State v. Branch, CO22-768, ___ N.C. App. ___ (Nov. 7, 2023)

In this Carteret County case, defendant appealed his conviction for first-degree murder, arguing (1) insufficient evidence, (2) error in admitting numerous gruesome photos of the body, and (3) error in allowing several statements by the prosecutor during closing argument. The Court of Appeals found no prejudicial error. 

At trial, defendant admitted through counsel that he shot the victim, the mother of his son, on August 14, 2018. Evidence showed that earlier that day, the two were seen fighting in the front yard of their residence, and later the victim was seen walking down the road. Defendant eventually picked up the victim and brought her back to their home. Sometime after the victim and defendant were back home, defendant shot and killed the victim, wrapped her in a tarp, then buried her body at a burn pit in his grandfather’s back yard. Defendant also called the victim’s mother, who lived with them, to tell her juice had been spilled on her sheets and he had to launder them. After burying the victim, defendant told others that the victim had left him, and put up flyers trying to find her. Eventually defendant was charged with the murder; while in custody, he had conversations with another inmate about how he “snapped” and shot the victim after she described performing sex acts with other men, and where he hid the body. 

Taking up (1), the Court of Appeals explained that the State argued first-degree murder under two theories, premeditation and deliberation, and lying in wait. The court looked for sufficient evidence to support premeditation and deliberation first, noting that defendant’s actions before and after the murder were relevant. Although defendant and the victim fought before the killing, the court did not find evidence to support the idea that defendant was acting under “violent passion,” and defendant seemed to deliberately choose a small-caliber handgun that was not his usual weapon for the murder. Slip Op. at 10-11. Additionally, the court concluded that “Defendant’s actions following the murder demonstrate a planned strategy to pretend Defendant had nothing to do with the murder and to avoid detection as the perpetrator.” Id. at 12. The court dispensed with defendant’s argument that it should not consider acts after the killing as evidence of premeditation, explaining the case cited by defendant, State v. Steele, 190 N.C. 506 (1925), “holds flight, and flight alone, is not evidence of premeditation and deliberation.” Slip Op. at 14. Because the court found sufficient evidence to support first-degree murder under premeditation and deliberation, it did not examine the lying in wait theory. 

Turning to (2), the court explained that under Rule of Evidence 403, photos of a body and its location when found are competent evidence, but when repetitive, gruesome and gory photos are presented to the jury simply to arouse the passion of the jury, they may have a prejudicial effect, such as in State v. Hennis, 323 N.C. 279 (1988). Here, the court did not find prejudice from the photographs, as “[t]he photographs presented at trial depicted the culmination of the investigation to locate [the victim’s] body and provided evidence of premeditation and deliberation.” Slip Op. at 20. 

The court found error in (3), but not prejudicial error, when examining the prosecutor’s closing argument. First, the prosecutor mentioned the punishment for second-degree murder; the trial court sustained defendant’s objection but did not give a curative instruction. The court found no prejudice as previous instructions directed the jury to disregard questions to sustained objections, and not to acquit or convict based on the severity of punishment. Second, the prosecutor mentioned that defendant did not have to testify; the trial court initially sustained the objection but then overruled it to allow the prosecutor to make an argument about defendant not calling witnesses. The court found that this error was harmless beyond a reasonable doubt due to “the evidence of Defendant’s motive for planning to kill [the victim], his confession, his use of the .22 caliber handgun, and his acts subsequent to the killing.” Id. at 25. Third, while the prosecutor misstated the applicable precedent regarding provocation, the court explained that a proper instruction by the trial court to the jury on “the required state of mind for premeditation and deliberation” cured the misstatement. Id. at 27. Finally, the court concluded that the prosecutor’s statements referencing defendant’s admission that he killed the victim were “directed at what was and was not at issue for the jurors to decide rather than an improper statement regarding Defendant’s failure to plead guilty.” Id. at 28.