State v. Rivens, 100

Decision Date01 February 1980
Docket NumberNo. 100,100
Citation299 N.C. 385,261 S.E.2d 867
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Keno Michelle RIVENS.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jo Anne Sanford, for the State.

William V. Bost, Salisbury, for defendant.

COPELAND, Justice.

In awarding the defendant a new trial in an unpublished opinion filed on 15 May 1979, the Court of Appeals relied on a decision by this Court announced in 1971, State v. Bailey, 278 N.C. 80, 178 S.E.2d 809 (1971). Three days after the Court of Appeals filed its opinion in this case, this Court overruled Bailey in the decision of State v. Thompson, 297 N.C. 285, 254 S.E.2d 526 (1979).

The State argues that the case Sub judice is factually indistinguishable from Thompson and thus, we should apply Thompson as precedent for this case and conclude that no new trial is required. Defendant argues that we are prohibited from doing so by the Ex post facto clauses in the North Carolina and United States Constitutions.

We agree with the State that this case is indistinguishable from Thompson. Robbery is the taking with intent to steal, of personal property of another, from his person or in his presence, without his consent or against his will, by violence or intimidation. State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966). When firearms or other dangerous weapons are used to perpetrate the robbery more severe punishment may be imposed. G.S. 14-87(a) (Cum.Supp.1979); See, State v. Smith, supra; State v. Stewart, 255 N.C. 571, 122 S.E.2d 355 (1961). Common law robbery is a lesser included offense of armed robbery. When evidence of common law robbery is present in the case, it is error for the court to fail to submit this lesser included offense to the jury. State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582 (1959).

In Bailey, this Court essentially held that the victim's inability to state whether the pistol used by the robber was a real gun or a toy gun raised an issue for the jury as to whether defendant had in his possession and used or threatened to use a firearm or other dangerous weapon to perpetrate the robbery. In Thompson, we were satisfied that a robbery victim should not have to force that issue during the course of the robbery in order to determine the true character of the weapon. See, State v. Thompson, 39 N.C.App. 375, 250 S.E.2d 710 (1977) (Erwin, J. dissenting). Thus, the following rule, which we today emphatically reaffirm, was stated as follows:

"(W)hen the State offers evidence in an armed robbery case that the robbery was attempted or accomplished by the use or threatened use of what Appeared to the victim to be a firearm or other dangerous weapon, evidence elicited on cross-examination that the witness or witnesses could not positively testify that the instrument used was in fact a firearm or dangerous weapon is not of sufficient probative value to warrant submission of the lesser included offense of common law robbery. When a person perpetrates a robbery by brandishing an instrument which appears to be a firearm, or other dangerous weapon, in the absence of any evidence to the contrary, the law will presume the instrument to be what his conduct represents it to be a firearm or other dangerous weapon." State v. Thompson, supra, 297 N.C. at 289, 254 S.E.2d at 528. (Emphasis in original.)

The following relevant testimony appears in the record in this case:

"Q. Mr. Christy, could you see anything in that man's hand?

A. There was enough light, looked like something shiny to me. I took it for a gun.

Q. Where was that gun pointed?

A. Towards me.

Q. Was that gun a rifle or a pistol?

A. Pistol.

Q. Once you saw that pistol in that man's hand, did he say anything else to you?

A. Told me to turn around. I didn't hesitate. I turned around.

Q. What happened then?

A. Well, this one had the gun in my back, or whatever it was.

Q. What, then, happened?

A. He made me get in the car and I set (sic) down on the seat and he put an object to my head and said, 'You better find them keys quick.'

Q. Where, at your head, was that object put?

A. Right along here.

Q. You're showing the back left side of your head above your left ear, is that correct?

A. Yes.

Q. What did that object feel like?

A. The barrel of a gun."

On cross-examination, Christy simply stated, "I felt like it was a gun." The case Sub judice presents the same fact situation as in Thompson. The question remains whether we may apply the rule set forth in Thompson to this case.

A decision is wholly prospective in effect when it applies solely to fact situations arising after the filing date of the opinion. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Retroactive or retrospective application of a decision covers application of that decision to the following situations: (1) the parties and facts of the case in which the new rule is announced; (2) cases in which the factual event, trial and appeal are all at an end but in which a collateral attack is brought; (3) cases pending on appeal when the decision is announced; (4) cases awaiting trial; and (5) cases initiated in the future but arising from earlier occurrences. See, Annot., Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371 (1966).

This case was in the Court of Appeals awaiting certification to the trial court when our decision in Thompson was announced. On 4 June 1979, this case was certified by the Court of Appeals to the trial court for a new trial. The State's time period for seeking discretionary review expired on 19 June 1979. The State sought issuance of a writ of certiorari on 27 July 1979 and it was allowed by this Court on 23 August 1979.

