State v. Thomas

• Decision Date: 07 December 1989
• Docket Number: No. 109A88,109A88
• Citation: 386 S.E.2d 555,325 N.C. 583
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Lillian Jane THOMAS.

Page 555

386 S.E.2d 555

325 N.C. 583

STATE of North Carolina v. Lillian Jane THOMAS.

No. 109A88.

Supreme Court of North Carolina.

Dec. 7, 1989.

Appeal by defendant pursuant to N.C.G.S. § 7A-27(a) from conviction and judgment entered thereon imposing a sentence of life imprisonment for the murder in the first degree of Vickie White Calhoun, Cornelius, J., presiding, at the 25 November 1987 Criminal Session of Superior Court, Forsyth County. Heard in the Supreme Court 15 February 1989.

Lacy H. Thornburg, Atty. Gen. by Barry S. McNeill, Asst. Atty. Gen., Raleigh, for the State.

Danny T. Ferguson, Winston-Salem, for defendant-appellant.

EXUM, Chief Justice.

Defendant was tried on a bill of indictment charging that defendant "unlawfully, willfully and feloniously and of malice aforethought did kill and murder Vickie White Calhoun." The case was prosecuted as a first degree felony murder on the theory that the murder of Vickie White Calhoun occurred during the perpetration of the felony of discharging a firearm into an occupied structure in violation of N.C.G.S. § 14-34.1. The jury was instructed that it could return verdicts of guilty of first degree felony murder or not guilty. Upon the return of a verdict of guilty the jury at a separate sentencing proceeding recommended, and the trial court imposed, a sentence of life imprisonment. The question presented is whether the trial court erred in failing to submit to the jury the alternative verdict of guilty of involuntary manslaughter. We conclude this was error entitling defendant to a new trial.

I

Evidence presented at trial tended to show that Vickie Calhoun and her husband lived in the northern part of Forsyth County at 1197 Tobaccoville Road, Rural Hall. On the night of 17 March 1987, she was standing in the living room of their house talking to her husband when a bullet came through the front window. The bullet struck Vickie Calhoun in the chest, pierced her heart and killed her.

Nine separate shooting incidents in northern Forsyth County during this evening were reported to the Forsyth County Sheriff's Department. The State's evidence tended to show as follows with regard to these shootings: Defendant and Jackie Ray Brewer engaged together in an hour-long shooting spree beginning at approximately 9 p.m. on 17 March 1987, during which defendant drove her 1972 four-door Plymouth Valiant around northern Forsyth County while Jackie Brewer was shooting a .22 caliber pistol from the front passenger's seat. Brewer fired between ten and fifteen shots, hitting a truck and four houses and killing Vickie Calhoun.

Defendant and Brewer met on the afternoon of 17 March when Brewer agreed to check the brakes on defendant's car. Brewer had a chrome-colored pistol with him, and had recently purchased a black .22 caliber revolver from a friend named Eddie White. White stated at trial that he, defendant and Brewer had a conversation on 17 March, during which White told Brewer the best place to buy ammunition was K-Mart. White testified that defendant offered to buy the ammunition because Brewer did not have a valid driver's license.

Donald Stout testified for the State pursuant to a written agreement. Stout had been arrested and charged with the murder of Vickie Calhoun at the end of March 1987, and was released on bail one month later. He was imprisoned again in late July after failing to make a court appearance, and he subsequently began to send messages from jail to the law enforcement officers investigating the murder. The agreement was that in return for Stout's testimony at defendant's and Brewer's trials, the State would release him from jail and dismiss the murder charge against him.

Stout testified that Brewer introduced defendant to him at the Dunkin' Donuts on Peters Creek Parkway in Winston-Salem on the evening of 17 March 1987. Defendant was there with her two small sons, and Brewer had his six-year-old son with him. Brewer, Stout and defendant decided to buy marijuana in Rural Hall and left Dunkin' Donuts between 8 and 8:30 p.m. Defendant drove. Brewer and his son sat in the front passenger's seat. Stout sat in the rear passenger seat with defendant's two children. Stout could not remember the route defendant took from the Mount Airy exit on Interstate 40 to where she purchased marijuana in Rural Hall. He did recall that defendant was within two miles of Tobaccoville Road, where the victim Vickie Calhoun lived, when she bought the marijuana. Defendant purchased three "joints," and she, Stout and Brewer smoked them as they drove around with the three children.

Stout further testified that shortly after they finished smoking the marijuana he heard a gun discharge and a bullet ricochet off a metal street sign. Stout stated that Brewer fired the shot. Brewer continued to shoot a pistol out of the window of defendant's car for approximately an hour. During this hour, Stout remembered Brewer firing ten to fifteen shots.

