State v. Morston

• Decision Date: 17 June 1994
• Docket Number: No. 353A92-H,353A92-H
• Citation: 336 N.C. 381,445 S.E.2d 1
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Kerry Lemar MORSTON. oke.

Page 1

445 S.E.2d 1

336 N.C. 381

STATE of North Carolina v. Kerry Lemar MORSTON.

No. 353A92-Hoke.

Supreme Court of North Carolina.

June 17, 1994.

Michael F. Easley, Atty. Gen. by Valerie B. Spalding, Asst. Atty. Gen., for the State.

Malcolm R. Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, for defendant-appellant.

MITCHELL, Justice.

On 13 May 1991, the Hoke County Grand Jury indicted the defendant, Kerry Lemar Morston, for first-degree murder and conspiracy to commit first-degree murder. On 19 August 1991, the Grand Jury indicted the defendant for assault with a deadly weapon with intent to kill, inflicting serious injury and for discharging a firearm into occupied property. He was tried capitally at the 27 April 1992 Mixed Session of Superior Court, Hoke County. The jury returned verdicts finding the defendant guilty of premeditated and deliberate first-degree murder and all of the other charges against him.

At the conclusion of a separate capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury recommended a sentence of life imprisonment for the first-degree murder conviction. The trial court sentenced the defendant in accord with the jury's recommendation. The trial court also sentenced the defendant to thirty years imprisonment for conspiracy to commit first-degree murder, twenty years imprisonment for assault with a deadly weapon with intent to kill inflicting serious injury and ten years imprisonment for discharging a firearm into occupied property. Under the judgments entered by the trial court, these latter three sentences are to be served consecutively to each other and to the life sentence imposed for the first-degree murder conviction. The defendant appealed to this Court as a matter of right from the judgment sentencing him to life imprisonment for first-degree murder. See N.C.G.S. § 7A-27(a) (1989). We also allowed his motion to bypass the Court of Appeals on his appeal from the additional judgments.

The State's evidence tended to show the following. Shortly after 7:00 p.m. on 4 April 1991, members of the Southern Pines Police Department, including the victim, Detective Ed Harris, investigated a report of gunshots at the Holiday Town Apartments in Southern Pines, North Carolina. A large group gathered in the parking lots and grassy common areas of the apartment complex and a heated exchange of words took place between Detective Harris and Bernice McDougald, a reputed drug dealer.

After the officers left the apartment complex, McDougald met with seven other people, including the defendant. McDougald told the group that Detective Harris was "f---ing up the business" and that he was going to "get rid of" Harris that night. At the time McDougald made these statements, three members of the group, including the defendant, were armed. Two of the group members held 30-30 rifles, while the defendant was armed with a 9-millimeter semi-automatic handgun. McDougald subsequently procured his own 30-30 rifle.

Once McDougald had armed himself, he told another member of the group, Shannon McKenzie, that McKenzie was to knock on the front door of Harris' home. McDougald instructed the defendant that when Harris answered the door, the defendant was to "shoot the s--- out of him." The defendant made no reply. McDougald then stated that he would also shoot Harris.

The group traveled by car to the Harris residence in another part of Southern Pines. While in the car, McDougald told the group that if anyone wanted to back out, they could. The defendant then stated that he was going to do what he had to do and that if he saw fear in anyone's eyes, he would kill them.

The group arrived at the Harris residence around 10:00 p.m. They drove a short distance beyond the house and stopped. The driver, John Chisolm, was told to drive around and return in twenty-five minutes. The other seven members of the group, including the defendant, then walked to Detective Harris' home. As they approached the house, a car pulled up and Harris' son, Anthony, got out of the car and went inside the house.

After the car drove away, Shannon McKenzie and the defendant walked to the front door of the Harris residence. McKenzie rang the doorbell and ran. Harris was sitting in his den with his wife, Judy, when the doorbell rang. Harris got up and opened the door leading from the den into a utility room. At the opposite end of the utility room was the front door to the house. Detective Harris closed the door leading into the den, turned on the front porch light and opened the front door. The defendant then shot Harris at least four times through the screen and glass storm door. McDougald also shot Harris. The defendant ran away from the house toward the highway, where he found McKenzie, Chisolm and the getaway car. Once in the car, the defendant exclaimed, "I got him, I got him."

