State v. May

COURT THE SUPREME IN Sta.te MAY v. MICHAEL OF CAROLINA ANTHONY STATE NORTH 62No. 1977) (Filed 13 June — — robbery robbery during earlier 34.7— murder § 1. Criminal Law admissibility intent to show during prosecution murder committed of In a confectionery robbery attempt perpetrate perpetration of a or to allowing de- of employee, not err in the trial court did store fendant’s five cleaning robbery dry participation business armed at a an allegedly days the same sawed-off used in which defendant earlier confectionery robbery, shotgun since that store which used in animo; quo competent to show defendant’s intent evidence was furthermore, robbery dry of the evidence admission by denying process defendant a fair trial. due cleaners did violate — — juror age 101.2, effect on Law 114.2—defendant’s §§ 2. Criminal — — expression jury allowing juror no instruction to continue to serve opinion of degree prosecution juror murder informed a first Where during judge outside of court that defendant trial that she had heard age years age known of defendant’s and had she was seventeen might concerning penalty opinion during jury the death selection “her different,” 1-180 court did not violate G.S. been trial have granting juror the State’s permitting serve and then to continue to concerning age, supplemental defendant’s request for a instruction permitted juror to who was was no evidence that since there conveyed judge having spoken jury to the ever after remain jurors; knowledge her statement to the to the other concern or her judge pressly judge defendant; probability ex- all favorable to was in jury juror with- continue to serve that the could found defendant; judge’s prejudice instruction or to the State out age simply explanation respect an of the law applied the case. as it — degree guilt separate offense 112.4—defendant’s § Criminal Law 3. — proper jury proof required instructions during perpetration prosecution for murder committed In a robbery State, attempt perpetrate where the for the an armed showing intent, commis- purpose of defendant’s offered evidence failing robbery, did not err in armed the trial court sion of another beyond that de- require a reasonable doubt to be satisfied robbery, every or circum- fact committed the since fendant proved beyond upon by a reasonable the State need not stance relied though element, doubt, which circumstances of each the facts and proved. part, must be so are a a case — guilt separate connec- offense 34.7—defendant’s § Law 4. Criminal — judge charged determination for trial offense tion with during perpetration prosecution committed for murder In a confectionery attempt perpetrate of a store armed SPRING TERM y. May employee where the State offered evidence of defendant’s commission robbery dry cleaning establishment, of an earlier armed aat the trial failing court did not err in to instruct that must find a logical “causal relation or and natural connection between the two robbery acts at [the the cleaners and the murder at the confection- ery]” robbery since the determination of the connection between the judge making and the murder was for the trial of the his determination admissibility robbery evidence. — — discovery allegedly 5. Constitutional Law § evidence withheld 30— exculpatory evidence not material or comply Defendant’s contention that the State failed to with his pretrial request voluntary discovery is without merit where the allegedly withheld was not shown to be material or ex- culpatory. G.S. 15A-902. — 6. exculpatory Criminal § Law 104—defendant’s statements introduc- — by by proper tion rebuttal exculpatory When the State introduces in evidence statements by by of the defendant which are not contradicted or shown be false to evidence, other facts or circumstances in the State bound statements; however, these the introduction the State of an ex- culpatory preclude statement a defendant does not made the State showing concerning from different, the facts the crime does not necessitate a nonsuit if the State contradicts or rebuts de- exculpatory fendant’s statement. — degree 7. Homicide exculpatory § 21.6— first murder state- — sufficiency ment of evidence prosecution In during perpetration for murder committed attempt perpetrate or robbery, an armed evidence was sufficient jury notwithstanding to be submitted to the the State’s introduction exculpatory of defendant’s statement which tended to show self-de- fense, since the State offered evidence each element of murder in perpetration felony of a and also offered evidence sufficient exculpatory contradict and rebut defendant’s statement. — — 8. Homicide § 19.1—self-defense deceased’s criminal testi- record mony properly excluded prosecution during perpetration for murder committed attempt perpetrate an armed where defendant contended self-defense, that he prejudiced by acted in defendant was not respond trial court’s refusal to allow a witness to to defendant’s question concerning knowledge prior the witness’s of the victim’s con- deadly weapon, victions for testimony assault with a since the excluded nothing was that prior the witness knew about the victim’s criminal record, testimony probative and such was of no value and noth- added ing to defendant’s contention that he acted in self-defense. — degree 9. Homicide statutory § 12.1—first murder indictment lan- — — guage premeditation perpetration felony and deliberation An indictment drawn in accordance with G.S. 15-144 is sufficient guilty degree sustain a verdict of murder in the first based THE IN SUPREME COURT Sta.te malice, premeditation finding that defendant killed perpetration attempted deliberation, or that defendant killed in the felony. burglary perpetration any arson, rape, robbery, or other — 80; degree Homicide 31.1—first murder § § 10. Constitutional Law penalty imprisonment life substituted for death imprisonment A sentence of life is substituted for the death sen- degree imposed upon tence conviction of first murder. dissenting. Justice Exum

Appeal 7A-27(a) pursuant to G.S. Forsyth Long, J., Superior 17 November 1975 Session Court. degree Defendant was tried and convicted first mur- Elijah

der of and Whitaker Jones was sentenced death. argued This case was docketed and Term. No. 18 the 1976 Fall as tending The State introduced evidence to show that on 18 February 1975 Mrs. Etta G. Ross saw defendant enter Jones’ Confectionery store North Trade Street Winston-Salem. Mrs. Ross then heard a “boom” and saw defendant leave the appeared pulling up store. She noticed that defendant to be his walking limp. belt he left as and that he Defend- a ant walked around the store and across a vacant lot in the Shortly thereafter, Elijah direction of Main Street. Whitaker Jones, proprietor Confectionery, of Jones’ was found dead in by injuries the store. His death was caused inflicted from a shotgun opened approximately blast which hole in chest his 4.8 centimeters in diameter. during early

