State v. Blake

• Decision Date: 02 June 1987
• Docket Number: No. 692A86,692A86
• Parties: STATE of North Carolina v. Ollie Lewis BLAKE.
• Court: North Carolina Supreme Court

Page 352

356 S.E.2d 352

319 N.C. 599

STATE of North Carolina v. Ollie Lewis BLAKE.

No. 692A86.

Supreme Court of North Carolina.

June 2, 1987.

Lacy H. Thornburg, Atty. Gen. by Francis W. Crowley, Asst. Atty. Gen., Raleigh, for the State.

Loflin & Loflin by Thomas F. Loflin III, Durham, for defendant-appellant.

EXUM, Chief Justice.

The question presented is whether the trial court erred in denying defendant's motion to dismiss based upon the sufficiency of the evidence to support a conviction of second degree murder. We hold the evidence is sufficient to support a verdict of guilty of second degree murder and, therefore, affirm the decision of the Court of Appeals.

I.

Defendant was charged in a proper bill of indictment with the murder of Douglas McLamb. At trial, the evidence presented by the state tended to show the following:

On Saturday, 20 October 1984, between 6:30 and 7 p.m., defendant Blake and his girlfriend Debra Johnson, traveling in defendant's black El Camino truck, came to Douglas McLamb's residence located at 915 Washington Street. An argument ensued between defendant and McLamb which led to McLamb's firing several shots from a .22 caliber rifle at defendant's black El Camino as defendant, Debra and her daughter, Angel, were driving away. They stopped at a nearby convenience store, and Debra called the police.

Defendant walked back to McLamb's house, and he and McLamb began arguing again. Durham police officers arrived to investigate the reported shooting. At first defendant tried to persuade the officers not to arrest McLamb. But when the officers informed defendant that one bullet had struck defendant's El Camino, defendant stopped trying to help McLamb, pointed a finger at McLamb's face and stated, "If the bullet hit the car that is your ass." The police arrested McLamb and confiscated the rifle. On the way downtown McLamb stated that he was especially afraid of defendant since he did not have a gun to defend himself.

Shortly after McLamb was arrested, his wife and her daughter left 915 Washington Street and drove with defendant and Debra Johnson in the black El Camino to defendant's mobile home residence on Mannix Road in Durham County. Defendant called the magistrate's office, discovered McLamb had been released on bond, and told Mrs. McLamb he was going to the magistrate to find out why they had let McLamb go. Defendant left the trailer with Richard Clayton and drove to the magistrate's office in the El Camino. Defendant was seen with Richard Clayton at the magistrate's office inquiring about McLamb ten to fifteen minutes after McLamb's 9:40 p.m. release.

Douglas McLamb had been in police custody two hours when he was released on bond at approximately 9:40 p.m. He was picked up behind the courthouse by his best friend and neighbor, Ricky New. New testified that on the way home McLamb expressed his fear of defendant and his fear that defendant would come back to harm him. New dropped off McLamb at 915 Washington Street.

About ten or fifteen minutes later New and his wife were watching television when a car with "sort of loud mufflers" pulled up in front of his house and parked across the street. New said he "just got up to see who it was and it was Lewis Blake's [defendant's] car." The car's lights were out and it was pointed toward McLamb's house. New telephoned McLamb but the number was busy so he left by the back door to warn him.

New heard two loud noises which sounded like gunshots. He saw McLamb come out the front door of his home and run to the street. New heard another loud noise and saw McLamb collapse in the street. New called the police to report what had happened. While New was talking to the dispatcher, he and his wife saw the black El Camino turn around in front of their house and drive away. They then went to the street and found McLamb with a wound in his right shoulder. McLamb died as a result of the gunshot wound, which pierced several major arteries.

Mrs. New saw the black El Camino parked in front of her home at about 10 p.m. There appeared to be two people inside. She saw an average-sized man with long blond hair, wearing a dark T-shirt and faded jeans, get out of the driver's seat and walk in the direction of McLamb's house. She did not see where the driver went. While trying to see where the man went, Mrs. New heard a gunshot and saw McLamb run out of his front door and fall in the street. Mrs. New could not identify defendant as being the man she saw. She also testified that the black El Camino did a three-point turn and left hastily after McLamb collapsed.

