State v. Moose, 600A82

• Decision Date: 03 April 1984
• Docket Number: No. 600A82,600A82
• Citation: 313 S.E.2d 507,310 N.C. 482
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. William Dennis MOOSE.

Page 507

313 S.E.2d 507

310 N.C. 482

STATE of North Carolina v. William Dennis MOOSE.

No. 600A82.

Supreme Court of North Carolina.

April 3, 1984.

Rufus L. Edmisten, Atty. Gen. by Thomas F. Moffitt, Asst. Atty. Gen., Raleigh, for the State.

Ann B. Petersen, Asst. Appellate Defender, Malcolm Ray Hunter, Jr., Asst. Appellate Defender, Raleigh, and James R. Glover, Chapel Hill, Appellate Defender Clinic, UNC School of Law, for defendant-appellant.

MEYER, Justice.

Additional facts necessary to an understanding of the issues raised on this appeal are as follows: Phillip Kincaid, a surviving eye-witness to the murder, testified that he and Ransom Connelly were driving down Zion Road at about 10:30 p.m. on the night of 26 March 1982. As they crossed the intersection of Zion Road and Settlemyer Road, they noticed a pickup truck. The truck followed them for a distance of 1.3 miles to the intersection of Zion Road and Highway 64-70. The truck followed Connelly's Pontiac Bonneville very closely, repeatedly honking its horn, and bumping the back of the car as it came to a stop at the The defendant testified on his own behalf to the effect that he and two women, Lynn Whisnant and Carolyn Bradshaw Chapman, left the American Legion Hut on Settlemyer Road in defendant's pickup truck. He and Whisnant were living together at the home of Whisnant's father in Morganton. Defendant had been drinking beer and liquor all day. He pulled up behind a vehicle on Zion Road and attempted to pass it twice. He blew his horn when he reached the stop sign at the 64-70 intersection. He followed the car as it turned left on 64-70 because he was going to visit a friend in Valdese. He attempted to pass the car again, but it veered to the middle of the road. He was carrying two shotguns in the cab of his truck. He asked Whisnant to pass him one of the guns because "Well, we were sitting there at the stop sign and there were several cars coming by, and he was taking longer than he should to be turning, and stuff, and I, you know, got a little irritated sitting there behind him, and after we turned, you know, the idea struck me to fire over him and scare him."

64-70 intersection. Although there was no traffic and the pickup truck had numerous opportunities to pass, it did not. The pickup truck continued to follow Connelly's car as it turned left on 64-70, at which point Connelly and Kincaid became alarmed and decided to pull off the road into the parking lot of the Drexel Discount Drug Store. Kincaid watched as the pickup truck drove up along the driver's side of the car, and the barrel of a shotgun emerged from the window on the passenger side of the truck. Kincaid testified that the shotgun remained pointed at them for approximately five seconds before the blast which shattered the driver's window of the Pontiac and killed Ransom Connelly.

The defendant placed the shotgun "across the upper part of the door frame, where the window rolls down, inside there. It was laid across that and my leg, with my hand on it." Defendant testified that he remembered being off the road and "the doorpost of the truck being approximately even with the front window of the car." He then testified, "I thought somebody hollered at me, but anyway, I had the impression that I was about to hit something and I swerved to the left, as instinct, to get the truck turned as fast as I could, and as I started to turn, I brought my right hand up to grab for the wheel and the shotgun went off." He maintained that he did not bring the truck to a complete stop, did not aim the shotgun at anyone, and did not know that he had shot anyone until after he was arrested. Nevertheless, immediately after the blast, defendant fled the scene, colliding with another automobile as he entered highway 64-70. He drove his truck into the M & C Auto Parts Store lot, located a short distance down the road, and began to repair a broken fuel line "busted during the impact." Shortly afterwards the defendant and Whisnant were apprehended. Carolyn Bradshaw disappeared before the police arrived. She would not testify at trial.

Lynn Whisnant testified that as they drove down Zion Road defendant did follow a car which she knew to be occupied by two black men. Although she and the defendant had decided to go to Morganton after leaving the American Legion Hut, when they reached the intersection of 64-70, rather than turning right to Morganton as she had asked him to do, the defendant turned left. He continued to follow the Pontiac until it pulled into the Drexel Discount Drug parking lot. The truck pulled up nearly parallel to the car. She remembered the blast of the shotgun and hearing glass shatter.

