State v. Irwin, 26

• Decision Date: 06 October 1981
• Docket Number: No. 26,26
• Citation: 304 N.C. 93,282 S.E.2d 439
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Laverne Ray IRWIN.

Page 439

282 S.E.2d 439

304 N.C. 93

STATE of North Carolina v. Laverne Ray IRWIN.

No. 26.

Supreme Court of North Carolina.

Oct. 6, 1981.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Isaac T. Avery, III and Associate Atty. Gen. Grayson G. Kelley, Raleigh, for the State.

Herbert B. Hulse, Goldsboro, for defendant-appellant.

BRITT, Justice.

PHASE I GUILT DETERMINATION

A. Felony-Murder.

Defendant assigns as error the trial court's denial of his motion to dismiss the charge of first-degree murder based on the felony murder rule. He argues that the evidence was not sufficient to support a verdict based on that rule. There is no merit in this assignment.

G.S. 14-17 provides in pertinent part: "A murder ... which shall be committed in the perpetration or attempted perpetration of any ... robbery ... committed or attempted with the use of a deadly weapon, shall be deemed to be murder in the first degree, ...."

The evidence presented by the state tended to show that:

On the evening of 10 November 1980, around 8:00 p. m., defendant Laverne Irwin and an accomplice, Michael Harvey, entered the Fremont Drug Store in Fremont, N.C. The drug store is composed of one main room with a fountain counter on one side and a prescription counter at the back. Also in the rear of the store is an office and a prescription room.

Two other persons were present in the store that night: the owner, Jesse Stewart, and an employee, Ms. Sasser. Defendant and Harvey entered the store and wandered about for several minutes. Defendant then approached Mr. Stewart, who was standing near the front of the store, handed him a note and pulled out a pistol. The note instructed "do what I say and no one gets hurt." It then listed certain drugs that defendant demanded. At this point, Harvey walked over to the fountain cash register where Ms. Sasser was standing, drew a knife and forced her to walk toward the back of the store to the general area of the prescription counter. As they moved toward the back a shot was fired. Ms. Sasser testified that at the sound of the gunshot she looked in the direction of defendant and Mr. Stewart. Mr. Stewart was on his knees but apparently unhurt. Harvey, who testified for the state as part of a plea bargain arrangement, stated that Mr. Stewart was standing. After this first shot, Harvey and Ms. Sasser proceeded to the back of the store and Harvey had Ms. Sasser sit on the step to the prescription room.

Ms. Sasser testified that shortly thereafter, the bell on the front door rang twice. Almost simultaneous with the ring of the bell Ms. Sasser heard a second gunshot which she thought came from outside the building. When she was able to look, defendant and Mr. Stewart had gone.

With respect to the second shot, Harvey testified that he saw the flash from defendant's gun and heard a bang. He noted that just before seeing the flash, defendant had the gun pointed at Mr. Stewart. After the shot, Mr. Stewart yelled for help and ran from the store with his hands in the air. At this point Harvey fled. As he ran down the street he saw Mr. Stewart enter the police station (across the street from the drug store) and fall inside. This was possible because the front of the station has double glass doors.

The medical examiner's testimony indicated that Mr. Stewart died from a gunshot wound to his right chest. When the examiner autopsied the body, around 9:00 a. m. the following morning, he determined that Mr. Stewart had been dead for some time. He estimated that the deceased lived from five to forty-five minutes after receiving the wound.

The state offered no further evidence of what happened to Mr. Stewart from 8:15 p. m. Saturday when he was seen entering the police station, until 9:00 a. m. Sunday when the autopsy was performed.

Defendant had a .357 magnum Ruger Blackhawk pistol in his possession at the time of his arrest. A ballistics expert testifying for the state said that the bullets recovered from Stewart's body came from the same class of firearms as defendant's pistol but a positive identification of that pistol as the murder weapon could not be made.

