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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA11-1196 NORTH CAROLINA COURT OF APPEALS Filed: 3 July 2012 STATE OF NORTH CAROLINA v. BILLY RAY BRIDGES, Defendant. Appeal by defendant from judgments entered 15 February 2011 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 4 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Michael E. Casterline for defendant-appellant. HUNTER, Robert C., Judge. Billy Ray Bridges ("defendant") appeals from his conviction in Cleveland County Superior Court on charges of first-degree murder (06 CRS 52585) and possession of a firearm by a felon (10 CRS 3523). After careful review, we find no error. Background Cleveland County Nos. 06 CRS 52585 10 CRS 3523

- 2The State's evidence tended to establish the following. 2006, defendant lived with his sister in a In

residential

neighborhood in Shelby, North Carolina. ("Mr. Porter" and "Mrs. Porter")

Dennis and Wanda Porter directly across the

lived

street from defendant. In 2005, defendant submitted to a psychological evaluation as part of a determination of eligibility for Social Security disability benefits. The psychologist diagnosed defendant with

major depression of moderate intensity and noted that he was subject to inappropriate He was also with to be intense anger by that a had included who

aggression. diagnosed Defendant diagnosed

evaluated major

psychiatrist and

defendant was with found panic

depression and

psychosis. he was

delusional

anxious;

disorder,

obsessive-compulsive

disorder,

and a learning disability. In Control Defendant January and was 2006, defendant's after over it the dog was a of taken by Animal dog. he

euthanized distraught

killed death

neighbor's his dog,

and

mistakenly believed that Mr. Porter had called Animal Control about the dog. Defendant and Mr. Porter got into an argument in

the street between their houses in which defendant repeatedly pushed Mr. Porter despite Mrs. Porter's insistence that they had nothing to do with the dog being taken away. Following this

incident, Mr. Porter told his wife to keep the blinds closed at

- 3night because he had witnessed defendant spying on another house with binoculars. He also asked her not to walk their dogs at

night because he was afraid of what defendant might do to her. Mr. Porter placed a knife and a baseball bat in the couple's vehicles for protection against defendant. On 21 April 2006, as defendant was working in his garden, defendant saw Mr. Porter come out of his house. Mr. Porter made

eye contact with defendant and then got on his riding lawnmower. Defendant became filled with rage; he walked across the street and killed Mr. Porter. At approximately 2:15 p.m., a neighbor heard a gunshot. When the neighbor looked out of his window, he saw a vehicle in Mr. Porter's driveway and saw defendant carrying or dragging something as he attempted to put the object in the back of the vehicle. The same neighbor later saw defendant standing at the

door of his sister's house holding a long-barreled gun. At approximately car parked 2:20 in p.m., Mr. a second neighbor with saw the

defendant's

Porter's

driveway

hatchback open. rear of the car.

Defendant was struggling with something in the

A third neighbor was outside at the time and heard four gunshots. He saw Mr. Porter's lawnmower sitting in the Porters' Approximately fifteen minutes

yard with no one sitting on it.

later, he saw defendant in Mr. Porter's front yard rolling up a

- 4cord or hose. He then saw defendant walk slowly around Mr.

Porter's yard as if he were looking for something; defendant then bent down near the lawnmower and appeared to spread dirt around with his hands. Mrs. Porter arrived home around 6:00 p.m. and was unable to find her husband. She called 9-1-1 to report that her husband Mrs.

was missing and that her neighbors had heard gunshots.

Porter then went to the house of Cleveland County Deputy Sheriff John McIntyre ("McIntyre"). McIntyre and another deputy from

the neighborhood searched the Porters' house and yard but were unable to locate Mr. Porter. McIntyre noticed what appeared to be two large pools of blood on the ground near the Porters' driveway. He also noticed

what he thought was a broken piece of pottery but which was later identified as a piece of skull. Porter's riding lawnmower, normally McIntyre saw that Mr. in the garage, was

kept

parked behind the house. Soon thereafter, the Cleveland County crime scene

investigator found skull fragments and tissue spatter near and on the Porter's driveway along with shotgun wadding and several shotgun pellets. A shotgun shell was found under a car tire in

the driveway and was identified as a Remington 12 gauge doubleaught buck shell.

