State v. Carey

• Decision Date: 01 July 1974
• Docket Number: No. 19,19
• Citation: 206 S.E.2d 222,285 N.C. 509
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Albert Lewis CAREY, Jr.

Page 222

206 S.E.2d 222

285 N.C. 509

STATE of North Carolina v. Albert Lewis CAREY, Jr.

No. 19.

Supreme Court of North Carolina.

July 1, 1974.

Robert Morgan, Atty. Gen., and John R. B. Mathis, Asst. Atty. Gen., Raleigh, for the State.

Waggoner, Hasty & Kratt by John H. Hasty, Charlotte, for defendant.

LAKE, Justice.

It was clearly error for the trial judge to refuse to permit the defendant (and the State) to interrogate prospective jurors concerning their views with reference to the imposition of the death penalty upon one convicted of murder in the first degree, and also error to refuse to permit the defendant, in his argument to the jury, to inform the jury that, under the law of this State, the prescribed punishment for murder in the first degree is death. State v. Carey, N.C., 206 S.E.2d 213, decided this day; State v. Britt, 285 N.C. 256, 204 S.E.2d 817. Because of these errors there must be a new trial of the defendant. The jury not having been selected in accordance with the requirements of the law, there must be a new trial on the conspiracy charge as well as upon the murder charge.

The defendant's contention that his motion for judgment of nonsuit should have been allowed as to both charges has no merit as to either. In State v. Fox, 277 N.C. 1, 17, 175 S.E.2d 561, we said: '(W)hen a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree.' See also: State v. Carey, supra; State v. Bell, 205 N.C. 225, 171 S.E. 50.

This is a companion case to State v. Carey, supra, the two defendants being brothers and alleged co-conspirators. The evidence for the State concerning the conspiracy to rob and the fatal shooting of the filling station attendant was substantially the same in both cases. Reference is made to our opinion in that case for a more complete narration of the facts. For the present, it is sufficient to state that the testimony of Mitchell, the trigger man at the shooting, is ample to support a finding that he, the two Carey brothers, Harold Givens and Antonio Dorsey conspired to rob Williams' Exxon Service Station; that this defendant--Albert Lewis Carey, Jr.--was the principal planner of the robbery; that, in his own or his wife's automobile, he transported all of the conspirators to a point near the filling station where he let Mitchell and Givens out for the purpose of perpetrating the planned robbery; that they went to the filling station and, in an attempt to carry out the plan, Mitchell fatally shot James Sloop, an attendant thereat; following the shooting, Mitchell and Givens fled and were picked up by this defendant and transported back to their homes in his automobile.

A murder perpetrated in an attempt to commit robbery is murder in the first degree. G.S. § 14--17; State v. Fox, supra.

As the defendant contends, when the State proves another felony, as an element of first degree murder, such other felony is merged into the murder and may not be the ground for another, separate prosecution and punishment. State v. Moore, 284 N.C. 485, 202 S.E.2d 169; State v. Carroll, 282 N.C. 326, 193 S.E.2d 85; State v. Peele, 281 N.C. 253, 188 S.E.2d 326. For this reason, the trial court properly allowed the motion for judgment of nonsuit upon the charge of armed robbery, under which the defendant, otherwise, could have been convicted of an attempt to commit armed robbery. This well settled principle of law does not, however, prevent the trial and conviction of the defendant both on the charge of first degree murder and on the charge of conspiracy to rob. The conspiracy is a separate offense from the attempt to rob. The conspiracy is a completed crime when it is formed, without any overt act designed to carry it into effect. State v. Goldberg, 261 N.C. 181, 202, 134 S.E.2d 334; State v. Brewer, 258 N.C. 533, 539, 129 S.E.2d 262; State v. Davenport, 227 N.C. 475, 494, 42 S.E.2d 686. The conspiracy and the accomplishment or attempt to accomplish the intended robbery are separate offenses and the conspirators may be convicted of both and punished for both. State v. Brewer, supra, 258 N.C. at p. 558, 129 S.E.2d 262. In the present case, the murder occurred in the perpetration of the attempt to rob. It is this felony, not the separate offense of conspiracy, which was merged into the charge of first degree murder.

