*1 IN THE SUPREME v. CLARK
STATE (1989)] [325 private the failure to pay The rent and pay failure matters occurred after the West appellant’s were investigator they support I do not believe Virginia practice law was closed. while in West practicing as to he did law conclusion what would have anything There is no evidence as to Virginia. reviewed. I not believe this had files been do been revealed law appellant practiced how the supports conclusions as to The that the appellant represented evidence showed Virginia. West in West Virginia. 298 clients while law practicing file to he failed to deliver a one against the Board is that in- overlooking private we to this his client. If add bill attention, hardly I until the matter was called his vestigator carelessness, and inat- neglect, believe establishes a pattern in his law Virginia practice. to detail West tention reverse the Board of Law Examiners. vote to joins in this dissenting opinion. Justice MITCHELL v. WILLIAM OF NORTH EARL CLARK STATE CAROLINA No. 341A88 1989) (Filed 7 December — (NCI3d) (NCI3d); § 3 Weapons § 1. 21.6 and Firearms Homicide — dwelling— firearm sufficiency of evidence intentionally
There was sufficient evidence knew was oc- residence that he a firearm into a discharged murder under his conviction cupied where the evidence tended felony murder rule State’s girlfriend to the home of his former to show that defendant came her; girlfriend and the visiting while the victim was manner; house an angry and defendant left the argued by a gun- door slam followed heard an automobile girlfriend shot; struck the came the front door and through the shot chest; ran the house and from girlfriend victim slowly away; she stopped driving saw defendant victim, and defendant him if he knew he had shot asked volunteered away; and defendant not answer but drove did IN THE SUPREME COURT *2 arrest, incriminating statements after his including a state- ment that “I just why don’t know I did what I did.” N.C.G.S. 14-34.1. § 2d,
Am § Jur Homicide 94. (NCI3d)— § 2. Homicide indictment —theories of prosecution
A murder indictment in the form prescribed N.C.G.S. 15-144 will support a verdict finding defendant guilty of § first degree any murder upon of the theories set forth in N.C.G.S. 14-17. § 2d,
Am § Jur Homicide 211. (NCI3d)— 3. § Homicide degree first murder —election of theories not required
The State is required not at time to elect theory upon which it will proceed against the defendant on the charge of first degree and it is proper for the trial court to submit the issue of guilt defendant’s jury on each of the theories of first degree murder supported by substantial presented at trial. 2d,
Am Jur § Homicide 211. (NCI3d)— § 4. Homicide first specification murder — theory in verdict Rather than have the jury render general verdict if finds defendant guilty of first degree murder when more submitted, theory than one the better practice is for the trial court to have jury specify theory or theories upon which it finds first degree murder to have been estab- beyond lished a reasonable doubt. 2d,
Am Jur § Homicide 542. (NCI3d)— 5. § Homicide 30.3 murder prosecution —instruction on manslaughter not required
The trial court did not err in failing instruct the with regard verdict of involuntary manslaughter in a murder prosecution which the trial court’s instructions required jury to find defendant first degree murder felony under the murder rule or to find him where the State’s evidence tended to show that defendant intentional-
IN THE SUPREME the death of and caused occupied dwelling into an ly shot victim, fire he did not evidence was that and defendant’s night question. time on the gun 2d, § 531. Am Jur Homicide (NCI3d)— discharging firearm §
6. Homicide 4.2 murder — underlying as occupied property applica- will to bar applied not be “merger doctrine” rule committed felony murder to homicides tion of the into oc- discharging a firearm of the perpetration property. cupied *3 2d, § 73.