McKenzie explained at trial that because Chisolm "looked scary," the defendant and McKenzie got out of the car and began running. They eventually came upon McDougald, who was with two other members of the group. After walking for some time, the five men decided to go to the mobile home of one Anna Hurd. Once there, they washed themselves and McDougald wiped down the weapons and hid them under a bed. McDougald also sprayed himself with Hurd's perfume so that anyone who subsequently encountered him would think that he had been with a woman.

McDougald asked Hurd to drive the men to the Fox Club, a local nightclub. After passing a police car on the road, however McDougald decided that he did not want to go to the Fox Club, so he asked Hurd to drive them to "the projects."

The following morning, Anna Hurd learned of Detective Harris' murder from a television news report and drove to the Holiday Town Apartments. She saw the defendant and Terry Evans, another of the eight men who had travelled to Detective Harris' home the previous night. As Hurd approached and asked what was going on, both men smiled and Evans began to chant, "Ed is dead, Ed is dead." The defendant then said to Hurd, "We did it. Yes, you heard what he said, we did it. We did it, we did it. It is finished." The defendant then walked over to Hurd's car, in which Hurd's niece, Patrice Hurd, was sitting. The defendant told Patrice that he had shot Detective Harris. The defendant said that he was expecting to collect $20,000 and asked Patrice if she wanted to accompany him to the Bahamas.

Bullets or parts of bullets had also traveled through the door leading into the den of the Harris home. One of these bullets had severed one of Judy Harris' fingers. After hearing the shots, Anthony Harris had run into the utility room and had found his father lying in a pool of blood and glass. Detective Harris was still conscious and attempted to speak to Anthony. Although he could not make it out clearly, Anthony thought his father said, "Wendell McLaurin" and "black, male, projects." Mrs. Harris had then pulled Detective Harris' patrol car around to the front of the house and Anthony placed Detective Harris in the backseat of the car. On their way to the hospital, Anthony attempted in vain to revive his father.

An autopsy revealed that Detective Harris had suffered gunshot wounds to the face, wrist, chest, back and abdomen. These wounds caused his death. The defendant presented no evidence at his trial. Other pertinent evidence is discussed at other points in this opinion where it is relevant.

By his first assignment of error, the defendant contends that his convictions and sentences for conspiracy to commit first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property must be vacated because they arose out of the same conduct underlying the first-degree murder conviction and therefore constitute improper multiple punishments for the same offense. Specifically, the defendant insists in his brief that he "is unfairly being punished sixty extra years in three multiple convictions even though he only had one course of conduct involving one mental element and one physical act." He therefore maintains that the trial court erred in denying his motions to dismiss those charges at the close of the State's evidence and his motions to arrest the judgments entered on those charges. We disagree.

We first observe as a general matter that "it is well established that two or more criminal offenses may grow out of the same course of action." State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). In such a situation, "the perpetrator may be convicted of and punished for both crimes." Id. at 524, 243 S.E.2d at 352. We now turn to the defendant's specific arguments regarding each of his convictions.

With regard to his conviction for conspiracy to commit first-degree murder, the defendant argues that where, as here, a defendant "is separately being punished for murder," a conviction for conspiracy to commit murder "should not lie." It is a fundamental principle of substantive criminal law, however, that a defendant properly may be convicted of, and punished for, both conspiracy and the substantive offense which the defendant conspired to commit. See, e.g., State v. Lowery, 318 N.C. 54, 74, 347 S.E.2d 729, 742-43 (1986); State v. Brewer, 258 N.C. 533, 559-60, 129 S.E.2d 262, 280-81, appeal dismissed, 375 U.S. 9, 84 S.Ct. 72, 11 L.Ed.2d 40 (1963). This is so because " 'the crime of conspiracy is a separate offense from the accomplishment or attempt to accomplish the intended result.' " Lowery, 318 N.C. at 74, 347 S.E.2d at 742 (quoting State v. Small, 301 N.C. 407, 428 n. 14, 272 S.E.2d 128, 141 n. 14 (1980)). Therefore, the defendant in the present case properly was convicted of, and punished for, both conspiracy to commit murder and first-degree murder.

With regard to his conviction for assault with a deadly weapon with intent to kill inflicting serious injury, the...