52 N.C. App. 186 | N.C. Ct. App. | 1981
We first note that defendant Thomas failed to set out and discuss his eighth assignment of error in his appellate brief; defendant King failed to set out and discuss his third, fourth, eighth, sixteenth and seventeenth assignments of error in his appellate brief; and defendant Christmas failed to set out and discuss his fourth, sixth, sixteenth, eighteenth and twenty-first assignments of error in his appellate brief, thereby abandoning them. Rule 28(a), N.C. Rules App. Proc. In addition, defendant King failed to set forth any argument or authority for his fifth assignment of error in his appellate brief, therefore it is also deemed abandoned. Id. “App. R. 28(a) requires that a question be presented and argued in the brief in order to obtain appellate review.” Love v. Pressley, 34 N.C. App. 503, 514, 239 S.E. 2d 574, 581 (1977), rev. denied, 294 N.C. 441, 241 S.E. 2d 843 (1978).
Defendant Christmas, by his fifteenth, nineteenth and twentieth assignments of error, defendant Thomas, by his fifth and seventh assignments of error and defendant King, by his twelfth, thirteenth, fourteenth and fifteenth assignments of error, present the question of whether the trial court erred in failing to submit to the jury as possible alternative verdicts the lesser included offenses of second degree burglary and misdemeanor breaking and entering. N.C. Gen. Stat. § 15-170 provides that upon the trial of any indictment, the defendant may be convicted of the crime charged therein or of a lesser degree of the same crime. However, the necessity of charging on a crime of a lesser degree arises only when there is evidence from which the jury could find that a crime of lesser degree was committed. State v. Jolly, 297 N.C.
With regard to second degree burglary, the defendants contend that the law enforcement officials were not occupants of the Farrell home at the time of the breaking and entering within the meaning of N.C. Gen. Stat. § 14-51. That statute divides the common law crime of burglary into two degrees, first and second degree burglary, the sole distinction being the element of occupancy. State v. Jolly, supra.
N.C. Gen. Stat. § 14-51 states, in pertinent part:
If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree. (Emphasis added.)
In State v. Tippett, 270 N.C. 588, 155 S.E. 2d 269 (1967), Justice Lake, speaking for the Court, held: “If the burglary occurred — ie., the breaking and entry occurred — while the dwelling house was actually occupied, that is, while some person other than the intruder was in the house, the crime is burglary in the first degree.” (Emphasis supplied.) Id. at 595, 155 S.E. 2d at 274.
In the present case, all of the evidence showed that at the time of the breaking and entering four sheriff’s deputies were present in the Farrell house with the knowledge and consent of the owner. Their occupancy of the house at the owner’s request was rightful as against the burglar. Each of them was “some person other than the intruder.” Id. We hold that the police officers were persons in actual occupation of the dwelling house at the time of the commission of the crime within the meaning of N.C. Gen. Stat. § 14-51. The appellate courts of this State have repeatedly held that where there is no evidence that the dwelling house was unoccupied at the time of the breaking and entry, the trial court may not instruct the jury that it may return a verdict of burglary in the second degree. State v. Nelson, 298 N.C. 573, 260 S.E. 2d 629 (1979), cert. denied, 446 U.S. 929 (1980); State v.
With regard to the lesser included offense of misdemeanor breaking and entering, the same fundamental rules applies, i.e., the trial judge must submit the misdemeanor to the jury as a possible verdict only if there is evidence from which the jury could find that the lesser included offense was committed. State v. Jolly, supra; State v. Davis, supra; State v. Murry, supra. In the case sub judice, if there is any evidence from which the jury could find that the defendants broke and entered the Farrell residence without the intent to commit larceny therein, the trial judge erred in failing to charge the jury on the misdemeanor. The presence of such evidence is the test.
