STATE OF NORTH CAROLINA v. FRANCISCO ECHEVERRIA

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On 19 February 2013, Defendant and the victim got into a verbal confrontation

at a nightclub. The victim then left the nightclub on his motorcycle, turning right

onto a public street.

About a minute after the victim left the nightclub, Defendant left the nightclub

in his car, also turning right onto the same public street. Defendant pulled alongside

the victim and fired five gunshots, four of which struck the victim. After shooting the

victim, Defendant drove away from the scene.

The victim was found dead in the roadway, and his motorcycle was found

several yards down the road.



A jury found Defendant guilty of first degree murder. The trial court sentenced

Defendant to life imprisonment without the possibility of parole. Defendant gave oral

notice of appeal.



II. Analysis



On appeal, Defendant argues that the trial court erred in giving a portion of

N.C.P.I.-Crim. 206.10 to the jury over his objection. This instruction provides

examples as to how “premeditation” and “deliberation” may be proven. The pertinent

part of the instruction was as follows:

Neither premeditation nor deliberation is usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred, such as the [lack of provocation by the victim] [conduct of the defendant, before, during and after the killing] . . . [use of grossly excessive force] . . . [brutal or vicious circumstances

of the killing] [manner in which or means by which the killing was done] . . . .



N.C.P.I.-Crim. 206.10 (2014) (emphasis added). Defendant’s specific argument is

that the trial court erred in giving the italicized portion of the above instruction

because there was no evidence from which a jury could have found that Defendant

ambushing and then shooting the victim four times while the victim rode down a

highway on his motorcycle was “brutal or vicious.”

Even assuming that there was no evidence that Defendant’s actions were

“brutal or vicious,” based on our Supreme Court’s holding in State v. Leach, 340 N.C.

236, 456 S.E.2d 785 (1995), we must conclude that the trial court did not commit error

in this case. In Leach, the defendant made the identical argument that Defendant

raises here concerning N.C.P.I.-Crim. 206.10. The Court, however, rejected that

argument, holding as follows:

The instruction in question informs a jury that the circumstances given are only illustrative; they are merely examples of some circumstances which, if shown to exist, permit premeditation and deliberation to be inferred. The instruction tells jurors that they “may” find premeditation and deliberation from certain circumstances, “such as” the circumstances listed. The instruction does not preclude a jury from finding premeditation and deliberation from direct evidence or other circumstances; more importantly, it does not indicate to the jury that the trial court is of the opinion that evidence exists which would support each or any of the circumstances listed. Therefore, the trial court did not err by giving the instruction at issue here, even in the absence of evidence to support each of the circumstances listed.



Much like Leach, here there was evidence to support some of the other

circumstances listed in the pattern instruction. For example, there was evidence

from which the jury could have found that Defendant was not provoked by the victim,

that the firing of five gunshots at close range constituted “grossly excessive force,”

and that the manner of the killing supported a finding of premeditation and

deliberation.