State v. Williams

• Decision Date: 28 November 1978
• Docket Number: No. 89,89
• Citation: 249 S.E.2d 709,295 N.C. 655
• Parties: STATE of North Carolina v. James Calvin WILLIAMS.
• Court: North Carolina Supreme Court

Page 709

249 S.E.2d 709

295 N.C. 655

STATE of North Carolina v. James Calvin WILLIAMS.

No. 89.

Supreme Court of North Carolina.

Nov. 28, 1978.

Rufus L. Edmisten, Atty. Gen. by Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the state.

Michael J. Blackford, Charlotte, for defendant.

EXUM, Justice.

The state's evidence tends to show that on 12 January 1977 defendant kidnapped Jessie King Harrison, Jr., and Marilyn Walters as they were leaving work around 6:40 p. m. in Charlotte. After taking them to a deserted place defendant robbed both victims at gunpoint, shot Harrison twice causing serious injury but not death, and raped Walters. The defense was alibi.

The most important question presented is whether it is permissible under our kidnapping statute, G.S. 14-39, ¹ to sentence this defendant for the rape of Walters, the felonious assault against Harrison and each of the armed robberies, while at the same time sentencing him to life imprisonment for the kidnappings of Walters and Harrison, without violating the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution, and the Law of the Land Clause of the North Carolina Constitution. We conclude that it is. Other questions raised are whether defendant's sentences are violative of the Cruel and Unusual Punishment Clause of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. We conclude they are not. Less significant questions, easily answered against defendant upon well-established legal principles, are whether defendant was denied a fair trial by remarks made by a privately employed prosecutor one during defendant's closing argument to the jury and another during the prosecutor's own summation.

I

Both kidnapping indictments charge that defendant kidnapped his victims for the "purpose of facilitating the commission of a felony, armed robbery." The Harrison indictment adds "and doing serious bodily harm to him." The Walters indictment adds "and rape and terrorizing her." ² One of the essential elements of kidnapping under G.S. 14-39 is that the confinement, restraint, or removal be for the purpose of, among other alternatives, "facilitating the commission of any felony." In accordance with this requirement, the trial judge instructed the jury in the Harrison kidnapping case that it must find, among other elements, a "purpose of facilitating commission of a robbery or doing serious bodily harm" and, in the Walters kidnapping case, a "purpose of facilitating the commission of a robbery or a rape."

Defendant argues that under the statute the armed robberies, the felonious assault and the rape were essential elements of the kidnapping charges. Relying on the principle that when a criminal offense in its entirety is an essential element of another offense a defendant may not be punished for both offenses, ³ he contends that he may not be punished for both the kidnapping offenses and the other offenses which constituted the purposes for the removals. This same argument was raised and rejected in State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977). In Dammons, the defendant was convicted of both felonious assault and kidnapping. He moved for an arrest of judgment on the assault charge, arguing that it was an essential element of the kidnapping. The Court found no error in the convictions and sentences for the two separate offenses, stating, Id. at 275, 237 S.E.2d at 842-843:

"In the kidnapping case the felonious assault was alleged in the indictment as being one of the purposes for which defendant removed the victim from one place to another. The felonious assault itself is, therefore, not an element of the kidnapping offense. It was not necessary for the state to prove the felonious assault in order to convict the defendant of kidnapping. It need only have proved that the Purpose of the removal was a felonious assault. The assault itself vis-a-vis the kidnapping charge is mere evidence probative of the defendant's purpose. The purpose proved would, without the assault itself, sustain conviction under the kidnapping statute but not under the assault statute. The felonious assault is, consequently, a separate and distinct offense. The fact that it was committed during the perpetration of a kidnapping does not deprive it of this character. State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966); See also State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971)."

Here the same considerations apply. The kidnapping indictments charge that defendant confined, restrained and removed his victims from one place to another for the purpose of facilitating the commission of robberies and other felonies. In order to prove kidnapping it was only necessary to prove a Purpose of robbery or the other felonies and not the commission of the felonies themselves. The principle relied on by defendant simply does not apply in this context.

