State v. Gonzalez

316 S.E.2d 229, 311 N.C. 80, 1984 N.C. LEXIS 1714
CourtSupreme Court of North Carolina
DecidedJune 5, 1984
Docket325PA83
StatusPublished
Cited by27 cases

This text of 316 S.E.2d 229 (State v. Gonzalez) is published on Counsel Stack Legal Research, covering Supreme Court 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. Gonzalez, 316 S.E.2d 229, 311 N.C. 80, 1984 N.C. LEXIS 1714 (N.C. 1984).

Opinions

FRYE, Justice.

Defendant was charged in indictments, proper in form, with armed robbery, larceny of a firearm and carrying a concealed weapon, violations of G.S. 14-87, G.S. 14-72, and G.S. 14-269 respectively. Upon defendant’s plea of not guilty, his case was duly calendared for trial. Defendant’s case was consolidated for trial with the cases of codefendants, Oscar Garcia Gonzalez and Ervin Calvin Crawford, who also were charged with the armed robbery of the same store which defendant had been charged with robbing.1 A jury found defendant guilty of armed robbery and carrying a concealed weapon. Codefendant Gonzalez was convicted as charged. Codefendant Crawford was acquitted.

The trial court sentenced defendant to active terms of imprisonment of twenty years for the armed robbery conviction and six months for the conviction of carrying a concealed weapon. The sentences were to run consecutively. The Court of Appeals affirmed defendant’s convictions.2 This Court allowed defendant’s petition for discretionary review on 27 September 1983.

[83]*83Defendant seeks a new trial and reversal of the Court of Appeals’ decision affirming his convictions because of the allegedly erroneous and prejudicial admission of both codefendants’ extrajudicial statements during the trial of their consolidated cases. For the reasons stated in this opinion, we agree with defendant’s contention that one of his codefendant’s extrajudicial statement was erroneously admitted at trial. Therefore, we reverse the decision of the Court of Appeals and grant defendant a new trial.

On Sunday night, 22 November 1981, Steven Dunn was the attendant at the Sandhills Union 76 Service Station in Candor, North Carolina. At approximately 8:50 p.m., a masked man, carrying a blue barrel gun, entered the store. He was wearing a light blue toboggan which had been pulled down over his face. The toboggan did not have any holes in it, and the man appeared to be looking through the fabric of the toboggan. The masked man demanded that Mr. Dunn put the store’s money in a bag.

Shortly after the masked man entered the store, a regular customer of the store, Reverend William Turnmire, drove up to the gas pumps. The masked man became frightened and then ran and stooped down behind the counter where Mr. Dunn was standing. Mr. Dunn then gave the masked man the entire cash register drawer, which was later determined to have contained approximately $1,030.00.

As the masked man was running out of the back door of the store, he bumped into another man, who was wearing a toboggan pulled down over his face and a light blue leisure jacket. One of the two men said, “Let’s get out of here,” and they both ran from the service station. After both men had left the service station, Mr. Dunn and Reverend Turnmire observed a green Buick station wagon, which had been parked on a street beside the station, leaving the scene. Neither Mr. Dunn nor Reverend Turnmire could identify either of the masked men or the defendants.

Immediately after the masked men left the service station, Mr. Dunn discovered that his personal gun, a R.G. .38 Rohm pistol, which he had placed behind the counter at 3:00 p.m., was missing. He did not see anyone take the gun. He did remember that the gun had two bullets in it.

At approximately 9:45 p.m., a Biscoe police officer observed a green station wagon fitting the description of the vehicle involved [84]*84in the robbery. The officer pursued the vehicle which was later abandoned behind a house on a dead-end street. After the car disappeared behind the house, the pursuing officer heard a gunshot which came from the general direction of the car. After other police officers had arrived at the scene, a search of the then unoccupied car revealed a cash register drawer, some clothes, a certificate of title and a bill of sale showing that the car was owned by Oscar Gonzalez.

At about 3:30 a.m. on 23 November 1981, Mr. Gonzalez was stopped while driving a silver Thunderbird. It was subsequently determined that the Thunderbird was stolen and Mr. Gonzalez was arrested. A subsequent search of Mr. Gonzalez led to the discovery of a roll of bills, totalling $1,039.00.

Sometime before 8:00 a.m. on that same morning, Star Police Chief W. L. Batten drove to the Quick Chek in Star, after receiving a call from a local citizen reporting that he had dropped off a nervous acting man at the Quick Chek.3 Upon his arrival at the Quick Chek, Chief Batten talked to defendant Woods. Defendant Woods was wearing a blue leisure jacket. Chief Batten said Woods looked and acted “terribly nervous.” While patting down the defendant, Chief Batten discovered a blue steel .38 caliber R.G. pistol. Defendant was then placed under arrest. It was later determined that the gun contained one spent shell casing and one live bullet.

During the course of the trial, Mr. Dunn identified the gun taken from the possession of defendant Woods as being his gun, which he had placed under the store counter prior to the robbery. Additionally, the allegedly sanitized versions of the extrajudicial statements of codefendants Gonzalez and Crawford were admitted into evidence.

None of the defendants presented any evidence.

I.

Defendant first contends that there was insufficient evidence adduced at trial to permit him to be convicted of armed robbery. [85]*85Defendant argues that the evidence was insufficient to identify him as one of the perpetrators of the armed robbery. He also argues that the State’s evidence is only circumstantial with inferences built upon inferences. Therefore, the question presented by defendant’s assignment of error is whether the trial court erred in failing to dismiss the charge of armed robbery on the ground that the evidence was insufficient to support such a verdict.

This Court on numerous occasions has stated the principles that are applicable to a defendant’s motion to dismiss. State v. Lowery, 309 N.C. 763, 309 S.E. 2d 232 (1983); State v. Earnhardt, 307 N.C. 62, 296 S.E. 2d 649 (1982); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). In Lowery, this Court summarized the general principles as follows:

The question for the court in ruling upon defendant’s motion for dismissal is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense. If substantial evidence of both of the above has been presented at trial, the motion is properly denied. Powell, 299 N.C. at 98, 261 S.E. 2d at 117; See State v. Roseman, 279 N.C. 573, 580, 184 S.E. 2d 289, 294 (1971). In considering a motion to dismiss, the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. State v. Bright, 301 N.C. 243, 257, 271 S.E. 2d 368, 377 (1980). Contradictions and discrepancies in the evidence are strictly for the jury to decide. State v. Bolin, 281 N.C. 415, 424, 189 S.E. 2d 235, 241 (1972).
The trial court in considering a motion to dismiss is concerned only with the sufficiency of the evidence to carry the case to the jury; it is not concerned with the weight of the evidence. State v. McNeil, 280 N.C. 159, 162, 185 S.E. 2d 156, 157 (1971).

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Bluebook (online)
316 S.E.2d 229, 311 N.C. 80, 1984 N.C. LEXIS 1714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzalez-nc-1984.