State v. McCall

• Decision Date: 12 March 1975
• Docket Number: No. 32,32
• Citation: 212 S.E.2d 132,286 N.C. 472
• Parties: STATE of North Carolina v. Lawrence McCALL.
• Court: North Carolina Supreme Court

Page 132

212 S.E.2d 132

286 N.C. 472

STATE of North Carolina v. Lawrence McCALL.

No. 32.

Supreme Court of North Carolina.

March 12, 1975.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Richard N. League, Raleigh, for the State.

Jack H. Potts, Brevard, and Ransdell & Ransdell by William G. Ransdell, Jr., Raleigh, for defendant appellant.

COPELAND, Justice.

Defendant assigns as error the denial of his motion for judgment as in case of nonsuit. G.S. § 15--173. The question presented by this assignment is whether the evidence was sufficient to warrant the submission thereof to the jury and to support verdicts of guilty of the criminal offenses charged in the first-degree murder indictments.

The rules for testing the sufficiency of the evidence to withstand defendant's motion are well established. 'Motion to nonsuit requires the trial judge to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom.' State v. McNeil, 280 N.C. 159, 161--62, 185 S.E.2d 156, 157 (1971), and cases cited. See also, 2 Strong, N.C. Index 2d, Criminal Law § 104 (1967). 'Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. (Citation omitted.)' State v. Goines, 273 N.C. 509, 513, 160 S.E.2d 469, 472 (1968).

'In any prosecution for a homicide the State must prove two things: (1) that the deceased died by virtue of a criminal act; and (2) that the act was committed by the defendant. (Citation omitted.)' State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971), and cases cited therein.

All the evidence in the case Sub judice tends to show that Billy Derwood Hice and Ruth Looker Hice were murdered on the afternoon of 12 September 1973 by a hidden assailant who fired two .12 gauge shotgun rounds. Accordingly, the only remaining question is whether the State produced 'substantial evidence' that the above acts were committed by the defendant, Lawrence McCall. State v. Davis, 246 N.C. 73, 76, 97 S.E.2d 444, 446 (1957).

As to this second question, the State's evidence is entirely circumstantial. There was no eyewitness that saw defendant fire the fatal shots. Also, the State could not identify any of the fatal shots as having been fired from the shotgun found in defendant's residence at the time of his arrest. Of course, it was established that the fatal shots were fired from a .12 gauge shotgun. The defendant had a .12 gauge shotgun on the premises of Gary's trailer at approximately 3:00 p.m., 12 September 1973 and defendant had this same .12 gauge shotgun in his possession at the time of his arrest.

Specifically, the State introduced evidence that tended to show the following:

(1) Motive. On the day in question, defendant had several confrontations with the decedents apparently pertaining to access rights across the bridge. During the course of the last confrontation, and immediately prior to the firing of the fatal shots, defendant's vehicle knocked Ruth Hice to the ground as it crossed the bridge.

(2) Means. At the time of his arrest, defendant had a .12 gauge lever action Ithaca shotgun in his constructive possession. Defendant fired this weapon on the premises of Gary's trailer on the day in question. Decedents died as a result of wounds inflicted by .12 gauge shotgun pellets.

(3) Opportunity. Defendant was present at the time the crimes were committed. In fact, the testimony of both Mr. and Mrs. Owens placed defendant at the doorsteps of Gary McCall's trailer, from inside of which the first shot was fired, approximately one and one-half minutes after defendant had forced his way across the bridge.

(4) Flight. Defendant hurriedly left the scene of the crime immediately after the two fatal shots had been fired. Although defendant's vehicle passed by the Hices' bodies, both of which were lying 'in the middle' of the roadway, he made no effort to stop or to summon help.

(5) Prior Inconsistent Statement. After his arrest, and during a search of his residence, defendant denied that he either owned Or possessed a gun. The .12 gauge shotgun was subsequently found Hidden beneath the quilts in one of defendant's bedrooms.

If the State's evidence tended to show only the above stated facts, then it might not be sufficient to withstand defendant's motion. See State v. Jones, supra, 280 N.C. at 66, 184 S.E.2d at 866 (1971). See also State v. Poole, 285 N.C. 108, 119, 203 S.E.2d 786, 793 (1974). However, in applying these well settled rules to the case Sub judice, it is necessary to closely examine additional evidence introduced by the State.

