State v. Woods, 229A82

• Decision Date: 07 December 1982
• Docket Number: No. 229A82,229A82
• Citation: 297 S.E.2d 574,307 N.C. 213
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Cleaster WOODS.

Page 574

297 S.E.2d 574

307 N.C. 213

STATE of North Carolina v. Cleaster WOODS.

No. 229A82.

Supreme Court of North Carolina.

Dec. 7, 1982.

Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

Reginald L. Frazier, New Bern, and Bowen C. Tatum, Jr., North Jacksonville, for defendant.

CARLTON, Justice.

I.

Defendant, Cleaster Woods, was indicted for the murder of her husband, Leinster Woods, and for conspiring with Danny Lee Nichols to kill Leinster Woods. At the guilt-innocence phase of the trial Nichols, the State's chief witness, testified as follows under a plea arrangement:

Nichols and defendant were lovers. About two weeks before defendant's husband was killed, defendant talked to Nichols about a life insurance policy which would pay $104,000 upon her husband's death. Nichols stated that defendant offered him a portion of the insurance proceeds--$10,000--to find someone who would "rig up" her husband's car so that he would be blown up. When Nichols was unable to find anyone to "rig up" the car, defendant suggested Nichols find a "hit man" who would shoot her husband while he was driving. Again, she offered Nichols $10,000 in life insurance proceeds for his help. When Nichols was unable to find a "hit man," defendant proposed a third plan. She asked Nichols to do the shooting himself. Her scheme, according to Nichols, was as follows:

After Leinster Woods had fastened all the locks on the door and gone to bed, defendant would unlock all the locks on the door except one so that it would be easier for Nichols to enter the house and kill defendant's husband. Nichols stated defendant then would "grab her kid and wait five or ten minutes after we get out of sight and then holler 'help, someone killed my husband.' "

In proposing this plan, defendant offered Nichols $30,000 in insurance proceeds and told Nichols' friend, Craig Davis, she would give him $5,000 if he would accompany Nichols when he carried out the plan.

Nichols and Davis went to defendant's home on Tuesday night, 25 August 1981. Nichols stated that while trying to find something with which to cut a screen, "the door slammed and the car took off." Nichols, not knowing who drove off in Leinster Woods' car, left the scene with Davis. Nichols returned to defendant's house early the next morning with Davis, waited beside the house, and shot defendant's husband when he walked out the front door to go to work. The State and defendant stipulated that Leinster Woods died on 26 August 1981 as a result of a gunshot wound through the head.

One witness testified that defendant had said that "sometimes that man [Leinster Woods] makes me so mad I could kill him." Another witness testified that on the day before Leinster Woods was shot defendant spoke about having had a fight with her husband and that Leinster Woods "was good as dead." She had remarked to one other witness that she would share the proceeds from a large insurance policy with him if he would kill her husband.

Defendant did not offer any evidence.

The jury found defendant guilty of both charges. A sentencing hearing was held and the jury found that the aggravating circumstance--that the murder was committed for monetary gain--outweighed the mitigating circumstances. However, it also found that the aggravating factor was not sufficiently substantial to call for imposition of the death penalty and recommended a sentence of life imprisonment. Defendant was sentenced as noted above.

II.

Defendant presents several issues in this appeal. We will discuss each briefly in turn.

A.

We address first defendant's contention that the evidence was not sufficient to support convictions of first-degree murder and conspiracy to commit murder, and, therefore, that the trial judge erred in submitting the case to the jury.

In determining whether the evidence is sufficient to go to the jury, the trial court is to ascertain whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the evidence is sufficient, as a matter of law, to go to the jury. State v. Earnhardt, 307 N.C. 62, ---, 296 S.E.2d 649, 651 (1982); State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980); State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The trial court is to determine whether the evidence allows a "reasonable inference" to be drawn as to the defendant's guilt. State v. Thomas, 296 N.C. 236, 244-45, 250 S.E.2d 204, 208-09 (1978).

