State v. Griffin, 413A82

• Decision Date: 03 May 1983
• Docket Number: No. 413A82,413A82
• Citation: 302 S.E.2d 447,308 N.C. 303
• Parties: STATE of North Carolina v. Jimmy GRIFFIN.
• Court: North Carolina Supreme Court

Page 447

302 S.E.2d 447

308 N.C. 303

STATE of North Carolina v. Jimmy GRIFFIN.

No. 413A82.

Supreme Court of North Carolina.

May 3, 1983.

Rufus L. Edmisten, Atty. Gen. by Richard H. Carlton, Asst. Atty. Gen., Raleigh, for the State.

William J. Williamson, Whiteville, for defendant-appellant.

FRYE, Justice.

The defendant was charged with the first-degree murder of Elbert "Red" Strickland. The State's evidence tended to show the following:

About 11 a.m. on 21 December 1981 Linda Jacobs, the victim's sister-in-law, left her car parked at the back door of the furniture store where her brother-in-law worked. Upon returning to her car with Mr. Strickland, Ms. Jacobs saw defendant coming out of the car with her purse. Defendant ran and Strickland chased him. While defendant was running away, the strap on the pocketbook broke and the purse fell to the ground. Defendant shot and killed Strickland during the chase.

Defendant did not testify or present any witnesses at trial.

Defendant was found guilty of murder in the second degree and murder in the second degree while in the perpetration of a felony.

I.

We note at the outset that defendant contends in his thirteenth assignment of error that the trial court erred in denying his motion to set aside the verdict of murder in the second degree while in the perpetration of a felony "as being contrary to the weight of the evidence in that the felony had been completed prior to the homicide." We agree that it was error for the trial court to fail to set aside this verdict, but not for the reason advanced by defense counsel. Instead, we hold that the verdict should have been set aside because there is no offense of felony murder in the second degree in North Carolina. State v. Chamberlain, 307 N.C. 130, 149, 297 S.E.2d 540, 552 (1982); State v. Davis, 305 N.C. 400, 422 290 S.E.2d 574, 588 (1982). The doctrine of felony murder is only applicable to murder in the first degree. N.C.G.S. 14-17 (1981). We must, therefore, arrest judgment on the conviction of felony murder in the second degree. See State v. McGaha, 306 N.C. 699, 702, 295 S.E.2d 449, 451 (1982) (judgment is arrested where fatal defect appears on the face of the record).

Defendant is not entitled to a new trial, however. In addition to the erroneous verdict as to "felony murder in the second degree", the jury returned a verdict of guilty of murder in the second degree. The conviction of murder in the second degree was proper. The trial court correctly instructed the jury as to the elements of that offense and there is sufficient evidence to support the verdict as will be shown below.

Murder in the second degree is the unlawful killing of a person with malice. State v. Jones, 287 N.C. 84, 100, 214 S.E.2d 24, 35 (1975). In his charge to the jury on murder in the second degree, the trial judge correctly stated:

Second-degree murder differs from first degree murder in that neither specific intent to kill, premeditation, nor deliberation are necessary elements. In order for you to find the defendant guilty of second degree murder, the State must prove beyond a reasonable doubt that the defendant intentionally and with malice shot Red Strickland with a deadly weapon thereby proximately causing his death.

As this Court noted in State v. Jones, 287 N.C. 84, 214 S.E.2d 24 (1975):

If the State satisfies the jury beyond a reasonable doubt or if it is admitted that a defendant intentionally assaulted another with a deadly weapon, thereby proximately causing his death, two presumptions arise: (1) that the killing was unlawful and (2) that it was done with malice. Nothing else appearing, the person who perpetrated such assault would be guilty of murder in the second degree.

Id. at 100, 214 S.E.2d at 35 (citation omitted).

In the case at bar, Ms. Jacobs testified that she saw defendant take her purse and flee and while her brother-in-law was chasing defendant he was shot. When she ran to her brother-in-law's aid he said to her, "Linda, he's got me." Another witness, Ricky Grady, testified that he saw defendant shooting a man during that chase. There is, therefore, sufficient evidence of murder in the second degree. E.g., State v. Hodges, 296 N.C. 66, 249 S.E.2d 371 (1978); State v. Alston, 295 N.C. 629, 247 S.E.2d 898 (1978).

