State v. Robbins, 3

• Citation: 169 S.E.2d 858,275 N.C. 537
• Decision Date: 16 October 1969
• Docket Number: No. 3,3
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Ferrell ROBBINS.

Page 858

169 S.E.2d 858

275 N.C. 537

STATE of North Carolina v. Ferrell ROBBINS.

No. 3.

Supreme Court of North Carolina.

Oct. 16, 1969.

Atty. Gen. Robert B. Morgan, and Deputy Atty. Gen. Ralph Moody, for the State.

J. Nat Hamrick, Rutherfordton, for defendant.

BRANCH, Justice.

Defendant moved for judgment as of nonsuit on the first degree murder charge at the conclusion of the State's evidence and at the close of all the evidence. He assigns as error the failure of the court to grant his motions.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation in first degree murder. State v. Downey, 253 N.C. 348, 117 S.E.2d 39; State v. Propst, 274 N.C. 62, 161 S.E.2d 560.

In State v. Buffkin, 209 N.C. 117, 183 S.E. 543, it is stated:

'Premeditation means thought over beforehand for some length of time however short, but no particular time is required for the mental process of premeditation. Deliberation means revoling over in the mind. A deliberate act is one done in a cool state of the blood in furtherance of some fixed design.'

Since defendant offered evidence after his motion for judgment as of nonsuit at the close of the State's evidence, we consider only the denial of the motion made at the close of all the evidence, and we must act in light of all the evidence. State v. Leggett, 255 N.C. 358, 121 S.E.2d 533; State v. Norton, 222 N.C. 418, 23 S.E.2d 301; G.S. § 15--173.

Defendant's motion for judgment as of nonsuit presented the question of whether the State had presented substantial evidence--circumstantial, direct, or both--that defendant acted with premeditation and deliberation. We must take the evidence in the light most favorable to the State when considering this question. State v. Bogan, 266 N.C. 99, 145 S.E.2d 374; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.

In connection with this assignment of error we quote the following testimony:

Defendant's witness Dean Sheehan: 'Mr. Robbins told me they made an agreement. That they were in trouble and couldn't get along, and if he would promise to kill himself, she would let him kill her and kill himself, and said she started to walk toward the front door and turned around and he shot her.'

State's witness Oris Bridges: '* * * (T)he telephone rang and it was Ferrell Robbins. He called me and said I know where she (deceased wife) is and how she got there. He said, 'she will be sorry of this, in fact, the whole family will be sorry and I do mean sorry."

State's witness Damon Huskey: 'Ferrell Robbins told me, 'I shot my wife, how is she getting along.' I told him I was sorry. He said, 'Well, I'm not, she is better off, and I would do it again, and you will never try me, I will kill myself.' I told him I was arresting him for murder. When I asked how come you shot her, Ferrell Robbins said because she was going to leave, because her daughter wanted her to go with them down east somewhere, Charlotte or somewhere.'

We think this testimony, when considered with all the evidence, discloses facts which constitute substantial evidence of premeditation and deliberation on the part of defendant. Thus, the trial court properly overruled defendant's motion for judgment as of nonsuit.

Defendant contends that the court erred in failing to suppress the testimony of Deputy Sheriff Russell Duncan as being the product of an illegal search and seizure, in violation of Art. I, § 15, of the North Carolina Constitution and the Fourth Amendment to the United States Constitution.

The Fourth Amendment to the United States Constitution and Art. I, § 15, of the North Carolina Constitution guarantee that, in ordinary circumstances, even the strong arm of the law cannot invade the home except under authority of a search warrant issued in accord with statutory provisions, In re Walters, 229 N.C. 111, 47 S.E.2d 709, and evidence obtained by an illegal search without a search warrant is inadmissible. G.S. § 15--27. State v. Smith, 242 N.C. 297, 87 S.E.2d 593; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

The constitutional rights of a defendant are not violated by a warrantless search unless the search is unreasonable. State v. Colson, 274 N.C. 295, 163 S.E.2d 376; District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599. The reasonableness of the search must be determined by the court from the facts and circumstances of each individual case. State v. Howard, 274 N.C. 186, 162 S.E.2d 495; Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040.

