birth[,]” id. at 92, 376 S.E.2d at 4. We cannot agree. While the record supports defendant's contention that the bullet did not strike the fetus, his insistence that the emergency cesarean section was performed solely for the safety of...