State v. Bryant

• Court: North Carolina Supreme Court
• Writing for the Court: FRYE; MEYER
• Citation: State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (N.C. 1993)
• Decision Date: 30 July 1993
• Docket Number: No. 166A91,166A91
• Parties: STATE of North Carolina v. Kenneth Michael BRYANT.

Page 291

432 S.E.2d 291

334 N.C. 333

STATE of North Carolina v. Kenneth Michael BRYANT.

No. 166A91.

Supreme Court of North Carolina.

July 30, 1993.

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Brown, J., at the 2 October 1990 Criminal Session of Superior Court, Edgecombe County, upon a jury verdict of guilty of first-degree murder. Heard in the Supreme Court 16 February 1993.

Lacy H. Thornburg, Atty. Gen. by Jeffrey P. Gray, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Janine M. Crawley, Asst. Appellate Defender, Raleigh, for defendant-appellant.

FRYE, Justice.

On 30 April 1990, an Edgecombe County grand jury indicted defendant for the murder of Roy Gene Ackery (the victim). Defendant was tried non-capitally and found guilty of first-degree murder. On 5 October 1990, a judgment was entered sentencing defendant to life imprisonment. From this judgment defendant appeals to this Court.

Defendant brings forward seven issues on appeal. However, we find it necessary to address only two of those issues since defendant is entitled to a new trial.

In defendant's first argument, he contends that the trial court erred by refusing to grant his motion to dismiss at the close of all the evidence. He contends that his conviction must be vacated because the State's evidence was insufficient to convict him of first-degree murder.

When ruling on a motion to dismiss, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence. State v. Sweatt, 333 N.C. 407, 414, 427 S.E.2d 112, 116 (1993). "The test that the trial court must apply is whether there is substantial evidence--either direct, circumstantial, or both--to support a finding that the crime charged has been committed and that defendant was the perpetrator." Id. (quoting State v. Clark, 325 N.C. 677, 682, 386 S.E.2d 191, 194 (1989)). The term "substantial evidence" means "the evidence must be existing and real, not just seeming or imaginary." Clark, 325 N.C. at 682, 386 S.E.2d at 194. When there is substantial evidence of each element of the crime charged and that the defendant was the perpetrator, then a motion to dismiss should be denied. Id.

The evidence taken in the light most favorable to the State tends to show the following facts and circumstances. Defendant was living and working in Jackson, Mississippi, in December 1989. His estranged wife, Doris Jones Bryant, was living with the victim in a mobile home on Highway 43 across from the Hitching Post, a bar in Edgecombe County, North Carolina.

Cheryl Marlowe, who had dated defendant sporadically for over three years, testified at trial, under a grant of immunity, that on 30 December 1989 she and defendant went to the Good Tymes bar in Rocky Mount where they drank beer and shot pool. They left the bar at approximately 9:30 p.m. and drove around Nash and Edgecombe Counties. At approximately 10:30 p.m., defendant told Ms. Marlowe to let him out of the car. Marlowe stopped at a stop sign located at the intersection of a rural paved road and Highway 43 near the victim's mobile home and the Hitching Post. Defendant instructed Ms. Marlowe to continue driving down the road for a while then return to pick him up after approximately five minutes. Marlowe testified that prior to getting out of the car, defendant reached under the seat. She did not see him get anything from under the seat, but she knew that he had placed a gun there earlier. Once defendant was out of the car, Marlowe drove further down the road and relieved herself in a patch of trees. She then made a U-turn and returned to the stop sign to pick up defendant. When defendant entered the car, he told Marlowe that neither his estranged wife nor the victim was at home. Marlowe drove defendant to his sister's house, but she was not at home. During the drive back to Wilson from defendant's sister's house, defendant removed a gun from under the seat, unloaded it and threw a shell out of the window. Defendant then told Marlowe that when he arrived at the victim's mobile home, he knocked on the window, the victim looked through the blinds, and both men grabbed for the door knob. Defendant then fired his gun through the door.

Marlowe had been interviewed three times prior to the trial. Her version of what happened on the night of the murder varied in each of her statements, however she explained that the variations were due to the fact that her husband was present in her home during the second interview, she was afraid of defendant, and she was afraid of losing her children if she became involved. Marlowe testified that she had said some things which were true and she had said some things which were not true, but her testimony before the court was the truth.

