State v. Lamb

• Decision Date: 03 November 1995
• Docket Number: No. 567A93,567A93
• Citation: 342 N.C. 151,463 S.E.2d 189
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Larry LAMB.

Page 189

463 S.E.2d 189

342 N.C. 151

STATE of North Carolina v. Larry LAMB.

No. 567A93.

Supreme Court of North Carolina.

Nov. 3, 1995.

Michael F. Easley, Attorney General by Jane R. Garvey, Assistant Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Benjamin Sendor, Assistant Appellate Defender, Durham, for defendant-appellant.

WEBB, Justice.

In his first assignment of error, the defendant argues that his motion to dismiss the charge of conspiracy to commit robbery with a dangerous weapon should have been allowed for insufficiency of the evidence. He says that Lovely Lorden provided the only eyewitness testimony to the occurrence and that her testimony showed there was no discussion of the crime by any of the men. It is possible that the men discussed the crime when they were behind Herman's Place, says the defendant, but this is only speculation. The defendant contends we can just as easily infer that the three men went to Mr. Grady's home without a shared plan to rob him and that Bo Jones turned a visit to buy alcohol into a robbery. The defendant, relying on United States v. Giunta, 925 F.2d 758 (4th Cir.1991), says the "mere fact that several people participated in criminal activity does not prove [a] joint plan to do so."

A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. State v. Bindyke, 288 N.C. 608, 220 S.E.2d 521 (1975). We said in State v. Whiteside, 204 N.C. 710, 169 S.E. 711 (1933):

Under such conditions, the results accomplished, the divergence of those results from the course which would ordinarily be expected, the situation of the parties and their antecedent relations to each other, together with the surrounding circumstances, and the inferences legitimately deducible therefrom, furnish, in the absence of direct proof, and often in the teeth of positive testimony to the contrary, ample ground for concluding that a conspiracy exists.

Id. at 713, 169 S.E. at 712.

We hold that the evidence that defendant met with two other men, one of whom was armed; that the three men drove to the home of the victim; and that the three men then left the vehicle and entered the victim's home, robbed the victim, and shot him is substantial evidence from which the jury could find the robbery was carried out pursuant to a common plan to rob the victim. This supports the finding of guilty of conspiracy to commit robbery with a dangerous weapon. See State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978).

This assignment of error is overruled.

The defendant next assigns error to the charge. The court in its charge on acting in concert did not instruct the jury that before the defendant could be convicted by proving he was acting in concert, the jury must find that he was actually or constructively present when the crime was committed. The defendant says this was error.

In order to convict a defendant for acting in concert, the State must prove he was actually or constructively present. If all the State's evidence shows, however, that the defendant was at the scene of the crime, it is not necessary that the court charge the jury that the defendant had to be present. State v. Hunt, 339 N.C. 622, 649, 457 S.E.2d 276, 292-93 (1994), reconsideration denied, 339 N.C. 741, 457 S.E.2d 304 (1995); State v. Gilmore, 330 N.C. 167, 171, 409 S.E.2d 888, 890 (1991); State v. Williams, 299 N.C. 652, 658, 263 S.E.2d 774, 778 (1980).

The defendant, while conceding that presence is not an element of robbery with a dangerous weapon, says it is an element of the State's case when the State is relying on acting in concert to convict. He contends that by not submitting presence to the jury, the court in effect directed a verdict of guilty and denied him the right to a unanimous jury verdict in violation of his rights under the Constitutions of the United States and North Carolina. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Acting in concert is a doctrine developed to make persons who participate in crimes responsible for criminal activity although they do not do all the acts necessary to constitute the crimes. In charging on acting in concert, the court must explain it adequately for the jury to be able to understand it and apply it to the evidence in the case. If all the State's evidence shows that the defendant was present when the crime was committed, it is not necessary to explain to the jury that the defendant must be present in order for it to understand and apply the doctrine of acting in concert.

We have said in some of our cases that presence is an element of acting in concert. State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988); State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980). This does not mean it is an element of the crime that must be proved. So long as the court explains the doctrine so that the jury can apply it, and if the jury's acceptance of the State's version of the evidence mandates finding the defendant was present, it is not necessary to tell the jury it must find the defendant was present to find him guilty.

The defendant contends that his presence at the crime scene was disputed because he testified that he knew nothing of the crimes and was asleep in his bed when the crimes were committed. If the jury had believed the defendant, he would have been found not guilty without regard to a charge on acting in concert. The jury accepted the State's version of the incident. Under this version, the defendant was present at the scene of the crime.

This assignment of error is overruled.

The defendant's next three assignments of error deal with testimony elicited by the State. No objection was made to this testimony, but the defendant asks us to consider the questions he has raised under the plain error rule. Rule 10(b)(1) of the Rules of Appellate Procedure provides that an assignment of error may be made to the admission of testimony only if exception was taken to its admission at trial. We have said that it places an impossible burden on the trial judge for a party as a matter of trial strategy to allow otherwise incompetent evidence to be admitted and then assign error to it. A trial judge should not have to determine the soundness of a party's trial strategy and make an objection for him. State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983); State v. Black, 308...