In the case at bar, defendant was tried for first-degree murder. Although Nichols' testimony, as outlined above, indicates defendant solicited Nichols' assistance in carrying out the killing, defendant was not present when her husband was shot. Under these circumstances, a defendant is considered an accessory before the fact of murder, not a principal in the crime. The guilt and sentencing distinctions formerly made between an accessory before the fact and a principal in the felony have been abolished, however. G.S. 14-5.2 (1981). In responding to this Court's holding in State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980), which had recognized those distinctions, the General Assembly enacted G.S. 14-5.2 (1981). That statute provides: "Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony." After enacting the new statute, the legislature repealed G.S. 14-5, G.S. 14-5.1 and G.S. 14-6, the statutes which previously had applied to those charged as accessories before the fact of felony. ¹ The language of G.S. 14-5.2 indicates that the essential elements of the offense have not changed. The legislature merely abolished the difference in guilt and sentencing treatment between the principal to the felony and an accessory in repealing G.S. 14-5, G.S. 14-5.1 and G.S. 14-6 and replacing them with G.S. 14-5.2. Therefore, cases decided under the repealed statutes delineating the essential elements of accessory before the fact of felony are applicable to cases brought under the new statute. The elements of accessory before the fact of felony are: (1) that defendant counseled, procured or commanded the principal to commit the offense; (2) that defendant was not present when the principal committed the offense; and (3) that the principal committed the offense. State v. Sauls, 291 N.C. 253, 256-57, 230 S.E.2d 390, 392 (1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed.2d 226 (1977).

In this case, there was substantial evidence of each of the three elements. The State's chief witness, Danny Nichols, testified to the first element: Cleaster Woods, defendant, agreed to pay Nichols, the principal, $30,000 out of the insurance proceeds if Nichols would kill defendant's husband. The jury could reasonably infer the second element: defendant was not present when Nichols shot her husband because Nichols did not mention she was there. Finally, Nichols testified to the third element: he admitted he was the principal in this first-degree murder--the one who shot the victim after lying in wait for him. Therefore, defendant was not a principal. The State's evidence, thus, presents substantial evidence of each of the essential elements of accessory before the fact of murder. The trial court also is to determine whether there was substantial evidence of defendant's being the perpetrator of the offense. Nichols testified that he and defendant were lovers, and that she was the person who offered him a portion of the proceeds from the insurance policy if he killed her husband. In so doing Nichols presented sufficient evidence of defendant's identity as the perpetrator of the offense.

B.

We also find that the evidence of conspiracy to commit murder was sufficient to go to the jury. The essential elements of that crime are: (1) an agreement between two or more people; (2) to do an unlawful act, specifically, to murder another. See State v. Abernathy, 295 N.C. 147, 164, 244 S.E.2d 373, 384 (1978).

Abundant evidence of both elements of conspiracy to commit murder are found throughout the record. One example will suffice. On direct examination Nichols testified to the effect that he agreed with defendant that for $10,000 in insurance proceeds he would find a "hit man" to kill defendant's husband.

The trial court properly allowed the jury to consider defendant's guilt of both crimes.

C.

Defendant also contends that the trial court erred in failing to instruct the jury on the defense of abandonment of the criminal enterprise. Under Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, 303 N.C. 713, 716-17 (1981) (amending 287 N.C. 669, 699 (1975)), defendant may not assign this omission as error. The rule states that "[n]o party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection ...." The rule is applicable to all cases tried on or after 1 October 1981. Defendant's trial began on 30 November 1981. She is barred, therefore, from claiming this omission as error. Even if we were to assume that Rule 10(b)(2) did not apply, a close examination of the record does not disclose any evidence that defendant abandoned the enterprise.

D.

Defendant claims that her convictions are based on invalid indictments because G.S. 15A-626 (1978), the statute "placing restrictions on any independent powers the grand jury may possess," Official Commentary to G.S. 15A-626 (1978), is unconstitutional. In State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 269...