State v. Calloway

• Decision Date: 02 June 1982
• Docket Number: No. 165A81,165A81
• Citation: 291 S.E.2d 622,305 N.C. 747
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. McKinley Junior CALLOWAY.

Page 622

291 S.E.2d 622

305 N.C. 747

STATE of North Carolina v. McKinley Junior CALLOWAY.

No. 165A81.

Supreme Court of North Carolina.

June 2, 1982.

Rufus L. Edmisten, Atty. Gen. by Ralf F. Haskell, Asst. Atty. Gen., Raleigh, for the State.

Cecil Lee Porter, North Wilkesboro, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first assigns as error the trial judge's denial of his motion for directed verdicts made 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 after the denial of his motion to dismiss at the close of the State's evidence, he waived his motion to dismiss at the close of the State's evidence. We therefore only consider his motion to dismiss made at the close of all the evidence. G.S. 15-173; State v. Jones, 296 N.C. 75, 248 S.E.2d 858 (1978).

In considering this assignment of error, we apply the familiar rule that upon a motion for nonsuit or 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 from it. State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978); 4 Strong's N.C. Index 3d, Criminal Law § 106 (1976). 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 for nonsuit should be denied. State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Thomas, supra; State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69 (1976).

Since all of the evidence in this case shows that defendant intentionally shot deceased with a deadly weapon thereby proximately causing her death, we are here only concerned with whether the evidence was sufficient to permit, but not require, a jury to find that defendant acted with premeditation and deliberation.

Premeditation may be defined as thought beforehand for some length of time no matter how short. State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981); State v. Thomas, supra; State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974).

Deliberation means 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. Corn, supra; State v. Thomas, supra; State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R.2d 1422, cert. denied, 368 U.S. 851, 82 S.Ct. 85, 7 L.Ed.2d 49 (1961).

Premeditation and deliberation must ordinarily be proved by circumstantial evidence. Among the circumstances to be considered are: (1) want of provocation on the part of the deceased, (2) conduct and statements of the defendant before and after the killing, (3) threats made against the victim by defendant, (4) ill will or previous difficulty between the parties, and (5) evidence that the killing was done in a brutal manner. State v. Potter, 295 N.C. 126, 130-31, 244 S.E.2d 397, 401 (1978); State v. Thomas, supra; State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972).

Here the evidence, when considered in the light most favorable to the State, discloses a minimum of provocation on the part of the deceased. She was in the act of delivering a gift to defendant from their children and explained that the children could not come out to see him because of illness. After refusing to enter the automobile, she was told to go back to the house. As she turned to go to the house, she was shot in the back at close range. Defendant came to the place where the victim lived armed with a shotgun, and after stating that he was going to kill her fired a shotgun at close range. There was substantial evidence of previous difficulty between the parties including previous separations, physical assaults on the victim by the defendant, and the threatened use of a deadly weapon upon the person of the victim by the defendant. We hold that there was plenary and substantial evidence which would permit the jury to draw reasonable inferences that defendant acted with premeditation and deliberation when he shot and killed his wife. The trial court properly denied defendant's motion to dismiss.

Defendant next contends that the trial court erred by permitting the district attorney to examine him, over his objection, concerning prior convictions.

Defendant testified in his own behalf, and on cross-examination the district attorney asked him a series of questions concerning previous convictions.

It is well settled in this jurisdiction that when a defendant testifies in a criminal case he may be cross-examined concerning convictions of prior unrelated criminal offenses. He may also be impeached by cross-examination concerning prior specific criminal acts or specific reprehensible conduct. However, such cross-examination must be based upon information, and the questions must be asked in good faith. State v. Williams, 303 N.C. 142, 277 S.E.2d 434 (1981); State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980); State v. Leonard, 300 N.C. 223, 266 S.E.2d 631, cert. denied, 449 U.S. 960, 101 S.Ct. 372, 66 L.Ed.2d 227 (1980). It is equally well settled that a defendant may not be impeached on cross-examination by questions relative to whether he has been arrested, accused, or indicted for prior unrelated criminal offenses. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).

Whether the cross-examination transcends propriety or is unfair is a matter resting largely in the sole discretion of the trial judge, who sees and hears the witnesses and knows the background of the case. His ruling thereon will not be disturbed without a showing of gross abuse of discretion.

State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977). Accord State v. Clark, 300 N.C. 116, 265 S.E.2d 204 (1980).

In State v. Clark, supra, this Court considered the question of whether a district attorney acted in bad faith in conducting his cross-examination. In that case, defendant contended that the district attorney had before him an F.B.I. report showing that defendant had been charged but not convicted of homicide at the time he cross-examined the defendant concerning this particular matter. In finding no error, this Court stated:

[T]he record does not support his contention that the District Attorney acted in bad faith. The FBI report was not made a part of the record, and defendant failed to request a voir dire to determine whether the District Attorney acted in good faith. We have held that when the record contains no evidence regarding whether a District Attorney acted in good faith in inquiring into a defendant's prior criminal offenses or reprehensible conduct, the court's ruling permitting the question to be asked will be presumed to be correct. State v. McLean, 294 N.C. 623, 242 S.E.2d 814 (1978). Furthermore, any possible prejudice to defendant was negated by the fact that he was given the opportunity to explain that he had not been convicted of homicide. State v. McLean, supra. We find no merit in this assignment of error.

State v. Clark, 300 N.C. at 125, 265 S.E.2d at 210.

In instant case, the questions directed to the defendant were all related to convictions and specific acts. During this portion of defendant's cross-examination, he answered the questions regarding prior convictions in varying degrees which ranged from admitting or denying to volunteering information about charges, acquittals, and compromises. At no place in this record do we find anything which discloses that the district attorney acted on lack of information or that he acted in bad faith in cross-examining. Thus, there is not a scintilla of evidence to show that the trial judge abused his discretion by permitting the district attorney to cross-examine defendant about prior convictions.

This assignment of error is overruled.

Defendant argues that the trial judge erred by not declaring a mistrial on his own motion when during the voir dire of prospective jurors while the district attorney was trying to "death qualify" a prospective juror the juror made the statement, "I don't believe in just going out and killing people," and the district attorney in reply stated, "Yes ma'am. That's what this trial is all about." Defendant contends that the comment of the district attorney caused the jurors to form an opinion concerning defendant's guilt before any evidence was presented. We do not agree.

Whether a motion for mistrial should be granted is a matter which rests in the sound discretion of the trial judge, State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977), and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law. State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978).

In instant case, it would seem that the most reasonable interpretation of the exchange between the district attorney and the prospective juror would be that the prospective juror meant to convey the fact that she believed in capital punishment only when the evidence justified its imposition and that the district attorney merely rejoined that this was the purpose of the trial. Apparently the exchange had little actual impact on defense counsel since he failed to move for a mistrial. We find nothing in this dialogue between the district attorney and the prospective juror which would require the trial judge to declare mistrial on his own motion.

Defendant assigns as error the admission of certain testimony relating to prior abuse of the victim by defendant.

Bill Wilborne, the father of the victim, testified...