Mr. Paul Richard Hanes testified that af- February delivering along ternoon of 13 he was mail Main engaged, Street in Winston-Salem. so While Mr. Hanes wit-' staggering up nessed defendant Main Street. After several steps, defendant fell in a state of semiconsciousness. Mr. Hanes and several men went to defendant’s aid. The men dis- shotgun covered a sawed-off tucked in the waistband of defend- gun ant’s trousers. the men One of checked the to see if it was gun spent loaded. The was found contain one one shell and Upon defendant, live round. further examination of it was de- termined that he had been shot in the chest. Defendant was hospital. then taken TERM hospital,

Upon from the he made a defendant’s release police. statement, defendant stated that he this statement Confectionery purchase package had entered Jones’ cigarettes. cigarettes receiving purchasing After and his began walking change, defendant turned and toward the door. shoulder, he looked defendant saw that Mr. Jones As over his pistol. body, him with He was about to shoot turned his and Mr. shot defendant on left Defendant then Jones his side. took shotgun right hip pocket the sawed-off from his and shot Mr. time, Jones. At stated that he between put and feet from then twelve fifteen Mr. Jones. Defendant gun staggered pants back in his and to Main Street. testimony Ferguson further offered the of Katie employed who testified that XL she was at the Cleaners in Win- approximately February p.m. At ston-Salem. 2:15 on 8 Ferguson stated that defendant entered the Ms. asked for cleaners

laundry in a Defendant fictitious name. then bran- shotgun for, received, dished a sawed-off asked money register. Ferguson in the cash contained Ms. then iden- shotgun tified the sawed-off used in the XL Cleaners being gun as the same that was from defendant recovered as lay February. prostrate Main on 13 This Street Ferguson’s prior identification was corroborated Ms. iden- gun. photographs by police her tification of shown to officers. necessary facts to the decision of

Other this case will be opinion. set forth in the Attorney General Li Edmisten Assistant Attor- Rufus

ney Hensey General Charles M. the State. for Hough appellant.

David B. for MOORE, Justice.

tion in the ^[1] Defendant first contends that the XL Cleaners on 8 evidence February of his participa 1975 was improperly admitted admission of evidence such the. constitutes reversible error. This contention is based de probative fendant’s assertion that the evidence solely jury, issue case and was introduced to inflame the prejudice to the of defendant. THE IN SUPREME COURT 171, McClain, In the of State oft-cited case 2d Justice Ervin set forth 81 S.E. prosecution particular rule “that in a for a well established tending crime, offer evidence to show that the State cannot sep- independent, distinct, or another accused has committed however, are, There certain arate offense. omitted.]” [Citations

equally exceptions permit well which the admission established other offenses. v. Mc- of evidence of the commission Stansbury, Clain, supra, also 1 cited therein. See cases ; (Brandis 1973) Wharton, N. C. Evidence rev. Crimi- §§ (13th 1972). present case, In one nal Evidence 240-264 ed. §§ McClain, exception supra, which set out in State v. is appeal: 2d at is relevant to defendant’s specific is “2. mental intent or state an essen- Where charged, tial of the crime be offered element of such acts or declarations of the accused tend to estab- as state, though requisite lish the mental intent or even evidence discloses the commission another offense the accused. [Citations omitted.]” Fowler, 470, 473, As stated : is of the commission of other like offenses “[P]roof guilty competent quo animo, design, intent, to show the knowledge scienter, gestae, or to make out the res or respect a chain of the matter exhibit of circumstances trial, on charged when such are crimes so connected with the offense light upon ques- as one to throw or more of these ” tions. [Citations omitted.] determining properly whether another offense is ad- guided following evidence, principle: into are mitted we “ ‘ logical relevancy . . . acid test is its to the particular sought excepted purpose purposes it is which logically pertinent If be introduced. it in that reasonably issue, tends to a material fact in it is rejected merely incidentally proves not to be because it guilty another the defendant requisite degree of crime. . . . the Whether relevancy judicial question exists is a light to be resolved in the of the consideration that tendency legally inevitable of such evidence is to raise a 649 TERM 1977 y. May

State ” jurors.’ guilt of the in minds spurious presumption of 177, 368. McClain, supra, 81 2d at at S.E. v. State convicted of murder bar, defendant was In the case 14-17, felony G.S. perpetration of under a committed in which, part, provides: pertinent per- “A which be . . . committed murder shall robbery attempt perpetrate or to . . . ... petration or felony to be murder . . . be deemed shall punished degree with ...” death. first shall be case, proving present Thus, State had burden Elijah beyond a that defendant murdered reasonable doubt during attempted perpetration an perpetration or Jones Simmons, 681, robbery. 286 213 S.E. armed See State v. N.C. Haynes, (1975) ; v. 2d State 276 N.C. 2d 280 (1914). (1970); Lane, State 81 S.E. 620 v. 14-87, robbery armed as the tak

Under an is defined G.S. ing personal property presence of another in or his threatening by endangering person his consent without his his life with a knowing firearm, with the taker that he is intending permanently property the taker entitled property. attempted deprive the An armed owner of the rob, requisite “with the intent to does occurs when a defendant designed bring the rob some overt calculated and about act thereby threatening person.” bery, endangering or the life of a 157-58, Price, State N.C. S.E. By

(1971). 14-87, complete if terms G.S. the offense is personal attempt property use fire an to take there is dangerous Rogers, weapons. State N.C. arms or other attempt a 2d 525 The itself is violation felony. proof To sustain burden of that the statute and is its perpetrating attempting per involved in defendant was required petrate robbery, show defend Elijah possessed specific intent to ant rob Jones. Long,

In State S.E. 2d 47 defendant and en- introduced two cohorts a Gulf Charlotte and endeavored to rob the at- tered tendant station pearl-handled pistol. of a the threatened use began attendant to “tussle” one of would-be robbers robbery. successfully foiled the testified Defendant attempted robbery, not caused “tussle” was but rather THE 650 IN SUPREME COURT May v.

