State v. Westall

• Decision Date: 18 October 1994
• Docket Number: No. 9329SC1070,9329SC1070
• Citation: 116 N.C.App. 534,449 S.E.2d 24
• Parties: STATE of North Carolina v. Norris Lewis WESTALL.
• Court: North Carolina Court of Appeals

Page 24

449 S.E.2d 24

116 N.C.App. 534

STATE of North Carolina v. Norris Lewis WESTALL.

No. 9329SC1070.

Court of Appeals of North Carolina.

Oct. 18, 1994.

Attorney Gen. Michael F. Easley by Associate Atty. Gen. William McBlief, Raleigh, for the State.

C. Frank Goldsmith, Jr., Marion, for defendant-appellant.

MARTIN, Judge.

Defendant contends the trial court erred by submitting the charge of robbery with a dangerous weapon to the jury, in its rulings with respect to the admission of certain evidence, in its instructions to the jury, and by sentencing defendant to the maximum term of imprisonment allowed by law. We find no prejudicial error in defendant's trial.

I.

Defendant's first assignment of error results from his claim that the pellet gun used in the robbery cannot be considered a dangerous weapon. G.S. § 14-87(a) defines the offense of robbery with a dangerous weapon as the unlawful taking, or attempted taking, of personal property while "having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened." (Emphasis added.) Our Supreme Court has ruled that for a weapon to be considered dangerous under this statute, "the determinative question is whether the evidence was sufficient to support a jury finding that a person's life was in fact endangered or threatened." (Emphasis original.) State v. Alston, 305 N.C. 647, 650, 290 S.E.2d 614, 616 (1982). The rules for making the above determination were summarized in State v. Allen, 317 N.C. 119, 124-25, 343 S.E.2d 893, 897 (1986).

The rules are: (1) When a robbery is committed with what appeared to the victim to be a firearm or other dangerous weapon capable of endangering or threatening the life of the victim and there is no evidence to the contrary, there is a mandatory presumption that the weapon was as it appeared to the victim to be. (2) If there is some evidence that the implement used was not a firearm or other dangerous weapon which could have threatened or endangered the life of the victim, the mandatory presumption disappears leaving only a permissive inference, which permits but does not require the jury to infer that the instrument used was in fact a firearm or other dangerous weapon whereby the victim's life was endangered or threatened. (3) If all the evidence shows the instrument could not have been a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, the armed robbery charge should not be submitted to the jury.

Defendant contends that the armed robbery charge should not have been submitted to the jury because there was insufficient evidence that the pellet gun used during the robbery was actually capable of threatening or endangering Ms. Reel's life. We disagree.

We must look at the circumstances of use to determine whether an instrument is capable of threatening or endangering life. State v. Pettiford, 60 N.C.App. 92, 298 S.E.2d 389 (1982). In State v. Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978), the Supreme Court found a soda bottle to be a sufficiently deadly weapon for a jury to consider a charge of assault with a deadly weapon and noted that "where the instrument, according to the manner of its use or the part of the body at which the blow is aimed, may or may not be likely to produce such results, its allegedly deadly character is one of fact to be determined by the jury." (Emphasis added.) Id. at 64-65, 243 S.E.2d at 373. This same analysis may be used in determining whether an instrument is a dangerous weapon for armed robbery. State v. Rowland, 89 N.C.App. 372, 366 S.E.2d 550 (1988).

A pellet gun was found to be a deadly weapon per se in Pettiford, supra, where the defendant fired the pistol at close range in the victim's face. This caused a metal fragment to lodge in the victim's skull, leaving behind an entry wound and a large bruise. Despite the fact that the victim never lost consciousness, remained fully lucid, and suffered no impairment as a result of the injury, this Court found the use of the pellet gun constituted a deadly weapon per se to uphold the assault with a deadly weapon conviction.

In State v. Alston, supra, an accomplice admitted on direct examination that the gun he used was a pellet rifle, while on cross-examination, he called it a BB rifle. Our Supreme Court distinguished the weapons by concluding that the evidence the rifle was a Remington pellet gun was sufficient to support a jury finding that the [l]ives of the victims here in fact were endangered or threatened by his possession, use or threatened use of the rifle. The testimony ..., on the other hand, that the rifle was a BB rifle constituted affirmative evidence to the contrary and indicated that the victims' lives were not endangered or threatened in fact by his possession, use or threatened use of the rifle.