Defendant King testified that at all times before the officers in the Farrell house shouted “halt,” he believed that he, Ned Diggs and defendant Thomas were breaking into Diggs’ parents’ house in order for Diggs to remove some of his personal belongings. Defendant King’s testimony, that he had no knowledge of any plans to burglarize the Farrell residence was supported by the testimony of Sheriff Elkins that Ned Diggs had furnished him with two suspects’ names prior to the break-in and that defendant King’s name was not one of the two. If the jury had believed defendant King’s testimony, it could have found him guilty only of misdemeanor breaking and entering, as his testimony tended to negate the element of intent to commit larceny in the house he was breaking and entering. Where there is evidence that a crime of a lesser degree was committed, the trial court must submit the lesser crime to the jury for its consideration. State v. Davis, supra. There was plenary evidence in this case that defendant King was guilty only of misdemeanor breaking and entering, if the jury believed it. The trial court’s failure to submit for the jury’s consideration and decision whether defendant King was guilty of the misdemeanor was prejudicial error. Error in this respect is not cured by a verdict convicting defendant King of the felony. State v. Worthey, 270 N.C. 444, 154 S.E. 2d 515 (1967); State v. Jones, 264 N.C. 134, 141 S.E. 2d 27 (1965). We hold, therefore, that defendant King is entitled to a new trial. Because
The case against defendant Christmas was submitted to the jury upon the theory of aiding and abetting defendants Thomas and King in committing first degree burglary. To prove its case against defendant Christmas, the State had to prove that either defendant Thomas or defendant King was guilty of first degree burglary, see State v. Austin, 31 N.C. App. 20, 228 S.E. 2d 507 (1976), and also had to prove that defendant Christmas aided or abetted one of them in the burglary. See State v. Spencer, 27 N.C. App. 301, 219 S.E. 2d 231 (1975). It follows that prejudicial error in the trial of defendant King alone does not constitute error prejudicial to defendant Christmas.
Defendants Thomas and Christmas argue that there was evidence from which the jury could infer that they also believed that they were aiding Ned Diggs in removing his personal belongings from his father’s house. Defendants Thomas and Christmas, however, derive no benefit from defendant King’s testimony because that testimony related only to defendant King’s understanding and general impressions. King did not testify that Diggs made any representations regarding the house to defendants Thomas or Christmas. Defendant King could not testify as to what the other defendants thought or believed. Defendants Thomas and Christmas did not testify. The record contains no direct evidence as to what defendants Christmas and Thomas believed or knew about the breaking and entering.
Thus, we must determine whether the record contains any evidence from which the jury could find that defendants Christmas and Thomas committed the lesser included offense of misdemeanor breaking and entering. Defendants contend that because there was no evidence that any property was taken from the Farrell home, the evidence regarding defendants’ intent to commit larceny therein was merely circumstantial and did not point unerringly to an intent to commit the felony, therefore, the trial court erred by not submitting the misdemeanor to the jury. We disagree with defendants’ analysis in this case.
Defendants cite four cases holding that a trial court erred by failing to submit the lesser included offense of misdemeanor breaking and entering as a possible verdict in support of their
The briefs filed on the State’s behalf cite two cases in support of its contention that the trial court did not err in refusing to submit the lesser-included offense of misdemeanor breaking and entering to the jury. In State v. Faircloth, 297 N.C. 388, 255
In State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972), the defendant was charged with first degree burglary and rape. The State’s evidence tended to show that the defendant broke and entered an occupied dwelling house at nighttime and committed the felony of rape therein. Defendant’s evidence tended to show that he had been invited into the house and that he had not raped the victim. The Supreme Court held that there was no evidence of any lesser included offense and that the trial court did not err by failing to instruct the jury on any lesser included offenses.
In two other cases, this Court held that the trial judge did not err in failing to submit misdemeanor breaking and entering to the jury as a possible verdict. In State v. Johnson, 1 N.C. App. 15, 159 S.E. 2d 249 (1968), the defendant was charged with felonious breaking and entering with the intent to commit larceny and with larceny. The defendant denied being present in the building. This Court stated:
All the evidence tends to show that the breaking or entering of Mr. Shore’s building on November 4, 1967, was done with the intent to commit the crime of larceny of merchandise therein, and larceny under such circumstances is a felony. G.S. 14-72. The evidence shows that approximately $500 of the merchandise belonging to Mr. Shore was stolen from this building on this date, and included in the merchandise in the*196 building were buns or cookies such as the one the defendant had on his person when approached. This distinguishes this case from State v. Jones, 264 N.C. 134, 141 S.E. 2d 27, in which there was no evidence of any property having been stolen. (Emphasis added.)