Although the conviction of murder in the second degree is valid, we find, nevertheless, that we must remand the case for resentencing. In its instructions to the jury, the trial court stated that defendant could be found guilty of murder under two theories--murder in the second degree while in the perpetration of a felony "and/or" murder in the second degree. The jury indicated on its verdict sheet that defendant was guilty of murder in the second degree and guilty of second-degree murder while in the perpetration of a felony. The trial court then indicated on its felony judgment and commitment sheet that defendant was found guilty of two separate offenses--"Second-degree murder" and "Second-degree murder while in the perpetration of the felony of breaking or entering a motor vehicle with the intent to commit larceny." The trial court also indicated that the maximum prison term allowed for each offense was life imprisonment. Because it is unclear whether for sentencing purposes the trial court treated defendant's conviction of murder in the second degree as a single conviction under two theories or as two separate convictions, we must remand the case to Superior Court, Columbus County, for resentencing on the valid second degree murder conviction. Cf., State v. Chamberlain, 307 N.C. 130, 297 S.E.2d 540 (1982). In Chamberlain, the defendant was convicted of only one offense--murder in the second degree--under two theories, one of which was invalid (second-degree felony-murder theory). Resentencing was unnecessary since it was clear that the trial court sentenced the defendant for only one conviction. Id.

II.

We turn now to defendant's thirteen other assignments of error, all of which are overruled for the reasons given below.

Defendant claims in his first assignment of error that the trial court erred in failing to mention to the prospective jurors during its initial statement to them that they could find defendant not guilty. The trial court stated to the prospective jurors, "at this time your only duty is to concern yourselves with the determination of whether the defendant is guilty of the crime charged, or any lesser included offense, about which you are instructed." Defendant contends that the trial court should have either explicitly stated to the prospective jurors that they could find defendant not guilty or rephrased its initial statement to them by saying that their duty was to determine whether "or not" defendant was guilty. In failing to do so, defendant contends that this initial statement amounted to an expression of opinion as to defendant's guilt on the part of the judge in violation of N.C.G.S. 15A-1222 (1978) and 15A-1213 (1978). We disagree. Although the better practice would be to explicitly state to prospective jurors that their duty is to determine whether defendant was guilty or not guilty, we do not feel that a failure to do so at this stage of the proceedings was error. In any event, the judge explicitly stated several times in his final instructions to the jury that they could find defendant not guilty, thereby clearing up any possible misunderstanding he may have created in his statements to the jurors before they were impaneled. See State v. Woods, 307 N.C. 213, 222, 297 S.E.2d 574, 579-80 (1982); State v. Reynolds, 307 N.C. 184, 194, 297 S.E.2d 532, 538 (1982).

Defendant next contends that the trial court erred in failing to grant a motion for mistrial on grounds the prosecutor referred to Griffin in the presence of the jury three times as the defendant before Griffin was identified as such. We cannot agree that a motion for mistrial should have been granted here. In the first two instances in which the prosecutor referred to Griffin as the defendant, defense counsel objected, the trial court sustained the objection, and the prosecutor rephrased his question. When it happened a third time, Judge Preston asked the jurors to leave the courtroom after sustaining defense counsel's objection and then admonished the prosecutor at length about referring to Griffin as the defendant before he had been identified as such. We hold that the trial court's scrupulous handling of the prosecutor's inappropriate references to Griffin as the defendant cured the improprieties. See, e.g. State v. Robbins, 287 N.C. 483, 487-88, 214 S.E.2d 756, 760 (1975), death penalty vacated, 428 U.S. 903, 96 S.Ct. 3208, 49 L.Ed.2d 1208-09 (1976); State v. Jarrette, 284 N.C. 625, 645-46, 202 S.E.2d 721, 734-35 (1974), death penalty vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1206-07 (1976). There is, therefore, no error here.

In his third assignment of error defendant contends that the trial court erred "in ordering a State's witness to testify against the defendant." We have reviewed the transcript and find no error here. After being called to testify, William Vereen repeatedly claimed, while under oath, to have nothing to say about the case. In the course of questioning Vereen out of the presence of the jury about a statement he had made to the District Attorney's office concerning the Strickland murder, the prosecutor asked, "Well you were in jail at the time [you made the statement] weren't you?" At that point the trial judge stated, "All right Mr. Witness, I order you to answer the question. I specifically order you to answer the question." Vereen then stated, "Yes, I was in jail at the time." We find no error in a trial court ordering a hostile witness to answer a question within his knowledge. The trial judge's conduct here was entirely proper; indeed, we note that a trial court has the power to hold a witness in criminal contempt for willfully refusing to answer a proper...