State v. May

• Decision Date: 13 June 1977
• Docket Number: No. 62,62
• Citation: 292 N.C. 644,235 S.E.2d 178
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Michael Anthony MAY.

Page 178

235 S.E.2d 178

292 N.C. 644

STATE of North Carolina v. Michael Anthony MAY.

No. 62.

Supreme Court of North Carolina.

June 13, 1977.

Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

David B. Hough, Winston-Salem, for defendant-appellant.

MOORE, Justice.

Defendant first contends that the evidence of his participation in the robbery of the XL Cleaners on 8 February 1975 was improperly admitted and that the admission of such evidence constitutes reversible error. This contention is based upon defendant's assertion that the evidence was not probative of any issue in the case and was introduced solely to inflame the jury, to the prejudice of defendant.

In the oft-cited case of State v. McClain, 240 N.C. 171, 173, 81 S.E.2d 364, 365 (1954), Justice Ervin set forth the well established rule "that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. (Citations omitted.)" There are, however, certain equally well established exceptions which permit the admission of evidence of the commission of other offenses. State v. McClain, supra, and cases cited therein. See also 1 Stansbury, N.C. Evidence §§ 91, 92 (Brandis rev. 1973); 1 Wharton, Criminal Evidence §§ 240-264 (13th ed. 1972). In present case, one exception which is set out in State v. McClain, supra, at 175, 81 S.E.2d at 366, is relevant to defendant's appeal:

"2. Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused. (Citations omitted.)"

As stated in State v. Fowler, 230 N.C. 470, 473, 53 S.E.2d 853, 855 (1949):

"(P)roof of the commission of other like offenses is competent to show the quo animo, intent, design, guilty knowledge or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. (Citations omitted.)"

In determining whether another offense is properly admitted into evidence, we are guided by the following principle:

" '. . . The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. . . . Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the mind of the jurors.' " State v. McClain, supra, 240 N.C. at 177, 81 S.E.2d at 368.

In the case at bar, defendant was convicted of murder committed in the perpetration of a felony under G.S. 14-17, which, in pertinent part, provides:

"A murder which shall be . . . committed in the perpetration or attempt to perpetrate any . . . robbery . . . or other felony . . . shall be deemed to be murder in the first degree and shall be punished with death. . . ."

Thus, in present case, the State had the burden of proving beyond a reasonable doubt that defendant murdered Elijah Jones during the perpetration or attempted perpetration of an armed robbery. See State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Haynes, 276 N.C. 150, 171 S.E.2d 435 (1970); State v. Lane, 166 N.C. 333, 81 S.E. 620 (1914).

Under G.S. 14-87, an armed robbery is defined as the taking of the personal property of another in his presence or from his person without his consent by endangering or threatening his life with a firearm, with the taker knowing that he is not entitled to the property and the taker intending to permanently deprive the owner of the property. An attempted armed robbery occurs when a defendant "with the requisite intent to rob, does some overt act calculated and designed to bring about the robbery, thereby endangering or threatening the life of a person." State v. Price, 280 N.C. 154, 157-58, 184 S.E.2d 866, 869 (1971). By the terms of G.S. 14-87, the offense is complete if there is an attempt to take personal property by use of firearms or other dangerous weapons. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968). The attempt itself is a violation of the statute and is a felony. To sustain its burden of proof that defendant was involved in perpetrating or attempting to perpetrate a robbery, the State was required to show that defendant possessed a specific intent to rob Elijah Jones.

In State v. Long, 280 N.C. 633, 187 S.E.2d 47 (1972), the State introduced evidence that defendant and two cohorts entered a Gulf station in Charlotte and endeavored to rob the attendant by the threatened use of a pearl-handled pistol. The attendant began to "tussle" with one of the would-be robbers and successfully foiled the robbery. Defendant testified that the "tussle" was not caused by an attempted robbery, but rather was caused by a dispute over a refund alleged to be due from a vending machine. In rebuttal, the State introduced testimony concerning the defendant's participation in the robbery of a convenience store, which occurred about three weeks prior to the robbery of the Gulf station. It appeared that during the convenience store robbery defendant had acquired the pearl-handled pistol which was used in the Gulf station robbery. In upholding the admission of the evidence concerning the robbery of the convenience store, this Court held that the convenience store robbery was competent as substantive evidence of defendant's intent at the time he entered the Gulf station. The Court further held that this intent was a critical disputed element of the State's attempted robbery case, and that the evidence of the prior robbery clearly tended to prove intent. See State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516 (1973); State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972); State v. Fowler, supra; State v. Beam, 184 N.C. 730, 115 S.E. 176 (1922); State v. Pannil, 182 N.C. 838, 109 S.E. 1 (1921); State v. Simons, 178 N.C. 679, 100 S.E. 239 (1919); State v. Parish, 104 N.C. 679, 10 S.E. 457 (1889); State v. Murphy, 84 N.C. 742 (1881), for similar cases. See also Annot., 42 A.L.R.2d 854, 858 (1955), and later case service for a compilation of cases admitting evidence of other offenses to show intent.

In the case at bar, we are of the opinion that the evidence of defendant's participation in the robbery at the XL Cleaners was admissible. At trial, there was evidence of overt acts designed to bring about the robbery and endanger human life. Defendant entered Jones' Confectionery carrying a sawed-off shotgun concealed in his trousers. While in the store, defendant shot the proprietor at close range and then fled on foot. When he was apprehended, he was found to possess a fresh pack of cigarettes but no money or identification. Further, defendant lied as to his name and address when questioned by police officers. These acts furnish a sufficient basis for an inquiry into defendant's state of mind when he entered the store. The evidence of the robbery at the XL Cleaners, during which defendant used the same sawed-off shotgun as in present case, sheds light upon defendant's intent and quo animo. The XL Cleaners evidence clearly tends to prove a material, hotly contested and crucial issue in the State's case. Thus, under the facts of this case, we hold that the requisite connection between the extraneous criminal transaction and the crime charged exists and makes the evidence of the XL Cleaners robbery admissible on the question of intent.

In this charge, the trial judge limited the use of the XL Cleaners robbery to the issues of intent and identity. Because of our disposition of the case on the issue of intent, we do not deem it necessary to decide whether the admission of the evidence to show identity was proper. But see State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969). See also 2 Stansbury, N.C. Evidence § 166 (Brandis rev. 1973). There was never any issue concerning identity raised during trial. In fact, defendant openly admitted that he shot Jones. Hence, if any error was committed by instructing the jury to use the evidence on the issue of identity, it could not have reasonably affected the verdict and was harmless. State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966).

Defendant further contends that the admission of the evidence of the robbery at the XL Cleaners violated due process by denying him a fair trial. To support his position, he cites Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1892), wherein the United States Supreme Court held that, under the facts of that case, evidence of five prior robberies committed by one or both defendants was inadmissible because the evidence "did not, in the slightest degree, elucidate the issue before the jury, namely, whether the defendants murdered John Dansby . . . ." 142 U.S. at 454, 12 S.Ct. at 294, 35 L.Ed. at 1078. The Court, however, further stated:

"If the evidence as to crimes committed by the defendants, other than the murder of Dansby, had been limited to the robberies of Rigsby and Taylor, it may be, in view of the peculiar circumstances disclosed by the record, and the specific directions by the court as to the purpose for which the proof of those two robberies might be considered, that the judgment would not be disturbed, although that proof, in the multiplied details of the facts connected with the Rigsby and Taylor robberies, went beyond the objects for which it was allowed by the court. . . ." 142 U.S. at 457-58, 12 S.Ct. at 295, 35 L.Ed....