Defendant's next argument has not yet been considered by this Court. ⁴ It arises from the allegations in the Harrison indictment that the "person kidnapped was seriously injured" and in the Walters indictment that the "person kidnapped was sexually assaulted." The trial judge instructed the jury that in order to convict defendant of "aggravated" kidnapping ⁵ of Harrison it must find, among other things, that Harrison "had been seriously injured." Similarly the trial judge instructed that in order to convict defendant of the "aggravated" kidnapping ⁶ of Walters it must find, among other things, that Walters "had been sexually assaulted." Defendant argues that the state by its allegations and the trial judge by his instructions have, in effect, made the felonious assault on Harrison and the rape of Walters an essential element of the kidnapping offense in which each, respectively, was the victim. Therefore, under the principles discussed above defendant contends that he cannot be sentenced separately for the rape of Walters and the felonious assault of Harrison and that judgment in these cases must be arrested if the sentences on the kidnapping convictions are to stand.

We recognize that infliction of serious injury may occur under circumstances not amounting to a felonious assault; ⁷ and, likewise, a "sexual assault" need not necessarily be a rape. ⁸ Nevertheless it seems clear that the serious injury referred to in the Harrison kidnapping and the sexual assault in the Walters kidnapping were in fact the same incidents upon which the sentences for the felonious assault and the rape convictions were, respectively, imposed. In State v. Midyette, supra, n. 3, 270 N.C. 229, 154 S.E.2d 66, two indictments were consolidated for trial. In Case No. 483 defendant was charged with assault with a deadly weapon upon one Robertson on 25 June 1966 by shooting him with a .22 caliber pistol with intent to kill inflicting serious injuries. In Case No. 484 defendant was charged with resisting a public officer, to wit, Robertson, in the discharge of his duty, namely, attempting to arrest the defendant, by firing at and hitting the officer with bullets from a .22 caliber pistol. Defendant was convicted and sentenced on both offenses. On appeal this Court held that judgment in the resisting arrest case, No. 484, must be arrested. The Court said, 270 N.C. at 233-34, 154 S.E.2d at 70:

"The defendant was convicted and sentenced in Pamlico County Case No. 483 for the crime of assault with a deadly weapon upon W. I. Robertson, on 25 June 1966, by shooting him with a .22 caliber pistol. He could not thereafter be lawfully indicted, convicted and sentenced a second time for that offense, or for any other offense of which it, in its entirety, is an essential element. State v. Birckhead, 256 N.C. 494, 497, 124 S.E.2d 838, 6 A.L.R.3rd 888.

"By the allegations it elects to make in an indictment, the State may make one offense an essential element of another, though it is not inherently so, as where an indictment for murder charges that the murder was committed in the perpetration of a robbery. In such case, a showing that the defendant has been previously convicted, or acquitted, of the robbery so charged will bar his prosecution under the murder indictment. State v. Bell, 205 N.C. 225, 171 S.E. 50.

"In the present instance, the State has, by the allegations in the indictment in Pamlico County Case No. 484, made the identical assault for which the defendant was convicted in Case No. 483, an element of the offense, resistance of a public officer, charged in the second indictment. It has alleged this same assault was the means by which the officer was resisted. Under this indictment, the State could not convict the defendant of resistance of a public officer in the performance of his duty without proving the defendant guilty of the exact offense for which he has been convicted and sentenced in Case No. 483, the shooting of W. I. Robertson with bullets from a .22 caliber pistol on 25 June 1966."

The state here included the "serious injury" arising out of the felonious assault and the "sexual assault" arising out of the rape as elements, respectively, of the Harrison and Walters kidnappings and the trial judge treated them as such. The question still remains whether they were necessary elements of kidnapping under G.S. 14-39(a). We recognize that this Court said in Midyette : "By the allegations it elects to make in an indictment, the State may make one offense an essential element of another, though it is not inherently so, as where an indictment for murder charges that the murder was committed in the perpetration of a robbery." This language does not mean, however, that every matter in an indictment is a necessary element of the crime merely because it is alleged to be so. Allegation of a matter which, in law, is not an element of the crime and not necessary to be proved may be treated as surplusage even if the state and the trial judge mistakenly believe the matter to be an essential...