State v. Sumpter, 497A84

• Citation: 347 S.E.2d 396,318 N.C. 102
• Decision Date: 29 August 1986
• Docket Number: No. 497A84,497A84
• Parties: STATE of North Carolina v. Charles Wallace SUMPTER.
• Court: United States State Supreme Court of North Carolina

Page 396

347 S.E.2d 396

318 N.C. 102

STATE of North Carolina v. Charles Wallace SUMPTER.

No. 497A84.

Supreme Court of North Carolina.

Aug. 29, 1986.

Lacy H. Thornburg, Atty. Gen. by Thomas J. Ziko, Asst. Atty. Gen., Raleigh, for State.

Adam Stein, Appellate Defender by Malcolm Ray Hunter, Jr., First Asst. Appellate Defender, Raleigh, for defendant-appellant.

EXUM, Justice.

This appeal raises questions involving (1) the sufficiency of the evidence to support the conviction of felonious breaking or entering, murder and armed robbery, and (2) the propriety of the trial court's aggravating the sentence given on the conviction of indecent liberties with a minor. We find the trial court improperly aggravated the sentence given on the conviction of indecent liberties with a minor. Otherwise we find no error in the trial.

I.

John Hinson came home from work around 3:30 p.m. on 23 September 1983 and discovered the lifeless body of his daughter, Elizabeth Hinson Hawkins, lying on the dining room floor. She was wearing the top of her brown Hardee's uniform and was nude from the waist down. She had been shot twice, once in the right side and once in the head. The front entrance door to the house had been forced open. Missing from a closet in the bedroom Hinson shared with his wife were a .410 shotgun and a box of .410 shells; a 12-gauge shotgun and a box of 12-gauge shells; and a bottle of Kentucky Supreme Bourbon.

Hawkins left work at the Hardee's restaurant at 1:30 p.m. on 23 September 1983. A neighbor of the Hinsons saw Hawkins driving her yellow Datsun B-210 toward the Hinson residence at 2:10 p.m. and they waved to each other. Around 2:45, Jeanette Waldrup, Hawkins' sister, observed a white male with brown eyes and a blue shirt driving her sister's car erratically near the Hinson house.

Connie Clark testified that defendant pulled into her driveway in a little yellow car at approximately 2:55 p.m. on 23 September 1983. She went out to talk to him, and he asked her if she wanted to go to a party with him in Tennessee. She saw three firearms and a bottle of liquor, half full, in the car. Defendant appeared to have been drinking. Defendant was showing the guns to Clark's children and one child asked how one gun fired. Clark thought it was a .410 shotgun. Defendant pointed it out the window, shot it in the air and gave the spent shell to the child. Ballistics tests indicated this shell had been fired by the same gun which fired the shots which killed Hawkins. Defendant asked Clark if she had ever shot anyone and she answered, "No, why have you?" Defendant replied that he had but then recanted and said he was only kidding.

Defendant drove away from Clark's house but returned walking around 3:30 p.m. carrying a gun and a bottle of liquor and saying he had wrecked the car. Still carrying the gun and bottle of liquor, defendant walked to the house of a friend, Freddie Small, who agreed to drive defendant home. They passed a marked sheriff's department car and the deputy noticed defendant lie down as if to hide. The deputy stopped the truck and asked the name of defendant. Defendant identified himself as Charles Sumpter; and the deputy, who had been told to be on the lookout for Charles Sumpter, arrested him. Police confiscated a .410 shotgun and a bottle of Kentucky Supreme Bourbon from the cab of the truck. The driver said the items belonged to defendant. Tests showed the .410 shotgun fired the shells recovered from Hinson's and Clark's homes. ²

Defendant was taken to the station and asked about the blood on his jeans. Defendant explained that he had been deer hunting, shot a deer, and the blood on the knee of his jeans was from the deer. He also stated that the shotgun taken from him was his. He had bought it at a pawn shop in Lenoir for $85.

The police confiscated defendant's clothing. Bloodstains located on his jeans, shirt, the fly of his undershorts, and his boots were compared to blood samples taken from the victim. The blood on defendant's shirt and jeans was consistent with that of the victim and 1.90 percent of the general population and could not have originated from defendant. A similar comparison between the victim's blood and the blood on defendant's shorts and shoes could not be made because of the small amount of blood on those items, but tests indicated the blood on the shorts had the same enzyme type as that belonging to the victim and a different type from that belonging to defendant.

