State v. Mann

• Decision Date: 02 July 1986
• Docket Number: No. 755PA85,755PA85
• Citation: 317 N.C. 164,345 S.E.2d 365
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charlie Johnson MANN.

Page 365

345 S.E.2d 365

317 N.C. 164

STATE of North Carolina v. Charlie Johnson MANN.

No. 755PA85.

Supreme Court of North Carolina.

July 2, 1986.

Lacy H. Thornburg, Atty. Gen. by Evelyn M. Coman, Asst. Atty. Gen., Raleigh, for state.

Malcolm Ray Hunter, Jr., Appellate Defender by David W. Dorey, Asst. Appellate Defender, Raleigh, for defendant.

MARTIN, Justice.

The primary issue raised on this appeal is one of first impression: whether solicitation to commit common law robbery is an infamous crime. We hold that it is and therefore reverse the decision of the Court of Appeals as to this issue.

At trial, the state's evidence showed that Penelope Dawkins, the fiancee of Richard Lockamy, lived with Lockamy in a Mebane trailer park which was managed by codefendant Keith Barts. In September 1983, while visiting Lockamy's sister, Penelope and Lockamy met defendant, Charlie Mann. Thereafter, Penelope and Lockamy would, about two to three times a week, help Mann with his sawmill, straighten up his yard, and clean his house. At some point, Mann told Lockamy that he knew Lockamy had a criminal record and that Lockamy and Penelope needed money. Penelope testified that Mann told them that he knew an elderly man in Snow Camp who carried large sums of money in his bib overalls and that "[h]e would be an easy man to rob. It would take two men to rob the man. The best thing to do would be to go to a shed and wait for him to come home and after he got out of his truck, rob him from there." Lockamy told Mann he would think about it. Penelope testified that thereafter the subject came up three or four times a week. Mann would ask Lockamy if he had thought about it, and Lockamy would respond that he had, but that "he hadn't done anything about it. And, Mr. Mann kept telling him that if he didn't do it himself, ... that he would find somebody else to do it or he would do it." About a week later, Mann picked up Lockamy at his trailer one morning in order to show him where the intended victim, Richard Braxton, lived.

Sometime later, it was discovered that Mann knew Keith Barts. About a week later, Barts told Penelope and Lockamy that he had known Mann for several years and that Mann "had set him up on three jobs," and he told Penelope and Lockamy "of the jobs he pulled off." Barts also said "[t]hat the set-up, the job in the country sounded like a good lick." Then, one Monday night approximately two weeks before Braxton was killed, Lockamy, Barts, and John David "Fireball" Holmes rode to Braxton's home planning to rob the old man. Their plan was thwarted when they saw Braxton's son or grandson was with him.

On 20 November 1983, Barts arrived at Penelope's trailer. He told Lockamy, "I did that job last night.... The job in the country, but I think I killed the man." Barts went on to say that he had gone to the old man's house, hidden in the shed, and waited for him to come home. When the old man arrived home, Barts jumped him and began beating him. Barts said, "I beat the old ... until I got plumb tired of beating him.... I beat him until he quit moving. The whole time the old man screamed, 'Oh, God, you're gonna kill me.' " Barts said that the old man was strong and that when he "bucked" on him and hit Barts in the back with something, Barts got mad. Barts then said that the only way to know if he had actually killed the man would be to read about it in the newspaper.

In exchange for his testimony for the state, as well as for his guilty pleas to conspiracy to commit robbery and armed robbery, all other charges against Richard Lockamy were dismissed. Lockamy substantially corroborated Penelope's testimony, saying that Mann had told him he probably could tie Braxton up with a rope and wouldn't have to use any weapons to get the money. Mann also told Lockamy what he considered to be "the best way to do the job." Lockamy testified that Mann "was very persistent about someone doing the job." Mann was "interested in some of the merchandise out of [Braxton's] home or either a thousand dollars." Mann said Braxton often carried with him $10,000 to $15,000 at a time. Mann also told Lockamy he had previously set up a burglary job for Keith Barts, who went on to actually commit that burglary. After the robbery and killing of Braxton, Barts told Lockamy that he had broken into Braxton's house "and messed it up quite a bit" and that he had also broken into the tool shed. Barts admitted he'd beat Braxton with a hammer and "some type of tool."