Ronnie Glenn Bowen testified for the State. Bowen occupied the same jail cell with the defendant in the Burke County jail and the two discussed the murder of Ransom Connelly. Moose described to Bowen the events leading up to the murder, repeatedly referred to the victim as an "old man" or a "nigger," expressed no regret for his actions, and said he wished that he had shot one of the arresting officers.

The State also offered the testimony of witnesses placing the defendant at the During the sentencing phase of the trial, defendant offered the testimony of his mother, his son, a forensic psychiatrist, and a deputy sheriff. Based on this testimony, the trial judge submitted the following statutory factors in mitigation:

scene of the murder, investigating officers, and a forensic pathologist.

1. The defendant has no significant history of prior criminal activity. G.S. § 15A-2000(f)(1).

2. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. G.S. § 15A-2000(f)(6).

The trial judge submitted the following additional factors in mitigation:

1. The defendant was 29 years of age at the time of the crime.

2. The defendant continued to have a close relationship with his mother.

3. The defendant was the father of three young children and has had a loving relationship with them.

4. The defendant has had an especially close and loving relationship with his oldest son.

5. The defendant had exhibited good behavior while incarcerated in the Burke County jail.

6. The defendant has skills and abilities in areas of mechanics.

7. The defendant has had a history of alcohol abuse.

8. Other circumstances of mitigating value.

The jury found the following factors in mitigation:

Since his arrest, the defendant has always exhibited good behavior while in the Burke County Jail and has caused no problems there.

The defendant has a history of alcohol abuse.

Any other circumstance or circumstances arising from the evidence which the jury deems to have mitigating value.

GUILT PHASE

I. Defendant first contends that he was denied a fair trial because of the participation of a private prosecutor employed by the family of the deceased. He argues that the private prosecutor was "unusually active in the preparation of the case and had more first hand knowledge regarding the State's case than the district attorney," and that at trial "the private prosecutor's role was at least as prominent as that of the District Attorney and his assistant." Defendant also urges this Court to abolish the practice of allowing private prosecution in criminal cases, particularly in capital cases.

The law in this State with respect to private prosecutors is clear: absent some evidence that the private prosecutor has in fact ignored the interests of justice in seeking a conviction, his assistance of the public prosecutor is not a per se constitutional violation. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); State v. Best, 280 N.C. 413, 186 S.E.2d 1 (1972); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death penalty vacated, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d 761 (1972); State v. Carden, 209 N.C. 404, 183 S.E. 898, cert. denied, 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402 (1936).

This Court has, over the years, considered the role of private prosecutors in criminal cases and has, we believe, struck a fair balance between the articulated concern that a private prosecutor's loyalty to his client (usually the family or friends of the victim) may in some way serve to prejudice the rights of a defendant, see 50 N.C.L.Rev. 1171 (1972), and the recognition that a criminal prosecution is an adversary proceeding and, as such, the role of the solicitor and the role of privately employed counsel are not necessarily inconsistent. See State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572. Thus where it is shown that the solicitor consented to the " '... While under the present practice officers are appointed or elected for the express purpose of managing criminal business, the old practice survives in most jurisdictions to the extent that counsel employed by the complaining witness or by other persons desirous of a conviction are permitted to assist the prosecuting attorney in the conduct of the prosecution, and, as a general rule, no valid objection can be raised by the accused to allow the prosecuting attorney to have the assistance of private members of the bar .... (p. 94) It is within the discretion of the trial court to allow special counsel to aid the prosecuting attorney in the prosecution of a case, and such discretion will be interfered with only on a showing of abuse thereof .... In all such cases it is within the discretion of the court to appoint competent counsel to assist, or to permit counsel employed by private parties, or even volunteers, to appear for that purpose.' "

participation of a privately employed prosecutor and retained control and management of the prosecution, no reason exists why such an accepted and well-settled practice, in and of itself, should cause reversal of the case. As we stated in State v. Best, 280 N.C. 413, 417, 186 S.E.2d 1, 4 (1972):

Fu...