State v. Bondurant, 426A82

• Decision Date: 06 December 1983
• Docket Number: No. 426A82,426A82
• Citation: 309 N.C. 674,309 S.E.2d 170
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Robert Carlman BONDURANT.

Page 170

309 S.E.2d 170

309 N.C. 674

STATE of North Carolina v. Robert Carlman BONDURANT.

No. 426A82.

Supreme Court of North Carolina.

Dec. 6, 1983.

Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

Stephen G. Royster and Michael F. Royster, Mount Airy, for defendant-appellant.

BRANCH, Chief Justice.

Guilt-Innocence Phase

By his first assignment of error, defendant contends that by death qualifying the jury and excluding for cause those who expressed opposition to the death penalty, the trial court violated his rights as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Defendant concedes the decided cases are against him and presents no arguments in support of his position that were not carefully considered by this Court in State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980); State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982); and State v. Ladd, 308 N.C. 272, 302 S.E.2d 164 (1983). This contention is without merit.

Defendant further argues that the trial judge erred in denying his pretrial motion concerning the manner in which the jurors should have been selected. Defendant's motion reads as follows, in pertinent part:

that jurors who may be opposed to capital punishment be allowed to sit ... during the guilt or innocence phase of ... [the] trial ...; and, further, that the State and defendant be permitted to pick an alternate juror who is not opposed to capital punishment to take the place of the juror who is opposed to capital punishment to sit as a juror during the sentencing phase of ... [the] trial.

We hold that the trial judge correctly refused to permit jury selection in accordance with the method proposed by defendant. Selecting a jury composed both of those opposed and unopposed to capital punishment for the purpose of determining guilt and then, at the sentencing phase, replacing those opposed by alternates who are unopposed to the death penalty contravenes G.S. 15A-2000(a)(2), which contemplates that the same jury which determines guilt will recommend the sentence. General Statute 15A-2000(a)(2) permits alternate jurors to serve during the sentencing phase in extraordinary circumstances involving the death, incapacitation or disqualification of an empaneled juror, but does not provide for the exchange of jurors for the sentencing phase based upon their convictions concerning the death penalty. This assignment is overruled.

Defendant next contends that the trial judge erred in denying his motion to dismiss at the close of the State's evidence and at the close of all the evidence. He argues that there was not sufficient evidence of premeditation and deliberation to carry the case to the jury on the charge of first-degree murder.

When defendant elected to offer evidence on his own behalf at trial, he thereby waived his right to assert as error on appeal the denial of his motion for dismissal made at the close of the State's evidence. G.S. 15-173. We therefore consider only his motion to dismiss made at the close of all the evidence.

In considering this assignment of error, we apply the familiar rule that upon a motion for dismissal, all 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 therefrom. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978); State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978). When so considered, if there is substantial evidence to support a finding that the offense has been committed and the defendant was the perpetrator of the offense, the motion to dismiss should be denied. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Thomas, supra. Premeditation has been defined as "thought beforehand for some length of time no matter how short," while deliberation is "an intention to kill executed by the defendant in a 'cool state of blood' in furtherance of a 'fixed design to gratify a feeling of revenge or, to accomplish some unlawful purpose.' " State v. Calloway, 305 N.C. 747, 751, 291 S.E.2d 622, 625 (1982).

When considered in the light most favorable to the State, the evidence in the instant case reveals that after firing the .22 caliber pistol, defendant retrieved the .45 caliber revolver and turned to point it at Reynolds' head. There is no evidence that the decedent provoked this menacing gesture in any way. Monty Vernon testified that defendant said to the victim, "You don't believe I'll shoot you, do you?" Each occupant of the car stated that defendant held the gun on the decedent for at least two minutes and that they were begging him not to shoot. Unmindful of their pleadings, defendant shot Reynolds in the head. The State presented evidence that the .45 caliber revolver was a "single action" type; that to fire the weapon the hammer had to be pulled back and set and the trigger pulled.

