Dеfendants were tried noncapitally on indictments charging them with the first-degree murder of Kurtis Legrant Mobley (“victim”). The jury returned verdicts finding defendant George A. Bruton guilty of first-degree murder and defendant Willie Townsend guilty of second-degree murder. The trial court sentenced defendant Bruton to life imprisonment and defendant Townsend to twenty years’ imprisonment. For the reasons discussed herein, we uphold the convictions and sentences of both defеndants.
The evidence tended to show that shortly after midnight on 30 March 1994, the victim and Derrick York walked towards an apartment building at 2783 Piedmont Circle in Winston-Salem. The victim shouted an obscenity [f— you, bitch] at defendant Bruton’s girlfriend, who was apparently sitting in or standing by an apartment window. The victim and York then walked to the back of the apartment building.
Defendant Bruton located defendant Townsend and told Townsend that two “niggers” were at the back dоor. Defendant Bruton then went outside with a concealed nine-millimeter, semiautomatic pistol and confronted the victim. A heated argument ensued. The victim told defendant Bruton to put down his gun and fight. Defendant Bruton responded that he did not have a gun and pulled up his shirt in a manner suggesting that he was not armed.
After defendant Bruton shot the victim, Derrick York attempted to run. Defendant Bruton fired several shots in York’s direction and gave chase. Defendant Bruton caught York, hit him on the head with the gun, and began kicking him. As defendant Bruton struck and kicked York, York saw defendant Townsend kicking the victim. Both defendants subsequently fled from the scene and disposed of their weapоns.
Holly Farley, the victim’s girlfriend, testified that she saw defendant Townsend showing his gun to a crack cocaine addict a short time before the shooting. Farley testified that defendant Townsend “cocked the gun back” and told her that “he don’t cock it back unless he was going to use it.”
Defendants’ evidence suggested that the victim had a reputation for violence, that the argument started when the victim shouted an obscenity at defendant Bruton’s girlfriend, and that defendants acted in self-defense. Defendant Bruton testified that he had seen the victim point a gun at his house on the day prior to the killing, that the victim had been threatening him and talking about his girlfriend all day on the day prior to the killing, and that he believed that the victim “ran with a gang.” Defendant Bruton stated that he thought the victim had a gun and that he shot the victim because he was afraid that the victim was reaching for it. Defendant Townsend tеstified that the victim and York had threatened him prior to the killing and that he had been told that the victim and York were planning on “jumping him.” According to defendant Townsend, he fired his weapon only because York “pulled out a gun.” Defendant Townsend testified that he fired only one shot and that this shot went into the ground.
Additional facts will be presented as necessary to address specific issues.
COMMON ISSUE
In respective assignments of error, defendants сontend that the trial court erred by admitting into evidence items seized at 2783 Piedmont Circle, which was defendant Bruton’s temporary residence at the time of the killing. The contested items include numerous nine-millimeter, twenty-two-caliber, and forty-caliber cartridges; shotgun shells; gun boxes; and a twenty-two-caliber gun. Defendants argue that these items were irrelevant in that the State’s evidence failed to link any of the items to the crime.
Evidencе is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (1992). Generally, all relevant evidence is admissible. N.C.G.S. § 8C-1, Rule 402 (1992). This Court has consistently stated that “in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.”
State v. Collins,
“As a general rule weapons may be admitted in evidence ‘where there is evidence tending to show that they were used in the commission of a crime.’ ”
State v. Crowder,
Assuming
arguendo
that the other items seized at defendant’s residence did not have any probative value, the error in admitting these items was harmless. The items seized at defendant Bruton’s residence were not needed to link either defendant to this crime. Eyewitness testimony tended to show that both defendants were present at the crime scene, that defendant Townsend fired the first shot, and that defendant Bruton shot and killed the victim. At trial defendant Townsend testified that he fired the first shot, and defendant Bruton admitted that he subsequently fired a shot at the victim. In light of the overwhelming evidence of defendants’ guilt, we conclude that defendants cannot show that, had the contested items not been admitted into evidence, a different result would have beеn reached at trial.
See
N.C.G.S. § 15A-1443(a) (1988);
State v. Sierra,
DEFENDANT BRUTON
In his next assignment of error, defendant Bruton contends that the trial court erred in denying his motions to dismiss the charge of first-degree murder at the close of the State’s evidence and at the close of all evidence. Defendant Bruton argues that the evidence is insufficient to support a finding of premeditation and deliberation.
