State v. Gilmore

• Decision Date: 07 November 1991
• Docket Number: No. 4A89,4A89
• Citation: 330 N.C. 167,409 S.E.2d 888
• Parties: STATE of North Carolina v. Roy Wayne GILMORE, Jr.
• Court: North Carolina Supreme Court

Page 888

409 S.E.2d 888

330 N.C. 167

STATE of North Carolina v. Roy Wayne GILMORE, Jr.

No. 4A89.

Supreme Court of North Carolina.

Nov. 7, 1991.

Lacy H. Thornburg, Atty. Gen. by William N. Farrell, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WEBB, Justice.

The defendant argues under his first assignment of error that the case against him should have been dismissed because the evidence was not sufficient to support a finding by the jury that he acted in concert with his mother in the murder of his father. If two or more persons act together with a common purpose to commit a crime, each of them who is actually or constructively present at the time the crime is committed is responsible for the acts of the others done in the commission of the crime. State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972); State v. Lovelace, 272 N.C. 496, 158 S.E.2d 624 (1968).

The defendant argues that there is not sufficient evidence to show he was actually or constructively present when the injection was made to find that he acted in concert with his mother to murder his father. He says that all the evidence shows that he was at home in his bed when the fatal injection was made in the early morning hours of 29 August 1986. He argues further that there was no evidence that he communicated to his mother his intent to help her inject his father with the insulin.

The testimony of Mr. Simms, that the defendant told him he "masterminded" the killing of his father, supports a finding by the jury that the defendant communicated to his mother that he would help her when she injected her husband with insulin. There was evidence that the victim was injected at least twice, at 5:00 p.m. and approximately ten to fourteen hours earlier. The evidence showed that between these two injections the defendant was in his father's home twice. The jury could infer from this that the defendant went to his father's home to make sure the killing was going as planned. It took several hours to consummate the killing. The jury could infer that the defendant was actually present during a part of this time. The evidence would also permit an inference that when the defendant was in his own home he was in close proximity to the place where the injections were administered ready to aid his mother. This made him constructively present. State v. Davis, 301 N.C. 394, 271 S.E.2d 263 (1980). The defendant's first assignment of error is overruled.

The defendant next contends there was error in the court's charge on acting in concert. The defendant requested a charge under which the court would instruct the jury that the defendant must have been present when the offense was committed. The court did not use this charge but charged from the Pattern Jury Instructions as follows:

For a person to be guilty of a crime, it is not necessary that he himself do all of the acts necessary to constitute the crime. If two or more persons act together with a common purpose to commit murder each of them is held responsible for the acts of the others done in the commission of the murder.

N.C.P.I.Crim. 202.10. The defendant concedes that this charge might be adequate in a case in which the evidence showed the defendant was actually present at the time the crime was committed. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988); State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980). The defendant contends it is not adequate in this case because there was little or no evidence that the defendant was present at the time the murder was committed.

We do not agree with the defendant's characterization of the evidence. The evidence shows the killing of the defendant's father occurred over a period of several hours. During this time the defendant was actually present in his father's home while his father was dying. There is a natural inference from this evidence that the defendant was present to be sure the murder was proceeding according to the plan. When the defendant was in his own home he was in close enough proximity to the scene of the murder to be able to render assistance to his mother in committing the crime if needed. This made him constructively present. State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Sellers, 266 N.C. 734, 147 S.E.2d 225 (1966); State v. Wiggins, 16 N.C.App. 527, 192 S.E.2d 680 (1972).

We have approved charges on acting in concert very similar to the charge in this case in State v. Williams, 299 N.C. 652, 658, 263 S.E.2d 774, 778, and in State v. Joyner, 297 N.C. 349, 358, 255 S.E.2d 390, 396. The evidence of the defendant's actual or constructive presence at the scene of the murder was sufficiently strong enough that a charge on this feature of the case was not necessary. This assignment of error is overruled.

The defendant argues under his third assignment of error that it was prejudicial error not to give an instruction to the jury as to how to consider the testimony of interested witnesses. At the charge conference the defendant requested and the court agreed to give the following charge from the Pattern Jury Instructions:

You may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take his interest into account. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.

N.C.P.I.Crim. 104.20. The court did not give this charge. It charged as follows:

You are the sole judges of the credibility of each witness. You decide for yourselves whether to believe the testimony of any witness. You may believe all, part or none of a witness's testimony, and in determining whether to believe any witness you should apply the same tests of truthfulness you apply in your everyday affairs.

As applied to this trial, these tests may include the opportunity of the witness to see, to hear, to know, or remember the facts or occurrences about which he testified, the manner and appearance of the witness, any interest, bias or prejudice the witness may have, the apparent understanding and fairness of the witness, whether the testimony is reasonable, and whether his testimony is consistent with other believable evidence in the case.

The victim's mother and several of his brothers and sisters...