State v. Banks

• Decision Date: 14 July 1978
• Docket Number: No. 72,72
• Citation: 245 S.E.2d 743,295 N.C. 399
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Darnell BANKS.

Page 743

245 S.E.2d 743

295 N.C. 399

STATE of North Carolina v. Darnell BANKS.

No. 72.

Supreme Court of North Carolina.

July 14, 1978.

Rufus L. Edmisten, Atty. Gen., by David S. Crump, Asst. Atty. Gen., Raleigh, for the State.

Thomas L. Barringer, Raleigh, for defendant-appellant.

BRANCH, Justice.

By his first assignment of error, defendant contends that G.S. 14-39 is unconstitutional on its face and as applied to him.

G.S. 14-39 in part provides:

(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, or any other person under the age of 16 years without the consent of a parent or legal custodian 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.

(b) Any person convicted of kidnapping shall be guilty of a felony and shall be punished by imprisonment for not less than 25 years nor more than life. If the person kidnapped, as defined in subsection (a), was released by the defendant in a safe place and had not been sexually assaulted or seriously injured, the person so convicted shall be punished by imprisonment for not more than 25 years, or by a fine of not more than ten thousand dollars ($10,000), or both, in the discretion of the court.

Defendant first argues that he was denied due process of law upon his conviction under this statute because its provisions were so vague that men of common intelligence must guess as to its meaning and differ as to its application. This argument was answered adversely to defendant in State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). There Justice Lake speaking for the unanimous Court stated:

G.S. 14-39, as herein construed, is not vague. The conduct which it forbids is clearly set forth in the statute. The punishment prescribed is severe but is not cruel or unusual in the constitutional sense. State v. Cameron, 284 N.C. 165, 200 S.E.2d 186 (1973), cert. den., 418 U.S. 905, 94 S.Ct. 3195, 41 L.Ed.2d 1153; State v. Carter, 269 N.C. 697, 153 S.E.2d 388 (1967); State v. Davis, 267 N.C. 126, 147 S.E.2d 570 (1966). Consequently, the statute, on its face, does not violate the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, or the Law of the Land Clause of Article I, § 19, of the Constitution of North Carolina, or the Cruel or Unusual Punishment Clause of either Constitution. The statute applies to all who violate it without exception or classification. Consequently, it does not, upon its face, violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the like clause contained in Article I, § 19, of the Constitution of North Carolina. 294 N.C. at 525, 243 S.E.2d at 352.

Defendant further argues that in addition to being unconstitutionally vague, G.S. 14-39 also violates the requirement of due process of law by being "overly broad." The fault of overbreadth is often very intimately related to the vice of "vagueness." Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). However, the overbreadth doctrine is a separate principle devised to strike down statutes which attempt to regulate activity which the State is constitutionally forbidden to regulate, such as activity protected by the First Amendment to the United States Constitution. E. g., Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); United States v. Dellinger,472 F.2d 340, 357 (7th Cir. 1972), cert. den., 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973); State ex rel. Purcell v. Superior Court, 111 Ariz. 582, 584, 535 P.2d 1299, 1301 (1975); Note, 83 Harv.L.Rev., supra. G.S. 14-39 does not interfere or prohibit any activity protected by the First Amendment or any other Federal or State constitutional provision. It is a penal statute completely within the State's police power. The doctrine of overbreadth has no application to it. We, therefore, hold that G.S. 14-39 is neither unconstitutionally vague nor "over broad."

Defendant assigns as error the failure of the trial judge to allow his motion to arrest judgment upon the verdicts of guilty of crime against nature, robbery with a dangerous weapon and assault with intent to commit rape. He argues that these crimes are lesser included offenses of the crime of kidnapping as defined by G.S. 14-39. In support of his position, he relies upon the well-established rule that when an accused is convicted of first degree murder under the felony murder rule pursuant to G.S. 14-17, there can be no additional punishment for the underlying felony. State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973); State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972). The rationale of this rule was clearly stated in State v. Thompson, supra, by Chief Justice Bobbitt in the following language:

. . . When a person is convicted of murder in the first degree no separate punishment may be imposed for any lesser included offense. Technically, feloniously breaking and entering a dwelling is never a lesser included offense of the crime of murder. However, in the present and similar factual situations, a cognate principle applies. Here, proof that defendant feloniously broke into and entered the dwelling of Cecil Mackey, to wit, Apartment # 3, 3517 Burkland Drive, was an essential and indispensable element in the State's proof of murder committed in the perpetration of the felony of feloniously breaking into and entering that particular dwelling. The conviction of defendant for felony-murder, that is, murder in the first degree without proof of malice, premeditation or deliberation, was based on a finding by the jury that the murder was committed in the perpetration of the felonious breaking and entering. In this sense, the felonious breaking and entering was a lesser included offense of the felony-murder. Hence, the separate verdict of guilty of felonious breaking and entering affords no basis for additional punishment. If defendant had been acquitted in a prior trial of the separate charge of felonious breaking and entering, a plea of former jeopardy would have precluded subsequent prosecution on the theory of felony-murder. (Citation omitted.) 280 N.C. at 215-216, 185 S.E.2d at 675.

This rule is inapposite to kidnapping as defined in G.S. 14-39. The charges of crime against nature, assault with intent to commit rape and robbery with a dangerous weapon were alleged in the bill of indictment charging kidnapping as the purposes for which defendant confined and restrained the victim. The charges so alleged were not elements of the offense of kidnapping which the State had to prove as is the case of the underlying felony in the felony murder rule. When the State proves the elements of kidnapping and the purpose for which the victim was confined or restrained, conviction of the kidnapping may be sustained. Thus, the crimes of crime against nature, assault with intent to commit rape and robbery with a dangerous weapon are separate and distinct offenses and are punishable as such. State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977). Further, in instant case, since the trial judge entered a separate, complete judgment upon each verdict whereby defendant was sentenced to imprisonment in the State's prison, the sentences so imposed run concurrently as a matter of law. 4 Strong's North Carolina Index 3d, Criminal Law, Section 140.1 (1976). Consequently, defendant has failed to show that he suffered substantial prejudice from the denial of his motion.

This assignment of error is overruled.

We note in passing that some of our opinions refer to the crime defined in G.S. 14-39(a) as "aggravated kidnapping." This is a misnomer. The proper term for the crime there defined is "kidnapping." Subsection (b) of the statute states the punishment for kidnapping as well as a lesser punishment when certain mitigating circumstances appear.

Defendant assigns as error the ruling of the trial court which permitted the prosecutor to consult with a psychologist during the voir dire examination of the jury.

The record shows that Mr. Jeff Frederick, a student psychologist was present in the courtroom during jury selection and that the district attorney conferred with him before and during the jury selection. Mr. Frederick was present in the courtroom as a matter of academic interest, and he was neither retained nor paid by the State. The nature of the advice given by Mr. Frederick to the prosecutor is not disclosed.

Defendant contends that the presence of Mr. Frederick in the courtroom during the jury selection denied him his constitutional right to assistance of counsel, to equal protection under the laws, and to a fair and impartial trial. He cites no authority or gives no suggestion as to how the presence of the psychologist resulted in a denial of these constitutional rights.

The purpose of the voir dire examination of prospective jurors is to secure an impartial jury. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). Control of the examination of prospective jurors rests in the sound discretion of the trial court, and in order for a defendant to show that the court's regulation of jury selection constitutes reversible error, he must establish both that the trial judge abused his discretion and that he suffered prejudice as a result of such abuse. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. den., 410 U.S. 958, 93 S.Ct. 1432, 35 L.Ed.2d 691, 410 U.S....