State v. Davis

• Decision Date: 07 April 1995
• Docket Number: No. 135A92,135A92
• Citation: 455 S.E.2d 627,340 N.C. 1
• Parties: STATE of North Carolina v. Edward Earl DAVIS, Roger Dale Hood.
• Court: North Carolina Supreme Court

Page 627

455 S.E.2d 627

340 N.C. 1

STATE of North Carolina v. Edward Earl DAVIS, Roger Dale Hood.

No. 135A92.

Supreme Court of North Carolina.

April 7, 1995.

Michael F. Easley, Atty. Gen. by Jeffrey P. Gray, Asst. Atty. Gen., for State.

J. Clark Fischer, Winston-Salem, for defendant-appellant Davis.

Scott F. Wyatt and Thomas Courtland Manning, Cheshire, Parker & Manning, Raleigh, for defendant-appellant Hood.

FRYE, Justice.

Defendants were indicted on 9 September 1991 for first-degree murder and attempted robbery with a dangerous weapon. Defendant Davis was also indicted for second-degree kidnapping. They were tried capitally and jointly at the 24 February 1992 Criminal Session of Superior Court, Buncombe County, Judge James U. Downs presiding.

Defendants were found guilty of first-degree murder on theories of both premeditation and deliberation and felony murder and attempted robbery with a dangerous weapon. Defendant Davis was also found guilty of second-degree kidnapping.

Following a capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended death for defendant Davis and life imprisonment for defendant Hood. The judge sentenced each defendant accordingly. Davis was also sentenced to forty years' imprisonment for the robbery with a dangerous weapon conviction and thirty years' imprisonment for the kidnapping conviction. The judge sentenced Hood to forty years' imprisonment for the robbery with a dangerous weapon conviction.

The State's evidence introduced during the guilt phase tended to show the following narrated facts. On 16 August 1991, defendants visited the Leicester Pawn Shop in Buncombe County where Mark Lane, the murder victim, was working and his girlfriend, Kathleen Shively, the kidnapping victim, was helping. They made three visits. The first was between 12:00 and 12:30 p.m. Defendants purchased a police scanner. Davis asked whether Lane bought or pawned shotguns. When Lane told him that he did, Davis stated they would be back.

The next visit was at approximately 2:30 p.m. when defendants returned with a shotgun. Lane offered them $50.00. Davis rejected the offer and defendants left. During both the first and second visits, there were other customers in the store. A sign on the store stated that the store closed at 6:00 p.m.

The third visit occurred at 5:55 p.m. while Lane and Shively were preparing to close the store. Lane had placed $1,000 in cash from the cash register and a pistol in his back pocket. As defendants entered, Davis was carrying a shotgun and told Lane he would accept Lane's earlier offer of $50.00. Lane laid the shotgun on the counter and asked Shively to write up the ticket. Upon Shively's request, Davis handed her his driver's license. Immediately thereafter, Davis pulled a "cowboy type gun" from under his shirt and stated, "Buddy, don't even try it. Buddy, don't even try it." Davis was pointing the gun right at Lane, who stood with both hands at his sides. Davis then shot Lane, striking him in his left wrist. Davis shot Lane a second time, and Lane twisted around and fell to the floor. Shively then heard a third and fourth shot but did not know who fired them.

Davis, pointing his pistol at Shively, ordered her to get down on the floor "you dirty fuckin bitch, or I'm going to kill you, too." Shively fell to the floor and began crawling towards the back office. Davis kept repeating, "Crawl back there." Hood remained silent during all of these events. After hearing defendants leave, Shively called 911 and began performing CPR on Lane. Shively positively identified defendants.

A pathologist testified that Lane had three distinct gunshot wounds. One passed through his left wrist and lodged in the left chest wall. A second entered the front shoulder and exited through the back of the shoulder. A third entered the right chest and passed through the body, with the bullet causing damage to both lungs, the diaphragm, liver, and aorta. Cause of death was massive hemorrhaging secondary to the gunshot wound through the chest.

A crime scene analyst with the Buncombe County Sheriff's Department, Michael Wright, observed the victim Lane lying on the floor behind the counter in the pawn shop with a stainless steel revolver near his right hand; five unspent cartridges were found in the gun. The bullet that had been fired from the pistol was removed from the ceiling, and an exit bullet hole was found in the top of the counter top. Hand wipings from the victim indicated that the victim "could have fired a gun."