Id. at 19-20, 159 S.E. 2d at 252.
In State v. Martin, 2 N.C. App. 148, 162 S.E. 2d 667, cert. denied 274 N.C. 379 (1968), the defendants were charged with breaking and entering a house with the intent to commit a felony therein. The State’s evidence tended to show that the defendants were surprised in a home which they had broken and entered by the returning homeowners. The defendants fled, leaving furnishings and other property in the home in disarray. This Court held that the trial court did not err by failing to submit the lesser included offense of misdemeanor breaking and entering as a possible verdict to the jury because
the evidence points unerringly to an intent to commit a felony and differentiates this case from State v. Jones, supra [264 N.C. 134, 141 S.E. 2d 27], and State v. Worthey, supra. The evidence leaves no doubt but that defendants were interrupted in their mission, and the fact that they were unsuccessful does not entitle them to a charge on the lesser degree of the crime charged.
State v. Martin, supra at 151-2, 162 S.E. 2d at 670.
Thus, it seems clear, from a close analysis of the above-discussed cases, that where the only evidence of the defendant’s intent to commit a felony in the building or dwelling was the fact that the defendant broke and entered a building or dwelling containing personal property, the appellate courts of this State have consistently and correctly held that the trial judge must submit the lesser included offense of misdemeanor breaking and entering to the jury as a possible verdict. State v. Thorpe, supra; State v. Worthey, supra; State v. Jones, 264 N.C. 134, 141 S.E. 2d 27 (1965); State v. Biggs, supra. However, where there is some additional evidence of the defendant’s intent to commit the felony named in the indictment in the building or dwelling, such as evidence that the felony was committed, State v. Davis, supra; State v. Johnson, supra, or evidence that the felony was attempted, State v. Faircloth, supra; State v. Martin, supra, or, as in the
Defendant Christmas, by his eleventh assignment of error, contends the trial court erred by denying his motion to dismiss at the close of the State’s evidence. By introducing evidence in his defense, defendant Christmas waived his right to except on appeal to the denial of his motion to dismiss at the close of the State’s evidence. N.C. Gen. Stat. § 15-173; State v. Jones, 296 N.C. 75, 248 S.E. 2d 858 (1978).
Defendant Thomas, by his third assignment of error, and defendant Christmas, by his twelfth assignment of error, contend the trial court erred by denying their motions to dismiss at the close of all the evidence. When ruling on a defendant’s motion to dismiss, the question for the court is whether substantial evidence which will support a reasonable inference of the defendant’s guilt has been introduced. In deciding this question, the trial court must consider the evidence in the light most favorable to the State. State v. Thomas, 296 N.C. 236, 250 S.E. 2d 204 (1978); State v. McNeil, 46 N.C. App. 533, 265 S.E. 2d 416, cert. denied, 300 N.C. 560, 270 S.E. 2d 114 (1980).
The elements of burglary in the first degree are: (1) breaking (2) and entering (3) in the nighttime (4) with the intent to commit a felony (5) into a dwelling house or room used as a sleeping apartment in any house or sleeping apartment (6) which is actually occupied at the time of the offense. N.C. Gen. Stat. § 14-51; State v. Accor, 277 N.C. 65, 175 S.E. 2d 583 (1970). As stated in State v. Accor, id.,
[n]umerous cases . . . hold that an unexplained breaking and entering into a dwelling house in the nighttime is in itself sufficient to sustain a verdict that the breaking and entering was done with the intent to commit larceny rather than some other felony. The fundamental theory, in the absence of evidence of other intent or explanation for breaking and*198 entering, is that the usual object or purpose of burglarizing a dwelling house at night is theft.
Id. at 73-4, 175 S.E. 2d at 589. It is clear that the evidence, viewed in the light most favorable to the State, was sufficient to submit the case against defendant Thomas to the jury on the charge of first degree burglary.
