State v. Faircloth

• Decision Date: 20 April 1979
• Docket Number: No. 1,1
• Citation: 253 S.E.2d 890,297 N.C. 100
• Parties: STATE of North Carolina v. Mackie Wayne FAIRCLOTH.
• Court: North Carolina Supreme Court

Page 890

253 S.E.2d 890

297 N.C. 100

STATE of North Carolina v. Mackie Wayne FAIRCLOTH.

No. 1.

Supreme Court of North Carolina.

April 20, 1979.

Franklin L. Block, Wilmington, and Chambers, Stein, Ferguson & Becton by Adam Stein, Chapel Hill, for defendant-appellant.

BRITT, Justice.

For the reasons hereinafter stated, we find no error in defendant's trial, and the judgments imposed on the rape and armed robbery charges. However, we conclude that the judgment imposed on the kidnapping charge must be reversed.

I

Defendant's contention that the trial court erred in failing to grant his motion for change of venue is without merit. He argues that he was entitled to a removal of his trial to another county because prejudicial publicity prevented his getting a fair trial in New Hanover County.

G.S. 15A-957 provides: "If, upon motion of the defendant, the court determines that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either: (1) Transfer the proceeding to another county in the judicial district or to another county in an adjoining judicial district, or (2) Order a special venire under the terms of G.S. 15A-958. The procedure for change of venue is in accordance with the provisions of Article 3 of this Chapter, Venue."

It is firmly settled in this jurisdiction that motions for change of venue on the grounds of unfavorable publicity are addressed to the discretion of the trial judge and his ruling thereon will not be disturbed on appeal unless a manifest abuse of discretion is shown. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976); State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 1211 (1976). The burden of showing "so great a prejudice" against the defendant that he cannot obtain a fair and impartial trial is on the defendant. State v. Boykin, supra.

In the case at hand, defendant presented excerpts from the 1, 20 and 21 January 1978, 1 February 1978 and 13, 15 and 19 April 1978 issues of the Wilmington Star-News. The information set forth in the January issues related to defendant's arrest, the charges against him, police statements as to what the victim had said, and evidence presented at the preliminary hearing. A reading of the January issues discloses that substantially the same information contained therein was submitted to the jury at trial.

The news item appearing in the 1 February 1978 issue was very brief and related to defendant's indictment by the grand jury. The 13 April 1978 item related to the first trial of the cases (presided over by Judge Gavin) and for the most part merely set forth the evidence given by the victim and police; this evidence was substantially the same as given by the victim and police at the trial now being reviewed. The 15 April 1978 item related to Judge Gavin's declaring a mistrial due to the fact that one of the jurors had read in the newspaper the preceding day about defendant's prior criminal record; the item also stated that Judge Gavin had also denied defendant's motion to remove the case to another county for trial.

The 19 April 1978 excerpt is an editorial criticizing Judge Gavin for declaring a mistrial because of information published in the newspaper. (In defense of Judge Gavin, it appears that at the time he declared a mistrial defendant had not taken the witness stand, therefore, His Honor did not know that defendant's criminal record would properly get before the jury.)

The trial now under review took place during the week of 26 June 1978. We cannot believe that the minor bits of information contained in issues of the newspaper appearing in January, February and April of 1978 that did not properly get to the jury as evidence at trial, prejudiced defendant to the extent that he was entitled to have his case removed to another county for trial. We hold that the trial court did not abuse its discretion.

II

We find merit in defendant's contention that the trial court erred in denying his motions to dismiss the kidnapping charge.

Our kidnapping statute, G.S. 14-39, provides in pertinent part as follows:

"Kidnapping. (a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person * * * shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

(1) Holding such other person for ransom or as a hostage or using such other person as a shield; or

(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or

(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person."