Am Jur Homicide in result. concurring Justice MITCHELL concurring opinion. in the joins Justice WEBB by entered by judgment the defendant from right APPEAL of Court, Reid, J., County, in Superior 3 March on LENOIR in for murder the imprisonment to life the defendant sentencing 1989. April Court Supreme first Heard degree. General, Gray, Special Jane P. Attorney H. Lacy Thornburg, General, the State. Attorney Deputy for Hunter, Jr., Defender, by M. Patricia Ray Appellate Malcolm Devine, the Defender, defendant-appellant. Appellate Assistant for
FRYE, Justice. of indictment contain- proper in a bill charged
Defendant was feloniously discharg- defendant charged counts. ing two Count charged II dwelling. Count a firearm into an ing charge trial on the noncapital was tried in a with murder. Defendant At the conclusion plea guilty. entered a of not of murder and trial, jury the court instructed the trial of all the evidence by reason degree in the first as to murder concerning the law felony. The trial court of a during perpetration the killing of a guilty find defendant jury the that would further instructed theory or find the of this murder on basis degree instructions, returned jury the to these pursuant guilty. Acting murder. The trial degree first finding a verdict life imprisonment, defendant to sentencing judgment court entered to this Court. appealed and defendant IN THE SUPREME COURT error forth three brings assignments appeal, On (1) erred in whether the trial court following: to the
pertaining murder under to dismiss the first failing convict there was insufficient evidence to murder rule because (2) court erred felony; whether the trial underlying defendant of it should consider a in to instruct refusing manslaughter; verdict (3) rule for reject whether should Court in which the is the offense of underlying cases We find no error defendant’s trial. occupied property. a firearm pertinent part Evidence for the State tended to show 1987, Johnny Bryant Sunday, March was shot night on Jacquelyn while at the home of Foulks. Foulks visiting and killed “going together” and defendant William Earl Clark had been years shooting. five prior State,
Foulks, a witness for testified that on afternoon They gone together. of 22 March she and defendant had out mid-day they from about until that when together night had been They drinking went with friends to a club. had been beer club, day arguing evening. all Outside the fighting Johnny Bryant victim observed defendant Foulks’ arm twisting Bryant went her argued until she down on knees. and defendant incident, weapons during over the but Foulks saw no this confronta- *4 Foulks, Bryant, tion. and defendant went back into the club. At 11:00 the three of them p.m., about came back outside club. hand, knocking After a beer out of Foulks’ defendant took some automobile, of her clothes out of the trunk of his them on put off. ground, and drove Bryant Bryant her gave Foulks testified that a ride home. Foulks inside her house. After she her child to accompanied put bed, went her change Foulks to room to clothes and heard an drive Defendant was the driver of the automobile. up. automobile house, he He She let inside the and sat on the couch. was asked, this, boyfriend?” “still and and “What a new upset high” Bryant just that she and were friends. After some replied Foulks conversation, they further which she during told defendant through, through,” got up “were it was over defendant with — left. to the door and closed and locked Foulks followed it as he left the house.
IN THE SUPREME COURT v. CLARK
STATE Bryant up stood as accompanied Foulks door. never Foulks heard defendant’s automobile off or the pull motor slam, She Bryant start. heard a a saw gunshot. She stagger her kitchen he grabbed toward where the kitchen table and fell. big everywhere. He “a hole in had his chest” and blood was Foulks testified that came her closed gunshot through front door. She out the get ran front door of her house to help saw slowly away from her She driving house. ran into the road, up threw her hands and told She stop. asked him if he had Bryant. realized that he shot Defendant did not answer, but he of his jumped out automobile and looked at Foulks. got Then he back into the automobile and drove off. Foulks ran to her neighbor’s house for help. Fields, Foulks,
Raymond Becton a neighbor of testified that he midnight was awakened about on the of the date inci- shooting Foulks, hysterical. dent who was She him that told a friend had of hers been shot He “Bro shot him.” testified that he went with Foulks to her house and saw victim. He checked and, none, Bryant the victim for pulse a told Foulks Bryant was dead. Fields also testified noticed that he a hole about the size of a finger the front door.
