State v. Riddick, 284A84

• Decision Date: 05 March 1986
• Docket Number: No. 284A84,284A84
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jeffery R. RIDDICK.

Page 422

340 S.E.2d 422

316 N.C. 127

STATE of North Carolina v. Jeffery R. RIDDICK.

No. 284A84.

Supreme Court of North Carolina.

March 5, 1986.

Lacy H. Thornburg, Atty. Gen. by Sarah C. Young, Asst. Atty. Gen., Raleigh, for the State.

J. Melvin Bowen and James R. Batchelor, Jr., Williamston, for defendant-appellant.

EXUM, Justice.

The questions presented in this appeal are whether the trial court erred in (1) admitting evidence that defendant had committed two burglaries in Connecticut in 1977, six years before the burglaries for which he was being tried; (2) admitting defendant's wallet and contents found in Connecticut six weeks before the crimes for which he was being tried; and (3) denying defendant's motions to dismiss for insufficiency of the evidence. We find no error in Judge Lewis's rulings on the evidence. ¹ We conclude defendant's conviction for attempted malicious throwing of acid (No. 83CRS3077) should be reversed for insufficiency of the evidence. We find no error in and leave undisturbed defendant's remaining convictions and the sentences imposed thereon.

I.

The state's evidence tended to show the following: On 4 September 1983, Ann Modlin, aged sixty-two, a Caucasian woman alone in her home, was awakened after midnight by noises from the front porch of her house located in Everetts in Martin County near Williamston. Mrs. Modlin saw a man tamper with her fuse box until her electricity went off. She went to the front door and screamed. The man ran. Mrs. Modlin noticed unfamiliar moisture on the windowsill and front door which was later determined to be muriatic acid. She went to a back bedroom and yelled through an open window to alert her neighbors. The intruder then was attempting to enter through her back door. Through another open window he fired a small caliber gun three or four times, striking Mrs. Modlin once in her arm. Witnesses compared the gun's report to firecrackers. X-rays taken later at the hospital showed Mrs. Modlin had been shot with many small pellets which left her arm swollen and bruised. Investigators also found small pellet holes in the window area through which the shots were fired, and one small lead pellet inside that bedroom. Neighbors arrived and called the sheriff's department.

Shortly thereafter Christine Bailey, an eighty-four-year-old Caucasian woman who lived alone, was awakened by a noise at her house, located only several blocks from the Modlin home. When Mrs. Bailey entered her kitchen she saw a man climbing through a window carrying a flashlight and wearing a dark toboggan and gloves. The toboggan was similar to the one being worn by defendant when he was later arrested. Her assailant told her to return to her bed and pulled the telephone cord out of the wall. The intruder grabbed Mrs. Bailey by the arms, injuring her and causing extensive bruising and bleeding. He took her diamond ring and wedding band from her fingers, her .32 caliber Smith and Wesson pistol from the drawer of the nightstand, pulled metal handcuffs from his pocket, and struggled unsuccessfully to put the handcuffs on her. He returned to the kitchen and took several cans of food (including sardines and vienna sausages) and some bananas. A few minutes later Mrs. Bailey found the back door open and noticed her Chrysler automobile was gone. She walked to her neighbor's house one-fourth mile away; the neighbors notified the sheriff's department.

An officer investigating both crimes, Ronnie Wynne, left his house several miles south of Williamston at about 3:20 a.m. As he left he saw a car matching the description of Mrs. Bailey's stolen Chrysler. He chased the car for about one mile until it went into a ditch on the side of the road. The driver was gone when Officer Wynne approached the car, which was later identified as Mrs. Bailey's. In the rear seat of the car were several cans of food of the same varieties and brands as those taken from Mrs. Bailey's kitchen, and a banana peel. A handgun and a blue duffel bag were found on the front seat. The handgun on the front seat, a .32 caliber Smith and Wesson, contained five unfired cartridges identical in type and brand to others found under Mrs. Bailey's bed after the burglary, and one fired shell casing. The gun fit the description of the pistol stolen from her nightstand. Police found another handgun, a Ruger .22 caliber revolver, protruding from the duffel bag. Loaded in the Ruger were five unfired regular .22 caliber cartridges and one unfired .22 caliber super X "rat shot" cartridge. Rat shot rifle or pistol cartridges contain small pellets suitable for killing rats. They are rare and outdated and will damage bored weapons if used in them frequently. One more rat shot cartridge was loose in the duffel bag. The bag also contained two regular .22 caliber cartridges, two "Wanted-to-Buy" ads, three unmatched gloves, one pair of khaki colored shorts with size 32 waist, and a nonfunctional orange Eveready flashlight. Tennis shoe tracks led away from the car into the woods.

