State v. Freeman

333 S.E.2d 743, 314 N.C. 432, 1985 N.C. LEXIS 2003
Supreme Court of North Carolina·Decided September 5, 1985·No. 695A84·Published·Cited by 83 cases

Opinions

MITCHELL, Justice.

The defendant brings forward assignments of error in which he contends that the indictment for first degree kidnapping is fatally defective and that the trial court erred in denying him the right to exercise a peremptory challenge. We conclude that the indictment for kidnapping is not defective. The trial court’s error in denying the defendant the use of his remaining peremptory challenge, however, entitles him to a new trial.

The State presented evidence which tended to show that on the evening of March 24, 1984, the victim returned to High Point from a vacation. As she was unpacking her car, a man identified at the trial as the defendant, approached her. He pointed a gun at the victim’s head and ordered her to come with him or he would kill her. The defendant took the victim to an abandoned house near her apartment complex. The defendant forced the victim to disrobe. He then placed a knife to her throat and forced her to engage in sexual intercourse. He also forced her to perform fellatio.

Subsequently the defendant forced the victim to accompany him to her apartment to search for a twenty-four hour bank card. [434] The card was soon located, and the defendant ordered the victim to drive him to a local shopping center where a twenty-four hour bank machine was located. The victim was forced at gunpoint to withdraw one hundred dollars and to turn it over to the defendant.

After returning to the apartment the defendant discovered that the victim was employed by a pizza restaurant. He then forced her to drive him to the restaurant in order to get money. When they arrived the restaurant was occupied, and the defendant instructed the victim to drive back to the apartment. He then released her. She called the police and subsequently gave a statement including a full description of her assailant. She also discovered that a gold bracelet and a gold necklace were missing from her jewelry box. The defendant was apprehended two days later at the High Point Bus Station.

The defendant testified that he met the victim at a bar on the night of March 24 and bought some illicit drugs from her. He further testified that he took some LSD later that evening and began hallucinating. He denied committing any of the alleged crimes.

At the close of all the evidence the defendant moved to dismiss the charges against him. The motion was denied and the case was submitted to the jury.

The defendant first assigns as error the trial court’s denial of his motion to quash the indictment for first degree kidnapping on the ground that it was fatally defective. The indictment alleges that:

The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did kidnap [the victim], a person over the age of sixteen (16) years of age, by unlawfully confining, restraining, or removing her from one place to another without her consent, for the purpose of committing a felony: Rape or Robbery; said victim having been sexually assaulted.

The defendant argues that the phrase “rape or robbery” is an allegation in the alternative or disjunctive and in this case ren[435] ders the kidnapping indictment fatally defective. We do not agree.

N.C.G.S. 15A-924(a)(5) provides in pertinent part that an indictment or other criminal pleading must contain:

A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant’s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.

This provision incorporates the view expressed in prior holdings of this Court that an indictment must allege all of the essential elements of the offense charged. E.g., State v. Riera, 276 N.C. 361, 172 S.E. 2d 535 (1970); State v. Gallimore, 272 N.C. 528, 158 S.E. 2d 505 (1968); State v. Barnes, 253 N.C. 711, 117 S.E. 2d 849 (1961). It also incorporates our long held view that the purposes of an indictment include giving a defendant notice of the charge against him so that he may prepare his defense and be in a position to plead prior jeopardy if he is again brought to trial for the same offense. E.g., State v. Burton, 243 N.C. 277, 90 S.E. 2d 390 (1955); State v. Greer, 238 N.C. 325, 77 S.E. 2d 917 (1953).

The indictment in question complies with N.C.G.S. 15A-924 (a)(5). An essential element of kidnapping under N.C.G.S. 14-39 (a)(2) is that the confinement, restraint or removal be for the purpose of facilitating the commission of any felony or facilitating escape following the commission of a felony. The requirements of N.C.G.S. 15A-924(a)(5) are met for purposes of alleging this element by the allegation in the indictment that the confinement, restraint, or removal was carried out for the purpose of facilitating “a felony” or escape following “a felony.” The allegations in the indictment adequately notify the defendant that he is charged with the crime of kidnapping. It is not required that the indictment specify the felony referred to in N.C.G.S. 14-39(a)(2).

The indictment in the present case alleges that the defendant kidnapped the victim “by unlawfully confining, restraining, or removing her from one place to another without her consent for the purpose of committing a felony .... (Emphasis added.) Therefore, the indictment charges the offense in the language of [436] the statute and is sufficient. See State v. Jerrett, 309 N.C. 239, 307 S.E. 2d 339 (1983). All of the elements of the crime of kidnapping are clearly alleged in the indictment. The additional “Rape or Robbery” language in the indictment is mere harmless surplus-age and may properly be disregarded in passing upon its validity. State v. Moore, 284 N.C. 485, 202 S.E. 2d 169 (1974).

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State v. Freeman, 333 S.E.2d 743, 314 N.C. 432, 1985 N.C. LEXIS 2003 (N.C. 1985).

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