State v. Williams, 298A86
| Decision Date | 03 February 1987 |
| Docket Number | No. 298A86,298A86 |
| Citation | 319 N.C. 73,352 S.E.2d 428 |
| Parties | STATE of North Carolina v. Cornelius Earl WILLIAMS. |
| Court | North Carolina Supreme Court |
Lacy H. Thornburg, Atty. Gen. by Reginald L. Watkins, Sp. Deputy Atty. Gen., Raleigh, for the State.
J. Henry Banks and Arthur Dale Faulkner, Henderson, for defendant-appellant.
Defendant was convicted of first degree murder committed with premeditation and deliberation, and of robbery with a dangerous weapon. He was sentenced to life imprisonment on the murder conviction and to fourteen years imprisonment on the robbery conviction, the sentences to run consecutively. Evidence pertinent to the arguments presented is set forth infra. We find no error.
Defendant contends the court erred in refusing to allow him to participate as co-counsel at his trial. He was represented by three attorneys, two of whom were court-appointed.
In State v. Porter, 303 N.C. 680, 687-88, 281 S.E.2d 377, 383 (1981), this Court upheld the denial of a motion to participate as co-counsel where the defendant had elected to retain the services of his court-appointed attorney. There is no right in this jurisdiction to appear both in propria persona and by counsel. Id. This assignment of error is therefore overruled.
Defendant contends the court erred in refusing to grant his pretrial motions for change of venue. In the first motion defendant argued, inter alia, that a local newspaper had published numerous articles of an inflammatory nature about the robbery-murder. Emphasizing that the victim was white and he is black, defendant claimed that it would be particularly difficult to obtain a fair trial without a venue change because of Vance County's size, rural nature and racial bias. After considering the articles and arguments of counsel, the trial court determined that the articles were factual and non-inflammatory and concluded that no showing of prejudice had been made. The motion was therefore denied.
Defendant made a second motion after he moved to withdraw a guilty plea. As grounds for this motion, defendant noted that the trial court had announced to the jury that defendant intended to plead guilty. He also cited publicity surrounding his guilty plea.
This motion for change of venue was also denied. The court found that defendant had failed to establish that the publicity surrounding his plea change warranted a change of venue. The order further stated that jurors reporting to court on 4 February 1986 were "instructed not to listen to any radio broadcasts or to watch any television newscasts or to read any newspapers concerning [the] trial, and that all jurors other than those who were so instructed [had] been excused." The transcript also reveals that the court dismissed all jurors present when it announced that defendant intended to plead guilty, and that the jurors who sat on this case were not those who were present when the court made the announcement. 1
In a similar case, State v. Vereen, 312 N.C. 499, 324 S.E.2d 250, cert. denied, 471 U.S. 1094, 105 S.Ct. 2170, 85 L.Ed.2d 526 (1985), this Court upheld denial of a change of venue because the defendant failed to show, under the "totality of the circumstances," that a probability of prejudice existed so as to deny him due process. The motions in Vereen, as here, were based on publicity surrounding the trial and community bias. The defendant there, as here, was tried in Vance County for murder, and the articles complained of in both cases were published in the same newspaper.
In Vereen this Court reiterated the rule that "where a defendant shows only that publicity consists of factual, non-inflammatory news stories, ... denial of [a] motion for a change of venue is proper." Id. at 511-12, 324 S.E.2d at 259. We have reviewed the articles here, and we find no basis for disturbing the determination that their content was factual and non-inflammatory. Moreover, the court took steps to ensure a fair trial by instructing the jury pool to avoid publicity surrounding the trial and by dismissing all potential jurors present when it announced that defendant intended to plead guilty. Defendant has presented no evidence to support his argument that community bias prevented the selection of a fair and impartial jury. We therefore hold that, considering the "totality of the circumstances," defendant has failed to show that he was denied a fair and impartial jury by the denial of his motions for a change of venue.
Defendant contends the court erred in failing to instruct the jury to disregard portions of Officer J.M. Cordell's testimony in the following exchange with the district attorney:
Q. What did you observe about the body of the white male, Mr. Cordell, at the time that you observed and saw him?
A. The subject had been shot which appeared to be-- MR. BANKS: Objection.
Q. What injuries, if any, did you see and observe about the body?
Q. Did you observe his arm?
A. Yes, sir, I did.
Q. Either one or both of them?
A. Yes sir.
Q. Did you observe any defect about either arm?
A. Yes, sir, I did.
Q. What did you observe?
The record reveals that the court sustained these objections on the ground that the testimony was inadmissible opinion evidence.
A lay witness may testify in the form of an opinion if the opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C.G.S. 8C-1, Rule 701 (1986). The official commentary specifically states that nothing in this rule bars evidence that is commonly referred to as a "shorthand statement of fact." Id. (Official Commentary).
This Court has long held that a witness may state the "instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time." Such statements are usually referred to as shorthand statements of facts.
State v. Spaulding, 288 N.C. 397, 411, 219 S.E.2d 178, 187 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976) (quoting State v. Skeen, 182 N.C. 844, 845, 109 S.E. 71, 72 (1921).
The witness here was stating the "instantaneous conclusions of [his] mind as to the appearance [or] condition" of the victim, and we find the testimony admissible as a "shorthand statement of facts." Id. It thus would not have been error to admit the testimony, and it was not error to fail to instruct the jury to disregard it. Assuming error, arguendo, it was clearly harmless. N.C.G.S. 15A-1443(a) (1983).
Defendant contends the court erred in denying his motion to dismiss. We disagree.
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. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982); State v. Riddle, 300 N.C. 744, 268 S.E.2d 80 (1980). In evaluating the motion, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978).
State v. Young, 312 N.C. 669, 680, 325 S.E.2d 181, 188 (1985).
The elements necessary to constitute armed robbery under N.C.G.S. 14-87 are:
(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. Mull, 224 N.C. 574, 576, 31 S.E.2d 764, 765 (1944). Ownership of the property is generally immaterial as long as the proof is sufficient to establish ownership in someone other than the defendant. State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968).
State v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982).
N.C.G.S. 14-17 defines first-degree murder to include:
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....
This Court has said, with regard to premeditation and deliberation:
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. State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980). 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. State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982)....
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. State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975). 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...
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