The next day shortly after 7 a.m., defendant was stopped as he attempted to enter the Chesapeake Bay Bridge-Tunnel in a pickup truck belonging to William Tadlock without paying the toll. When confronted by Virginia authorities, defendant, who was wearing a dark toboggan and tennis shoes, stated that the truck was stolen. Defendant was then about 100 miles north of Williamston, where, between 8:30 and 9:30 the night before, Tadlock's truck had been stolen from his driveway. Tadlock's home is located about three-fourths of a mile north of where Mrs. Bailey's car was abandoned and seven miles north of Everetts.

Virginia police found many items in the truck which did not belong to Tadlock and were not in his truck before it was stolen, including: a pair of shiny metal handcuffs, two pairs of driving gloves, one of which bore human bloodstains, a flashlight, and a rat shot cartridge similar to the one found in the blue duffel bag in Mrs. Bailey's car. Tadlock's .12 gauge pump shotgun, which had been in its rack inside the truck's passenger compartment, was recovered with the stolen truck, but a new Smith and Wesson 9mm. Luger pistol was never recovered. On instruction from North Carolina investigators, Virginia police immediately confiscated the tennis shoes defendant was wearing when arrested. The soles matched in size and tread the prints left near Mrs. Bailey's abandoned car.

About six weeks before the events described above, postal workers found a wallet in a mailbox in Darien, Connecticut, which contained a "Wanted-to-Buy" advertisement clipped from a newspaper soliciting sellers of, among other items, diamonds and jewelry, two identification cards bearing defendant's photograph, a North Carolina driver's license bearing defendant's photograph, and an address book. Names and addresses in the address book included two Connecticut women who had been victims of burglaries and sexual assaults in Connecticut in 1977, for which defendant was convicted and served an active prison sentence. One of the Connecticut burglary victims and a Connecticut police officer who had investigated both burglaries described the crimes defendant committed there.

Defendant presented no evidence at trial.

II.

Defendant's first assignment of error challenges the trial court's admission of evidence concerning the two burglaries defendant committed in 1977 in Connecticut. This evidence tended to show as follows: On 13 May 1977 at approximately 11 p.m. Mrs. Lila Murphy, who lived in Greenwich, Connecticut, was awakened in her bedroom by the defendant, who handcuffed her. Defendant had difficulty putting the handcuffs on her. Her electricity had been turned off and defendant was using a flashlight. He was dressed in a jogging suit and had "something on his head." Later investigation revealed that defendant had taken strawberries from Mrs. Murphy's refrigerator and had turned off the current to the house at the fuse box. Defendant also had taken money from the home. Further testimony revealed that on 18 May 1977 at approximately 11 p.m. defendant broke into and entered the home of Mrs. Rita Noonan who lived less than one-half mile from Mrs. Murphy. At the Noonan residence defendant disabled the telephone, handcuffed Mrs. Noonan, who arrived home after defendant had entered, and took bananas and orange juice from the refrigerator. He wore a toboggan. Both Mrs. Murphy and Mrs. Noonan were Caucasian, lived alone and were at the time of the crimes aged, respectively, fifty-three and sixty-one years.

The state contended evidence of the Connecticut burglaries was admissible on the issue of defendant's identity in the North Carolina burglaries committed against Mrs. Modlin and Mrs. Bailey. After a carefully conducted voir dire on the issue of admissibility, Judge Lewis concluded that the modus operandi in the Connecticut crimes was so similar to the modus operandi in the North Carolina crimes that evidence of the Connecticut crimes to which defendant had pled guilty, was admissible under the theory urged by the state. We agree with this ruling.

The general rule is "in a prosecution for a particular crime, the state cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense." State v. McClain, 240 N.C. 171, 172, 81 S.E.2d 364, 365 (1954). "This is true even though the other offense is of the same nature as the crime charged." Id. "However, if such evidence tends to prove any other relevant fact it will not be excluded merely because it shows guilt of another crime." State v. Irwin, 304 N.C. 93, 99, 282 S.E.2d 439, 444 (1981).

This Court set forth the rationale for the general rule in McClain as follows: (1) Logically, the commission of an independent offense alone does not prove the commission of another crime; (2) admitting such evidence violates the rule forbidding the state initially to attack defendant's character, and to prove...