Another neighbor of McLamb, Mrs. Mazelle Peninger, while on her back porch, thought she heard a shot and saw an unidentified individual on the back stairs of McLamb's house. Her back porch faced McLamb's back door at an angle. She could not describe what type of clothing the person was wearing or whether the individual had a weapon. Mrs. Peninger's son-in-law, Joseph Chambers, observed a white male with shoulder length blond hair, wearing blue jeans running beside McLamb's house. He saw the man run around to the front of McLamb's house. He heard two shots with a slight pause between them. Neither Mrs. Peninger nor Mr. Chambers could identify defendant as the individual they saw that night.

The victim's brother testified that he went to the house at 915 Washington Street in the morning of 21 October 1984 and observed the back door standing open, a broken door jam, and a broken cylinder lock. A piece of the lock was lying on the kitchen floor. He found a spent .25 caliber shell cartridge in the kitchen and gave it to investigating officers.

A magistrate, who was present at McLamb's booking after his arrest, testified that after McLamb was released, two men, one of whom he recognized as defendant, approached him and asked if McLamb had been released. When he replied affirmatively, they immediately left the office. This inquiry occurred ten to fifteen minutes after McLamb left.

The state introduced into evidence a tape recording of three telephone calls received by the emergency 911 dispatcher. At 10:10:47 p.m. a call was received. The caller said, "This is 915 Washington Street. Somebody is trying to kick my door in." Another call came in at 10:11:49 p.m. the caller said, "There's somebody dead on the street. Washington Street and Monmouth Avenue."

Around midnight the same night of the shooting defendant was picked up in his black El Camino by a deputy sheriff. Defendant was with Richard Clayton. Defendant was wearing "a black tee-shirt, blue jeans, and a pair of brown boots...." Other evidence showed defendant to be a white male with shoulder-length dark blond, or light brown, hair. Richard Clayton's hair was medium length, substantially shorter than defendant's.

Durham Police Department Identification Officer Byers made hand wipings of defendant's hands at 12:40 a.m. on Sunday, 21 October 1984, which were anaylzed by forensic chemist Creasy of the SBI for the presence of gunshot residues. Chemist Creasy found concentrations of barium, antimony and lead--constituents of gunshot primer--on defendant's hand wipings, which were higher than the concentrations found on the victim's hands. The concentrations of these elements were not present in the proper locations for Creasy to render an opinion whether defendant could have fired a gun.

Defendant offered no evidence.

The jury found him guilty of second degree murder, and the trial judge sentenced him to fifteen years' imprisonment.

II.

In his only assignment of error, defendant contends there was insufficient evidence to support his conviction of second degree murder and that the trial court erred in denying his motion to dismiss at the close of the evidence.

Second degree murder is the unlawful killing of another human being with malice but without premeditation and deliberation. State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980); State v. Jenkins, 300 N.C. 578, 268 S.E.2d 458 (1980). Defendant contends there was insufficient evidence to show that he committed the crime.

When considering a motion to dismiss for insufficiency of evidence, the court is concerned only with the legal sufficiency of the evidence to support a verdict, not its weight, which is a matter for the jury. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). The evidence must be considered in the light most favorable to the state; all contradictions and discrepancies therein must be resolved in the state's favor; and the state must be given the benefit of every reasonable inference to be drawn in its favor from the evidence. State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979); State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975). There must be substantial evidence of all elements of the crime charged, and that the defendant was the perpetrator of the crime. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982); State v. Scott, 296 N.C. 519, 251 S.E.2d 414; State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968).

In State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649, we defined substantial evidence as follows:

Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The terms 'more than a scintilla of evidence' and 'substantial evidence' are in reality the same and simply mean that the evidence must be existing and real, not just seeming or imaginary. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion to dismiss should be allowed. State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967). This is true even though the suspicion so aroused by the evidence is strong. State v. Evans, 279 N.C. 447, 453, 183 S.E.2d 540, 544 (1971).

307 N.C. at 66, 296...