State v. Mumma

257 N.C.App. 829

811 S.E.2d 215

STATE of North Carolina

v.Willoughby Henerey MUMMA

No. COA17-481

Court of Appeals of North Carolina.

Filed: February 6, 2018

Attorney General Joshua H. Stein, by Assistant Attorney General Sherri H. Lawrence, for the State.

Meghan Adelle Jones for defendant-appellant.

BRYANT, Judge.

Where there was sufficient evidence presented at trial that defendant was the aggressor, the trial court did not err in instructing the jury on the aggressor doctrine. Assuming arguendo the trial court erred in allowing the jury to review photographs of the deceased victim during jury deliberations over defendant’s objection, this error was harmless where defendant has not established that he was prejudiced thereby. Lastly, where the prosecutor’s closing argument was not so grossly improper as to render defendant’s trial and conviction fundamentally unfair, the trial court did not err when it declined to intervene ex mero motu during the prosecutor’s closing argument, and we find no prejudicial error in the judgment of the trial court.

On 9 November 2011, defendant Willoughby Mumma was with his wife Amy Chapman at their home in Bryson City, North Carolina. Amy’s twenty-year-old son, Christopher Robinson, who lived with Amy and defendant, came home around 5:30 p.m. that evening where he encountered defendant and Amy, drinking and taking pills.

At around 8:00 p.m., Amy drove to a store where she purchased six alcoholic beverages. She returned home within twenty to twenty-five minutes.

While Amy was gone, defendant and his friend, Dewayne Bradley, had the following conversation via text message:

8:11 p.m., defendant: "I’m goin 2 kil her."

8:11 p.m., defendant: "I’m goin 2 kil her."

8:12 p.m., Bradley: "Please don’t."

8:13 p.m., defendant: "Im going 2 I cant take."

8:13 p.m., Bradley: "Man just walk down the road."

8:13 p.m., defendant: "Do you have ne lime?"

8:14 p.m., Bradley: "Noooooo, just chill."

8:15 p.m., defendant: "No im over it I can’t take no more I luv u bro."

8:16 p.m., Bradley: "Please lessen to me"

8:17 p.m., defendant: "Im sorry I have 2"

8:20 p.m., Bradley: "Man ill come and get 2morr, my word"

8:21 p.m., defendant: "Line will get rid of the body"

Around 9:45 p.m., defendant and Amy began arguing over an alarm clock radio. Robinson went into the bedroom and told them to stop arguing. According to defendant, Amy was intoxicated and "got meaner as the night went on."

At 11:16 p.m., defendant called Bradley multiple times and repeatedly called Bradley into the early morning hours of 10 November 2011. At 11:52 p.m., defendant texted Bradley duplicate text messages stating, "I need u 2 call me now GD."

At 9:30 a.m. the next morning, Robinson woke up and walked past defendant sitting on the couch in the living room, texting on his cell phone. Robinson went into the bedroom to look for Amy and get a cigarette. Robinson saw blankets all over the bedroom floor and a quarter-sized spot of blood on the bed. Robinson initially thought Amy may have hit defendant; she would get angry when she drank, and he had seen Amy hit defendant before. Defendant told Robinson to get out of the room. Robinson asked where Amy was, and defendant told him she was at work. Defendant was pacing back and forth from the living room to the kitchen, acting "like things [were not] right."

Defendant told Robinson to get ready for school. Bradley and his wife arrived to pick up Robinson for school. Bradley went into the house while Robinson got in the car. Defendant showed Bradley Amy’s body on the closet floor. Bradley left immediately, got in his car, and told his wife and Robinson to lock the car doors. Defendant tried to get in the car with them, but Bradley ordered him out of the car. As they drove away, defendant ran into the woods. Bradley told Robinson that his mother was dead. He pulled into a driveway down the street, called 911, and waited for the police to arrive.

Law enforcement responded to the 911 call and discovered Amy’s body in the bedroom closet. At some point later that day, Jennifer Jones, Bradley’s ex-girlfriend, sent defendant a text asking, "What did you do?" Defendant responded, "I kild her." Law enforcement officers located defendant down the road from the residence in a field containing briars, weeds, and tall grasses. He was taken into custody at 5:18 p.m. with scratches on his arms and legs.

When law enforcement interviewed defendant later that day, defendant stated that both he and Amy were drug addicts and that on the night of 9 November 2011, they had been drinking and had also taken about thirty Klonopin pills each. Defendant stated that Amy tried to stab him with his pocketknife, at which point he took the knife from her, pushed her to the floor, sat on top of her, and stabbed her in the neck because she bit him. He stabbed her in the eye when she tried to scream for Robinson to help her. The knife blade broke off in her eye. Defendant stated that he "blacked out," "freaked out," and "killed her." Later, at trial, defendant would testify that he "had to end that fight. She was trying to get the knife back."

