State v. Bush

338 S.E.2d 590
CourtCourt of Appeals of North Carolina
DecidedJanuary 21, 1986
Docket856SC712
StatusPublished
Cited by10 cases

This text of 338 S.E.2d 590 (State v. Bush) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bush, 338 S.E.2d 590 (N.C. Ct. App. 1986).

Opinion

338 S.E.2d 590 (1986)

STATE of North Carolina
v.
Terrence Jose BUSH.

No. 856SC712.

Court of Appeals of North Carolina.

January 21, 1986.

*591 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. David R. Minges, Raleigh, for the State.

Taylor & McLean by Donnie R. Taylor, Ahasbie, for defendant-appellant.

WHICHARD, Judge.

Defendant contends the court erred in denying his motions to dismiss the armed robbery charge for insufficiency of the evidence and in instructing the jury on that offense. He relies primarily on State v. Holland, 234 N.C. 354, 67 S.E.2d 272 (1951).

The test applied in Holland was that the evidence "`must be of such a nature and so connected or related as to point unerringly to the defendant's guilt and to exclude any other reasonable hypothesis.'" Holland at 359, 67 S.E.2d at 275, quoting State v. Harvey, 228 N.C. 62, 64, 44 S.E.2d 472, 474 (1947). That test no longer applies. See State v. James, 77 N.C.App. 219, 220-21, 334 S.E.2d 452, 453 (1985). The proper test is whether there is substantial evidence of all material elements of the offense. Id. "If the evidence ... gives rise to a reasonable inference of guilt, it is for ... the jury to decide whether the facts shown satisfy them beyond a reasonable doubt of defendant's guilt." State v. Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981).

The evidence, in pertinent part, showed that:

Defendant had not worked for a period of time as to which the evidence conflicted. On the day before the crimes occurred he borrowed $10.00 from his uncle to buy gas, and on the day the crimes occurred he asked the uncle for additional money.

On the evening when the crimes occurred defendant's mother had between $100.00 and $200.00 in her pocketbook. Defendant entered his mother's bedroom and pulled a hatchet from beneath his coat. He held the hatchet by its end as he asked his mother how much money she had and where it was. His mother was then hit on the head. *592 Her next memory was of being in the hospital.

The next morning defendant's uncle observed the mother's pocketbook on the floor of her bedroom. The pocketbook was open; checks and coins lay on the floor. When an investigating officer observed the pocketbook it contained no money. On the day following the crimes defendant had money in his possession.

We hold that the foregoing constituted substantial evidence from which the jury could reasonably infer that defendant committed the robbery. The court thus did not err in denying the motions to dismiss and in instructing on the robbery offense.

The court allowed the State, over objection, to have a hatchet marked as an exhibit and displayed to the jury during interrogation of the State's witnesses. Defendant argues that the witnesses could only testify that this hatchet "looked similar" to or "look[ed] the same" as the one used in perpetrating the crimes, and that since no evidence connected the particular hatchet to the crimes it had no logical relevance and the court should not have allowed the witnesses to testify regarding it.

The evidence showed that defendant lived with his grandmother, that the hatchet was one the grandmother kept at her home, and that defendant had previously used it. Defendant thus had access to the particular hatchet, and it was at least the same as or similar to the one used in perpetrating the crimes. This evidence sufficed to establish a relevant connection between the hatchet and the crimes. See State v. Andrews, 56 N.C.App. 91, 95, 286 S.E.2d 850, 853, disc. rev. denied and appeal dismissed, 305 N.C. 587, 292 S.E.2d 7 (1982); State v. White, 48 N.C.App. 589, 593, 269 S.E.2d 323, 325 (1980); State v. Morehead, 16 N.C.App. 181, 183, 191 S.E.2d 440, 442 (1972).

Assuming error, arguendo, we hold it nonprejudicial. There was substantial evidence that defendant used a hatchet to commit the crimes, and the hatchet displayed merely illustrated the type of weapon used. There is no reasonable possibility that the jury would have reached a different result absent display of this exhibit. See N.C.Gen.Stat. 15A-1443(a). We thus find this contention without merit.

Defendant contends the court erred in denying his request for "an instruction on ... identification." The court stated, as one reason for its denial, that the request was not in writing. See N.C.Gen.Stat. 1-181. Moreover, the evidence presented no question as to whether the victim accurately identified the perpetrator. The victim's identification testimony was not equivocal. The defense presented was not mistaken identification but alibi, i.e., that defendant was somewhere else when the crimes occurred. The court thus could "declare and explain the law arising on the evidence," N.C.Gen.Stat. 15A-1232, without instructing on identification. It did instruct on the alibi defense. This contention is without merit.

Defendant contends the court erred by instructing on motive. He argues that evidence that he attempted to borrow money prior to the crimes is "too speculative to be of any probative value and did not justify... [the] charge."

The evidence that defendant attempted to borrow money on the day before and the day of the crime was relevant to show his need for funds. State v. Romero, 56 N.C.App. 48, 54, 286 S.E.2d 903, 907, disc. rev. denied, 306 N.C. 391, 294 S.E.2d 218 (1982); see 1 H. Brandis, North Carolina Evidence Sec. 83 at 304-06. Since the evidence was properly admitted, it was proper for the court to instruct thereon in explaining the law arising on the evidence. N.C.Gen.Stat. 15A-1232.

Defendant contends the court erred in denying his motion for an independent psychiatric examination. He argues that the examination was necessary to aid in determining whether to pursue an insanity defense at trial and whether to seek a finding of a mitigating factor based on mental condition at sentencing.

*593 There is no violation of an indigent defendant's constitutional rights to due process and equal protection by the trial court's refusal to appoint an additional psychiatric expert where the State has provided competent psychiatric assistance. State v. Barranco, 73 N.C.App. 502, 506, 326 S.E.2d 903, 907 (1985), citing State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980), and State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed.2d 1211 (1976). In denying the motion the court found, without objection or exception, that defendant, on his motion, had received a psychiatric evaluation at Dorothea Dix Hospital. The record does not contain a report of that evaluation. Thus, so far as the record reveals the State has provided defendant with competent psychiatric assistance, and we have no basis for finding a violation of his constitutional rights.

Defendant's constitutional argument is based in part on Ake v. Oklahoma, 470 U.S. ___, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The holding of Ake

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Bluebook (online)
338 S.E.2d 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bush-ncctapp-1986.