State v. Olson

• Decision Date: 10 January 1992
• Docket Number: No. 283PA90,283PA90
• Citation: 411 S.E.2d 592,330 N.C. 557
• Parties: STATE of North Carolina v. Douglas Paul OLSON.
• Court: North Carolina Supreme Court

Page 592

411 S.E.2d 592

330 N.C. 557

STATE of North Carolina v. Douglas Paul OLSON.

No. 283PA90.

Supreme Court of North Carolina.

Jan. 10, 1992.

Lacy H. Thornburg, Atty. Gen., by Valerie B. Spalding, Asst. Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by M. Patricia Devine, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant was tried upon proper indictments charging him with the offenses of murder in the first degree, robbery with a dangerous weapon, felonious larceny and two counts of felonious breaking or entering. The jury found the defendant guilty of all offenses as charged. At the conclusion of a capital sentencing proceeding, the jury recommended a sentence of life imprisonment be entered for the conviction of murder in the first degree. The trial court imposed a life sentence for that offense pursuant to the jury's recommendation. The trial court also entered judgments sentencing the defendant to terms of imprisonment for the other offenses for which he had been convicted. The defendant failed to perfect his appeal in a timely manner. On 29 October 1990, this Court entered an order allowing the defendant's petition for a writ of certiorari to review the judgments entered by the trial court.

The defendant brings forward three assignments of error. First, he contends the trial court erred by denying his motion to dismiss the charge of first-degree murder to the extent that it was based on the theory of premeditation and deliberation. Second, he argues the trial court erred by denying his motion to dismiss the charge of robbery with a dangerous weapon and by denying his motion to dismiss the charge of first-degree murder to the extent that it was based on the underlying felony of robbery with a dangerous weapon. Finally, he maintains the trial court erred by not intervening ex mero motu to censor improper jury arguments of the prosecutor. We conclude that the defendant's assignments of error are without merit.

The State's evidence tended to show that Jan Suttles and her husband James Suttles had lived at the same address in Old Fort, North Carolina, for approximately twelve years. On the morning of 19 September 1986, James Suttles left for work between 6:30 a.m. and 6:40 a.m. Jan Suttles testified that she received a call at work that day advising her to return home, at which time she found out her husband had been shot. She went home and noted that the rear window to the den was torn open and broken. Several items were missing from the house, including James Suttles' gold chain, his watch and his grandfather's knife, as well as his wedding band and some of her rings.

Tommy Ellison testified that he lived in Old Fort, about three-quarters of a mile from the Suttles residence. On 19 September 1986, he and his wife came home at about 7:30 p.m. When he opened the front door, he saw mud on the floor that had not been there when he left. He closed the door and called the police. He then went to the back of the house, where he discovered that the glass in the back door was broken out and a .12 gauge shotgun and a metal box containing personal papers were missing.

Sam Porter testified that on 19 September 1986 he was rebuilding a back porch of a house approximately 200 feet from the Suttles residence. He saw the defendant running away from the Suttles residence. The defendant was dressed in blue jeans and a T-shirt and came within ten feet of Porter. The defendant did a "double take" when he saw Porter, but then kept on running until he was out of sight.

SBI Special Agent Bruce Jarvis testified that he received a call to go to Old Fort at approximately 4:25 p.m. on 19 September 1986. On his way to Old Fort, Agent Jarvis drove on Interstate 40 where he noticed a hitchhiker. The man was wearing jeans and a pullover shirt and had bushy brown hair. When Agent Jarvis arrived at the Suttles residence, he was given a general description of the suspected perpetrator. The description fit the hitchhiker he had seen on Interstate 40. Jarvis immediately drove back to Interstate 40 where he found the hitchhiker he had seen earlier; the hitchhiker was the defendant, Douglas Paul Olson.