Consequently, there was no error in the denial of the motion for judgment of nonsuit as to either charge, no error in the instruction to the jury that it might find the defendant guilty of conspiracy and also guilty of murder in the first degree, and no error in the imposition of the prescribed punishment for each offense.

The defendant contends that the court erred in admitting into evidence a box of shotgun shells found by Officer Stroud in the kitchen of the defendant's home. We find no merit in this contention.

The court conducted a voir dire upon the defendant's motion to suppress this evidence. It found as facts: At 2 a.m. on 10 July 1973, ten police officers, under the command of Lieutenant Stroud, went to the residence of the sister of the defendant; that the officers had warrants for the arrest of this defendant, his brother, Anthony Douglas Carey, Harold Givens and Antonio Dorsey; these arrest warrants charged each of these individuals with murder and the purpose of the officers' going to the house was to arrest the Carey brothers on those warrants; at that time, the officers also had information indicating that Antonio Dorsey might be physically present in the residence and they also had the purpose of arresting him pursuant to the warrant so charging him; arriving at the residence, they knocked at the door and stated that they were looking for the Carey brothers and had warrants for their arrest; they were admitted to the residence by the sister of the defendant, whose residence it was, and advised by her that the brothers were upstairs asleep; the officers went upstairs, found the Carey brothers asleep in separate rooms, arrested both of them and searched the rooms in which they were arrested in an unsuccessful effort to find the shotgun used in the perpetration of the murder; Lieutenant Stroud then examined other parts of the house to determine whether Antonio Dorsey was present on the premises; returning downstairs he went to the door of the kitchen, he being the first officer to enter the kitchen; arriving at the door of the kitchen, he observed a drawer open and in the open drawer, he standing in the doorway, observed the box of shotgun shells, which he then took into his possession; at the time the shells were so discovered, the officer did not have any information that shotgun shells were in the house and he was not looking for these but was seeking the whereabouts of Antonio Dorsey; that his observance of the box of shells was inadvertent; that Lieutenant Stroud was lawfully inside the residence pursuant to the arrest warrants and had a lawful right to be where he was when he observed the shotgun shells which were in plain view as he stood at the door of the kitchen.

The evidence on voir dire was ample to support these findings of fact, although there was conflicting evidence as to whether the shells were in plain view of one standing in the doorway and as to whether other officers had previously been into the kitchen. The findings of fact, being supported by the evidence on voir dire, are conclusive. State v. Grant, 279 N.C. 337, 182 S.E.2d 400; State v. Belk, 268 N.C. 320, 150 S.E.2d 481; Stansbury, North Carolina Evidence (Brandis' Revision), § 121a, p. 378. The box of shells having been in plain view of the officer as he stood where he had a right to be and having been observed by him inadvertently, not as the result of a search therefor, there was no violation of the defendant's constitutional rights in the officer's taking them into his possession, or in their introduction into evidence. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. See also: Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, the plurality opinion of Justices Clark, Black, Stewart and White; Stansbury, North Carolina Evidence (Brandis' Revision), § 121a, p. 372.

The defendant, prior to trial, moved for a bill of particulars, which motion was denied. In this there was no error. The allowance of a motion for a bill of particulars rests in the sound discretion of the trial court. G.S. § 15--143; State v. Overman, 269 N.C. 453, 468, 153 S.E.2d 44; State v. Vandiver, 265 N.C. 325, 144 S.E.2d 54; State v. Scales, 242 N.C. 400, 87 S.E.2d 916. The trial of Anthony Douglas Carey had occurred prior to the trial of this defendant. There also, the testimony of Mitchell was the foundation of the State's case. Thus, at the time the present defendant was placed on trial, he should have been fully aware of the theory of the State's case against him.

Prior to the commencement of the trial, the defendant, pursuant to G.S. §...