Charles Myers also testified for the State. Myers testified that at approximately 10:00 p.m. or 10:30 p.m. on the night of the murder he was standing outside of the Hitching Post. He heard the sound of a gun shot come from the victim's mobile home and within forty or forty-five seconds defendant ran past him. Myers stated that prior to the murder he did not know defendant's name, but he had seen defendant "around town."

Richard Hopkins testified that on the night of the murder defendant asked him how long it had been since he had seen the victim. Hopkins responded that it had been about two days. Defendant then pulled out a barber's razor and said, "[w]ell, I got something for him when I see him."

Doris Bryant, defendant's estranged wife, testified that in April, 1989, defendant kicked open the door of her apartment at midnight and told her that he would "kill [the victim]" and "he'd kill [her], too." Doris Bryant also testified that when she returned to the victim's mobile home between 10:30 p.m. and 10:40 p.m. on the night of his murder, she discovered the victim's body lying against the mobile home door.

James Adcock, a paramedic, testified that when he arrived at the victim's mobile home, the victim did not have a pulse, nor was he breathing. Adcock observed a gun shot wound to the right temple of the victim's head, and was of the opinion that the victim was dead upon Adcock's arrival at the scene.

Defendant did not testify at trial, but he presented witnesses to establish an alibi defense. Defendant called as witnesses, his brother-in-law, his brother's girlfriend, his sister's boyfriend and his three sisters. All of defendant's witnesses testified that defendant was in their presence on 30 December 1989 at approximately 10:30 p.m. playing cards.

Notwithstanding the evidence stated above, defendant specifically argues that the evidence was insufficient to convict him of murder in the first degree for the following reasons: 1) the State presented scant physical evidence; 2) the inconsistency between an admission by defendant and the physical evidence; 3) an inherently unreliable identification of defendant by a State's witness; 4) the State produced no evidence which placed defendant at the crime scene at the time of the shooting; 5) the alleged threats which defendant made against the victim were vague, and most were made while defendant was under the influence of alcohol; 6) the state produced no evidence that defendant fled the area; and 7) the lack of further evidence regarding observations by a witness of a possible larceny following the murder.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. McAvoy, 331 N.C. 583, 589, 417 S.E.2d 489, 494 (1992). Defendant does not contend that the evidence is insufficient to prove a specific element of the offense of first-degree murder. Rather, he attacks what he perceives as a general weakness in the State's case for the seven reasons submitted. We conclude that the evidence presented by the State was sufficient to withstand the motion to dismiss and to take the case to the jury.

Where there is substantial evidence of each element of the offense charged--as here--the fact that there was "scant" physical evidence, or inconsistencies in the evidence, is for the jury's consideration. See State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). In addition, "the credibility of the witness' identification and the weight given his testimony is a matter for the jury to decide." State v. Turner, 305 N.C. 356, 362, 289 S.E.2d 368, 372 (citing State v. Green, 296 N.C. 183, 250 S.E.2d 197 (1978)); State v. Orr, 260 N.C. 177, 132 S.E.2d 334 (1963); State v. Bowman, 232 N.C. 374, 61 S.E.2d 107 (1950). This Court recognizes an exception to this rule when the witness' testimony is "inherently incredible." State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967) (witness, who had never seen defendant before, identified him at scene of crime, at night, and at a distance of 286 feet). However, in the instant case, the witness, Charles Myers, had seen defendant before and was standing in a lighted parking lot when defendant came running past him some eight to ten feet away. Myers gave a description of defendant on the same night to a deputy sheriff, picked defendant out of a photographic lineup, and identified defendant at trial as the man he saw running past him through the parking lot.

Contrary to defendant's contentions, the State did produce evidence placing him at the crime scene at the time of the shooting. Charles Myers' testimony that he heard the sound of a shot coming from the victim's trailer around 10:00 p.m. or 10:30 p.m. and saw defendant running past him some forty or forty-five seconds later is sufficient to raise an inference that defendant was at the mobile home at the time of the shooting. As for defendant's argument that his threats were vague and made while he was under the influence of alcohol, we do not find this to be fatal to the...