Upon inquiry, the defendant gave Agent Jarvis a false name and date of birth. The defendant agreed to accompany Agent Jarvis to the police department. He was carrying a pillowcase which was placed in the back of Agent Jarvis' car. Agent Jarvis noticed that the defendant's jeans and hiking boots were wet. At the police department, the defendant insisted he knew nothing of any crime that had been committed. When Agent Jarvis mentioned that the defendant might be photographed or placed in a lineup, the defendant became "aggressively nervous." Agent Jarvis read the defendant his Miranda rights and, thereafter, the defendant gave two statements.

In his first statement, the defendant said that he had hitchhiked as far as the Old Fort exit on Interstate 40. He walked off the Interstate and sat down to drink a bottle of wine. Then he walked back towards Old Fort with the intention of breaking into "something" because he needed money. He described breaking into the Suttles residence and rummaging through drawers and closets. He laid three or four long guns on a chair in the living room. He found a .22 caliber revolver in a drawer next to a bed. He also found pennies, some loose and some in a bag. The defendant stated that he then heard the front door open. He grabbed the revolver, walked around the corner from the bedroom, and started shooting at the man in the front doorway. He fired several times. When the man fell, the defendant dropped the gun and ran out the back door of the house. The defendant stated that he had not actually taken anything from the Suttles residence.

The defendant made a second statement, which was similar to the first in most respects. He again denied having removed any items from the Suttles residence. However, Agent Jarvis inventoried the items in the defendant's pillowcase, which included James Suttles' wedding band and a silver-coated penny. Jan Suttles identified these items at trial as belonging to her husband.

Mika Elliot testified that he was the SBI mobile crime laboratory operator for the Western District of North Carolina. On 19 September 1986, he went to the Old Fort police department where he conducted a gunshot residue test upon the defendant's hands. The results were consistent with the defendant having fired a gun. Agent Elliot then went to the crime scene at the Suttles residence. During his examination, he found one spent projectile from a .22 caliber handgun in the living room, lying behind a chair. Agent Elliot testified that the projectiles taken from James Suttles body were also from a .22 caliber handgun.

Deputy Sheriff Gene Patrick testified that he investigated the break-in and larceny at the Ellison residence on 19 September 1986. He testified that when he spoke with the defendant, the defendant stated that he had broken into the Ellison residence after he had shot James Suttles. The defendant told Deputy Patrick that he had broken the glass in the door, entered the residence, and taken a loaded shotgun and a metal box. He blew open the box with the shotgun. Then he reloaded the shotgun intending to shoot himself, but he could not bring himself to do so. The defendant took Deputy Patrick to the spot on Interstate 40 where he had left the gun and the metal box. At trial, Tommy Ellison identified both the gun and the metal box as having been taken from his home.

Dr. James Bowen testified that he was the regional medical examiner. He performed an autopsy on the body of James Suttles on 20 September 1986. Dr. Bowen discovered a total of six gunshot wounds and recovered four bullets. The gunshot wounds were to the head, the shoulder, the chest, the wrist and the hand. In Dr. Bowen's opinion, two of the wounds would have been fatal. Dr. Bowen testified that James Suttles had probably died within about five minutes, though he would not have been rendered unconscious immediately.

At the close of the State's evidence, and again at the close of all the evidence, the defendant moved to dismiss the charge of first-degree murder to the extent that it was based on the theory of premeditation and deliberation. The motions were denied. The defendant argues that it was error for the trial court to deny these motions because there was no substantial evidence to support a reasonable inference of premeditation and deliberation.

On a defendant's motion for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). What constitutes substantial evidence is a question of law for the court. Id. To be "substantial," evidence must be existing and real, not just "seeming or imaginary." State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Vause, 328 N.C. at 236, 400 S.E.2d at 61. In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. Id.

"Murder in the first degree is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation." State v. Hamlet, 312 N.C. 162, 169, 321 S.E.2d 837, 842 (1984). Premeditation means the perpetrator thought out the act beforehand for some period of time, however short, but no particular amount of time is...