Stout testified that Jackie Brewer fired a handgun aimed at a truck, the Kye residence, the Calhoun residence, the Cain residence, and the McGee residence. Additionally, he testified that before Brewer shot at each residence defendant told Brewer: "Why don't you aim for the lights." Stout also remembered that Brewer fired his gun at a mobile home lot and into some stores. Stout could not remember the directions from which the car approached Brewer's targets, on which side of the street the houses shot at were located, or the order of the shootings. ¹

Defendant presented the following evidence in her defense: Brewer met her on 17 March and went to Kernersville to look at her car, a light blue four-door with vertical taillights, no interior dome light, and no third brake light in the rear window. Defendant then drove Brewer to his home in Winston-Salem, where Brewer introduced her to Eddie White. No conversation about buying bullets occurred. Defendant drove her sons and Brewer to the home of Tina and Barbara Pressley, friends who often babysat her children, to ask them to watch her sons. The Pressleys were not home. Defendant then drove Brewer to K-Mart, where Brewer purchased bullets. Defendant did not know Brewer had a gun with him.

Defendant next drove to the Dunkin' Donuts on Peters Creek Parkway in Winston-Salem, where Brewer went inside. He returned with his six-year-old son, Jonathan Martin, and Donald Stout, neither of whom defendant knew. Defendant and her five passengers then returned to the Pressley residence, again finding no one home. At Brewer's request, defendant drove to a residence in Winston-Salem where Brewer tried to sell a small, black .22 caliber revolver. Brewer returned to the car at approximately 9 p.m., when the three adults discussed buying marijuana. Thinking she could purchase marijuana in Kernersville, defendant drove there from Winston-Salem. The car was filled with cigarette smoke, and Brewer rolled down his window. Shortly thereafter, while on Highway 150 driving east toward Kernersville, defendant heard a gunshot. She then heard three or four more shots and the sound of a bullet hitting a road sign. Brewer was discharging a small black revolver out the car's window.

Until she heard the first gunshot, defendant did not know Brewer had a firearm in his possession. After Brewer fired these shots on Highway 150, she asked him to put the gun away, and he did.

After arriving at Spring Brook Apartments in Kernersville, the residence of William Broughton, ² defendant entered the building and bought three "joints" of marijuana. She proceeded to her own apartment and then drove to The Pantry, a store on Main Street in Kernersville a few blocks away. ³

Upon leaving The Pantry, defendant drove to her mother's home and back towards Winston-Salem on Linville Road. Near Salem Lake Brewer again discharged a handgun out the window, firing four or five times. Defendant told Brewer to put the gun up and not to use it again. Brewer never fired at houses but only at passing road signs and into woods. They arrived in Winston-Salem without further incident, and at 10:30 p.m. defendant dropped Donald Stout off at Dunkin' Donuts.

Additional testimony offered by defendant tended to show persons in one or more cars other than defendant's discharged firearms in the area of the Calhoun residence during the evening of 17 March 1987. The shootings began at 8:52 p.m. when a bullet was fired at the Shaffner residence and a front window of a nearby business on Reynolda Road, Highway 67, west of Tobaccoville. Eight minutes later Bobby Kye witnessed a compact-sized car with wraparound taillights and a rear-window brake light pull into his driveway on Ridge Road, a short distance northeast from the Shaffner residence. A bullet was fired into Kye's house, and he called the sheriff's department at 9:01 p.m. Shortly after this a truck traveling north on Highway 52 was fired upon from the Westinghouse Road overpass. The overpass is east of the Kye residence, toward Rural Hall. The truck driver saw a vehicle traveling east on Westinghouse Road stop on the overpass. Its dome light came on. Moments later a bullet ricocheted off the hood of the truck and into the windshield. This shooting was reported to the sheriff's office at 9:23 by another driver at a nearby truck stop.

Westinghouse Road merges with Tobaccoville Road east of the overpass toward Rural Hall. The shooting of Vickie Calhoun was reported to the sheriff's department at 9:11, after her husband summoned an ambulance. At 9:14 Lena Cain reported that a bullet was fired into her home. The Cains live about 250 yards east of the Calhoun residence along Tobaccoville Road. Two witnesses who were parked in the road heard a gun being fired; shortly after hearing a second shot, one witness watched a light-colored car drive past the parked cars. The witness could not see the driver and noticed only one other passenger, someone with shaggy hair in the front seat.

Tobaccoville Road...