State v. King

• Decision Date: 28 August 1984
• Docket Number: No. 521A82,521A82
• Citation: 320 S.E.2d 1,311 N.C. 603
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Junior Bragg KING.

Page 1

320 S.E.2d 1

311 N.C. 603

STATE of North Carolina v. Junior Bragg KING.

No. 521A82.

Supreme Court of North Carolina.

Aug. 28, 1984.

Wilson & Kastner by Thomas F. Kastner, Liberty, for defendant-appellant.

EXUM, Justice.

Defendant raises a number of errors in the pretrial and trial proceedings which led to his conviction of first degree murder. He challenges the sufficiency of the indictment, the manner in which he was arraigned, the exercise of prosecutorial discretion, the admission into evidence of his out-of-court statement, denial of his motion to excuse a juror for cause, various evidentiary rulings, a comment of the trial judge to the jury, denial of a mistrial motion for prosecutorial misconduct, and the trial judge's charge to the jury on motive. We find no reversible error.

I.

Defendant and deceased, Callie Bittle, lived together for a number of years although they were not married. They ceased living together in July 1981 when defendant moved into a house across the street from the house in which they had lived together.

On 22 September 1981 Letha Bittle, mother of the deceased, was at Callie's home with Callie and defendant. John Brown, Callie's new boyfriend arrived. He approached defendant and asked him why defendant had wanted him to come to the house. Defendant told Brown to leave his wife alone. Callie responded to defendant, "Junior, I'm not your wife. Me and you are not married." Defendant repeated that they were married. Defendant then threatened Callie, saying, "If I catch you with John Brown, I'm going to kill you and him both, and if I catch you with any man, I'm going to kill both you and him."

A neighbor of Brown's, Weldon Garner, testified that on 22 September at approximately 9 or 9:30 p.m. he observed Callie and Brown sitting on the front steps of Brown's trailer. When Garner returned to his trailer at about 10:45 p.m., he observed defendant at Brown's front door. After going into his home, Garner heard a loud noise and remarked to his wife "that's a gunshot." Garner looked and saw defendant coming out of Brown's trailer. Garner went to Brown's trailer, entered it through a window because the front door was locked, and found Brown sitting beside the front door bleeding. Garner did not believe that Brown was breathing.

Later that same night, at approximately 11 p.m., defendant went to Callie's house and knocked on the door. Defendant forced his way into the house. He told Callie that he wanted the title to his truck. Callie began to laugh and giggle. Defendant shot Callie twice with a pistol and, after finding and loading a rifle, shot her again while she was lying on the floor.

Defendant testified in his own behalf. His son from a previous marriage had been killed in an accident in 1974. Using some of the insurance money, defendant paid off the balance due on his truck. He put the title to the truck in Callie's name. When they separated, Callie refused to return the title of the truck to him. Defendant explained that the truck was like a memorial to his dead son; he could not abide the thought of something happening to the truck or of anyone else owning it.

Defendant testified that Callie told him she intended to give the truck to her boyfriend despite her knowing it belonged to him and he valued it greatly. According to defendant, she told him she would take everything he owned and he would have nothing. Callie told him she knew his not having the truck would drive him crazy and after she gave the truck to Brown, her boyfriend, the two of them would ride around in it for everyone to see.

Defendant testified that on the day Callie was killed, he went to Brown's trailer to discuss the truck. Brown laughed at him and told him he had been having sex with Callie and that he would drive defendant's truck any time he wished. Defendant further testified that Brown threatened and struck him. As the defendant fell back, he observed Brown reach into his pocket. At this point defendant shot Brown.

Thereafter defendant drove to Liberty, North Carolina, and went to Callie's residence. He carried the pistol with him. When he asked Callie to transfer the title of the truck to him, she laughed. Defendant stated he had no recollection of what occurred after that, but he "guessed" he shot her. He said the rifle accidentally fired as he was unloading it.

Defendant left Callie's house and went to the police. He told the police that Callie had been shot and that he might be the one for whom they were looking. Defendant denied threatening either Brown or Callie. He said his actions that night were based upon his desire to protect the memory of his dead son and to regain possession of his truck.

