State v. Thompson

• Decision Date: 14 July 1976
• Docket Number: No. 45,45
• Citation: 226 S.E.2d 487,290 N.C. 431
• Parties: STATE of North Carolina v. Robert Lee THOMPSON and Willie Davis McEachern.
• Court: North Carolina Supreme Court

Page 487

226 S.E.2d 487

290 N.C. 431

STATE of North Carolina v. Robert Lee THOMPSON and Willie Davis McEachern.

No. 45.

Supreme Court of North Carolina.

July 14, 1976.

Rufus L. Edmisten, Atty. Gen., William H. Boone, Associate Atty., Myron C. Banks Sp. Deputy Atty. Gen., Raleigh, for the State.

Everett L. Henry, Lumberton, for defendant Thompson.

J. H. Barrington, Jr., Lumberton, for defendant McEachern.

SHARP, Chief Justice.

McEachern's Appeal

On his appeal defendant McEachern brings forward four assignments of error, upon which he makes three contentions. The first (based upon assignments Nos. 5 and 9) is that the trial judge erred in admitting the testimony of Danny J. Walters and Peggy Grainger, which tended to show that McEachern was guilty of another and independent criminal offense.

As pointed out in the preliminary statement of facts, witnesses Walters and Grainger testified over defendant's objection, that on the night of 7 February 1975 they were 'parking' in the Lover's Lane area where the abduction of Mrs. Hardin occurred. At approximately 12:15 a.m. (which was approximately one half hour before the attack on Mrs. Hardin) a man, whom they identified as defendant McEachern, came up to their car and pointed a sawed-off shotgun into the open car window. The man had a nylon stocking pulled over the upper half of his head. He was accompanied by a smaller man, whom neither Walters nor Grainger could identify. Defendant McEachern ordered the two out of the car and asked if they had any money. He then directed Walters to 'squat down' and told his accomplice to shoot him if he moved. Defendant then grabbed Miss Grainger and shoved her into the front seat of the car where he attempted to rape her. When Walters jumped up and rushed to the car in an effort to stop him McEachern struck him in the face with his fist. While McEachern was thus distracted, Miss Grainger managed to start her car and drive away. After she escaped, the two men took Walters' wallet and left. Walters heard them leave in a car which had very loud mufflers and which sounded as if it had a three-speed standard transmission. The car first proceeded in a direction away from the Lover's Lane, but immediately turned around and headed back in the direction from which it had started. Thereafter, neither Grainger nor Walters saw McEachern again until they both identified him in a line-up at the police station on the following Tuesday evening.

Defendant contends that introduction of this evidence violated the principle enunciated in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954) that generally 'in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense.' Id. at 173, 81 S.E.2d at 365. Defendant concedes that there are well-recognized exceptions to this general rule but contends that none of them are applicable to the present case. With this contention we cannot agree.

The opinion in McClain enumerates eight exceptions to the general rule. Exception No. 4 reads as follows: 'Where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged.' Id. at 175, 81 S.E.2d at 367. This exception has been applied in the following cases: State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969); State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944). See also 1 Stansbury's N.C. Evidence §§ 91--92 (Brandis rev. 1973); 29 Am.Jur.2d Evidence §§ 320--22 (1967). Examination of several of them shows that the fourth exception is broad enough to cover the case presently before us.

