State v. Whitaker

• Decision Date: 03 November 1982
• Docket Number: No. 105PA82,105PA82
• Citation: 296 S.E.2d 273,307 N.C. 115
• Parties: STATE of North Carolina v. Stanley Curtis WHITAKER.
• Court: North Carolina Supreme Court

Page 273

296 S.E.2d 273

307 N.C. 115

STATE of North Carolina v. Stanley Curtis WHITAKER.

No. 105PA82.

Supreme Court of North Carolina.

Nov. 3, 1982.

Before Judge Samuel E. Britt and a jury at the 2 March 1981 Session of Wake Superior Court, defendant was convicted of attempted common law robbery. He was sentenced to a maximum term of three years' imprisonment as a committed youthful offender. The Court of Appeals ordered a new trial in an opinion written by Judge Whichard and joined by Judges Clark and Becton. 55 N.C.App. 666, 286 S.E.2d 640 (1982). This Court granted the state's petition for discretionary review under G.S. 7A-31(a) on 4 May 1982.

Rufus L. Edmisten, Atty. Gen. by Richard L. Kucharski, Asst. Atty. Gen., Raleigh, for the plaintiff-appellant.

Adam Stein, Appellate Defender by Malcolm R. Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant-appellee.

EXUM, Justice.

The sole question in this appeal is whether the trial court erred in failing to submit to the jury the crime of assault as a lesser included offense of attempted common law robbery. The Court of Appeals believed it did and ordered a new trial. We conclude that even if an assault is a lesser included offense of attempted common law robbery, a point we do not decide, the evidence does not justify submission of it to the jury. We reverse.

Defendant was tried on two indictments. One charged him with kidnapping Jo Ellen Inman by removing her from one place to another for the purpose of facilitating the commission of the felony of armed robbery. The other charged him with attempted armed robbery of Ms. Inman.

The state's evidence at trial tended to show the following:

The principal witness for the state was Jo Ellen Inman, the victim. She testified that on 20 September 1980 she went to a friend's apartment near North Carolina State University in Raleigh about midnight. She knocked on the apartment door but there was no answer. There was a light above the door and a street lamp to the side of the apartment. While she waited for her friend to answer, she saw a young black man walking along the sidewalk. She asked the man if he knew if anyone was at home; he responded, "Hunh?"

Suddenly the man jumped toward her, grabbed her around the waist, and shoved a "hard object" into her rib cage. He told her, "[T]his is a stick up," and not to say anything or fight. She held up her car keys and told him that was all she had. The man did not take the keys; instead, he told her they were going down to the bushes. He began pulling her down the steps but she held onto the rail and pushed against him. Before they got to the bushes she kicked him in the thigh, causing him to jump back and loosen his grip. She began screaming and he reacted by backing away. He then hit her in the face and "took off running."

Ms. Inman did not believe the object with which the man threatened her was a knife, although he told her it was. He pressed it against her so hard that she believed if it had actually been a knife it would have cut through her clothing into her body. Instead, it left a bruise about one-and-one-half inches long by one-half inch wide. She also suffered swelling of the forehead and a black eye from the blow to her head.

A neighbor who heard her screams came out to check on her. He did not see her attacker but called police officers and relayed a description of the attacker and Ms. Inman's statement that a man tried to rape her. She identified defendant as her attacker less than an hour later at a "show up" in a restaurant parking lot. She also made a voice identification at the police station a short time later.

Defendant testified in his defense, offering evidence of an alibi.

In the robbery case Judge Britt submitted to the jury only the offense of attempted common law robbery, instructing the jury that it could find defendant guilty of that offense or not guilty. Judge Britt submitted the kidnapping case to the jury on the theory as charged that the removal of the victim was for the purpose "of facilitating his [defendant's] commission of common law robbery," instructing the jury that it could find defendant guilty of that offense or not guilty.

The jury returned verdicts of guilty of attempted common law robbery and not guilty of kidnapping.

Defendant contends, and the Court of Appeals agreed, that Judge Britt erred in the robbery case by not instructing the jury on the offense of assault. Defendant and the Court of Appeals reason as follows: Attempted common law robbery consists of (1) defendant's specific intent to commit the crime of common law robbery, and (2) a direct but ineffectual act by defendant leading toward the commission of this crime. See State v. Bailey, 4 N.C.App. 407, 167 S.E.2d 24 (1969) (citing State v. Surles, 230 N.C. 272, 52 S.E.2d 880 (1949) (defining elements of attempt), and State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410 (1948) (defining elements of common law robbery)). Assault is a lesser included offense of attempted robbery. State...