State alleged dispute a refund to be due from a over was caused testimony vending rebuttal, the State a concerning In introduced machine. robbery participation the defendant’s in the of a store, prior which occurred about three weeks convenience the robbery appeared during the Gulf station. It that robbery acquired pearl- defendant had store .convenience robbery. pistol which was in the Gulf station handled used robbery upholding concerning the admission of the evidence store, of the convenience held this Court the convenience robbery competent store was as substantive evidence of defend ant’s intent at the time he entered the Gulf station. The Court disputed further of held intent was a critical element attempted robbery case, the State’s and that the evidence of robbery clearly prior tended to intent. See v: State Humphrey, 570, ; 283 (1973) N.C. 196 S.E. 2d 516 Jen State v. erett, ; (1972) Fowler, 281 187 N.C. S.E. 2d 735 State supra; Beam, State v. (1922) ; N.C. S.E. 176 Pannil, ; Simons, 182 N.C. 109 S.E. 1 (1919) ; 178 N.C. Parish, S.E. 239 State v. (1889) ; Murphy, State v. (1881), Annot., similar cases. See also 42 A.L.R. 2d compilation and later case service for a admitting cases evidence of other offenses show intent. bar,

In the opinion case at we are of the evidence participation robbery in the at the XL Cleaners trial, was At admissible. there de- was evidence overt acts signed bring robbery endanger about human life. Confectionery carrying Defendant entered Jones’ a sawed-off shotgun concealed in store, his trousers. defendant While shot proprietor range at close and then fled on foot. When he apprehended, possess pack found to fresh cigarettes money no Further, but or identification. questioned lied as to his name by police and address when offi- cers. These furnish acts inquiry sufficient basis for into defendant’s state of mind when he entered store. The evi- robbery dence Cleaners, during at the XL which defend- ant shotgun used the present same sawed-off case, inas sheds light upon quo defendant’s intent and animo. The XL Cleaners clearly prove material, hotly tends to contested crucial issue in the case, Thus, State’s case. under the facts of this requisite

we hold that connection ex- between the traneous charged criminal transaction and the crime exists TERM 1977 admissible the XL the evidence of Cleaners makes question of intent. the charge, of XL judge limited the use the the trial his identity. robbery intent Because to the issues of and

Cleaners intent, do not disposition on the issue of we of of the case our necessary of decide the the evi- deem it whether admission identity Perry, proper. But 275 to show was see dence (1969). Stansbury, 2 N. 565, 169 2d 839 See also C. S.E. 1973). any (Brandis 166 There was never issue Evidence rev. § concerning during openly identity fact, trial. In raised Hence, that Jones. if error was committed admitted by he shot instructing to use the of the issue reasonably identity, it not have could affected the verdict and 225, Turner, harmless. 150 2d 406 Defendant further the the evi- contends admission by process the dence of at the XL due Cleaners violated Boyd denying support To position, him a fair trial. his cites States, 1077, 292 United U.S. 35 L.Ed. S.Ct. that, Supreme (1892), wherein the United Court held States prior case, the of that evidence of five robberies under facts by defendants inadmissible because committed one both slightest not, degree, elucidate the issue the evidence “did namely, jury, the murdered John before the whether defendants Dansby_” at L.Ed. 294. 142 U.S. S.Ct. at Court, however, further stated: by

“If evidence as to defend- the crimes committed the ants, Dansby, other than the limited to murder had been Rigsby Taylor, may be, the robberies and it in view of peculiar by record, the the circumstances disclosed the specific purpose directions the court as the for which might proof judgment considered, those two robberies be although disturbed, proof, not would multiplied in details connected with facts Taylor Rigsby robberies, beyond objects for went 457-58, it allowed which was court. ...” 142 U.S. at 1080, 12 at 295. L.Ed. at S.Ct. may feel that contention not be sustained We holding Boyd. States, in In Wood v. United 41 U.S. under IN THE SUPREME COURT (16 Pet.) L.Ed. United States Supreme Court stated: issue, party intent of

“[W]here is matter in allowable, always it has been in criminal deemed as well cases, in as doings civil to introduce evidence of acts and party character, kindred order intent, particular illustrate or or motive establish his way act, directly judgment. Indeed, in no other would practicable, cases, many be motive, intent establish such single may taken act itself be de- way; cisive either but taken when in connection others nature, of the like character and the intent motive certainty.” be demonstrated almost with a conclusive Supreme permitted The United States Court the has introduc- tion of evidence other of crimes to intent and motive Annot., numerous (1950), cases. See 93 L.Ed. 185 for a sam- pling of these That decisions. Court has further held that the promulgate are concerning relevance, states free to rules and may that evidence of other crimes be admitted to establish in- tent if done in accordance with of those rules relevance. Lisenba California, 314 U.S. 86 L.Ed. 62 S.Ct. 280 Spencer Texas, 385 U.S. L.Ed. S.Ct. Cf. (upholding the of admission evidence of other recidivist). Accordingly, crimes the trial do not we find any Supreme the decision from United States Court which would robbery. bar the admission of the evidence of the XL Cleaners assignment. Thus, we overrule this juror. entry 1-180 ^[2] during Defendant next contends that the trial by expressing The the trial juror approached his charge. judge concerning an In the record there opinion during the judge a discussion the appears stated judge course he that she violated G.S. an ex of the had with a parte trial had years heard outside of court that defendant was seventeen age. juror judge The the indicated to that had known she age during jury concerning defendant’s opinion “her selection might penalty the death judge have been different.” The in juror the any structed other not to disclose this information to jurors and stated that would rule whether remove her During all after the evidence was received. trial, age course defendant’s was received entry, judge evidence. his the trial found “that the out-of- TERM non-prejudicial juror] received information [the court the defense.” or either judge completed instruction trial had his After following transpired: jury, any requests for further instructions “Are there request from the State there one than those —I believe is here that I have not covered. Honor, approach Your the bench

Mr. I Yeatts: giving you prior to that instruction?