"Fireball" Holmes testified that on 19 November 1983, he drove Earl and Keith Barts to Braxton's house, arriving there at about 8:00 p.m. When they left the car, Keith had a baseball bat and a crowbar, and Earl had Holmes' .25-caliber automatic pistol and a rubber hubcap hammer. Holmes drove the car to a bridge some distance away and waited. About thirty minutes later, Holmes drove into Braxton's driveway and encountered Earl, who was carrying the baseball bat, a .22-caliber revolver which they had found in Braxton's house, and some brass knuckles. Braxton had not yet come home, so Holmes returned in the car to the bridge. About one and a half to two hours later, Keith and Earl came barrelling down the road in Braxton's pickup truck. Keith said they had had to beat the old man. After arriving at Earl's trailer, the three men split up the money, each taking approximately $1,000.

Written statements given by Keith Barts, Penelope Dawkins, and Richard Lockamy to SBI agent Terry Johnson, substantially corroborating the trial testimony of Dawkins, Lockamy, and Holmes, were read into evidence. However, Keith's statement indicated that Earl Barts, not he, had killed Mr. Braxton.

The assistant chief medical examiner testified that he performed an autopsy on the body of seventy-four-year-old Richard Braxton. Dr. Anthony testified that Braxton had at least six large open cuts on his left forehead which all ran together; both eyes were blackened; there were bruises on his face and chest; defensive wounds were present on his right hand; numerous other small cuts and abrasions were present, and bruises on the body "were so numerous we didn't actually count or quantitate them." Dr. Anthony said that the blows to the outside of the scalp broke skull bones, fragments of which had been driven into the brain, and in his opinion, Braxton died as a result of blunt trauma to the head. Dr. Anthony also testified that death was not instantaneous and that Braxton probably lived "for a period of time" after the blows were struck.

Defendant took the stand at trial and denied ever having asked either Penelope Dawkins or Richard Lockamy to rob Mr Braxton. He said that he had known Richard Braxton all his life, that Braxton was his friend, and that Braxton's name had been mentioned in conversations with Lockamy and Penelope only because the couple desperately needed money and Lockamy had asked Mann's sister about the possibility of his doing some painting for Mr. Braxton.

Defendant offered the testimony of several witnesses who testified as to his good character. He also offered the testimony of Hasan Abdus Sabr, one of Lockamy's former cellmates, to the effect that Lockamy and Penelope, not defendant, had originated the plan to rob Richard Braxton and that Lockamy had told him that Charlie Mann did not know anything about robbing Braxton. Sabr later shared a cell with defendant for a day and a half, but said he had no conversation with Mann about what Lockamy had said.

The jury returned verdicts of guilty of soliciting Richard Lockamy to commit common law robbery of Richard Braxton, not guilty of solicitation of Penelope Dawkins to commit common law robbery, not guilty of conspiracy to commit robbery with a dangerous weapon, and not guilty of feloniously conspiring with Richard Lockamy to commit robbery with a dangerous weapon or common law robbery of Richard Braxton. Defendant was sentenced to imprisonment for seven years for conviction of a Class H felony under N.C.G.S. § 14-3(b).

Defendant appealed to the Court of Appeals, which found no error in defendant's trial but remanded the case for resentencing of defendant as a misdemeanant. We granted the State of North Carolina's petition for discretionary review.

I.

It is well established that solicitation of another to commit a felony is a crime in North Carolina. State v. Furr, 292 N.C. 711, 235 S.E.2d 193, cert. denied, 434 U.S. 924, 98 S.Ct. 402, 54 L.Ed.2d 281 (1977); State v. Hampton, 210 N.C. 283, 186 S.E. 251 (1936). This is true even though the solicitation is of no effect and the crime solicited is never committed. Id. It has been recognized at common law since at least Rex v. Higgins, 2 East 5, 102 Eng. Rep. 269 (1801) (solicitation to commit sodomy). It is an indictable offense under the common law of North Carolina. N.C.G.S. § 4-1 (1981). There is no question that common law robbery is a felony, State v. Smith, 305 N.C. 691, 292 S.E.2d 264, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982); State v. Black, 286 N.C. 191, 209 S.E.2d 458 (1974); State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965); nor is there any doubt that common law robbery itself is an infamous crime, State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956); Arnold v. United States, 94 F.2d 499, 506 (10th Cir.1938); Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182 (1959); Cousins v. State, 230 Md. 2, 185 A.2d 488 (1962), as is an attempt to commit the felony of common law robbery, State v. McNeely, 244 N.C. 737, 94 S.E.2d 853; State v. Best, 11 N.C.App. 286, 181 S.E.2d 138, cert. denied, 279 N.C. 350, 182 S.E.2d 582 (1971). In order to determine whether defendant in this case is to be punished as a misdemeanant or as a felon, we must now decide whether solicitation of another to commit common law robbery is an infamous crime within the meaning of N.C.G.S. § 14-3. ¹

N.C.G.S. § 14-3, entitled "Punishment of misdemeanors, infamous offenses, offenses committed in secrecy...