The case against defendant Christmas was submitted to the jury upon the theory that he aided and abetted defendants Thomas and King in committing first degree burglary. We hold the evidence, viewed in the light most favorable to the State, was sufficient to submit the case against defendant Christmas to the jury upon the theory of aiding and abetting defendant Thomas in committing first degree burglary. There was substantial evidence that defendant Thomas was guilty of first degree burglary, see State v. Austin, 31 N.C. App. 20, 228 S.E. 2d 507 (1976), and that defendant Christmas aided or abetted him in the burglary. See State v. Spencer, 27 N.C. App. 301, 219 S.E. 2d 231 (1975). An aider and abettor is one who was present, either actually or constructively, at the scene of the crime with the intent to aid the perpetrators, if necessary, and who communicated, in some manner, his intent to render assistance to the actual perpetrators. State v. Rankin, 284 N.C. 219, 200 S.E. 2d 182 (1973); State v. Glaze, 37 N.C. App. 155, 245 S.E. 2d 575 (1978). “In order to determine whether a defendant is present, the court must determine whether ‘he is near enough to render assistance if need be and to encourage the actual perpetration of the felony.’ ” State v. Lyles, 19 N.C. App. 632, 635, 199 S.E. 2d 699, 701, appeal dismissed, 284 N.C. 426, 200 S.E. 2d 662 (1973).
Viewed in the light most favorable to the State, the evidence showed that defendant Christmas transported the defendants to the scene of the crime, let them out of the van in a location designed to avoid detection, left the scene so as not to attract attention, and intended to return at a predesignated time and place to assist in the escape. Without the defendant Christmas’ assistance as a driver, the burglary could not have been committed.
One who . . . accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in that vicinity for the purpose of aiding*199 and abetting in the offense and sufficiently close to the scene of the offense to render aid in its commission, if needed, or to provide a means by which the actual perpetrator may get away from the scene upon the completion of the offense, is a principal in the second degree and equally liable with the actual perpetrator. State v. Bell, 270 N.C. 25, 153 S.E. 2d 741; State v. Sellers, 266 N.C. 734, 147 S.E. 2d 225.
State v. Price, 280 N.C. 154, 158, 184 S.E. 2d 866, 869 (1971).
Defendant Christmas, by his second assignment of error, and defendant Thomas, by his first assignment of error, contend that the court erred in denying their pre-trial motions for discovery. We do not agree.
Defendants contend the court erred by failing to compel the district attorney, pursuant to N.C. Gen. Stat. § 15A-903(b), to furnish them with copies of any written, recorded or oral statements made by Ned Diggs.
G.S. 15A-903(b) provides:
Upon motion of a defendant, the court must order the prosecutor:
(1) To permit the defendant to inspect and copy or photograph any written or recorded statement of a codefendant which the State intends to offer in evidence at their joint trial; and
(2) To divulge, in written or recorded form, the substance of any oral statement made by a codefendant which the State intends to offer in evidence at their joint trial. (Emphasis added.)
Ned Diggs was originally charged, along with the defendants, with the burglary of the Farrell residence. The district attorney dismissed the charges against Diggs on 25 March 1980. Defendant Thomas filed his motion for discovery on 18 April 1980 and defendant Christmas filed his motions for discovery 3 April 1980. On those dates, Diggs was not a codefendant. In State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977) the Supreme Court held that G.S. 15A-904 does not require production of statements made by witnesses or prospective witnesses for the State. There has been no showing that the district attorney failed to disclose any evidence material or favorable to the defendants and no showing
Defendant Christmas, by his third assignment of error, contends that the trial court erred by failing to suppress the testimony of Ned Diggs as it related to defendant Christmas. Prior to trial, this defendant’s counsel wrote a letter dated 14 March 1980 to the district attorney, pursuant to Article 48 of N.C. Gen. Stat. Ch. 15A, requesting that the prosecution furnish copies or inspection of written or recorded statements by codefendants and divulge the substance of any oral statements by codefendants which the State intended to use or offer at the trial. The assistant district attorney responded to that request on 25 March 1980, stating that there were no statements of codefendants which the State intended to introduce at their joint trial. As previously pointed out, the district attorney dismissed the charges against Diggs on 25 March 1980. This assignment of error is overruled.