The Yes. Court: bench.) Hough (Mr. approach and Mr. Yeatts jury, re- has Members of the Court: you age quested I the defendant instruct guilt. Sympathy pity material his issue your age find- prejudice influence based should not ings in this case.” juror permitting to continue

Defendant contends serve, request supplemental granting for a and then the State’s concerning age, opinion expressed instruction to defendant. adverse explain requires judge G.S. 1-180 that a “declare arising given prohibits in the case” and

law judge. expression opinion v. the As stated State was Canipe, 81 2d S.E. : N.C. language judge the the of the “Whether conduct or expressison opinion amounts to an of his on the facts is to ” meaning jury. probable its the . . determined to . Carriker, also v. 215 S.E. 2d See State McEachem, 57, 194 2d (1975); v. State N.C. S.E. Williamson, (1973) ; State N.C. 787 443 are to conclude that the actions of the trial unable We conveyed jury any judge expression opinion the to as to guilt There or innocence. is no evidence that the defendant’s having jury juror permitted remain on who to the after conveyed judge her spoken to the trial ever concern or knowl- judge jurors. edge Her statement to was in all to other IN THE COURT SUPREME State Further, judge probability to the trial favorable defendant. juror jury expressly that the could to found continue serve prejudice to the or defendant. The instruction with without State age expres- respect to not could be construed as response request by State, opinion. sion of In the trial judge explaining simply applied to the law as case. assignment is This overruled. ^[3] charge Defendant next contends that was erroneous: following portion you may “Now, you evidence, if believe this consider you is, relating

it—that alleged robbery if believe the evidence to the Cleaners, you may

of XL consider that evi- purpose only, only, purposes dence for one these for two tending identity may person that is show the who alleged have committed and that homicide the defendant Confectionery intended to ques- rob Jones’ the date relating any tion. You robbery not consider the evidence any purpose of XL for Cleaners other than purposes.” these limited assignment,

Under ing defendant requir- contends that jury beyond to be satisfied a reasonable doubt de- fendant was Cleaners, committed the XL at the the State proving relieved of its burden of each element its case beyond a reasonable doubt. Crane, In 15 S.E. 231 requested charge jury that the court as follows: large “In this case the in a relies measure circumstances, evidence of State, and it is incumbent on the therefore, relies, all the circumstances on which it beyond doubt, duty a reasonable and it passing guilt upon the or innocence of the defendant discard and all proven.” that are circumstances not so judge give The trial ant declined to this instruction defend- excepted. upholding judge, the trial this Court stated: prayer “The properly instruction was refused. When the circumstances, State relies a chain of such necessary that each circumstance a chain, is link in the it proper charge would then be to stronger ‘a that chain no is link’; than its weakest but when various facts circum- TERM 1977

State fact, prove case, it on, a as in this are relied stances asked, was in charge, that ‘It as would not be correct on prove upon all circumstances cumbent ‘upon the relies, beyond doubt.’ . . . a reásonable which beyond jury evidence,’ a reason must be satisfied whole they guilt, not, if must ac ánd doubt of defendant’s able quit 536-37, Crane, supra, at 232. him.” State v. S.E. Shook, 2d 329 224 N.C. See also State ; (1915) 2 ; Trull, 85 S.E. 133 1973). Stansbury, (Brandis N. C. Evidence rev. § every authorities, opinion From we are of the these upon by need not be fact proved circumstance relied the State beyond element, a reasonable doubt. Each of which part, proved. facts and circumstances of a must be case are so Thus, jury it is sufficient for conviction that is satisfied upon the whole evidence each element of the crime has beyond proved been a reasonable doubt. jurisdictions approach

Other have taken a similar where question evidence of other crimes has been offered on the State, (Ohio 1923), intent. Scott v. 141 N.E. 19 During soliciting trial, accepting was convicted of a bribe. commission of similar offenses During was introduced charge, issue of intent. trial court’s determining . was instructed: “In the intent .. you may testimony consider the as to other ... [crimes] defendant, any you if find from the evidence has been [com- assigned 141 N.E. at 25. Defendant as error the omis- mitted].” charge sion from the proved the other must crimes beyond rejecting contention, reasonable doubt. In that, convict, court reasoned prove in order to the State must beyond each material element of the crime a reasonable doubt. not, however, required every prove beyond The State was fact conclusion, a reasonable doubt. In the court stated: “Now, the intent one of the elements that must be testimony prove bribery. established the crime of previous as to other similar defendant, offenses committed period remote time, too is admissible bribery Intent, case to intent. ma- the ultimate intent, beyond terial fact of must be established a reason- doubt, charge. hold, able and the court however, must so To that other similar crimes which tend to establish intent

656 THE IN SUPREME COURT May

State v. beyond proved must be a reasonable doubt is to extend the beyond logical rule far all reason. If carried to its con- require every such a probative clusion doctrine would beyond fact offered in the case be established a reasonable doubt, certainly which is not the law.” 141 at N.E. 26. reasoning holding The State, of the court in Scott v. supra, appears represent majority juris view of other People Allen, dictions. v. (Mich. ; See 1958) 88 N.W. 2d 433 Everett, (Ill. State Drews, App. 1973) ; v. 302 2d N.E. 723 State v. (Minn. 1966); 144 2d 251 Mitchell, N.W. State v. 545 1976) (Ariz. ; Territory 2d 49 Awana, P. (1925) ; 28 Haw. 546 Wharton, 1 (13th Criminal 1972). Evidence 263 ed. But see § State, (Tex. App. 2d 375 1960), S.W. Crim. for Curry minority view. Throughout charge present case, judge the trial emphasized that the State proving bore the burden of each ele- beyond ment of the crime a reasonab'e doubt in order for the jury guilty. to find the defendant Intent was one of the ele- charged. ments of the crime participation The defendant’s robbery the XL Cleaners but probative a fact which was the element and, of intent decisions, under required our was not proved beyond Reading charge a reasonable doubt. as whole, jury fully properly instructed on the bur- quantum den and proof necessary conviction. State Henderson, 276 N.C. (1970) ; 173 S.E. 2d 291 State v. Cannon, (1947) ; 227 N.C. 42 S.E. 2d 344 Jones, State v. (1947). We find no merit in this contention. find a “causal relation or

