State v. Small

• Decision Date: 07 February 1991
• Docket Number: No. 265A89,265A89
• Citation: 328 N.C. 175,400 S.E.2d 413
• Parties: STATE of North Carolina v. Johnny Michael SMALL.
• Court: North Carolina Supreme Court

Page 413

400 S.E.2d 413

328 N.C. 175

STATE of North Carolina v. Johnny Michael SMALL.

No. 265A89.

Supreme Court of North Carolina.

Feb. 7, 1991.

Appeal of right by defendant pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing the sentence of life imprisonment upon a jury verdict finding defendant guilty of murder in the first degree, entered by Grant, Sr., J., at the 3 April 1989 Criminal Session of Superior Court, New Hanover County. On 5 January 1990 we allowed defendant's motion to bypass the Court of Appeals as to a judgment of imprisonment for twenty years entered upon his conviction of robbery with a dangerous weapon. Heard in the Supreme Court 14 November 1990.

Lacy H. Thornburg, Atty. Gen. by David Roy Blackwell, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, for defendant-appellant.

WHICHARD, Justice.

Pursuant to a juvenile order entered 8 November 1988, defendant's case was transferred to Superior Court, New Hanover County, where he was tried as an adult on true bills of indictment charging him with murder in the first degree and armed robbery. Defendant pled not guilty, and the murder case was tried noncapitally because he was under the age of sixteen at the time of the crimes. See Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988). The jury found him guilty of first degree murder by premeditation and deliberation and under the felony murder rule, and of robbery with a firearm. We find no prejudicial error in the guilt phase of defendant's trial, but we remand for a new sentencing hearing on the armed robbery charge.

On 13 July 1988, at approximately 6:00 p.m., Joe Bryant found Pamela Dreher's body lying face down on the floor of the tropical fish store she operated at Delgado Square in Wilmington. Dreher had been shot in the head. The cash register drawer was open, and the money clips were up; there were no bills in the register. The time each cash register receipt was generated appeared on the receipt. Dreher's last customer receipt showed 5:29 p.m. as the time the register printed it. Dreher's brother testified that the register's timing mechanism was a few minutes slow. Evidence introduced at trial included this and three other sales slips, one showing the day's receipts of $93.83 at 5:39 p.m. and two "no sales" slips at 5:46 p.m. and 5:49 p.m.

The investigating officers found only one fingerprint in the store, and it did not match defendant's. Joe Bryant, who operated the store next door, testified that he did not hear a shot that afternoon. He testified that he noticed some unusual lights in Dreher's store, and that when he looked in he saw her lying in a pool of blood.

On 29 October 1988, the police arrested David Wayne Bollinger while he and defendant were working together at the New Hanover County Fair. After the police interrogated Bollinger, they returned to arrest defendant. They found defendant in the woods approximately fifty feet from where he and Bollinger had been standing approximately an hour earlier.

The State's evidence tended to show that when witness Nina Raeford walked past the victim's store on her way home from work between 5:40 p.m. and 6:00 p.m. on 13 July, she saw defendant leave the store and get in a brown car driven by Bollinger. Bollinger, who was charged with being an accessory after the fact, testified that he and defendant were driving around on the afternoon of the murder. At defendant's request, he stopped at Delgado Square. As the car turned into the parking area, defendant turned the car radio to its maximum volume. Defendant told Bollinger he needed to make a phone call. Bollinger parked facing the street and sat in the car listening to the radio. When defendant returned a few minutes later, he was wearing a different shirt, and he told Bollinger to drive to defendant's mother's house. There, defendant gave Bollinger $10.00, telling him he got the money from the pet store. Bollinger asked if defendant had robbed the store, and defendant replied, "sort of." Defendant then pulled out a gun, stated that he "had to shoot [the pet store operator]," and threatened to shoot Bollinger if Bollinger told anyone about the incident.

The State's evidence also included testimony of Raymond Eugene Brigman, Jr., to the effect that his .25 caliber automatic pistol disappeared from the glove compartment of Bollinger's car in May 1988 after defendant borrowed the automobile. Dreher was shot with a .25 caliber weapon, but the weapon was never recovered. Dr. Charles Garrett, a pathologist, testified that Dreher's wound was a "hard contact" wound and whoever inflicted it would have been "spattered" with blood.

Defendant's evidence tended to show that Nina Raeford did not "punch out" at her job at McDonald's until 5:55 p.m. on the day of the murder and that the restaurant is a forty-five minute walk from Delgado Square. Raeford did not contact law enforcement authorities until August, after Crimestoppers had offered a $5,000 reward for information leading to an indictment in the case. Also, Woodrow Ward, Bollinger's employer, testified that he and Bollinger left Wilmington between 5:30 and 6:00 (a.m. or p.m. not specified) on 13 July to attend an auto auction in Conway, South Carolina. Defendant's evidence also tended to show that Bollinger had a .25 caliber automatic weapon in the glove compartment of his car "at one time."

Defendant first assigns as error the trial court's denial of his motion to dismiss at the close of all the evidence. He contends that his conviction for first degree murder must be vacated because there is insufficient evidence both that: (1) he was the perpetrator, and (2) the killing was premeditated and deliberated. Defendant also contends that his conviction for armed robbery must be vacated because there is insufficient evidence both that he (1) was the perpetrator, and (2) took and carried away property.

"On a motion to dismiss on the ground of insufficiency of the evidence, the question for the court is whether there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime." State v. Bates, 309 N.C. 528, 533, 308 S.E.2d 258, 262 (1983).

[T]he trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it.... If there is substantial evidence--whether direct, circumstantial, or both--to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.

State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988) (citations omitted). Further, "[t]he defendant's evidence, unless favorable to the State, is not to be taken into consideration." State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). The determination of the witnesses' credibility is for the jury. See Locklear, 322 N.C. at 358, 368 S.E.2d at 383. "[C]ontradictions and discrepancies do not warrant dismissal of the case--they are for the jury to resolve." State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).

Armed robbery under N.C.G.S. § 14-87 consists of the following elements:

(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened. "Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense."

State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982) (in part quoting State v. Mull, 224 N.C. 574, 576, 31 S.E.2d 764, 765 (1944)); see also State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 433 (1987).

By statute in North Carolina, first degree murder includes "[a] murder ... perpetrated by ... willful, deliberate, and premeditated killing, or ... committed in the perpetration or attempted perpetration of any ... robbery ... or other felony committed or attempted with the use of a deadly weapon...." N.C.G.S. § 14-17 (1986). In defining premeditation and deliberation, this Court has stated:

Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation.... Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation....

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence.... Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.

State v. Brown, 315 N.C. 40, 58-59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1165, 106 S.Ct. 2293, 90 L.Ed.2d 733 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).

Defendant contends that because Raeford's and Bollinger's testimony is all that places him in the pet store at or about the time of the offenses, and because that evidence is contradicted by...