In addition to the five facts listed above, the State also produced evidence that tended to show defendant was the ONLY person in Gary McCall's trailer when the shots were fired; that a shot was fired from the left window in the north end of Gary's trailer; that there was a one-inch hole in the left screen window in the north end of Gary's trailer (said hole later determined to have been made by a .12 gauge shotgun shell discharged three inches or less from the screen); that a .12 gauge 'shotgun wadding' was found on the ground 'between Gary's trailer and the Hices' bodies; and that a .12 gauge shotgun number four spent shell, found next to the picnic table in front of Gary's trailer, had been fired from the .12 gauge shotgun found in defendant's constructive possession at the time of his arrest. (This was presumably the spent shell from the 3:00 p.m. firing.)

When all of this evidence is viewed in the light most favorable to the State, including all reasonable inferences that may be drawn therefrom, we hold that it is sufficient to withstand defendant's motion for judgment as in case of nonsuit, and to permit the jury to find him guilty of first degree murder. See, e.g., State v. McNeil, supra; State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971), and cases cited therein. Defendant's assignment of error is therefore overruled.

In his next assignment of error defendant contends that the trial court committed prejudicial error in allowing into evidence defendant's invocation of his constitutional right to remain silent in the face of incriminating questions by the police and further in instructing the jury that the evidence was competent as to this defendant.

As previously noted, defendant was placed under arrest at his residence at approximately 2:30 a.m. on the morning of 13 September 1973. At trial, Deputy Sheriff Hubert Brown was permitted to testify as follows regarding an alleged statement made by the defendant at that time.

'Q. Now, after you had advised Lawrence McCall at his residence on the morning of September 13, 1973, that you had a warrant for his arrest for the killing of Mr. and Mrs. Hice, did you ask him a question at that time?

'A. Immediately after?

'Q. Yes, sir.

'Q. I asked Mr. Lawrence--

'MR. POTTS: Objection.

'COURT: Overruled.

'A.--I asked him only one other question during that morning.

'Q. What did you ask him?

'A. I asked him why he killed Mr. and Mrs. Billy Hice.

'Q. What was his reply?

'MR. POTTS: Objection.

'COURT: Overruled.

'A. He said, 'You served your warrant, you handcuffed me; that's it.' And he sat down on the couch at that time.

'COURT: Again, members of the jury, that statement which Officer Brown testified was made by Lawrence McCall to him, is not competent against Gary McCall or Lloyd McCall, But you may consider it as to Lawrence McCall.' (Emphasis supplied.)

Prior to permitting Deputy Brown to give the above testimony before the jurors, the trial court conducted a voir dire examination. Following the voir dire, the court made the following conclusions of law.

'On the foregoing findings of fact, the Court concludes as a matter of law that at the time in question the defendant was entitled to the protection of the Fifth Amendment to the Constitution of the United States, and the Constitution of North Carolina, and the requirements as set forth in the decision of MIRANDA v. ARIZONA; that the officers fully complied with said Constitutions and the law with respect to MIRANDA v. ARIZONA, and that the statements made by the defendant as testified to by Brown were made freely and voluntarily, and that they are admissible into the trial of this action, as to the defendant Lawrence McCall. They are not competent as to the defendants Gary McCall and Lloyd McCall.'

The correctness of the above conclusion must be tested in light of the following well settled constitutional principles.

In the landmark case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated: 'In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.' Id. at 468 fn. 37, 86 S.Ct. at 1625. (Emphasis supplied.) Recent decisions by this Court relying upon then Section 11 (now Section 23) of Article 1 of the North Carolina Constitution and upon Miranda, supra, have held that if officers properly warn an accused of his constitutional rights, his silence may not be used against him. See, e.g., State v. Fuller, 270 N.C. 710, 155 S.E.2d 286 (1967); Cf. State v. Moore, 262 N.C. 431, 437, 137 S.E.2d 812, 816 (1964).

This Court recently considered the admissibility of in-custody silence in State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974). In that case the trial court admitted, over defendant's objection and motion to strike, testimony of a police officer to the effect that defendant failed to deny an accusatory statement made in his presence. In granting the defendant a new trial, this Court, in an...