contends that the ^[4] Under this same should have been instructed that assignment logical and natural connection be error, further it must tween the two acts of the XL [the Cleaners and the mur ” der at Confectionery] Beam, Jones’ proposition . . . . For this cites State v. S.E. 176 portion cited Beam, supra, State v. dealt with the factors judge to be used determining the trial prof whether the testimony fered competent is admissible and to be introduced at trial. As was McClain, stated State v. supra, S.E. 2d at 368: “ degree requisite ‘. . . relevancy Whether the exists judicial question

is a Hence, .... if the court does not TERM clearly extraneous perceive connection between the charged, is, its criminal transaction the crime given logical relevancy, benefit the accused should be rejected.’ doubt, and evidence should [Cita^ tions omitted.]”

Accordingly, between determination the connection Confectionery the XL and Jones’ murder Cleaners judge making was for the missibility. Having of the ad- trial in his determination weight

properly testimony, admitted this probative jury. and force of the for evidence was See Stansbury, (Brandis 1978). N. Evidence C. rev. § ^[5] Prior trial, defendant made a request for voluntary discovery pursuant request to G.S. 15A-902. In his for informa tion, defendant asked for all information in which “would any degree (no slight) manner and to how matter tend to excul pate responded by giving the Defendant case.” this The State opportunity “inspect copy photo defense counsel graph any physical question.” of the material evidence in trial, Ferguson, person At Ms. robbed at the XL Clean- ers, police my testified: “The premises officers came to after particular fingerprints.” this Later, incident and dusted the counter Ferguson

Ms. also testified that she had looked at three photographs by police attempt stacks furnished identify defendant. Officer L. “I T. stated: did take some Cann fingerprints, dusted some Coca-Cola that bottles were there Confectionery], I [Jones’ dusted one that was the counter. I particular made two bottle, meaning latent lifts that fingerprints.” finger- lifts of Cann further testified that prints did not match those There defendant. was also evi- “gunshot performed dence that a victim, Elijah test” was objection lodged No Jones. was trial to the admission of the evidence However, outlined above. contends exculpatory suppression evidence was and that its violated Maryland, v. 66, Giles 737, U.S. 17 L.Ed. 2d 87 S.Ct. 793 Brady Maryland, v. 373 U.S. 10 L.Ed. 2d 83 S.Ct. 1194 Gaines, In State 33, 45, v. 194 S.E. 2d (1973), this Court stated: Brady “The standards enunciated which the solicitor’s conduct in this case is to require be measured us IN THE SUPREME COURT v. suppresssion (a) there whether

to determine (b) request of material prosecution after the defense Obviously, under (c) to the defense. favorable evidence Brady discovery grant pretrial motion for a refusal shows movant not reversible error unless dp so, suppressed. him In order to favorable certainly Defendant was. show what that evidence must showing he had has made no such here. The solicitor stated nothing in this favorable to the defendant no evidence re- no constitutional record contradicts him. ‘We know of quirement prosecution complete and de- make a investigatory accounting police all tailed to the defense of Illinois, 83 L.Ed. on a case.’ Moore 408 U.S. work Davis, (1972) ; N.C. 2d 92 S.Ct. 2562 (1972).” Branch, See 191 514, also State (1975). 2d 220 S.E. 495 finger- bar, at no the case there is indication that “gunshot

prints, photographs exculpatory. were material test” the opportunity Defendant was to cross- afforded regarding place in examine the the evidence and witnesses how the would material and favor- the record have been showing, In the absence this able the defense. of such assignment must be overruled.

[6] Defendant assigns as error failure of the trial court judgment to enter as at the evidence. of nonsuit the close all Specifically, the defendant contends that comes within 475, purview Carter, of the rule stated in State v. 254 N.C. State, 479, 461, in 119 2d 464 S.E. “[w]hen exculpatory troduces in evidence statements of the defendant by any other which are not contradicted or shown to be false evidence, facts or these circumstances the State is bound Bolin, 415, See also v. 2d statements.” 235 patory State 281 N.C. (1972). However, the State an excul introduction oí preclude

statement made a defendant does showing concerning dif the facts the crime to be State ferent, does not if the contra necessitate nonsuit State Bolin, exculpatory v. dicts supra; rebuts defendant’s statement. State (1971) ; McKnight, v. 279 N.C. 181 2d 415 State S.E. Cooper, (1968) ; v. 273 159 S.E. 2d 305 2d State v. State N.C. Bright, (1953). S.E. TERM 1977

