State v. King, 69A94

CourtUnited States State Supreme Court of North Carolina
Citation343 N.C. 29,468 S.E.2d 232
Docket NumberNo. 69A94,69A94
PartiesSTATE of North Carolina v. Ernest A. KING.
Decision Date04 April 1996

Michael F. Easley, Attorney General by Mary D. Winstead, Associate Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Assistant Appellate Defender, Durham, for defendant-appellant.

LAKE, Justice.

Defendant was tried noncapitally for the first-degree murder of Meredith Mark Peaks and for the assault with a deadly weapon with intent to kill inflicting serious injury upon Earl Green. The jury returned verdicts of guilty of first-degree murder and guilty of assault with a deadly weapon inflicting serious injury. Judge Allen sentenced defendant to life imprisonment for the murder and ten years for the assault, the sentences to run consecutively. We find no prejudicial error and, accordingly, uphold defendant's convictions.

The evidence presented at trial tended to show that defendant, Ernest A. King, also known by the nickname, "O," operated a drug-selling organization in Durham near the Commerce Street Housing Project in the early part of 1992. Eric Shaw sold cocaine for defendant and testified for the State as an eyewitness. According to Shaw, defendant regularly carried a 9-millimeter handgun which he kept tucked in the front of his pants. Another of defendant's workers, "Face," carried two .38-caliber handguns; one he tucked in the side of his pants, and one he carried in his hand.

The victim, Meredith Mark Peaks, was known as a "stick-up" man who robbed drug dealers of their cash and drugs. On occasion, Shaw had been involved with Peaks in such activities. Shaw explained that a few days before Peaks' murder, Peaks robbed one of defendant's workers, Merk. When Merk told defendant about the robbery, Shaw heard defendant remark that "nobody was going to take nothing" from him.

On 20 February 1992, Shaw and defendant's other workers were selling drugs for defendant when Shaw heard Peaks yell out, "None of these m-----f------ are going to do nothing to Mark Peaks." Defendant asked who had yelled and was told that it was Peaks. Defendant replied, "I'm going to make him a ghost." According to Shaw, that meant defendant was going to kill Peaks. Defendant instructed Shaw to shoot Peaks in the legs if he came towards him so Peaks could not get away. As Peaks reached to open the back door of a blue car with tinted windows, defendant and "Face" approached. Peaks faced defendant and asked, "What's up?" Defendant responded, "F--- that s---," and he and "Face" began to shoot at Peaks and then at the car. After defendant finished shooting, he turned to walk away, but went back to Peaks, leaned over and shot him once more saying, "Now you're a ghost." With that, defendant got into a car and drove away.

Officer Richard Smith, the first officer at the scene, arrived only minutes after the shooting. Approximately 150 to 200 yards from Commerce Street, Officer Smith found a black male, later identified as Peaks, lying facedown in a parking lot to the left rear of a blue car. Peaks had suffered nine gunshot wounds to the head, chest, arm and legs. There were bullet holes in the windshield of the car, and several shell casings and bullet fragments were found near Peaks' body. Officer S.T. Brame arrived at the scene just after Officer Smith. As the officers were securing the scene, the horn of the blue car sounded, and Officer Smith saw a foot fall out of the car. Officer Smith discovered Earl Green lying across the front seat of the car. He had been shot in the penis, both upper legs and the left knee. A police identification technician discovered a fired 9-millimeter bullet on the front, passenger floorboard of the car. No weapons of any kind were found around the car, on Mark Peaks or on Earl Green.

Of the bullets recovered from the scene, it was determined that five 9-millimeter bullets were fired from the same gun. Two .38-caliber bullets were fired from another gun, and three .38-caliber bullets were fired from a third gun. Thus, one 9-millimeter handgun and two .38-caliber handguns had fired these bullets.

Defendant was arrested in Virginia and was extradited to North Carolina on 10 July 1992 to face the charges against him.

Defendant presented evidence and testified on his own behalf that he was from Brooklyn, New York, and moved to Durham in the early part of 1992. Defendant testified that on 20 February 1992, he saw Peaks sitting on the trunk of a blue car. Another stocky male was standing next to Peaks. Defendant did not know Peaks and did not recognize the other male, but defendant had heard Peaks' name many times. As defendant walked by, he observed Peaks carefully because of "the type of business [defendant] was into." Peaks asked defendant for a light, and defendant told Peaks he did not smoke. Defendant became suspicious of the conversation because, as defendant explained, "The type of things that I was involved with I know you have to be cautious every day and I have been hurt before. I have hurt people before." Defendant had just decided to put some distance between himself and Peaks when he heard Peaks say, "Don't move." Peaks shot at defendant and defendant ducked behind the blue car. Defendant fired the entire clip of his 9-millimeter handgun at Peaks; defendant did not reload because he did not have another clip with him. Defendant could not tell where the stocky male with Peaks had gone. After the shooting, defendant ran away on foot. He left Durham later that night and drove to New York, by himself, to get the gun out of North Carolina.

Defendant further admitted that he brought cocaine from New York to Durham to sell every one and one half to three weeks. He never sold this cocaine himself; rather he "fronted" cocaine to his workers, who sold the drug and brought the money back to him. Defendant denied that Eric Shaw sold drugs for him. Defendant also explained that Merk "was not a street level dealer[;] Merk was more what you would call a lieutenant." Merk's job was to collect money from the workers when defendant was not around. Defendant admitted he had heard of Peaks' reputation as a robber, but denied that any of his workers had been robbed. Defendant also testified that if one of his workers was robbed, he would not feel compelled to do anything about it.

Defendant brings forward seven assignments of error.

Defendant first argues it was error for the trial court to deny his motion to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury based on the insufficiency of the evidence. The jury convicted defendant of assault with a deadly weapon inflicting serious injury. Defendant contends his conviction must now be set aside because no substantial evidence demonstrates defendant, individually or in concert with another, shot Earl Green; and no substantial evidence demonstrates defendant, individually or in concert with another, intended to shoot Earl Green. Based upon our review of the record, we conclude the evidence in these respects was sufficient for the jury's consideration and determination.

The essential elements of assault with a deadly weapon with intent to kill inflicting serious injury are: "(1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death." State v. Reid, 335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994). This Court has concluded the following regarding the theory of acting in concert:

It is not ... necessary for a defendant to do any particular act constituting at least part of a crime in order to be convicted of that crime under the concerted action principle so long as he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979).

The law concerning motions to dismiss is well settled. "If there is substantial evidence--whether direct, circumstantial, or both--to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991). The evidence must be viewed in the light most favorable to the State, and the State must receive every reasonable inference to be drawn from the evidence. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal. Id. at 99, 261 S.E.2d at 117.

Viewing the evidence in the light most favorable to the State and drawing all reasonable inferences in its favor, the testimony of eyewitness Eric Shaw tended to show that defendant threatened to make Mark Peaks a "ghost" because Peaks had robbed Merk, a "lieutenant" in defendant's drug organization. On 20 February 1992, Peaks went to the housing project, and defendant instructed Eric Shaw to shoot Peaks in the legs so Peaks could not run away. Defendant and "Face" approached Peaks as Peaks was trying to open the back door of a blue car with tinted windows. Defendant and "Face" shot at Peaks, and then they shot at the blue car. While Shaw testified he did not see anyone else at the car, he believed that someone may have been inside the blue car because Peaks was trying to open the back door.

The police arrived at the scene only minutes after the shots were fired. They heard the car horn sound and found Earl Green lying in the front seat. He had been shot several times, twice in the upper legs and once in the left knee. The...

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