On a motion to dismiss on the grounds of insufficiency of the state's evidence, the question for the court is whether there is substantial evidence of each element of the crime charged and that defendant did in fact commit it. State v. Riddle, 300 N.C. 744, 268 S.E.2d 80 (1980); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The substantial evidence test requires that the evidence must be existing and real, not just seeming and imaginary. State v. Powell, supra; State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979). There must be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Fletcher, 301 N.C. 709, 272 S.E.2d 859 (1981); State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980).

In evaluating the motion, the trial judge must consider the evidence in the light most favorable to the state, allowing every reasonable inference to be drawn therefrom. State v. Smith, supra; State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). When so considered, if the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the defendant's perpetration thereof, the motion should be allowed. State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). However, if a reasonable inference of defendant's guilt can be drawn from the evidence, then it is the jury's decision whether such evidence convinces them beyond a reasonable doubt of defendant's guilt. State v. Powell, supra; State v. Thomas, supra.

Applying the rules set forth above to the present case we think that substantial evidence was introduced by the state to support a reasonable inference that Mr. Stewart died from a gunshot wound received during the course of an attempted armed robbery and that defendant fired the fatal shot.

Defendant attempted to commit an armed robbery of the Fremont Drug Store. During the attempt two shots were fired. Just prior to the second shot, defendant was seen pointing a pistol at the deceased. Immediately thereafter, the deceased ran from the store calling for help, and was seen falling inside the police station located across the street. An autopsy conducted within thirteen hours of the shooting revealed that defendant had been dead several hours and that death resulted from a gunshot wound to his right chest. The wound was caused by a .357 caliber bullet and defendant had a .357 magnum pistol in his possession at the time of his arrest. The lack of the state's evidence as to exactly what time and precisely where Mr. Stewart died does not reduce the jury's finding of guilt to mere conjecture where, as here B. Attempted Armed Robbery.

evidence adequate to support their conclusion was presented.

Defendant assigns as error the admission of evidence tending to show that he had committed other crimes. There is no merit in this assignment.

Harvey testified on redirect examination to the effect that defendant told him that he had obtained illegal drugs in Ohio by robbing drug stores in a manner similar to the attempted armed robbery in Fremont.

In North Carolina, evidence of other crimes by a defendant on trial is not admissible where its only relevancy to the crime charged is its tendency to show defendant's disposition to commit a crime of the nature of the one for which he is on trial. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954); 1 Stansbury's N.C. Evidence (Brandis Rev. 1973) § 91, pg. 289. However, if such evidence tends to prove any other relevant fact it will not be excluded merely because it shows guilt of another crime. State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); State v. Barfield, supra ; 1 Stansbury's N.C. Evidence (Brandis Rev. 1973) § 91, pp. 289-90.

The instances in which other crimes evidence is considered relevant are contained in the well-established exceptions to the general rule listed in State v. McClain, supra. We perceive at least two of these exceptions applicable to the case at bar.

1. "Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused. (Citations omitted.)" State v. McClain, supra, 240 N.C. at 175, 81 S.E.2d 364.

Defendant was charged with an attempted armed robbery in violation of G.S. 14-87. One of the elements of an attempt to commit a crime is that the defendant must have the intent to commit the substantive offense. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). An attempted armed robbery occurs when a person with the requisite intent does some overt act calculated to unlawfully deprive another of personal property by endangering or threatening his life with a firearm. State v. May, 292 N.C. 644, 235 S.E.2d 178 (1977). State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971).

As part of its burden of proof, the state was required to show that defendant had the specific intent to rob Mr. Stewart. The acid test of the admissibility of other crimes evidence is its logical relevance to the particular excepted purposes for which it is sought to be introduced. State v. McClain, supra. Evidence that defendant had committed several previous robberies of drug stores in Ohio is clearly relevant on the issue of his intent that night at the Fremont Drug Store.

2. "Where evidence tends to prove a motive on the part of the accused to commit the crime charged, it is admissible, even though it discloses the commission of another offense by the accused. (Citations omitted.)" State v. McClain, supra, 240 N.C. at 176, 81 S.E.2d 364.

The state's evidence tended to show that defendant was a...