State v. Beck, 447A96

• Decision Date: 24 July 1997
• Docket Number: No. 447A96,447A96
• Citation: 487 S.E.2d 751,346 N.C. 750
• Parties: STATE of North Carolina, v. Johnny Antione BECK, Jr.
• Court: North Carolina Supreme Court

Page 751

487 S.E.2d 751

346 N.C. 750

STATE of North Carolina, v. Johnny Antione BECK, Jr.

No. 447A96.

Supreme Court of North Carolina.

July 24, 1997.

Michael F. Easley, Attorney General by Teresa L. Harris, Associate Attorney General, for the State.

Lemuel W. Hinton, Raleigh, for defendant-appellant.

PARKER, Justice.

Defendant Johnny Antione Beck, Jr. was charged in a proper bill of indictment with first-degree murder in the death of Samuel Leon Gregory ("victim"). At the noncapital trial defendant was found guilty as charged and sentenced to life imprisonment.

The State presented evidence at trial tending to show that on 25 February 1995, Torrey Grimes left his apartment at 3544 Nealy Street in Raleigh, North Carolina, and went to the nearby apartment of Karen Ross to visit with the victim. The victim was a friend of Karen Ross' and sometimes stayed at her apartment. When Grimes arrived he saw defendant sitting on the couch. As Grimes sat down on the couch beside defendant, defendant got up and walked to the bathroom. The victim asked to use Grimes' cordless telephone. As the victim stood using the telephone, defendant returned from the bathroom, "walked like he was going out the back door," turned around, and shot the victim in the back of the head.

Grimes saw the victim fall and saw defendant leaning over the victim. Grimes ran to the front door, looked back, saw defendant going to the back door, went back and picked up his cordless phone, and then ran from the scene.

Excel Wilson, a cab driver for the Acme Cab Company, received a dispatch on 25 February to go to 4032 Nealy Street. Johnny Beck, Sr., defendant's father, resided at this address. Telephone records indicated that two telephone calls were made from defendant's father's house to Acme Cab Company. Three men were standing on the corner when Wilson turned onto Nealy Street. One of the men waved Wilson down and said, "I'm the one." Wilson picked up a young black male who told Wilson to take him to Melvid Court. As Wilson left Nealy Street, he passed several police cars heading to the Nealy Street area at a "high rate of speed." When Wilson turned into the Melvid Court area, he observed more police cars. Wilson told his passenger that the police were there and asked the man what he was going to do. The man said, "Leave." Wilson left the area and eventually dropped the man off on another street. Wilson told police officers that he did not get a good look at his passenger. At the time of the murder, defendant resided at 2440 Melvid Court, Apartment B.

Dr. James Edwards testified that he performed an autopsy on the victim and determined the cause of death to be two gunshot wounds. Dr. Edwards testified that either wound would have been fatal and that either wound would have rendered the victim unconscious almost immediately.

Defendant did not present any evidence.

Defendant brings forth four assignments of error. Defendant first argues that the trial court erred by denying his motion to dismiss the first-degree murder charge. Defendant contends there was insufficient evidence to show premeditation and deliberation. We disagree.

When a defendant moves for dismissal based on insufficiency of the evidence, the trial court need determine only whether the State has presented substantial evidence demonstrating each essential element of the offense charged and that the defendant was the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from the evidence. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).

Defendant was convicted of first-degree murder based on the theory of premeditation and deliberation. "Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation." State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). "Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation." Id. at 635, 440 S.E.2d at 836.

In defining premeditation and deliberation, this Court has stated:

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.

State v. Brown, 315 N.C. 40, 59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1164, 106 S.Ct. 2293, 90 L.Ed.2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988), quoted in State v. Scott, 343 N.C. 313, 341, 471 S.E.2d 605, 621-22 (1996).

In the instant case the State presented substantial evidence to support a reasonable inference that defendant committed this murder with premeditation and deliberation. As the victim was making a phone call, defendant came out of the bathroom and walked toward the back door of the house. Defendant then turned around and shot the victim in the back of the head. The record is devoid of any evidence of provocation by the victim or evidence that the victim was armed with a weapon.

The manner in which the victim was killed also establishes premeditation and deliberation. After shooting the victim in the back of the head, defendant was seen leaning over the victim's body. At some point an additional shot was fired to the front of the victim's head. The cause of the victim's death was determined to be the two gunshot wounds. Dr. Edwards testified that either wound would have been fatal and that either wound would have rendered the victim unconscious almost immediately. The evidence thus permits the inference that one of the shots was fired after the victim was felled.

Defendant's actions after the shooting also show premeditation and deliberation. Defendant left the house, leaving the victim to die. Taking the evidence in the light most favorable to the State, the trial court did not err in denying defendant's motion to dismiss the charge of first-degree murder.

In defendant's second assignment of error, he contends the trial court committed prejudicial error by denying defendant's motion for an overnight recess so that defendant could locate a witness necessary for his defense. At trial defendant was granted a two-hour recess at the conclusion of the State's evidence. After the recess defendant requested that the trial court issue a bench warrant for Patrick Swain, a defense witness. Defense counsel informed the court that he had subpoenaed Swain, that he had been in contact with Swain, and that Swain had earlier indicated he would testify in this matter, but that defense counsel had spoken with Swain within the last few hours and Swain had refused to appear. Defense counsel later conceded to the court that he was not able to determine whether the Raleigh Police Department had actually served the subpoena on Swain. The trial judge denied defendant's request to issue a bench warrant for Swain.

Defendant, through counsel, informed the court that it wanted to "get in the record a motion to recess" until the next morning in order to have "a last opportunity" to get Swain to testify. Defense counsel stated that Swain would testify that he was the person who caught the cab at 4032 Nealy Street the night of the murder. The trial judge denied defendant's request for an overnight recess, stating, "If you had a served subpoena, then I would have been more inclined to allow your request until [Swain] could be brought to court. I have no indication that he's even available, except what you've told me, much less served with a subpoena." Defendant contends that the failure of the trial court to grant his requested recess violated his Sixth Amendment right under the United States Constitution to have compulsory process to obtain witnesses and his right under the North Carolina Constitution to confront his accusers with witnesses and other testimony pursuant to Article I, Section 23. We disagree.

A motion for a continuance is ordinarily addressed to the sound discretion of the trial judge, and the ruling will not be disturbed absent a showing of abuse of discretion. State v. Poole, 305 N.C. 308, 318, 289 S.E.2d 335, 341 (1982). However, when a motion to continue raises a constitutional issue, the trial court's action upon it involves a question of law which is fully reviewable on appeal by examination of the particular circumstances revealed in the record. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). If defendant demonstrates that the denial of a motion for continuance was erroneous and that the error was a constitutional violation, defendant is entitled to a new trial unless the State shows that the error was harmless beyond a reasonable doubt. State v. Gardner, 322 N.C. 591, 594, 369 S.E.2d 593, 596 (1988); see also State v. Tunstall, 334 N.C. 320, 328-29, 432 S.E.2d 331, 336-37 (1993).

Continuances should not be granted unless the reasons for the delay are fully established. State v. McCullers, 341 N.C. 19, 32, 460 S.E.2d 163, 170 ...