By presenting evidence defendаnt waived his right to appeal the denial of his motion to dismiss at the close of the State’s evidence.
State v. Mash,
In ruling on a motion to dismiss a first-degree murder charge, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonablе inference to be drawn therefrom. State v. Jackson,317 N.C. 1 , 22,343 S.E.2d 814 , 827 (1986), judgment vacated on other grounds,479 U.S. 1077 ,94 L. Ed. 2d 133 (1987). Substantial evidence must be introduced tending to prove the essential elements of the crime charged and that defendant was the perpetrator. Id. The evidence may contain contradictions or discrepancies; these are for the jury to resolve and do not require dismissal. Id. at 22-23,343 S.E.2d at 827 .
State v. Truesdale,
First-degree murder “is the unlawful killing of a human being with malice and with premeditation and deliberation.”
State v. Fleming,
“Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence.”
State v. Brown,
(1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of thedefendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.
Id.
at 59,
When viewed in the light most favorable to the State, the evidence supported submitting first-degree murder to the jury. Armed with a loaded, semiautomatic pistol, defendant Bruton confronted the victim, began an argument; and intentionally deceived the victim by telling the victim he did not have a gun. When the victim attempted to flee, defendant Bruton pointed his gun at the victim, shouted an obscenity-laced statement, and shot the victim in the back. This evi dence was sufficient to permit the jury to conclude that defendant Bruton formed an intent to kill before shooting the victim and carried out that intent in a cool state of blood. The jury was not required to believe that defendant Bruton acted out of fear of being shot or that the words or conduct of the victim aroused sufficient passion to negate deliberation. Accordingly, this assignment of errоr is overruled.
DEFENDANT TOWNSEND
By an assignment of error, defendant Townsend contends that the trial court erred in denying his motion to dismiss at the close of all evidence. Defendant Townsend argues that there is no evidence that defendant acted together with another to commit a second-degree murder. He argues that the evidence only supported a verdict of either first-degree murder or not guilty. We disagree.
Second-degree murdеr “is the unlawful killing of a human being with malice but without premeditation and deliberation.”
Fleming,
may be found guilty of an offense if he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.
State v. Wilson,
The evidence is uncontested that defendant Townsend was present at the scene of the crime, and substantial evidence supported a finding that he acted in concert with defendant Bruton pursuant to a common plan or purpose to murderously assault the victim. After defendant Bruton told defendant Townsend that two “niggers” were at the back door, Townsend followed defendant Bruton outside and observed the argument between Bruton and the victim. Defendant Townsend subsequently shouted “f— that” or “f— that, let’s do it” and fired his weapon. When defendant Townsend fired his weapon, defendant Bruton began shooting and shortly thereafter fired the shot which killed the victim. After the shooting defendant Townsend kicked the victim as he lay on the ground. This evidence was suffi cient to show that defendant Townsend acted in concert with defendant Bruton pursuant to a commоn plan or purpose to assault the victim with murderous intent.
Defendant Townsend argues that the evidence supported only verdicts of first-degree murder or not guilty. We note that defendant did not object to. the submission of second-degree murder at trial. The evidence at trial permitted the jury to find that either defendant acted with premeditation and deliberation, but it did not require that the jury either make this finding or find defendants not guilty. Defendant Townsend testified that he fired one shot into the ground when Derrick York “pulled out a gun.” Defendant Bruton testified that he shot “at” the victim because he was afraid the victim was going to shoot him. The shooting followed a heated argument between the victim and defendant Bruton, and the evidence suggested that the parties exchanged “fighting words” during this argument. The evidence supporting premeditation and deliberation was either
Defendant Townsend further argues that the jury determined that he did not share a common plan to commit a second-degree murder by acquitting him of first-degree murder. He argues that the jury’s determination that no plan existed as to first-degree murder is inconsistent with its finding that he acted in concert with Bruton pursuant to a common plan to commit second-degree murder. Defendant assigned error to the trial court’s ruling denying his motion to dismiss on the ground that the evidence did not support each and every element of the offense charged. Defеndant did not make any assignment of error relating to his contention that the jury’s verdict was inconsistent. Accordingly, defendant’s argument is not before this Court. N.C. R. App. P. 10(a).