Defendant spent the night of 22 September 1983 at a house on 501 Table Rock Road in the same neighborhood as the Hinson house. Late in the morning on the next day, while defendant and thirteen-year-old Terri Jackson, the niece of defendant's girlfriend, were alone in the house, defendant pushed Terri down, pulled off her jeans and underpants and touched her with his hand on the front of her body close to where "she went to the bathroom." Terri eluded defendant's grasp, ran out of the house and told the mailman defendant had tried to rape her. Defendant walked away up the street.

A short while after these events occurred, a neighbor saw defendant walking near Dianne Reynolds' house, which was located near 501 Table Rock Road, carrying what appeared to be a gun. When Reynolds arrived home from work she discovered the basement door had been broken open and a loaded .22 automatic rifle had been stolen from her bedroom closet. An empty .22 rifle later was recovered from the back seat of Elizabeth Hawkins' car, which defendant stole and wrecked. Richard Dula, the owner of the gun, identified the .22 rifle recovered from Hawkins' car as his own.

Denise Horton, who also lived a short distance away from the house where defendant spent the night, found her back door similarly forced open when she arrived home after spending all day elsewhere. Nothing had been stolen, but items which had been stored in the bedroom in the closet and in drawers were strewn about. A dog was found on the floor dead, shot several times.

Thirteen-year-old Ronald Gordon was staying home sick from school with his seventeen-year-old sister on 23 September 1983. Around noon, Ronald, who lived at 204 Table Rock Drive, was awakened by the front doorbell. He looked out the door and saw defendant, whom he knew through a mutual acquaintance, standing outside with a .22 rifle beside him. He noticed defendant also had a blue jean jacket with him. Ronald was afraid to answer the door and went to wake his sister. The doorbell continued to ring, then became silent. Moments later Ronald heard a noise like someone kicking at the basement door. Ronald and his sister ran out of the house and across the street and called the sheriff. When deputies arrived the house was empty and nothing appeared to be missing or to have been disturbed. A blue jean jacket, however, was found on the floor.

Around 1:30 or 2 p.m. on 23 September 1983 the doorbell rang at Faye Crump's home which was located a short distance from the Town and County neighborhood. By the time Mrs. Crump got to the door the caller had begun knocking. The caller, whom Mrs. Crump identified in court as defendant, asked to use the phone. Mrs. Crump permitted him to make a call and then observed him leave, walk down the road, and pick up a rifle which she had not seen before. Defendant returned, rang the doorbell, and asked if there were any .22 shells in the house he could buy. Mrs. Crump said she was sure there were none and defendant thanked her and left.

Defendant's girlfriend, the aunt of Terri Jackson, testified for defendant that defendant often stayed at the Jackson home and played games with Terri, her sister and her brother. She had never seen him assault or molest any of the children. Terri's brother gave similar testimony.

Defendant also called Dr. Harold Haas, a clinical psychologist, as a witness. Dr. Haas had conducted a battery of tests, including personality and intelligence tests as well as tests to detect the presence of brain damage. He found no evidence that defendant was preoccupied with sexual or violent activity. He concluded that defendant possessed relatively modest intelligence and possibly had suffered minimal brain damage. He opined that given these results and defendant's history of substance abuse, if defendant were using intoxicating substances, he would likely act on impulse and exercise poor judgment.

Defendant did not testify.

The jury found defendant guilty as charged of first degree murder of Hawkins on both premeditation and deliberation and felony murder theories; felonious breaking or entering of the residences of John Hinson, Dianne Reynolds, Gladys Gordon, and Denise Horton; robbery with a dangerous weapon from the Hinson residence; and felonious larceny of Hawkins' car and a .22 caliber rifle from the Reynolds residence.

Judge Friday sentenced defendant for the murder conviction, upon the jury's recommendation, to life imprisonment. He sentenced defendant to terms of years for the remaining convictions, all sentences to run consecutively.

II.

Defendant makes several assignments of error challenging the sufficiency of the state's evidence. The test for measuring the sufficiency of evidence may be stated as follows: All evidence admitted, competent or incompetent, favorable to the state must be considered. The evidence must be taken in the light most favorable to the state. The state is entitled to all reasonable inferences that may be drawn from the evidence. Contradictions in the evidence are resolved favorably to the state. State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984); State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). Only defendant's evidence which does not contradict and is not inconsistent with the state's evidence may be considered favorably to defendant if it explains or clarifies the state's evidence or rebuts inferences favorable to the state. State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983); State v. Bruton, 264 N.C. 488, ...