Captain County Lester Gosnell of the Lenoir Sheriff’s Depart- ment shortly arrived Foulks’ house after shooting. He ex- amined front door of Foulks’ residence and observed a hole one approximately inch in diameter with black markings visible Foulks, around hole. After a taking statement from Gosnell obtained warrant for defendant’s arrest. He then went to defend- house and placed ant’s him under arrest.
Gosnell also he testified that advised defendant of his Miranda rights custody. after defendant was taken into told Defendant Gosnell that he did not want questions lawyer. to answer without a thirty:five forty-minute During wait the magistrate, Gosnell, defendant said to “It don’t get take much trouble out, takes but time to long get don’t it?” Gosnell replied, *5 Later, Gosnell, true.” “That’s defendant asked be charged “[T]o you with don’t first-degree your have to at target?” aim said, “I responded, Gosnell think so.” “I just Defendant don’t why know did what I did.” Gosnell no further reply made but down wrote each of these comments. IN THE
682 SUPREME 677 N.C. He at in his own behalf. admitted Defendant testified trial 1987, 22 but he he an on March argument that and Foulks had he went Bryant. with He that words testified having denied her, he went inside the up make but never Foulks’ house to while He he the automobile asleep house. testified that fell call- driveway. He awoke Foulks parked hearing he was in Foulks’ him, “Bro, Bro, Bro, Johnny me. have been help come ing saying, went home. driveway then backed out of the and shot.” Defendant night. at time that He further testified shooting gun He denied a gotten gold she had the victim’s that Foulks later told that only coat. testified that the statements necklace his Defendant were the “It don’t take Captain following: he made Gosnell you get time to you long in trouble but it takes a long get out”; they murder in a world “[A]ny get you you’re time in it.” you you know how though got of trouble even don’t in denying Defendant first contends that the trial court erred [1] his motions the of first murder under to dismiss felony rule there was evidence the because insufficient the a firearm underlying discharging to convict him of dismiss, In dwelling. ruling into an on a motion to trial court consider the evidence most favorable light must State, every the State the reasonable in giving benefit Locklear, v. 322 ference to be drawn from the evidence. State (1988). 349, 377 not grant 368 S.E.2d The trial court should discrepan dismissal because there are contradictions and simply evidence; must resolve these conflicts. State cies (1983). 594, Workman, The test v. 309 N.C. 308 S.E.2d there is evidence— apply the trial court must whether substantial circumstantial, direct, either or both—to crime has been and that defendant was charged committed Locklear, v. State N.C. at S.E.2d perpetrator. simply 383. The means “that the term “substantial evidence” real, existing just seeming imaginary.” evidence or must be (1980). Powell, 95, 99, 261 S.E.2d If essential element of the offense there is substantial evidence each then a motion perpetrator, and that defendant was the charged We conclude that there was substantial to dismiss should be denied. defendant committed offense of and, therefore, sufficient evidence occupied dwelling firearm an to sustain defendant’s conviction required murder rule. degree murder under *6 THE IN SUPREME COURT 683
STATE v. CLARK (1989)] N.C. 677 [325 The offense a firearm into an occupied dwelling statute, provides is defined which pertinent part in that: Any person willfully who or or wantonly discharges attempts discharge: to (2)
... a any firearm into . . . while is building occupied Felony. is of Class H a (1986). 14-34.1 N.C.G.S. The evidence must show that defendant § Williams,
intentionally
shot
State v.
building.
(1973).
67,
284
The evidence in the present case when was viewed State, in the light most favorable to the to finding a intentionally shot into a knew residence that he was occupied. Jacquelyn Foulks testified that came to her Bryant home while Johnny visiting was her. and Defendant Foulks argued he left house in an manner. angry As Foulks was defendant, the door locking Johnny Bryant behind up. stood Foulks what was thought heard she an automobile door slam followed by gunshot. The shot came the front through Bryant door and hit victim, trying help chest. After to Foulks ran out of slowly house and saw defendant She driving away. stopped him him asked if he knew he Bryant. had shot Defendant Furthermore, did not answer but drove away. presented State Captain evidence through Gosnell that defendant volunteered in- criminating statements after he was arrested. We conclude that evidence from the jury was substantial which could find that Therefore, did into the intend shoot residence. See id. is argument defendant’s without merit.