Defendants Thomas and Christmas contend by their first assignments of error the court erred by failing to grant their motions for a continuance. As a general rule, a motion for a continuance is addressed to the sound discretion of the trial judge whose ruling thereon is subject to review only in case of manifest abuse of discretion. State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976); State v. Moses, 272 N.C. 509, 158 S.E. 2d 617 (1968); State v. Penley, 6 N.C. App. 455, 170 S.E. 2d 632 (1969), cert. denied, 276 N.C. 85 (1970). Where, however, a motion for continuance in a criminal case is based upon a right guaranteed by the federal or state constitutions, the question is one of law, and the ruling of the court is one of law and not of discretion and is reviewable on appeal. State v. Brower, supra; State v. Harrill, 289 N.C. 186, 221 S.E. 2d 325, death penalty vacated, 428 U.S. 904, 49 L. Ed. 2d 1211, 96 S.Ct. 3212 (1976); State v. Moore, 39 N.C. App. 643, 251 S.E. 2d 647, appeal dismissed, 297 N.C. 178, 254 S.E. 2d 39 (1979).
Defendants Thomas and Christmas argue that by denying their motions to continue, the trial court deprived them of their constitutional right to due process of law in that they were not allowed a reasonable time and opportunity to investigate and produce competent evidence in their defense. The record discloses that almost four months elapsed from the time counsel was ap
By his fifth assignment of error, defendant Christmas contends the trial court erred by denying defendant’s motion requesting that hearings on pretrial motions filed in his behalf be set prior to the date of trial. This assignment of error is completely without merit. N.C. Gen. Stat. § 15A-952(f) provides “[w]hen a motion is made before trial, the court in its discretion may hear the motion before trial, on the date set for arraignment, on the date set for trial before a jury is impaneled, or during trial.” Defendant Christmas has failed to argue or show any abuse of discretion by the trial court. This assignment of error is overruled.
Defendant Thomas, by his ninth assignment of error, and defendant Christmas, by his twenty-fourth assignment of error, contend the trial court erred in denying their motions for mistrial. During jury selection, one prospective juror stated, in the presence of the entire jury panel, that he believed a defendant was guilty until proven innocent and that if a police officer apprehended a subject the suspect would be guilty. The trial court immediately excused the juror and re-instructed the jury panel on the presumption of innocence. The trial court also repeatedly and specificially instructed the jury on the presumption of innocence at the close of the evidence.
A motion for mistrial should be granted when an occurrence during the trial results “in substantial and irreparable prejudice to the defendant’s case.” N.C. Gen. Stat. § 15A-1061. The decision as to whether substantia] and irreparable prejudice has occurred lies within the court’s discretion and, absent a showing of abuse of that discretion, the decision of the trial court will not be
The defendants have failed to persuade us that Judge Brewer abused his discretion by denying their motions for a mistrial. In light of the judge’s prompt and repeated instructions on the presumption of innocence, we fail to see how defendants were prejudiced by this incident. These assignments of error are overruled.
Defendant Thomas, by his second assignment of error and defendant Christmas, by his seventh, eighth, ninth and tenth assignments of error question the admissibility of certain testimony by G. R. Farrell, Sheriff Elkins, Craig Farrell and Ned Diggs. We have carefully examined the questioned testimony and find no error in its admission.
Defendant Thomas, by his fourth assignment of error, and defendant Christmas, by his thirteenth assignment of error, contend that the trial court erred by failing to instruct the jury on the defense of entrapment. “Entrapment is ‘the inducement of one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him.’ (Citations omitted.)” State v. Stanley, 288 N.C. 19, 27, 215 S.E. 2d 589, 594 (1975).
Whether the defendant was entitled to have the defense of entrapment submitted to the jury is to be determined by the evidence. Before a Trial Court can submit such a defense to the jury there must be some credible evidence tending to support the defendant’s contention that he was a victim of entrapment, as that term is known to the law. (Citations omitted.)
State v. Burnette, 242 N.C. 164, 173, 87 S.E. 2d 191, 197, 52 A.L.R. 2d 1181, 1190 (1955).
North Carolina follows the majority rule that entrapment is a defense only when the entraper is an officer or agent of the
Defendant Thomas’ sixth assignment of error and defendant Christmas’ fourteenth and seventeenth assignments of error are also directed to certain instructions of the trial court to the jury. We are of the opinion that the instructions pertinent to defendants Thomas and Christmas, when construed contextually as a whole, are fair and free from prejudicial error.
In defendant Christmas’ appeal — no error.
In defendant Thomas’ appeal — no error.
In defendant King’s appeal — new trial.
