State v. James
| Decision Date | 09 March 1988 |
| Docket Number | No. 93A87,93A87 |
| Citation | 321 N.C. 676,365 S.E.2d 579 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Billy Ray JAMES. |
Lacy H. Thornburg, Atty. Gen. by Reginald L. Watkins, Sp. Deputy Atty. Gen., Raleigh, for the State.
William F. Dickens, Jr., Enfield, for defendant-appellant.
The defendant, Billy Ray James, was tried upon separate bills of indictment charging him with murder, assault with a deadly weapon with intent to kill inflicting serious injury and armed robbery. The jury returned verdicts finding the defendant guilty of first-degree murder on the theories of premeditation and deliberation and felony murder, robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury. After a sentencing hearing, the jury recommended a sentence of life imprisonment for first-degree murder. The trial court entered judgments on 6 November 1986 sentencing the defendant to consecutive terms of life imprisonment for first-degree murder, twenty-five years for robbery with a firearm and ten years for assault with a deadly weapon with intent to kill inflicting serious injury.
The evidence presented by the State tended to show that the defendant and Bernard Taylor rode bicycles to William Buster Powell's house on 22 November 1985. The State's eyewitness, Robert Lowe, positively identified the defendant and testified that the defendant and Taylor first came to Powell's house around noon on the day in question. The two men left and returned about fifteen or twenty minutes later to ask Powell if he had seen the defendant's brother. They left again but returned a short time later. At that time they shot and killed Powell and severely wounded Lowe.
Lowe testified that after he had been shot, he felt one of the men go through his pockets. Lowe remained silent for fear that they might kill him if they discovered he was alive. Lowe identified photographs of Powell taken before Powell's death and photographs of the crime scene taken after the shooting.
The day after the murder State's witness David L. Allsbrook, Jr. discovered two bicycles about fifteen to twenty feet from the roadside. Allsbrook notified local law enforcement officials. A search of the vicinity revealed, among other things, a yellow coin pouch, a .22 caliber rifle and a toboggan hat containing a pistol. During his testimony Allsbrook used a sketch of the area around the crime scene, prepared by another witness, to illustrate his testimony as to where the evidence was found.
Deputy Sheriff Ernie Newsome testified that he saw the defendant and Bernard Taylor on bicycles approximately two miles from the crime scene around lunch time on 22 November 1985.
Deputy Sheriff Joe Williams testified that when he arrived at the crime scene on 22 November 1985, Powell's body was lying face down. Williams examined the body and could detect no vital signs. Lowe, who had been shot, gave Williams a description of the assailants. Lowe said that one was light skinned and one was dark skinned. One of the assailants asked for his (the assailant's) brother, Sammy. Based on this information, Williams began a search of the area. The defendant and Bernard Taylor were apprehended as a result. Both men were advised of their rights when arrested.
Chief Investigator E.C. Warren testified at trial regarding his interrogation of the defendant. Warren and Investigator Cloyd again advised the defendant of his Miranda rights. The defendant waived the right to remain silent and confessed to the shooting of Buster Powell. The interrogation lasted between forty minutes to one hour. Warren testified that he did not make any promises or threats to the defendant.
Investigator Chuck Ward testified that he took photographs of the crime scene and gathered other physical evidence during his investigation. He described several photographs of the crime scene and used them to illustrate his testimony as to where he found bullet casings, coins and pieces of clothing. Ward testified that he found no money in Powell's pockets.
Dr. George Clark testified about the injuries Lowe received during the shooting incident. He stated that Lowe suffered nine bullet wounds, a broken arm, internal bleeding and a collapsed lung.
Dr. Lewis D. Levy, a pathologist, testified that seven bullets were recovered from Powell's body. He opined that Powell died from injuries inflicted by the gunshot wounds.
Robert Cerwin, a firearms examiner, testified regarding ballistics tests performed on bullets taken from Lowe and Powell. He identified certain bullets taken from Lowe and Powell as being fired from State's Exhibit # 5, a .22 caliber Winchester semi-automatic rifle.
During the guilt-innocence phase, the defendant offered no evidence. The jury returned guilty verdicts on all charges.