instruct [2] Defendant next the jury assigns regard as error (cid:127) the trial verdict court’s finding failure guilty of The in manslaughter. second count the bill prescribed by indictment was the form N.C.G.S. 15-144 § charged Johnny with the A Bryant. murder of prescribed by indictment the form 15-144 will support N.C.G.S. § verdict the defendant murder upon Bush, set v. of the theories forth in N.C.G.S. 14-17. State § 159, vacated, 289 221 S.E.2d death sentence U.S. (1976). L. Ed. 2d IN THE SUPREME COURT theory [3, required time elect 4] *7 charge on it the defendant the proceed against which will upon murder, it for the trial court to submit proper is degree of first on charge jury of that the guilt the of the defendant’s issue supported first murder substantial degree each of the theories of 274, Strickland, 307 298 v. at trial. State N.C. presented (1983). Further, jury than the render a S.E.2d 645 rather have guilty if the of first general degree verdict it finds defendant the jury specify the court to have practice the better is for trial first murder theory upon degree the or theories which finds State beyond a doubt. See to have established reasonable been (1979). 1, Goodman, 298 S.E.2d 569 v. 257 N.C. case, submitted the In the trial court murder present theory of only degree first jury’s upon for the consideration rule. Both the trial court’s instruc- felony murder under the murder given jury required the written verdict form that tions and first murder under that jury guilty degree find defendant of theory its guilty. jury specify- or find him not returned verdict it found ing guilty felony. of a
perpetration
[5]
Defendant contends that the
jury
should have been instructed
involuntary
to a
possible
guilty
with
verdict
regard
However,
establish
presented
no evidence to
manslaughter.
involuntary
The State’s evidence
to show
manslaughter.
tended
intentionally
occupied dwelling causing
that defendant
shot into an
believed,
If the State’s evidence is
the death of
victim.
murder. Defendant’s evidence was
night
question.
not
time
gun
that he did
fire a
on
believed,
If
evidence is
then he is
defendant’s
no evidence of
degree of homicide. Since there was
in
judge
failing
the trial
did not err in
to submit
manslaughter,
It is well
voluntary
as a
verdict.
settled
manslaughter
possible
only
be
regard
should
instructed
Weeks,
v.
322
if there is evidence to
it. State
verdict
(1988)
152,
(voluntary manslaughter);
367
10
State v.
N.C.
S.E.2d
(1980)
445,
entering);
Hardy,
(breaking
299
[6] Finally, contends that this Court should reconsider application to bar apply “merger law and doctrine” established IN THE SUPREME 685
STATE v. CLARK N.C. 677 of the murder rule to homicides in the perpetra- committed tion of the of a firearm into property. We have rejected application of the “merger doctrine” on 78, several recent See 316 occasions. State v. N.C. 340 S.E.2d King, (1986); Mash, (1982); 71 State v. 287 S.E.2d (1982). Wall, S.E.2d The defendant has offered argument persuades no us to alter this well-settled law. reasons,
For the we foregoing hold that defendant received trial, fair free prejudicial error. No error.
Justice MITCHELL in concurring result.
The majority holds that trial court properly refused to instruct on the lesser involuntary offense of manslaughter, because there no involuntary was evidence of manslaughter. For reasons fully which have in my discussed in dissenting opinion Thomas, (1989), 325 N.C. S.E.2d 555 manslaughter is not a lesser included offense first-degree when, here, as first-degree murder is submitted the jury based solely upon felony murder theory; this is true without regard what may the evidence tend to Because show. the trial court —for whatever permitted this go case to its reason — determination of whether the defendant was of first-degree murder only under the felony murder theory, no instruction on lesser homicide offenses would proper. only have been I concur the result reached the majority.
Justice WEBB joins this concurring opinion.