We hold that there was plenary and substantial evidence from which the jury could infer that defendant acted with premeditation and deliberation when he shot and killed Michael Roby Reynolds. The trial court properly denied defendant's motion to dismiss.

Defendant next assigns as error the trial court's denial of his motion for mistrial following the district attorney's first question to him on cross-examination.

Defendant took the witness stand and testified extensively on his own behalf. On cross-examination, he was asked: "Mr. Bondurant, on May 30, 1968, did you unlawfully kill and slay one Ricky Cook?" Objection to this question was immediately sustained and a motion for mistrial denied. Defendant was then asked: "Mr. Bondurant, on the 13th day of January, 1970, were you charged and convicted of involuntary manslaughter?" Defendant replied: "Yes sir; as a result of a car accident." Defendant further admitted that on the evening that he struck and killed Ricky Cook, he was driving the car without a license at speeds up to 120 miles per hour while under the influence of alcohol.

Defendant's argument is that the first question implied that he had been convicted of voluntary manslaughter as opposed to involuntary manslaughter. We do not agree.

Involuntary manslaughter is the unlawful and unintentional killing of another human being without malice and which proximately results from (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976).

The first question posited to defendant was "... did you unlawfully kill and slay one Ricky Cook?" The prosecutor's emphasis was on the unlawfulness of defendant's act and unlawfulness is clearly an element of the crime for which defendant had been convicted. Contrary to defendant's contention, the question did not suggest an intentional act and thereby imply that defendant had been convicted of voluntary manslaughter.

Since the prosecutor's question was, by defendant's own admission, asked in good faith and since the question conformed to the law of involuntary manslaughter, we hold that the trial judge did not abuse his discretion in denying defendant's motion for mistrial.

We next consider defendant's contention that the trial judge erred in excluding certain testimony of Clark Bondurant and in excluding a photograph illustrative of his testimony.

The challenged evidence was offered to impeach the testimony of two prosecution witnesses, Helen Dianne Bowman and Fern Tate. These two women testified, in substance, that on 5 April 1981, they lived in an apartment over The Cupboard Number 5 in Bannertown, near Mount Airy, North Carolina. Their testimony was that sometime after 11:00 p.m. on 5 April, they observed a car similar to that occupied by defendant and his companions drive up in front of The Cupboard between the gas pumps. Each remembered that the area where the car stopped was well lighted and that there was at least one light on inside the car. They also recalled that at least one of the windows in the car was down and that they could hear the occupants talking loudly in an argumentative tone. Ms. Tate testified that she saw the passenger in the front seat shoot out the window. Both Ms. Tate and Ms. Bowman saw the same person point a gun into the back seat. After several minutes, they heard another gunshot and saw the car speed away. They copied down the license number of the automobile and Ms. Tate called the police to report the incident.

In order to impeach the testimony of Ms. Bowman and Ms. Tate, defendant sought to introduce testimony of his brother, Clark Bondurant. Several days prior to trial, Clark, defendant's wife, defense counsel and a photographer drove the car in which the group was riding on the night of the shooting to The Cupboard Number 5. They parked the automobile between the gas pumps in front of the building and took photographs of the car from ground level and from the apartment above. At trial, defense counsel asked Clark Bondurant to describe what he saw from the apartment window. The prosecution objected and a voir dire was held. Clark testified on voir dire that from the apartment window, he was unable to see a person sitting in the front seat of the automobile. He further stated that he was unable to see the object which the person in the front seat was holding, a broom handle intended to approximate the length of the gun held by defendant on the night of 5 April.

Following the voir dire, the trial judge ruled that the evidence sought to be admitted had been developed by means of an experiment. He further ruled that the conditions under which the experiment was conducted were too dissimilar from those existing on 5 April 1981 to permit the admission of Clark Bondurant's testimony and a photograph taken from the apartment.

Defendant first argues that the...