On 11 November 2011, Dr. Sam Davis, a pathologist at Harris Regional Hospital, performed an autopsy on Amy’s body. Dr. Davis opined that the cause of death was "exsanguination, or bleeding to death" "due to stab wounds on her neck and eye." Amy had one stab wound in the upper right eyelid, perforating the eyeball, one stab wound in the left anterior neck, and two stab wounds to the anterior right neck, with one wound perforating the external jugular vein. Dr. Davis testified at trial about defensive wounds on the backs of her hands as "a textbook appearance of being stuck in a defensive posture. ... [S]he was not striking, but rather [was] being struck."

On 22 November 2011, defendant was indicted for first-degree murder. Defendant filed a "Notice of Defenses" for accident, diminished capacity, and voluntary intoxication, and later amended his notice to include only diminished capacity and voluntary intoxication. Thereafter, defendant filed a "3rd Amended Notice of Defenses" for self-defense and voluntary intoxication.

The case came on for trial during the 23 May 2015 session of Swain County Superior Court, the Honorable Marvin P. Pope, Jr., Judge presiding. The jury returned a verdict of guilty of second-degree murder, and the trial court entered judgment and imposed a sentence of 180 to 225 months imprisonment. Defendant appeals.

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On appeal, defendant contends the trial court (I) violated a statutory mandate or committed plain error by giving erroneous jury instructions on self-defense; (II) erred by sending inflammatory photographs of the decedent’s body to the jury deliberation room; and (III) erred by failing to intervene and stop the prosecutor from making improper closing arguments.

I

Defendant first argues that the trial court erroneously instructed the jury on self-defense when all the evidence showed that Amy was the aggressor. Defendant also contends that this issue is "preserved for review as a matter of law," despite his failure to object to the jury charge at trial. We disagree and review for plain error. See State v. Juarez , 369 N.C. 351, 357–58, 794 S.E.2d 293, 299–300 (2016) (reviewing for plain error the defendant’s challenge to the trial court’s jury instruction on the aggressor doctrine of self-defense where the defendant did not object to the instruction as given at trial).

Rule 10 the North Carolina Rules of Appellate Procedure provide that "[a] party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict, stating distinctly that to which objection is made and the grounds of the objection ...." N.C. R. App. P. 10(a)(2) (2017). "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation omitted). "To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error ‘had a probable impact on the jury’s finding that the defendant was guilty.’ " Id. (citation omitted) (quoting State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ).

"An individual is the aggressor if he ‘aggressively and willingly enters into a fight without legal excuse or provocation.’ " State v. Effler , 207 N.C. App. 91, 97, 698 S.E.2d 547, 551 (2010) (quoting State v. Potter , 295 N.C. 126, 144, 244 S.E.2d 397, 409 (1978) ). "It is undisputed that ‘[a] person is entitled under the law of self-defense to harm another only if he is "without fault in provoking, engaging in, or continuing a difficulty with another." ’ " Id. at 98, 698 S.E.2d at 552 (quoting State v. Stone, 104 N.C. App. 448, 451–52, 409 S.E.2d 719, 721 (1991) ). "This Court has repeatedly held that ‘where the evidence does not indicate that the defendant was the aggressor, the trial court should not instruct on that element of self-defense.’ " State v. Vaughn , 227 N.C. App. 198, 202, 742 S.E.2d 276, 278 (2013) (quoting State v. Jenkins , 202 N.C. App. 291, 297, 688 S.E.2d 101, 105 (2010) ).

"[T]he judge has the duty to instruct the jury on the law arising from all the evidence presented." State v. Smith , 360 N.C. 341, 346, 626 S.E.2d 258, 261 (2006) (quoting State v. Moore , 75 N.C. App. 543, 546, 331 S.E.2d 251, 253 (1985) ). "In instructing the jury with respect to a defense to a criminal charge, ‘the facts must be interpreted in the light most favorable to the defendant.’ " State v. Holloman , 369 N.C. 615, 625, 799 S.E.2d 824, 831 (2017) (quoting State v. Montague , 298 N.C. 752, 755, 259 S.E.2d 899, 902 (1979) ). It is considered error to charge the jury on the aggressor doctrine where "the record ... discloses no evidence tending to show that the defendant brought on the difficulty or was the...