State v. Bell
| Decision Date | 05 June 1984 |
| Docket Number | No. 598A83,598A83 |
| Citation | 316 S.E.2d 611,311 N.C. 131 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. E.Z. BELL. |
Rufus L. Edmisten, Atty. Gen. by Richard L. Kucharski, Asst. Atty. Gen., Raleigh, for the State.
L. Michael Dodd, Raleigh, for defendant-appellant.
Facts necessary to a determination of the issues raised are as follows:
On 10 March 1983, in the early evening, defendant and his brother, David Bell, "picked up" two young women as the women were walking from Shaw University to Chavis Heights in the City of Raleigh. Both girls, Janice Williams and Dierdre (Dee) Clark, testified at trial. Janice testified that David Bell was driving a beige Chevrolet Chevette. He and the defendant asked the two girls if they wanted a ride to the park. Janice got into the front passenger seat, while Dee sat in the back seat with the defendant. They drove to a convenience store and bought beer and cigarettes. They then drove to Durham, stopping at another store, and again to play pinball while David used the restroom. In Durham they briefly visited defendant's sister. Upon returning to Raleigh, David Bell turned off the Interstate and drove to a secluded dirt road somewhere near Cary and stopped the car. David informed the girls that they had a choice of having sex with him and the defendant or walking home. Although neither of the girls knew where they were, they left the car and began walking. After a few minutes David drove the car alongside the girls and told them he would return them to Shaw as it was too far to walk. Both girls got into the back seat.
David drove the car through Cary to Hillsborough Street in Raleigh. When they reached the Capitol, Janice asked David to let them out as they could walk back to Shaw. David replied that the defendant had put gas in the car and that they would remain in the car until he said otherwise. Janice continued to ask to be let out. Following another stop at a convenience store, David drove down Poole Road. Janice attempted to escape by opening the passenger door from the back where she was seated. David Bell then stated, David Bell and the defendant then discussed which girl each wanted. David stopped the car in a secluded area off Hodge Road (Leonard Road). Defendant ordered the girls to begin removing their clothes because if they didn't, "[W]e will take them off for you."
Janice convinced the defendant to leave the car and go for a walk. She asked defendant why he was treating her this way and he replied "don't come at me with that southern bull sh-- talk" and he grabbed her by her jacket. She was afraid he would hit her if she refused to comply with his sexual demands. Shortly afterwards she managed to break away and run to a nearby house for help. There was no one at home. The defendant caught her, hit her in the face, and pushed her between the door and the screen door. Janice was screaming loudly and the defendant ran off. She then went to another nearby house where Deborah Daniel, the occupant, promised to call the sheriff. Upon Ms. Daniel's advice, Janice went across the street to the home of Berry Bailey who also called the sheriff and stayed with Janice until the patrol car arrived. Both Ms. Daniels and Mr. Bailey described Janice as being extremely upset and concerned about her friend.
Dee Clark's account was substantially similar to that given by Janice Williams. In addition, Dee testified that as soon as the defendant and Janice left the car on Leonard Road, David Bell climbed into the back seat, removed his pants and after removing her clothes, attempted to have sexual intercourse with her. When defendant arrived back at the car after leaving Janice, he banged on the door and David let him in. David continued his assault on Dee, succeeding only in inserting his finger in her vagina, while defendant attempted to drive the car to a different location. At this time, defendant told David "[I]f you don't get some, I am." Defendant was unable to drive a manual transmission car so David climbed into the front seat and started the car as Deputy Stone arrived and drove in front of the Chevette, blocking the escape. The deputy approached the Chevette and ordered David Bell and the defendant out. David, however, put the car in reverse, catching the deputy with the open car door. The deputy shot David Bell. The defendant was arrested.
The defendant testified on his own behalf. He stated that he did want to have sex with the girls, but he wanted it to be voluntary; that he did not force himself upon anyone; and that although he was aware that David Bell was attempting to rape Dee Clark, he considered that to be his brother's business.
Defendant first contends that the trial court erred in failing to dismiss the indictments charging first degree kidnapping. He bases his argument upon the authority of our recent holding in State v. Jerrett, 309 N.C. 239, 307 S.E.2d 339 (1983). We agree.
The indictments in the present case provide as follows:
INDICTMENT -KIDNAPPING (83CRS16188)
-------------------------------------------
STATE OF NORTH CAROLINA In The General Court of Justice
County of Wake Superior Court Division
The State of North Carolina
vs
E. Z. BELL, Defendant
THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 10th
day of March 1983, in Wake county E. Z. Bell unlawfully and wilfully did
feloniously kidnap Dierdre Lynnette Clark, a person who had attained the age
of 16 years, by unlawfully confining her; restraining her; and removing her
from one place to another, without her consent; for the purpose of
facilitating the commission of a felony, to wit: Rape or First Degree Sexual
Offense. This act is in violation of the following: G.S. 14-39, and against
the peace and dignity of the State.
The language in the second indictment parallels that above, alleging that the defendant kidnapped Janice Harriette Williams.
G.S. § 14-39 provides in pertinent part that:
(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, restraining or removed or any other person.
(4) Holding such other person in involuntary servitude in violation of G.S. 14-43.2.
(b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class D felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.
In Jerrett we held that in order to properly indict a defendant for first degree kidnapping, it was necessary for the State to allege both the essential elements of kidnapping as provided in G.S. § 14-39(a) and at least one of the elements of first degree kidnapping listed in G.S. § 14-39(b), to wit: that the victim was not released in a safe place, was seriously injured, or was sexually assaulted. The indictments in the present case fail to allege any one of the elements of first degree kidnapping as set out in G.S. § 14-39(b). They are, however, sufficient to support a conviction for second degree kidnapping. Therefore, the jury's verdicts will be considered verdicts of guilty of kidnapping in the second degree. The judgments imposed upon the verdicts of guilty of kidnapping in the first degree must be vacated and the cases remanded to Superior Court, Wake County, for judgments and resentencing as upon verdicts of guilty of kidnapping in the second degree. See State v. Corley, 310 N.C. 40, 311 S.E.2d 540 (1984).
Defendant next contends that the indictments for attempted rape are insufficient to allege the crime charged because neither indictment alleges that the victims of the crimes were females.
G.S. § 15-144.1 provides in pertinent part that:
(a) In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment 'with force and arms,' as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.
In the present case the indictments complied fully with the requirements set forth above and were fully sufficient to charge attempted rape. Defendant presents a hypertechnical argument and offers no indication of how he has been prejudiced or misled by the State's failure to specifically state that Dierdre Lynnette Clark and Janice Harriette Williams were females. If def...
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