Defendants were arrested near the Georgia-South Carolina state line, where they had wrecked their Ford Fairmont following a high-speed chase. Following waiver of their constitutional rights, both defendants gave separate, written statements which were substantially similar. According to Davis' statement, defendants went to the pawn shop, and Davis told Lane that they had two "hot" pistols and a shotgun for sale. Lane said he would buy them. Davis said that he laid the shotgun on the counter and then reached to pull the pistol out. The victim then "reached back like--like this and pulled out some sort--some little automatic. I guess it was a .25 or something. I don't know, and he shot, and I shot back in self defense."

Hood's statement was similar. He said the victim reached behind him, pulled out a gun, and started firing. Davis returned fire and the victim fell. Hood did not think the victim had been hit. The victim "was firing up at me, so I reached over and shot."

Statements by both defendants were later given to Charles E. Calloway, a Buncombe County detective with the Sheriff's Department. There were some inconsistencies in the statements of the two defendants on this occasion. The inconsistencies were as follows: Hood intimated that both he and Davis had pistols with them during their third visit to the pawn shop. Davis said that Hood's pistol was in the car and that Hood had gone to retrieve it before selling it.

Detective Calloway also testified that his investigation did not reveal a .25 automatic anywhere near the victim's body. He testified on cross-examination that Shively made no reference to a robbery or an attempted robbery and said that Davis was carrying the shotgun "not like they were going to fire it, just carrying it like they were going to sell it." Investigation revealed that nothing was missing from the pawn shop's safe, and neither defendant was observed going into the back room or anywhere near the safe. Both money and jewelry were removed from the victim's body prior to autopsy by investigators.

Defendants did not testify or offer any evidence during the guilt phase of the trial.

During the sentencing phase, the State offered evidence that Davis had been convicted of murder in Ohio in 1976. Defendants did not testify but offered evidence from family members and professionals regarding their family histories and personal traits.

Additional evidence introduced during the trial will be discussed where pertinent to the issues raised by defendants. Issues Raised by Defendants Davis and Hood

I.

First, both defendants assign error to the trial court's reasonable doubt instruction. On 12 August 1994, this Court allowed defendant Hood's motion to adopt defendant Davis' brief as to this issue. Defendants contend that the trial court instructed the jury on reasonable doubt using language which recent decisions of both this Court and the United States Supreme Court condemn as unconstitutionally lowering the State's burden of proof. Defendants rely on State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993) (Bryant I ), in which we found error in the reasonable doubt instruction based on Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). However, the Supreme Court of the United States vacated the judgment and remanded Bryant I to this Court for further consideration in light of Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). North Carolina v. Bryant, 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994). On remand, we held that there was no Cage error entitling defendant to a new trial. State v. Bryant, 337 N.C. 298, 446 S.E.2d 71 (1994) (Bryant II ). The instruction in Bryant was essentially identical to the instruction in this case; therefore, we reject this assignment of error on the basis of our opinion in Bryant II.

II.

Next, defendants contend that the trial court erred when it refused to dismiss their charges of attempted armed robbery. As the basis for their contention, defendants claim that the State failed to present sufficient evidence of each of the elements of the crime charged. Specifically, defendants argue that there was insufficient evidence of intent.

The motion to dismiss must be allowed unless the State presents substantial evidence of each element of the crime charged. State v. McDowell, 329 N.C. 363, 407 S.E.2d 200 (1991). "Substantial evidence" means " 'that the evidence must be existing and real, not just seeming or imaginary.' " State v. Clark, 325 N.C. 677, 682, 386 S.E.2d 191, 194 (1989) (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)). In evaluating a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Locklear, 322 N.C. 349, 368 S.E.2d 377 (1988).

Defendants were charged with attempted robbery with a dangerous weapon in violation of N.C.G.S. § 14-87. The two elements of attempted robbery with a dangerous weapon are: (1) an intent to commit the substantive offense, and (2) an overt act done for that purpose which goes beyond mere preparation but falls short of the completed offense. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). Thus, "[a]n attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or...