State v. judgment nonsuit, On motion the admitted as of all light to the favorable evidence must be considered most given every reason- and the State must be benefit State every to be able intendment inference thereon reasonable discrepancies drawn even therefrom. Contradictions and are State’s evidence matters for the and do not warrant Bolin, supra; Murphy, nonsuit. State Cutler, (1971) ; McKnight, supra; 2d 845 S.E. N. C. ^[7] In the case at bar, State’s evidence tended to show February 1975, possession that on 8 defendant had weapon shotgun (a tape) wrapped sawed-off in black electrical shooting Elijah used in the Jones and that defendant used weapon February. to rob the XL Thereafter, on 8 Cleaners February on 11 weapon some defendant secreted the adjacent February, bushes to his house. 13On defendant en Confectionery weapon tered Jones’ in his with the murder concealed store, proprie trousers. While in the defendant shot the tor, Elijah Jones, Following apparently range. close shooting, defendant fled the scene the crime. See State v. Bolin, supra. police investigator then Defendant lied to a about his name and address. Defendant’s statement was to the that he had en- effect Confectionery

tered purchase cigarettes. pack Jones’ De- purchased fendant fifty cigarettes giving proprietor Jones — receiving change. cents and two cents As he was walk- ing door, by out the turned and was Jones with shot pistol. pulled shotgun Defendant then a sawed-off from his right hip pocket and shot Jones. explanation why Jones, Defendant no offered as to the stepfather of defendant’s close friend and a man never who had by neighbors trouble, been known his to cause would the shoot purchased cigarettes defendant. Defendant stated that he change. Yet, received two cents in defendant was found with a cigarettes package change. and no Defendant stated that he shotgun standing shot of the with a Jones sawed-off door while at the approximately twelve to fifteen feet defend- store — Yet, only ant’s estimation. Jones’s wound was 4.8 centimeters indicating range. in shot at was close The State’s diameter — to contradict evidence is sufficient and rebut defendant’s ex- THE COURT IN SUPREME y. May credibility great statement, and casts doubt culpatory statement. defendant’s light to Considering favorable in most the evidence jury. carry the case to the State, sufficient evidence is opinion, in- in the State previously discussed this As we have perpetration on each element murder troduced statement, exculpatory felony. respect to defendant’s of a With Hankerson, in State v. Justice Exum turn to the words of we 288 N.C. 220 S.E. 2d : individually of these taken none circumstances “While together statement, flatly they taken contradicts defendant’s light cir- to 'throw a different are sufficient impeach the of the homicide’ and to defend- cumstances ant’s bound, is not of the incident. The State version exculpatory portions therefore, defendant’s state- jury.” ment. The case is guilt jury say Hence, it for the whether defendant’s beyond spoken. jury The established a reasonable doubt. has objection that ^[8] Mrs. Etta she Ross, had never a witness seen for the any trouble in the deceased’s State, testified without recross-examination, Ross further store her life. On Mrs. any objection: give “I him trouble testified without never saw any giving anybody I never heard of him store. have giving any trouble, I never seen him in that store. have trouble give anywhere anybody, him all.” not heard trouble to Ross, lawyer: Mrs. Ross was then asked were “Mrs. you aware of the fact that Mr. Jones had been arrested deadly and convicted on four different occasions of assault with a weapon?” objected question objection to this was sustained. allowed the record: Mrs. Ross was to answer for nothing “No, I know don’t about it.” prejudicial Defendant contends error was committed by denying opportunity place him the before Elijah response question concerning Mrs. Ross Jones’s Assuming argument past activities. for the criminal sake brought case, find that such matters could be we out prejudicial The ex- no error in exclusion of evidence. testimony probative Mrs. value and of Ross of no cluded nothing contention that he acted in self- added to defendant’s any did not know of criminal defense. Mrs. Ross that she stated 661 SPRING TERM 1977 Elijah had. record Jones have As was stated in State Mundy, 907, 910, 93, (1921), “it N.C. 94 is clear nothing the excluded evidence added . . and that if . appreciable it had effect same had been admitted could have no testimony Mrs. on result.” Ross’s could not have affected Hence, assignment. the result this case. we this overrule next Defendant insists that the trial court in instruct- erred ing felony-murder on the doctrine of since bill only charged: indictment Upon “The Jurors Do the State Their Oath Anthony County That May, Michael Present, late of the Forsyth, day February, 1975, 13th with force arms, and County, feloniously, willfully, and in the said aforethought, Elijah and of his malice did kill murder contrary Jones Whitaker form of the statute in such provided, against peace made and dignity case of the State.”

authorized ^[9] indictment G.S. 15-144. In numerous set out above is in the cases, form this Court has expressly held that an indictment drawn in accordance G.S. 15-144 guilty sufficient sustain a verdict of murder degree upon finding first based that defendant killed with malice, premeditation and deliberation, or that defendant killed perpetration attempted perpetration in rape, robbery, arson, burglary felony. See, e.g., State v. Mc Laughlin, 597, 286 N.C. (1975) ; 213 S.E. 2d 238 State v. Frazier, (1972) ; Lee, 185 S.E. 2d 652 State v. (1970) ; 2d Haynes, N.C. S.E. 2d 435 N.C. If defendant had deemed necessary, he could have particulars moved for a bill of to ascer theory rely tain State v. which the State intended to 171 at trial. Haynes, ; S.E. 2d 435 G.S. 15A-924, Hence, 925. This done. we find no merit assignment. invalidated Supp. Section of convicted and ^[10] 96 S.Ct. 2978 1975) Woodson v. Chapter 7, —the sentenced. death statute North 1201 of the penalty provisions Thus, under which defendant was Carolina, the United 1973 Session Laws authority 428 U.S. States of G.S. 14-17 Supreme (1974 provisions L.Ed. indicted, (Cum. Court Ses- COURT IN THE SUPREME

Sta,te May t. for must substituted imprisonment life be sion), of a sentence sentence. the death no error of entire record discloses the Our examination jury. De-

affecting validity verdict returned of upheld. The sentence must therefore be conviction fendant’s vacated, however, and defendant must imposed be death life sentence of life imprisonment imposed. To end that a substituted, is remanded to the imprisonment case Forsyth County (1) that Superior of with directions Court defendant, requiring presence judge, without presiding imprisonment judgment imposing for the de- life first enter convicted; and gree of which defendant has been murder judgment superior said clerk of with accordance for in substitution the commitment a commitment issue court It is further ordered the clerk of su- heretofore issued. copy defendant and his counsel perior court furnish revised in accordance with this judgment commitment as opinion. verdict;