- 5The kept on investigator a spool, it a out, noticed had the been that the garden out hose, into that normally yard. hose

extended

the the

Stretching reached to

investigator area" near

observed the

"washed-out

blood

and

shotgun

pellets where it appeared some of the grass had been washed away. Mr. Porter's DNA was later matched to DNA isolated from a

swabbing of the hose nozzle. The investigator found shotgun pellet marks in the fabric of the rear side of the lawnmower seat. A firearms expert

confirmed that the holes in the seat fabric were consistent with holes caused by shotgun pellets. The expert also found a mark

on the seat caused by a plastic shotgun wadding; this indicated the shot that caused the damage was fired from relatively close range. Late that afternoon, defendant's car, a white Ford, was found on the Blue Ridge Parkway by Park Ranger John Anthony ("Anthony"). Anthony considered the car suspicious but did not The next day when Anthony arrived at work

see anyone present.

he became aware that an alert had been issued for the white Ford. Anthony contacted the Cleveland County Sheriff's Office,

whose officers, along with investigators from the State Bureau of Investigation, found Mr. Porter's body in the woods near the location where defendant's car had been spotted the day before.

- 6Mr. Porter's body was found at the end of a trial in the woods and was covered with leaves. Later that day defendant's car was spotted in Cherokee, North Carolina. and arrested. After a brief pursuit, defendant was stopped A search of defendant's car produced a Glock .45

caliber handgun, a Norinco 7.62 caliber rifle, a Mossberg 12gauge shotgun, ammunition for all buck three firearms that (including matched the

Remington

12-gauge

double-aught

shells

fired shell found at the crime scene), and a bulletproof vest. DNA testing matched Mr. Porter's DNA to DNA extracted from

swabbings of the inside of defendant's car. An autopsy revealed that Mr. Porter had two large wounds on the left side of his neck, consistent with contact shotgun

wounds, as well as groups of wounds on both sides of his back and matching exit wounds on the front of his abdomen. the individual the wounds head would have been Mr. lethal Porter's but Any of it was The

determined

wounds

caused

death.

pathologist found double-aught buckshot pellets in Mr. Porter's body. He also found wounds on Mr. Porter's thigh that indicated

Mr. Porter was sitting down when he was shot. Defendant was arrested and indicted for first-degree murder and possession of a firearm by a felon. arrest a forensic was psychologist, by Dr. John Shortly after his Warren, to III ("Dr. a

Warren"),

hired

defendant's

counsel

conduct

- 7psychological evaluation. Dr. Warren and other psychologists

from his practice met with defendant several times. Defendant was found to have an IQ of 80, which was in the low-average to borderline-mentally-retarded range. Dr. Warren

also diagnosed defendant with paranoid personality disorder and delusional disorder of the persecutory type. He concluded

defendant was paranoid, had a distorted view of reality, and was specifically obsessed with the death of his dog and the role he believed Mr. Porter had played in its euthanization. Defendant

was impaired in his ability to comprehend the consequences of his actions and alternatives to his behavior. Nevertheless, Dr.

Warren testified that defendant admitted to shooting Mr. Porter, that he believed defendant made the decision to conceal homicide, and that his decision was "more intentional." The Cleveland County Sheriff obtained a warrant to search the home of defendant's sister. Defendant filed a motion on 2 the

February 2011 to suppress the evidence found at his sister's house including a Remington 12-gauge shotgun. granted. The matter came on for trial during the 7 February 2011 Criminal parties Session in Cleveland that County Superior a Court. The felony The motion was

stipulated

defendant

had

previous

conviction.

At the close of the State's evidence, defendant

moved for dismissal of the charges on the grounds that the State

- 8had failed to prove premeditation or deliberation with regard to the first-degree murder charge and that there was a fatal

discrepancy between the indictment and the State's evidence with regard to the charge of possession of a firearm by a felon. motion was denied. At the close of all evidence, defendant moved for dismissal for the same reasons or, alternatively, for a mistrial on the basis that the prosecution had asked Dr. Warren a question that referred to suppressed evidence. During closing arguments, Both motions were denied. which were not recorded, the The

prosecutor made an inappropriate religious statement.

The trial

court sustained an objection to the prosecutor's comment and gave the jury a curative instruction. Following closing

arguments, defendant moved for a mistrial on the basis of the religious content of the argument. Defendant premeditation proposed and jury The motion was denied. on the subject of

instructions The

deliberation.

trial

court

rejected

defendant's proposed instructions.

The trial court later called

the jury back into the courtroom to read to the jurors the pattern jury instructions on lack of mental capacity to form specific intent after premeditation and deliberation. On 15 February 2011, the jury found defendant guilty of first-degree murder and possession of a firearm by a felon. Defendant moved to set aside the verdict, moved for a mistrial

- 9and a new trial. The motions were denied. The trial court

sentenced defendant to life in prison without parole for firstdegree murder and 16-20 months imprisonment for possession of a firearm by a felon. court. Discussion A. Proposed Jury Instructions Defendant argues the trial court erred by denying his Defendant entered notice of appeal in open

request to give his proposed jury instructions on first-degree murder. In We disagree. North Carolina, "any . . . willful, deliberate and

premeditated killing . . . shall be deemed to be a murder in the first degree . . . ." added). N.C. Gen. Stat.

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