At the conclusion of the evidence, the defendant moved to quash the indictments against him. The defendant first assigns as error the trial court's refusal to quash the murder indictment against him. He first argues that the murder indictment was fatally defective because it omitted the county of the defendant's residence.
"[A] bill of indictment may be quashed only for want of jurisdiction, irregularity in the selection of the grand jury, or for a fatal defect appearing on the face of the indictment." State v. Allen, 279 N.C. 492, 494, 183 S.E.2d 659, 661 (1971). The general rule is that an indictment for a statutory offense is facially sufficient if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words. State v. Gregory, 223 N.C. 415, 27 S.E.2d 140 (1943). Further, the quashing of indictments is not favored. State v. Flowers, 109 N.C. 841, 13 S.E. 718 (1891).
In the present case, the omission of the county of the defendant's residence from the murder indictment does not make the indictment fatally defective. N.C.G.S. § 15-144 specifically states that "[i]n indictments for murder and manslaughter, it is not necessary to allege matter not required to be proved on the trial; ...." Since the county of the defendant's residence need not be proved, the omission of this fact does not make the indictment fatally defective. N.C.G.S. § 15-144 (1983); see also State v. Carswell, 40 N.C.App 752, 253 S.E.2d 635 (), cert. denied, 297 N.C. 613, 257 S.E.2d 220 (1979).
The defendant next argues that the indictment does not properly charge him with murder because the essential averment "with force and arms" does not appear on its face. He contends that such an averment is required by N.C.G.S. § 15-144 in bills of indictment for homicide. In State v. Corbett, 307 N.C. 169, 175, 297 S.E.2d 553, 558 (1982), this Court considered and rejected a similar argument with regard to an indictment for rape. We stated that: "[w]e do not read the statute [G.S. § 15-144.1, essentials for bill of rape] as either requiring the averment [with force and arms] or as expressing a legislative intent that the language in G.S. § 15-144.1(a) prevail over the express language in G.S. § 15-155 which states in effect that no judgment shall be stayed or reversed because of the omission of the words 'with force and arms' from the indictment." Corbett, 307 N.C. at 175, 297 S.E.2d at 558.
The language of N.C.G.S. § 15-144.1(a) construed in Corbett is identical to the portion of N.C.G.S. § 15-144 cited in support of the defendant's argument. For the same reasons stated in Corbett, we conclude that N.C.G.S. § 15-144 does not prevail over the language of N.C.G.S. § 15-155. The omission of the phrase "with force and arms" does not, therefore, render the defendant's indictment for murder fatally defective. This assignment of error is overruled.
The defendant next assigns as error the trial court's refusal to quash the indictments for assault with a deadly weapon with intent to kill inflicting serious injury and robbery with a firearm. The defendant made his motions in this regard at the close of the evidence, alleging insufficiency of the evidence to support the charges.
The challenged indictments are proper in form and nothing appears upon the face of either indictment indicating that it will not support a judgment. Insufficiency of the State's evidence at trial, even if established, is not a proper ground for quashing an indictment. See State v. Allen, 279 N.C. at 494, 183 S.E.2d at 661. This assignment of error is overruled.
The defendant by his next assignment of error contends that the trial court erred in admitting, for illustrative purposes, a sketch of the crime area prepared by someone other than the witness whose testimony it illustrated. During the State's case-in-chief David L. Allsbrook, Jr. used a sketch of the area surrounding the crime scene to illustrate his testimony. The sketch had been prepared by another State's witness. The defendant objected to the use of the exhibit because the testifying witness had not prepared it, because the sketch was never identified as being a true and accurate representation of the area and because the sketch contained other information which was beyond the witness' testimony.
A contention that an exhibit was inadmissible because it was not prepared by the testifying witness has been previously considered and rejected by this Court with regard to photographic evidence. In State v. Rogers, 316 N.C. 203, 223, 341 S.E.2d 713, 725 (1986), this Court held that photographs were admissible for illustrative purposes even though they were authenticated by someone other than the photographer. Id.; see also State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971) (). The touchstone for admissibility of all exhibits is proper authentication. State v. Rogers, 316 N.C. at 223, 341 S.E.2d at 725. As long as the witness is able to testify that an...
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