No error

Death sentence vacated. dissenting: Exum

Justice prejudicial I for dissent the reason that it was error permit this case to participation state offer evidence defendant’s earlier, distinct, separate for an robbing purpose proving attempt- ing Confectionery to rob Jones’ time he shot Jones. Mr. majority attempts justify the admission of this While tending “intent,” evidence as it seems clear only purpose the real me that conceivable of the evidence Clearly happened confectionery. was to what show inside the “Logically, purpose. it could not be offered the com- independent proof mission of offense is not in itself 171, McClain, commission of another crime.” State v. 173-74, 364, (1954), quoting 81 S.E. 2d v. Com- Shaffner monwealth, 60, 649, quoted 72 Pa. Am. R. which was also approval People Molineux, 168 N.Y. 61 N.E. (1904). person 286, 62 “A L.R.A. 193 cannot be convicted ” upon proof that he another Peo- one offense committed . . . . SPRING TERM 1977 CO pie Molineux, 62 L.R.A. 168 N.Y. N.E. (1904), quoting People, Coleman v. N.Y. 81 likely “One who commits a crime be more to commit an other; yet, logically, prove one crime . . tend to does . proof another unless there is such a relation between them that prove of Beam, one tends other.” State 184 N.C. Thompson, 115 S.E. also State v. See (1976) Tuggle, 226 S.E. 2d 487 N.C. and State v. 201 S.E. 2d where evidence of other

crimes was admitted but the Court was careful to note both happened really cases that what was not at issue. The crucial question identity perpetrator. in those cases was the of question,

The real factual as close a examination of the show, happened evidence will is what inside Jones’ Confec- tionery, intent, rea, not defendant’s mens of or state mind. The robbing state contends attempting defendant was or to rob shooting. Jones the time is, however, There no direct happened evidence of what other than defendant’s out-of-court committing statement offered which state in he denied attempting robbery. to commit a His statement was gun he took the to his brother’s house near North Trade Street apparently finding purpose leaving Upon for of it with brother. his home, gun.

his brother not at he left with the walked He Confectionery purpose buying pack into Jones’ for the of of a cigarettes. bought cigarettes After he and while he was leaving, shooting place being took which resulted in his being wounded and Jones’ showed that Jones’ killed. Other case stepson was a friend of defendant and that customary confectionery. it was visit the In effort to discredit this out-of-court statement which prove committing and to offered in fact defendant was attempting robbery, to commit an armed the state offered days evidence that five before defendant robbed another estab- shotgun. with Merely lishment the same or a similar discredit- ing not, course, defendant’s statement would establish robbery attempt. or its say To that under these evidence of the circumstances prior question crime is offered on the intent, of defendant’s misunderstanding exception general demonstrates rule of this to the exclusion of evidence of other crimes and extends the beyond exception anything far per- this Court has heretofore THE COURT SUPREME IN subject, evi- I have found mitted. each the cases offered dence another criminal offense being regard was ad- crime tried to the criminal intent which, if only proof of an act of defendant mitted after overt intent, constitute crime. done with criminal would Long, 2d 47 In State v. charged with majority, were defendants relied Stewart, sta- attempted a service of one Charles armed happened plenary evidence what tion There attendant. to show tended inside the state’s evidence service station. brandishing defendants, pistol, de- one whom was resisted, open register. manded Stewart that Stewart cash ensued, ran, foiled. a tussle and the defendants their efforts they trying to testified that were not rob Stewart Defendants but the gun caused because was brandished and the tussle give re- one of them would not them a refund when Stewart vending money putting ma- no in a ceived merchandise after rested, Thus, the chine. when defendants crucial issue happened what kind of intent accom- case was not what but brandishing gun. panied drawn with Was to intent to in an effort obtain a refund which de- rob or entitled? fendants were ambiguity, offered evi-

To resolve the state rebuttal this prior had rob- dence that on a occasion one the defendants process he bed a Little General Store which stole very pistol on trial. used in the crime having

Long proved presents the classic case of the state’s ambiguous necessary which, an crimi- act —an act done with the but, intent, crime, nal intent a done not. is without is majority Long, All similar to the cases relied on are They are, however, materially and reach the unlike similar results. proof is no case at in that in this case there bar constituting overt act defendant which could be construed as robbery confectionery. attempt The facts that rob the shotgun; Jones; shot fled the the store with a defendant entered shooting; hospital at to the scene after the and lied officer proof. not constitute about his true name and address do such says shotgun majority “concealed” on the de- was While testimony store, he there no what- fendant when entered the is only The saw him enter ever that it was. state’s witness who sitting porch street, her front across the some distance TERM away confectionery. simply from the did She testified that she gun see at time. state’s also tends The is, course, speculation, show that shot Jones first. It mere possible cigar- buy but it is that defendant entered the store to gun. Jones, mistakenly believing going ettes he robbed, point be shot defendant who then returned the fire. The is, assuming disregarded, statement defendant’s is we don’t actually happened know what inside the store. Robbery, majority correctly notes, requires as the the tak-

ing personal property person of another from or in his his presence and without attempted his consent. Even an majority requires as also notes “some overt act calculated designed bring robbery. (Emphasis sup- about the .. .” plied.) Until there is evidence in the case of overt act some constituting taking which could be attempt construed as or an property another, question to take the of defendant’s simply Though intent suspicion does not arise. aroused strong, absolutely there is no evidence that defendant was taking anything attempting anything or that he was to take shooting time the occurred. majority’s ruling far-reaching. effect of the It state, lacking amounts to this: The actually evidence of what happened, may bootstrap deficiency by itself around offer- ing evidence of what defendant did on some other occasion. This, according majority, proves to the intent to do question This, occasion what the state contends did. turn, proves majority’s somehow that he did it. Under the holding against admitting totally the rule such evidence is abro- gated. may any case, The state it particularly use but those cases where there is no other hap- toas what pened. theory upon

