State v. Collins

• Decision Date: 02 July 1993
• Docket Number: No. 366A92,366A92
• Citation: 431 S.E.2d 188,334 N.C. 54
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jehue COLLINS, Jr.

Page 188

431 S.E.2d 188

334 N.C. 54

STATE of North Carolina v. Jehue COLLINS, Jr.

No. 366A92.

Supreme Court of North Carolina.

July 2, 1993.

Appeal of right, pursuant to N.C.G.S. § 7A-27(a), from a judgment imposing a sentence of imprisonment for life entered by John, J., on 9 June 1992, in the Superior Court, Forsyth County. Heard in the Supreme Court on 10 May 1993.

Michael F. Easley, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Janine M. Crawley, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant, Jehue Collins, Jr., was tried non-capitally upon a proper bill of indictment charging him with the murder of David Monte Brown. The jury found the defendant guilty of first-degree murder, and the trial court entered judgment sentencing him to imprisonment for life. The defendant appealed to this Court as a matter of right.

A complete review of the evidence introduced at trial is unnecessary in resolving the issue which we find dispositive of this case on appeal. The State's evidence tended to show, inter alia, that several people saw the defendant with a rifle in his hands approach the victim at a party. Several people told the defendant to "stop," and Kenneth Woodruff told the defendant "not to do it" and put his hand on the defendant's chest. The defendant raised the rifle over Woodruff's shoulder and shot the victim, David Monte Brown, in the chest. Woodruff testified that a short time later at a gas station nearby, he heard the defendant say that the shooting had to be done. The State offered unequivocal testimony of numerous eyewitnesses to the effect that the defendant was the man who had shot the victim in the chest in their presence.

The defendant testified that he was present when the victim was shot, but that someone else shot him. Other evidence introduced by the defendant is discussed at later points in this opinion where pertinent to our resolution of the case.

By an assignment of error, the defendant contends that the trial court erred in instructing the jury only on possible verdicts finding him guilty of first-degree murder or not guilty. Specifically, the defendant argues that the trial court erred when it failed to instruct the jury to consider possible verdicts of guilty of attempted murder and felonious assault, which the defendant says were lesser-included offenses supported by the evidence in the present case. Evidence at trial tended to show that the gunshot wound inflicted upon the victim did not in any way contribute to his death. The defendant argues that such evidence tended to negate the element of causation which must be established in order to sustain a conviction for any form of homicide, either murder or manslaughter, and that, therefore, on the evidence before it, the trial court erred by failing to instruct the jury on the lesser-included offenses of attempted murder and felonious assault--offenses for which it need not be shown that the defendant's actions were a cause of the victim's death.

The defendant contends that the trial court's error in failing to instruct the jury to consider possible verdicts finding him guilty of the lesser-included offenses of attempted murder and felonious assault deprived him of a panoply of state and federal constitutional rights, including the right to due process guaranteed by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. Due process requires that a jury in a capital case be given instructions on lesser-included, non-capital offenses when the evidence warrants such instructions. Beck v. Alabama, 447 U.S. 625, 635-38, 100 S.Ct. 2382, 2388-90, 65 L.Ed.2d 392, 401-403 (1980); State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983), overruled on other grounds, State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). We need not and do not decide here whether in non-capital cases the Due Process Clause requires instructions on lesser-included offenses supported by evidence before the trial court. See generally Beck, 447 U.S. at 638 n. 14, 100 S.Ct. at 2390 n. 14, 65 L.Ed.2d at 403 n. 14 (expressly declining to address or decide this point); Tata v. Carver, 917 F.2d 670 (1st Cir.1990) (review of federal cases addressing this issue). If the evidence before the trial court in the defendant's non-capital trial in the present case tended to show that the defendant might be guilty of lesser-included offenses, the trial court was required under N.C.G.S. §§ 15-169 and -170 to instruct the jury as to those lesser-included crimes. It is well established that:

G.S. § 15-169 and G.S. § 15-170 are applicable only when there is evidence tending to show that the defendant may be guilty of a lesser offense. State v. Jones, 249 N.C. 134, 139, 105 S.E.2d 513, 516, and cases cited. "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547.