The bill of indictment under which defendant was tried and convicted reads as follows:

"THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 30th day of December, 1977, in New Hanover County Mackie Wayne Faircloth unlawfully and wilfully did feloniously kidnap Barbara Elaine Cameron without her consent a person who had attained the age of 16 years, by unlawfully removing her from one place to another For the purpose of facilitating flight following the commission of the felony of rape, and that Mackie Wayne Faircloth did fail to release the said Barbara Elaine Cameron in a safe place and did sexually assault the said Barbara Elaine Cameron during such period of confinement and restraint; in violation of G.S. 14-39." (Emphasis ours.)

It has long been the law of this state that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment. State v. Cooper, 275 N.C. 283, 167 S.E.2d 266 (1969); State v. Lawrence, 264 N.C. 220, 141 S.E.2d 264 (1965); State v. Law, 227 N.C. 103, 40 S.E.2d 699 (1946); State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 131 A.L.R. 143 (1940). It is also settled that a fatal variance between the indictment and proof is properly raised by a motion for judgment as of nonsuit or a motion to dismiss, since there is not sufficient evidence to support the charge laid in the indictment. State v. Cooper, supra; State v. Law, supra; State v. Jackson, supra.

Defendant argues that there was no evidence presented in the case at hand tending to show that he confined, restrained, or removed Barbara from one place to another for the purpose of "facilitating flight following the commission of the felony of rape"; therefore, there was a fatal variance between the indictment and proof. He further points out that the trial judge in charging the jury on kidnapping stated that one of the five things they must find beyond a reasonable doubt was that he "removed Barbara Cameron for the purpose of facilitating his flight after committing the felony of rape". Defendant's argument is persuasive.

In State v. Law, supra, Chief Justice Stacy, speaking for the court said:

"The question of variance may be raised by demurrer to the evidence or by motion to nonsuit. 'It is based on the assertion, not that there is no Proof of a crime having been committed, but that there is none which tends to prove that the particular offense charged in the bill has been committed. In other words, the proof does not fit the allegation, and, therefore, leaves the latter without any evidence to sustain it. It challenges the right of the State to a verdict upon its own showing, and asks that the court, without submitting the case to the jury, decide, as a matter of law, that the State has failed in its proof.' Walker, J., in State v. Gibson, 169 N.C., 318, 85 S.E., 7, 9. . . ." 227 N.C. 103, 104, 40 S.E.2d 699, 700. (Emphasis ours.)

In State v. Lawrence, supra, the defendant was charged with second offense escape from prison. The indictment alleged that at the time of his escape he was serving a sentence imposed by the Nash County Recorder's Court but the proof showed that he was serving a sentence imposed by the Recorder's Court of Edgecombe County. This court held that there was a fatal variance between the actual facts and the allegations of the bill of indictment.

In State v. Cooper, supra, in an opinion by Justice (later Chief Justice) Bobbitt, this court held that where the indictment charged defendant, a prisoner, with willful failure to return to custody "after being removed from the prison on a work-release pass", a violation of G.S. 148-45(b) (now G.S. 148-45(g)(1)), the trial court erred in denying defendant's motion to dismiss the action where the state's evidence was to the effect that the prison unit superintendent granted defendant weekend leave to visit his home and family, and there was no evidence that defendant had been granted work release privileges or that his pass, if any, was related to the work release plan.

See also State v. Daye, 23 N.C.App. 267, 208 S.E.2d 891 (1974), a case in which the court held that defendant's motion for nonsuit based on fatal variance should have been granted where the indictment charged him with uttering a forged check but the evidence offered at trial tended to show that he uttered a check with a forged endorsement.

Had defendant in the case at hand been tried on an indictment alleging that he restrained or removed Barbara from one place to another for the purpose of facilitating the commission of the felony of rape, the conviction could be upheld. But, the evidence does not support the charge as laid in the indictment. That being true, the judgment in the kidnapping case must be reversed.

III

There is no merit in defendant's contention that the trial court erred in failing to dismiss the charge of first-degree rape, in instructing the jury regarding the circumstances under which defendant could be convicted of rape procured by the use of a deadly weapon, and in defining "deadly" weapon.

Defendant argues that the evidence fails to show that...