This assignment of error is overruled.
By another assignment of error, defendant Townsend contends that his rights to effective assistance of counsel and due process of law were violated because both defendants were represented by the same attorney at trial. Prior to trial the trial court conducted a hearing on the possible conflict of interest. During this hearing defendants’ counsel stated that no conflict of interest existed. The trial court informed both defendants that a conflict could possibly arise and that each defendant had a right to his own lawyer. The court explained that a future course of action might be to one defendant’s advantage and to the other defendant’s disadvantage. Both defеndants assented to the joint representation. At the conclusion of the hearing, the trial court found that there was no actual conflict and that both defendants voluntarily, knowingly, and intelligently waived the right to separate counsel.
Defendant Townsend nevertheless contends that an actual conflict of interest arose at trial and that the trial court should have declared a mistrial when the conflict became apparent. A defendant in a criminal case has a constitutional right to effective assistance of counsel.
Strickland v. Washington,
Permitting a single attorney to represent two or more codefendants in the same trial is not a
per se
violation of the right to effective assistance of counsel.
Holloway v. Arkansas,
Defendant Townsend argues that his counsel failed to impeach testimony by defendant Bruton which was unfavorable to Townsend. The record shows that dеfendant Bruton testified on cross-examination that defendant Townsend yelled “f— that, let’s do it” before firing his weapon. Defendant Townsend subsequently denied using the exact words attributed to him by Bruton. Defendant Townsend contends that defendant Bruton’s testimony tended to support the State’s theory that Townsend was involved in a plan to shoot the victim or that his statement was a signal to Bruton to begin shooting. Townsend argues that counsel declined to impeach defendant Bruton because he did not want to challenge Bruton’s credibility.
The essence of both defendants’ testimony was that the victim provoked the confrоntation and that they acted in self-defense. Defense counsel’s cross-examination of witnesses, presentation of defendants’ evidence, and jury argument supported this testimony. The United States Supreme Court has recognized that “ ‘[a] common defense often gives strength against a common attack.’ ”
Holloway,
435 at 482-83,
By his next assignment of error, defendant Townsend contends that the trial court erred by refusing to instruct the jury on involuntary manslaughter. A trial judge must instruct the jury as to a lesser-included offense when there is evidence from which the jury could find that the defendant committed that offense.
State v. Redfern,
Defendant argues that his conduct in discharging his weapon amounted to culpable negligence. Even if defendant Townsend committed a culpably negligent act by discharging his weapon, the jury could not have found Townsend guilty of involuntary manslaughter because this act did not result in the victim’s death. As defendant Townsend acknowledges in his brief, the evidence at trial was undisputed that defendant Bruton intentionally fired the shot which killed the victim. Defendant Townsend’s act in discharging his weapon did not proximately cause the victim’s death. Accordingly, we conclude that the trial court correctly declined to instruct the jury on involuntary manslaughter. This assignment of error is overruled.
Defendant Townsend next assigns error to the finding of the aggravating factor that “defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.” N.C.G.S. § 15A-1340.4(a)(l)(g) (1988) (repealed effective 1 October 1994; reenacted as N.C.G.S. § 15A-1340.16(d)(8) effective 1 October 1994). Defendant argues that the evidence was insufficient to support a finding that he knowingly created a great risk of death to more than one person and that evidence essential to prove this factor was necessary to prove an essential element of second-degree murder on the basis of acting in concert.
To find the aggravating factor at issue here, “the sentencing judgе must focus on two considerations: (1) whether the weapon in its normal use is hazardous to the lives of more than one person; and (2) whether a great risk of death was knowingly created.”
State v. Rose,
Defendant Townsend also argues that the evidence used to prove this factor was necessary to prove second-degree murder on the basis
of acting in concert. “Evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.” N.C.G.S. § 15A-1340.4(a)(l);
State v. Wilson,
This Court has recognized that the statutory factors in N.C.G.S. § 15A-1340.4(a)(l) “contemplate a duplication in proof without violating the proscription that ‘evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.’ ”
State v. Thompson,
For the foregoing reasons defendants received a fair trial free from prejudicial error.
NO ERROR.