State v. Prevette, 62A85

• Decision Date: 02 July 1986
• Docket Number: No. 62A85,62A85
• Citation: 317 N.C. 148,345 S.E.2d 159
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Garfield Noah PREVETTE.

Page 159

345 S.E.2d 159

317 N.C. 148

STATE of North Carolina v. Garfield Noah PREVETTE.

No. 62A85.

Supreme Court of North Carolina.

July 2, 1986.

Lacy H. Thornburg, Atty. Gen. by Reginald L. Watkins, Sp. Deputy Atty. Gen., for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first assigns as error the trial court's denial of his motion to dismiss the kidnapping charge against him. He contends that the State failed to produce substantial evidence of the kidnapping element of restraint which was separate and distinct from the restraint evidence necessary to sustain his murder conviction. Because the jury found defendant guilty of first degree murder on theories of premeditation and deliberation and felony murder, there was no merger of the kidnapping conviction with the murder conviction, and additional punishment could be imposed for kidnapping. State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979).

When a defendant is tried in a single trial for violations of two statutes that punish the same conduct the amount of punishment allowable under the double jeopardy clause of the Federal Constitution and the law of the land clause of our State Constitution is determined by the intent of the legislature.

State v. Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39 (1986).

On a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving it the benefit of every reasonable intendment and inference to be drawn therefrom. State v. Brown, 315 N.C. 40, 58, 337 S.E.2d 808, 822 (1985).

In order to sustain a conviction for kidnapping, the State must prove that "the defendant unlawfully confined, restrained, or removed the person for one of the eight purposes set out in the statute." State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986). The trial court in the case sub judice submitted the offense of kidnapping to the jury on the theory that defendant had confined and restrained Goldie Jones for the purpose of terrorizing her. See N.C.G.S. § 14-39(a)(3) (Cum.Supp.1985). The trial court in its instructions correctly defined terrorizing as "more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension." See State v. Moore, 315 N.C. at 745, 340 S.E.2d at 405. The trial judge further instructed as follows:

So I charge that if you find from the evidence beyond a reasonable doubt that on or about January 7 and 8, 1984 Garfield Noah Prevette unlawfully confined Goldie Gray Jones in a bedroom and restrained her, that is, by binding or tying up her hands, knees and feet, and Goldie Gray Jones did not consent to this confinement and restraint, and that this was for the purpose of terrorizing Goldie Gray Jones by preventing her from removing a mouth gag to get a sufficient passage of air into her body, and that Goldie Gray Jones was not released in a safe place and had been seriously injured, it would be your duty to return a verdict of guilty of first degree kidnapping.

The trial court's charge on first degree murder based on premeditation and deliberation provided that the State, among other things, must prove that "defendant intentionally and with malice placed a gag across the mouth of Goldie Gray Jones, thereby causing her suffocation" and that "the placing of a gag across the mouth of Goldie Gray Jones ... was a proximate cause of [her] death." Proximate cause was defined by the trial judge as "a cause without which Goldie Gray Jones' death would not have occurred."

In light of the evidence produced by the State and by virtue of these instructions, we are constrained to find that the restraint essential to the kidnapping conviction was an inherent and inevitable feature of this particular murder. We recognize the fact that murder is not within that class of felonies, such as forcible rape and armed robbery, which cannot be committed without some restraint of the victim. State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). However, we agree with defendant's assertion that in this case the placement of the gag over Ms. Jones' mouth could not have been the proximate cause of her death without the binding of her hands and feet which prevented the removal of the gag. Based on the State's evidence, the victim's death would not have occurred without these other ligatures. Therefore, the restraint of the victim which resulted in her murder is indistinguishable from the restraint used by the State to support the kidnapping charge.

Contrary to the State's argument, the circumstances of this case did not involve a situation where two criminal offenses stemmed from the same course of action. See State v. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351-52; State v. Price, 313 N.C. 297, 327 S.E.2d 863 (1985). The State presented no evidence which would indicate that defendant restrained the victim by any other means than by the bindings. Nor was there evidence that defendant terrorized her prior to committing the acts constituting the murder. Although there was evidence that the victim was struck in the face less than an hour before her death, there was no evidence indicating whether the victim was struck before being bound. Even the State's evidence tending to show that the victim may have been sexually assaulted does not support its theory that defendant bound the victim for the purpose of terrorizing her due to the fact that the victim was bound at the knees, creating a reasonable inference that any sexual assault occurred prior to the placement of the bindings.

In any event, the trial court's specific instruction that the victim was restrained for the purpose of terrorizing the victim "by preventing her from removing a mouth gag to get a sufficient passage of air" requires this Court to assume that the jury impermissibly relied on the same evidence of restraint which was an inherent feature of the victim's murder by suffocation to support the restraint element of kidnapping. State v. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351; see generally, State v. Freeland, 316 N.C. 13, 340 S.E.2d 35.

Because the State has failed to furnish any evidence of restraint apart from that necessary to accomplish the murder, defendant may not be separately punished for the kidnapping unless the legislature authorized cumulative punishment. State v. Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39; State v. Gardner, 315 N.C. 444, 460-61, 340 S.E.2d 701, 712 (1986). Nowhere in the pertinent statutes did the legislature explicitly authorize cumulative punishment. Therefore, we must determine the legislature's intent by examining the subject, language, and history of the statutes. State v. Gardner, 315 N.C. at 461, 340 S.E.2d at 712. Such an examination of the pertinent statutes yields no evidence that the legislature intended to authorize punishment for kidnapping when the restraint necessary to accomplish the kidnapping was an inherent part of the first degree murder.

Because the State failed to produce substantial evidence of restraint, independent and apart from the murder, we hold that the trial court improperly failed to allow defendant's motion to dismiss the charge of first degree kidnapping. In order to avoid a violation of the constitutional prohibition against double jeopardy, defendant's conviction for kidnapping must be vacated.

By his second assignment of error, defendant contends that the trial court improperly denied his motion to dismiss the charge of first degree murder because the evidence was insufficient to prove the elements of premeditation and deliberation. Possible verdicts of involuntary manslaughter, second degree murder, first degree felony murder, and first degree premeditated and deliberated murder were submitted to the jury. In general, before submitting the issue of a defendant's guilt to the jury, the trial court must be satisfied that the State has produced substantial evidence tending to prove each essential element of the offenses charged and that the defendant was the perpetrator. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). On a motion to dismiss, the evidence must be taken in the light most favorable to the State, and the State must be given the benefit of every reasonable inference deducible therefrom. State v. Hardy, 299 N.C. 445, 263 S.E.2d 711 (1980).

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Brown, 315 N.C. 40, 337 S.E.2d 808. Premeditation means that the act was thought out beforehand for some length of time, however short. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980). Deliberation denotes an intent to kill carried out in a cool state of blood in furtherance of a fixed design. State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979).

The trial judge in instant case correctly instructed the jury as follows:

Neither premeditation nor deliberation are usually susceptible of direct proof. They may be proven by a proof of circumstances from which they may be inferred such as the lack of provocation by the victim; conduct of the defendant before, during and after the killing; threats and declaration of the defendant; use of grossly excessive force; brutal or vicious circumstances of the killing; and the manner in which or the means by which the killing was done.

See State v. Brown, 315 N.C. at 59, 337 S.E.2d at 822-23. Defendant argues that the evidence does not support the conclusion that defendant knew that the loose fabric of the apron would become blocked or that Ms. Jones could not breathe through her nose. According to defendant, the evidence is therefore insufficient to prove a...