One February robbery which evidence of the 8 might prove be attempted admisible to the commission or com- mission of a February on 13 is that evidence of both prove scheme, plan, design events tends to a part the defendant rob both very to establishments. “When the doing charged of the act proved, is still to be one of the evi- person’s Design dential facts receivable is the or Plan to do it. by sundry This in turn be evidenced conduct of sorts as by design.” Wigmore well as direct assertions of the on Evi- (3d. 1940). dence at ed. Conduct which constitutes § THE SUPREME COURT IN

State v. theory it to “when tends admissible another crime is embracing plan the commission or scheme a common establish proof of one to each other of crimes so related of a series charged prove and to connect to the crime or more tends supra McClain, at commission.” State with its accused 367. 2d at tend- When, however, crime offered as conduct another is ing plan act in turn tends defendants to do an which to show merely done, there be more than act was must that the sought similarity crime between the crime some the. strikingly in detail proved. be so alike The incidents must inference of the exist- both raises a reasonable that evidence of sprang. plan “But where the con- of a out of which both ence doing merely plan] prove a consists duct offered [to something required acts, more obvious that is other similar evidencing similarity, which Intent. mere suffices than that similarity merely then, be, a element must . . . The added results, common but such a concurrence features naturally explained ca/used the various are to be as acts general plan they are the individual which manifestations.” 1940). (Em- Wigmore (3d. on Evidence 304 at 202 ed. § author’s.) phasis the similarity only XL

The between the shown the evidence Confectionery incident and that at was that a Cleaners’ Jones’ enough gun per- type similar used in both. This is not was sprang mit a reasonable inference two incidents are, plan. a common in the two incidents dissimilarities negate really, striking more tend the existence of such hiding plan. cap The XL wore a his hair and used robber robbing not known an alias in an establishment where was frequently persons. apparently which manned two and In identity contrast, attempt máde no conceal his Indeed, Confectionery. he wore trousers with his first Jones’ name embroidered on known to Jones and was them. He was confectionery entirely of Jones’ a one- friend son. The precisely operation. man of a lack of evidence as to Because confectionery happened there can be no com- what inside operandi parison in of defendant’s modus in the two detail supra. Compare, e.g., Tuggle, incidents. tending far

This evidence then falls short of to show that February February both the 8 and the 13 incidents arose out TERM by plan a devised to rob both common establish- negate Rather, closely examined, ments. when it tends to such People Molineux, supra, plan. of dif- a See where evidence precluded from ferent being for otherwise similar crimes motives one plan on offered trial of other the common theory distinguished ground Molineux was this in State v. Smoak, N.C. intent, scienter,

The difference between the criminal or exception excluding plan exception generally and the common to the rule important evidence but crimes is subtle always intent or scienter of the maintain. Criminal is one sought proved, essential elements of the if crime to be or not technically element, a an at least state of mind without which by there can be The rule as no crime. stated Justice Ervin in McClain, 171, 175, S.E. makes this clear: specific “2. a an mental intent or is Where state charged, may essential element the crime be offered of such acts of the as tend declarations accused though requisite state, establish the mental intent or even the evidence discloses the commission another offense (Emphasis supplied.) the accused. [Citations omitted.]” consequently always This criminal intent is one of ultimate sought proved by facts be It is not state. a fact may which other facts such as acts overt of the defendant question really inferred. Indeed the of intent not until does arise overt proven. some act which A could constitute the crime is design plan crime, hand, to commit a on the other like crimi- intent, may defendant; nal exist in mind is but qua not mental which sine It state is a non of the is crime. sought proved not ultimate fact to be is It state. evidentiary which, properly established, mere fact if tend the crime. ques Neither Ido believe the evidence is admissible on the identity. tion of Evidence of other crimes offered for purpose definitely is admissible is not accused “[w]here perpetrator charged and as the of the crime identified charged another circumstances tend to show that the crime ” person offense were the same . . v. Mc committed . . State Clain, supra, (Emphasis 240 N.C. at 2d at 367. supplied.) course, This, where the is case accused IN THE COURT SUPREME

RGK, Guaranty v. Co. Inc. regarding definitely de- There no real issue not identified. was theoretically by identity except plea his fendant’s raised clearly unequivocally guilty. identi- evidence state’s perpetrator of Defendant offered fied him as the the homicide. contrary. Compare Grace, no evidence to the State (1975), alibi; was 213 S.E. 2d 717 where the defense partici- Tuggle, supra, expressly where defendant denied his pation robbery; McClain, in the key 2d 108 where identification of defendant was issue; Thompson, supra, factual 226 and State v. 290 N.C. at was S.E. 2d at where crucial issue trial “[t]he par- . . . whether defendant . . . one of the two men who ticipated Supreme aptly in the crime.” The Iowa ob- Court has 1971) Wright, (Iowa served in State v. : N.W. permit “There must some factual issue raised exceptions. of other crimes under the noted If no such issue exists, unnecessary exception then the evidence is and the upon. presented not be relied . . . Here the defendant theory evidence, posed uncomplicated no and the State’s factual situation determination. . . There no . testimony justify real issue ... the admission of crimes, seriously argued nor can it be the evi- identity.” dence was admissible to admitting For these I reasons would hold that the evidence February robbery improper, highly case of the 8 prejudicial, and entitles defendant to a new trial.

RGK, INC. v. UNITED STATES FIDELITY AND GUARANTY COM INC., PANY, CECIL’S, PROPERTIES, and FAIRWAY Limited Partnership

No. (Filed 1977) 13 June — Principal payment Surety private project 1. 10—§ construction action on — necessity prime bond for attachment of contract prime payment A who materialman sues on a contractor’s bond required complaint, is not forth set his attachment or other- wise, the contract between the contractor and the owner in order successfully to resist a motion to dismiss.

Case Details

Case Name: State v. May

Court Name: Supreme Court of North Carolina

Date Published: Jun 13, 1977

Citation: 235 S.E.2d 178

Docket Number: 62

Court Abbreviation: N.C.