This Court has defined an unreasonable search to be "an examination or inspection without authority of law of one's premises or person, with a view to the discovery of * * * some evidence of guilt, to be used in the prosecution of a criminal action.' 47 Am.Jur., Searches and Seizures § 52.' State v. Colson, supra.

The United States Supreme Court considered this question in the case of Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. There, the police entered respondent's home with his wife's permission minutes after being informed that an armed robbery had occurred and that the suspect had entered respondent's house. Respondent was in the house feigning sleep. He was arrested and the officers, without a search warrant, found damaging evidence which was introduced at his trial. The Supreme Court, in holding the entry and search valid, stated:

'We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, 'the exigencies of the situation made that course imperative.' McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential * * *.'

In the case of State v. Howard, supra, Justice Sharp, speaking for the Court, stated:

'* * * If the officers' presence was lawful, the observation and seizure of what was then and there apparent could not in itself be unlawful. Harris v. United States (390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067), supra; Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; United States v. Horton, 328 F.2d 132 (3rd Cir.).

'Neither the Fourth Amendment nor G.S. § 15--27 is applicable where no search is made. The law does not prohibit a seizure without a warrant by an officer in the discharge of his official duties where the article seized is in plain view. State v. Craddock, 272 N.C. 160, 158 S.E.2d 25; State v. Kinley, 270 N.C. 296, 154 S.E.2d 95; State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Giles, 254 N.C. 499, 119 S.E.2d 394; Ker v. State of California, supra; Harris v. United States, supra.'

In the instant case the officer was not engaged in a search for evidence to be used in a criminal prosecution. He entered defendant's dwelling at the request of defendant's brothers, who were very apprehensive and worried about defendant. Under the present law the officer would not have had any basis to request a search warrant since he could not allege a particular object which he sought. State v. Bullard, 267 N.C. 599, 148 S.E.2d 565. He was simply lending the strong arm of the law to a distressed family who feared that harm had come to their brother and sister-in-law. The officer's presence was lawful and his testimony as to things in plain view was properly admitted into evidence.

For the same reasons stated above, defendant's objections to admission of State's Exhibits, discovered as a result of Deputy Duncan's entry into defendant's house, are overruled.

Defendant assigns as error the action of the court in allowing the witness Oris Bridges to testify to a conversation which he allegedly heard between defendant and his niece, Jackie Brandle, as being in violation of the hearsay rule. The pertinent portion of this testimony was as follows:

'Jackie walked up to the bed and told Ferrell--

MR. MAHONEY: Objection

COURT: Overruled.

EXCEPTION NO. 105

A. -- that the funeral home was ready for some clothing and we wanted some clothing and Ferrell said--

MR. MAHONEY: Objection to what Ferrell said.

COURT: Overruled.

EXCEPTION NO. 106.

A. --they were in storage and one of his brothers would get them for us, and Jackie said--

MR. MAHONEY: Objection to what Jackie said.

COURT: Overruled.

EXCEPTION NO. 107.

A. --Jackie Brandle, my niece asked Ferrell if he had any insurance and he said--

OBJECTION OVERRULED EXCEPTION NO. 108

A.--he said 'You've got the insurance in Raleigh,' and Jackie said 'Why did you do this?'

MR. MAHONEY: Objection, if your Honor please.

COURT: Overruled.

EXCEPTION NO. 109.

A. --and he says, 'I killed her and I'm not a bit sorry of it, because she was mine. She was going to leave me and go with you and I killed her and I'm not a bit sorry of it.'

Q. Then what did she ask about her mother?

A. Jackie said, 'Ferrell, how long did you make my mother suffer?

MR. MAHONEY: Objection now.

COURT: Overruled.

EXCEPTION NO. 110.

A. He was lying on his back and he put kind of shrugged his shoulders and raised his hands up off the bed and says, 'Oh, just a few seconds. It was all over within just a few seconds."

We note, parenthetically, that defendant offered testimony of one Dallas Aerial, the guard assigned to defendant, to the effect that he was present when defendant...