State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481, 488 (1969). Cf. State v. Johnson, 317 N.C. 417, 347 S.E.2d 7 (1986) (non-capital case). Therefore, we turn next to consider whether the evidence before the trial court was substantial evidence from which a jury reasonably could find that the defendant had committed a crime of lesser degree, which was an offense included within the crime of first-degree murder for which he stood charged.

The defendant contends that the evidence before the trial court would have supported a finding that he committed the crime of attempted murder and that the crime of attempted murder is a crime of lesser degree included within the crime of first-degree murder. Our research has revealed one case in which this Court clearly has been required to review the validity of a conviction of a defendant for attempted murder. State v. Gilley, 306 N.C. 125, 291 S.E.2d 645 (1982), overruled on other grounds, State v. Barnes, 324 N.C. 539, 380 S.E.2d 118 (1989). Cf. State v. Alderman, 182 N.C. 917, 110 S.E. 59 (1921) (The defendants were indicted for counts of (1) "attempt to kill" by administering poison, (2) secret assault with intent to kill by administering poison, (3) assault with intent to kill by administering poison, and (4) assault with a deadly weapon inflicting serious injury by administering poison. This Court merely stated that the "[d]efendants were convicted" without specifying whether the defendants were convicted of all of the counts or only certain ones of them.). In Gilley, the defendant did not contend that the law of North Carolina does not recognize the crime of attempted murder. Instead, he contended that there was insufficient evidence presented at trial to permit the trial court to submit the charge of attempted murder to the jury for its consideration. Gilley, 306 N.C. at 130, 291 S.E.2d at 648. We concluded that any error involved in the defendant's conviction and sentence for attempted murder in Gilley was harmless for reasons which are of no consequence here and have since been rejected. In doing so, however, we did state that the evidence before the trial court in Gilley "was sufficient to raise a reasonable inference as to each element of the offense of attempted murder." Id. The clear implication of our language, although perhaps it was dicta, was that an offense of attempted murder exists as a part of the criminal law of North Carolina; we now so hold in this case in which we are faced directly with that issue. Further, attempted murder is a lesser offense included within the greater crime of murder.

At least since 1891, it has been the law of this jurisdiction that "[u]pon the trial of any indictment the prisoner may be convicted of the crime charged therein ... or of an attempt to commit the crime so charged...." N.C.G.S. § 15-170 (1983). Further, it has long been established that, absent statutory provisions to the contrary, an attempt to commit a felony is a misdemeanor. State v. Hageman, 307 N.C. 1, 8, 296 S.E.2d 433, 438 (1982). Murder is a felony. N.C.G.S. § 14-17 (1986). Therefore, nothing else appearing, attempted murder would be only a misdemeanor. However, N.C.G.S. § 14-3(b) provides: "If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except when the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H felony." N.C.G.S. § 14-3(b) (1992 Cum.Supp.). This Court has held that an attempted burglary was "infamous" and, for that reason, was elevated to the status of a felony by N.C.G.S. § 14-3(b). State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949). We said that this was so because burglary was an act of depravity, involving moral turpitude, revealing a heart devoid of social duties and a mind fatally bent on mischief. Id. For similar reasons, we have concluded that attempted common law robbery, attempted armed robbery and attempted crime against nature are misdemeanors which are elevated to the status of felonies by N.C.G.S. § 14-3(b). Hageman, 307 N.C. at 8, 296 S.E.2d at 438. Likewise, we now conclude that under North Carolina law an attempt to commit murder is an infamous misdemeanor specifically elevated by N.C.G.S. § 14-3(b) to the status of a Class H felony.

We must next consider whether the evidence before the trial court would permit a rational jury finding that the defendant was guilty of the lesser-included offense of attempted murder, rather than the greater offense of murder. If so, the trial court erred in failing to instruct the jury on the lesser offense and in failing to submit a possible verdict finding the defendant guilty of the lesser...