Defendant was arrested and charged with the murder of Callie Bittle. A probable cause hearing was held, at which probable cause was found and defendant was bound over to superior court for trial. Relying upon the arrest warrant, the district attorney's office submitted a bill of indictment to the grand jury charging defendant with murder. On 9 November 1982 the grand jury returned the indictment as a true bill.

Defendant moved for a bill of particulars on 11 December 1981. In the motion, defendant requested that the state disclose certain items of information including the degree of the crime being charged.

Three days later the state arraigned defendant for murder. Defendant, represented by counsel, pled not guilty. Thereafter he was tried and convicted of first degree murder and sentenced to life imprisonment. He appeals to this Court as a matter of right. N.C.Gen.Stat. § 7A-30.

II.

Defendant assigns error to the trial court's denial of his motion to bar his prosecution for first degree murder. First he claims that prosecution for first degree murder should be barred because he was indicted under a general indictment for murder which did not specify whether it charged first or second degree murder and the district attorney had not made a decision to prosecute for first degree murder at the time the bill of indictment was submitted to the grand jury. ¹

The statute governing murder indictments contains no requirement that the indictment specify the degree of murder sought. N.C.Gen.Stat. § 15-144 provides, in pertinent part, that in an indictment for murder

after naming the person accused, and the county of his residence, the date of the offense, the averment 'with force and arms,' and the county of the alleged commission of the offense, as is now usual, it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder [naming the person killed], and concluding as is now required by law ....

The indictment involved in this case contained these essential allegations and was returned as a true bill by the grand jury. It alleged "That on or about the 22nd day of September, 1981, in Randolph County Junior Bragg King unlawfully and willfully did feloniously and of malice aforethought kill and murder Callie Belle Bittle." We have held that an indictment which meets the requirements of section 15-144 will support a plea of guilty to or a conviction of either first or second degree murder. State v. Melton, 307 N.C. 370, 372, 298 S.E.2d 673, 676 (1983); State v. Davis, 290 N.C. 511, 532, 227 S.E.2d 97, 110 (1976).

We have not found, in this statute or elsewhere, nor has defendant offered any authority or persuasive reason to require that a prosecutor must determine, before the return of the indictment, whether he will ultimately prosecute a defendant for murder in the first or second degree. We decline to impose such a requirement.

Defendant next argues that his prosecution for first degree murder should be barred on the ground that he was arraigned generally for "murder" and not specifically for first degree murder. ²

An arraignment consists of bringing a defendant in open court before a judge having jurisdiction to try the offense, advising him of the charges pending against him, and directing him to plead. The prosecutor must read the charges or fairly summarize them to the defendant. If the defendant fails to plead, the court must record that fact, and the defendant must be tried as if he had pleaded not guilt.

N.C.Gen.Stat. § 15A-941.

An arraignment allows a defendant to enter a plea after hearing the charges against him. State v. Brown, 306 N.C. 151, 174, 293 S.E.2d 569, 584, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982). If a defendant feels that he has not been properly informed of the charges against him at arraignment, it is "his duty to object at that time and to have appropriate entries made in the record to show the basis for the objection." State v. Small, 301 N.C. 407, 431, 272 S.E.2d 128 (1980). An objection to the arraignment made just before trial begins some months later "does not suffice to preserve defendant's complaint about what might have occurred when the arraignment actually took place." Id.

Defendant was represented by counsel at his arraignment and waived a reading of the indictment. He entered a plea of not guilty. Defendant made no objection at the arraignment to the proceedings. As we have noted above, an indictment drawn in conformity with section 15-144, as is the indictment in this case, is sufficient in law to charge first degree murder and all lesser included offenses. Defendant is deemed to have understood the legal effect of the indictment when he entered his plea, absent any showing to the contrary. There is no such showing in this case. We find, therefore, no properly preserved error in defendant's arraignment.

Defendant also contends that his prosecution for first degree murder should have been barred on the ground that he was arbitrarily and capriciously selected for prosecution under our capital sentencing statute. In support of his allegations, defendant examined the district attorney and several of his assistants. This testimony tended...