In Goodson v. Lehmon, 225 N.C. 514, 35 S.E.2d 623 (1945), it was held that a cause is not finally terminated by a decision by the appellate division when the case is certified back to the trial court for further action. There has not been final judgment until the authority of the trial court has been exercised by entering judgment in accordance with such opinion. Thus, this case may be considered as pending on appeal at the time the decision in Thompson Was filed.

Decisions are generally presumed to operate retroactively. Mason v. Nelson Cotton Co., 148 N.C. 492, 62 S.E. 625 (1908). Such overruling decisions are given solely prospective application only when there is compelling reason to do so. Fitzgerald v. Meissner & Hicks, Inc., 38 Wis.2d 571, 157 N.W.2d 595 (1968); In re Kloppenberg's Estate, 82 N.J.Super. 117, 196 A.2d 800 (1964); See generally, Annot., Retroactive or Merely Prospective Operation of New Rule Adopted by Court in Overruling Precedent Federal Cases, 14 L.Ed.2d 992 (1966); Chief Justice Traynor (California Supreme Court), Conflict of Laws in Time: The Sweep of New Rules in Criminal Law, 1967 Duke L.J. 713. See, e. g., State v. Harris, 281 N.C. 542, 189 S.E.2d 249 (1972) (retroactive application would disrupt the orderly administration of criminal justice); Hill v. Brown, 144 N.C. 117, 56 S.E. 693 (1907) (no retroactive effect because of reliance in entering contracts upon the law as interpreted in the overruled decision); Hill v. Atlantic & N. C. Railroad Co., 143 N.C. 539, 55 S.E. 854 (1906) (no retroactive effect because property and contract rights were acquired on the basis of the former interpretation of a statute).

In Linkletter v. Walker, supra, it was stated after careful analysis of numerous state and federal decisions that decisions are applied retroactively without discussion while a case is on direct review and the various factors for determining whether a decision should be given only prospective effect are generally discussed only when a collateral attack is brought. Cf., State v. Bell, 136 N.C. 674, 49 S.E. 163 (1904) (no retroactive application even to the parties in Bell Because of reliance on the advice of counsel which was based on the overruled decision); Cf. also, Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) (rule of North Carolina v. Pearce Not applied retroactively although Payne was pending on appeal when Pearce was decided).

In Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 1018, 88 L.Ed. 1246, 1249 (1944) it was held that,

"It is the duty of the federal appellate courts, as well as the trial court (in a diversity of citizenship case), to ascertain and apply the state law where, as in this case, it controls decision. Meredith v. Winter Haven, 320 U.S. 228, 64 S.Ct. 7, (88 L.Ed. 9.) And a judgment of a federal court ruled by state law and correctly applying that law as authoritatively declared by the state courts when the judgment was rendered, must be reversed on appellate review if in the meantime the state courts have disapproved of their former rulings and adopted different ones. 'Until such time as a case is no longer Sub judice, the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court.' Vandenbark v. Owens-Illinois Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327." See also, Wichita Royalty Co. v. City National Bank of Wichita Falls, 306 U.S. 103, 59 S.Ct. 420, 83 L.Ed. 515 (1939); Madden v. Metropolitan Life Insurance Co., 138 F.2d 708 (5th Cir. 194...

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  • State v. Vance
    • United States
    • United States State Supreme Court of North Carolina
    • 2 Mayo 1991
    ...overruling decisions are given solely prospective application only when there is compelling reason to do so."); State v. Rivens, 299 N.C. 385, 392, 261 S.E.2d 867, 871 (1980) (citation omitted) ("There is no violation of the ex post facto clause in the United States Constitution when a deci......
  • State v. Zuniga
    • United States
    • United States State Supreme Court of North Carolina
    • 17 Junio 1994
    ...federal habeas corpus proceedings. Defendant's amici, the North Carolina Academy of Trial Lawyers (The Academy), cite State v. Rivens, 299 N.C. 385, 261 S.E.2d 867 (1980), for the proposition that under North Carolina law all new rules, whether state or federal, are presumed to operate retr......
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    • United States State Supreme Court of North Carolina
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    ...255 N.C. 571, 122 S.E.2d 355 (1961). It is a crime against the person, effectuated by violence or intimidation. State v. Rivens, 299 N.C. 385, 261 S.E.2d 867 (1980); State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966). Where a defendant has counselled, enticed, or induced another to commit ......
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    • United States State Supreme Court of North Carolina
    • 31 Agosto 1981
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