Alston, 305 N.C. at 650-51, 290 S.E.2d at 616. The Supreme Court found this evidence created only a permissive inference, allowing the jury to decide whether the instrument threatened or endangered life, and thus, required the instruction on the lesser included offense of common law robbery should the jury reject the inference of the gun's dangerous properties.

Defendant relies upon State v. Summey, 109 N.C.App. 518, 428 S.E.2d 245 (1993) to support his position that pellet guns, as a matter of law, are not dangerous weapons. His reliance on Summey is misplaced. In Summey, we simply reiterated the principle that contrary evidence as to the dangerous properties of weapons used in a robbery requires that the jury be instructed as to the question of a defendant's guilt of common law robbery in addition to robbery with a dangerous weapon. We expressly disavow any interpretation of our opinion in Summey as standing for the proposition that a pellet gun is not, as a matter of law, a dangerous weapon. We continue to follow prior holdings, specifically those set forth in Alston and Pettiford, supra, that a pellet gun may be a dangerous weapon per se, or at a minimum, that such a determination must be made upon a consideration of the instrument's use.

Defendant placed the pellet gun into the clerk's back, pointed directly at her kidney. Taken in the light most favorable to the State, the evidence showed the projectile from such a pistol was capable of totally penetrating a quarter-inch of plywood, and, thus, very likely would have resulted in a life-threatening injury to Ms. Reel had defendant fired the weapon. From the manner in which the pellet gun was used, there was clearly sufficient evidence to permit the jury to decide whether defendant committed robbery with a dangerous weapon or the lesser included offense of common law robbery.

By a separate assignment of error, defendant further contends that the jury instructions defining "dangerous weapon" were confusing, contradictory, and erroneous. We disagree. The instructions defining "dangerous weapon" were discussed in the jury instruction conference, and the court's offer to give the defendant's requested instruction as to the definition of a dangerous weapon immediately following that contained in the pattern jury instruction was agreed to by defendant's counsel.

The trial court instructed the jury, as suggested in NCPI Crim. 217.30, that "[a] dangerous weapon is a weapon which is likely to cause [sic] or serious bodily harm" and that serious bodily injury "is one which causes great pain and suffering." Although the court apparently omitted the word "death" through inadvertence, the instruction was not error. The use of a dangerous weapon need not result in death, but the instrument itself must merely be capable of taking life in the manner that it was used. Instructing the jury that a weapon is dangerous when it is likely to cause death or serious bodily injury does not lower the standard for determining what is a dangerous weapon, as any instrument capable of causing serious bodily injury could also cause death depending on its use. See Joyner, supra. In our view, serious bodily injury is synonymous with endangering or threatening life. Thus, the trial court's instruction as to the definition of serious bodily injury was appropriate to aid the jury in determining if the instrument was likely to cause death or serious bodily injury, and, therefore, to endanger or threaten life.

Moreover, the instruction requested by defendant and given by the trial court repeated three times the explicit requirement that a weapon must in fact be capable of threatening or endangering life in order to be a dangerous weapon, further assuring us that there could have been no doubt in any juror's mind that the pellet gun used by defendant was dangerous only if it threatened or endangered the victim's life. These assignments of error are overruled.

II.

By his next assignment of error, defendant asserts that the trial court erred in allowing Detective Robert Smith to state his opinion with respect to the force of the pellet gun and the damage which could be caused by a projectile fired from it. We find no error in the trial court's decision to allow the testimony.

Defendant first argues that the testimony of Detective Smith should have been excluded since the witness was never qualified as an expert. This is not the rule in North Carolina. Our Supreme Court commented on this issue in State v. Aguallo, 322 N.C. 818, 821, 370 S.E.2d 676, 677 (1988).

In considering this assignment of error, we find instructive this Court's decision in State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). There, the defendant objected to the trial judge's decision to allow into evidence the testimony of two SBI agents. One agent gave his opinion as to whether the washing of one's hands would destroy any possibility of a valid gun residue test, and a second agent explained the differences between a latent lift and a fingerprint. Neither of the agents had been formally...