In State v. Tuggle, supra, the defendant was charged with the armed robbery of one Smith and with the armed robbery and kidnapping of one Kiser. The evidence showed that at approximately 7:15 p.m. on 20 November 1972 Smith and Kiser were in a general merchandising store of which Kiser was the manager. An unmasked man came in with a shotgun and robbed Smith and the store's cash register. To make his escape, the man forced Kiser to drive him in Kiser's car to an area some distance from the store. At trial both Kiser and Smith, in addition to Kiser's daughter who had seen the man abduct her father, identified the defendant as the perpetrator of the crime. Over the defendant's objection the State introduced the testimony of a Mrs. Hicks, the manager of a convenience store situated within close proximity of the Kiser store. She testified that at 6:45 p.m. on 20 November 1972, an unmasked man, whom she identified as the defendant, came into the store carrying a shotgun. The defendant took the money from the cash register, forced Mrs. Hicks to the back of the store and left. On appeal the defendant argued that Mrs. Hicks's testimony was erroneously admitted because it tended to show he had committed an unrelated criminal offense. In an opinion by Chief Justice Bobbitt, this Court rejected the defendant's contention as follows: 'Although in different counties, the distance from the Flash Market to Moorefield's Grocery was three and a half miles or less. The interval between the robbery at the Flash Market and the robberies at Moorefield's Grocery was brief. Both were committed hurriedly by an unmasked man. In each, the mode of procedure was the same, that is, abrupt entrance into a lighted store with a shotgun pointed toward the occupant(s) and an immediate demand for the money. Proximity in place and time and similarities in method were relevant for consideration by the jury as to whether the man identified by her as defendant and who had robbed the Flash Market was also the man who had committed the crimes for which defendant was on trial. We hold that the testimony of Mrs. Georgia Hicks was competent on the question of identify and properly admitted. State v. McClain, 282 N.C. 357, 362--63, 193 S.E.2d 108, 111--12 (1972), and cases there cited.' Id., 284 N.C. at 522, 201 S.E.2d at 888.

In State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972) the defendant was charged with rape. The victim, who identified the defendant at trial, testified that as she walked home alone from the State University library late one night the defendant grabbed her from behind and threatened to kill her if she screamed. Thereafter, holding a metal teasing comb to her throat, he forced her to accompany him to his car. He then drove to a secluded spot where the rape occurred. Over the defendant's objection the State introduced the testimony of another woman who was accosted a week later by a man whom she identified as the defendant. According to her, she had just returned home alone late one night and was leaving her car when the defendant grabbed her and threatened her. He held a metal comb to her throat and forced her to return to her car. The defendant then took her keys and drove away. Fortunately, police stopped the vehicle because of defective lights and his second victim was not sexually assaulted. On appeal we rejected the defendant's contention that the testimony of the second victim was incompetent because its sole purpose was to prove guilt of an independent and unrelated crime. The evidence was held admissible to identify the defendant as the perpetrator of the crime charged and to establish a plan or scheme embracing the commission of a series of related crimes.

After examining in detail the various similarities in the nature and manner of the attacks upon the two victims, Justice Huskins, writing for the Court, in State v. McClain, supra, said: 'The enumerated similarities tend to show a Modus operandi, a common plan embracing the commission of both crimes, and also establish a chain of circumstantial evidence tending to identify defendant as the man who raped Miss Elliott. Thus, evidence of the Conklin offense was admissible and should not be rejected because it incidentally proves defendant guilty of another crime. Its logical relevance to the rape of Miss Elliott is obvious. The trial judge instructed the jury to consider such evidence 'only as it relates to the identity of the defendant, Horace Ray McClain,' as the man who raped Miss Elliott on 13 October 1971. It was competent on the question of identity and properly admitted. (cites omitted.)' Id. at 362--63, 193 S.E.2d at 111-12.

Finally, State v. Perry, supra, the defendant was charged with rape. The victim, who identified the defendant at trial, testified that during the course of the crime, the defendant told her he had just gotten out of prison on the previous day. Over the defendant's objection the State introduced evidence showing the defendant had been released from prison on the day preceding the rape. On appeal the defendant contended this evidence was incompetent because it showed his guilt of a separate, independent crime, unrelated to the one of which he was charged. After noting the rule that evidence of other offenses is inadmissible on the issue of the defendant's guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature charged, the Court said: 'It is, however, equally well settled that evidence relevant to the question of the identify of the accused with the perpetrator of the offense with which he is presently charged is not rendered incompetent by the mere fact that it discloses the commission by him of some other criminal offense. . . . Where the identity of the defendant and the perpetrator of the offense with which he is charged is at issue, the evidence tending to show his commission of another criminal offense, and thereby to show his identity with the perpetrator of the...