State v. Pope

468 S.E.2d 552, 122 N.C. App. 89, 1996 N.C. App. LEXIS 200
CourtCourt of Appeals of North Carolina
DecidedMarch 19, 1996
DocketNo. COA95-265
StatusPublished
Cited by2 cases

This text of 468 S.E.2d 552 (State v. Pope) 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. Pope, 468 S.E.2d 552, 122 N.C. App. 89, 1996 N.C. App. LEXIS 200 (N.C. Ct. App. 1996).

Opinion

LEWIS, Judge.

Defendant appeals his second degree murder conviction and fifty year sentence.

At 9:38 a.m. on 15 September 1992, a person identifying himself as “Boss Man Pope” called the Hertford County Sheriffs Department. When the dispatcher answered, the caller said “y’all better come and get this girl out of my house before I kill her.” The caller gave his phone number and address. He then told the dispatcher that “Tonette” came to his house “to get the child” and that “he was not going to let her take him.” The dispatcher told the caller that she would send a deputy to the house to take care of his complaint. The dispatcher later called the number he had given her and recognized the voice as the man who had called previously. At trial, defendant’s wife confirmed that this number was that of the house where she and defendant lived.

[91]*91“Tonette Watford” is the daughter of defendant’s wife, Mrs. Pope, and the mother of a child who had been living with the Popes since he was two months old. Deputy Paul Futrell drove Ms. Watford to defendant’s home about 1:00 p.m. on 16 September 1992. He had been dispatched by the sheriff’s office at Ms. Watford’s request with the concurrence of DSS to take the child away from the Pope residence.

Having entered the home without a breach of the peace and having returned to his patrol car with the child and Ms. Watford, Deputy Futrell was confronted by defendant who pointed a gun at him. Defendant then shot Deputy Futrell who died at the scene. Testimony conflicted but the jury found defendant guilty of second degree murder. Judge Griffin found as the one aggravating factor, that the offense was against a law enforcement officer, in uniform, while in the performance of his employment. This factor he found outweighed the six mitigating factors.

In his brief, defendant presents arguments only on assignments of error numbers 6, 28, 34, and 36. His other assignments of error are deemed abandoned. N.C.R. App. P. 28(a) (1996). In assignments of error numbers 34 and 36, defendant asserts, inter alia, that the trial court violated defendant’s constitutional rights in sentencing defendant based on its finding of an aggravating factor. Since defendant presents no argument on this issue in his brief, we deem it abandoned. N.C.R. App. P. 28(a) (1996).

In assignments of error numbers 34 and 36, defendant also asserts that the evidence does not support the trial court’s finding, as an aggravating factor at sentencing, that the “offense was committed against a law enforcement officer who was in uniform while in the performance of his employment.” Defendant contends that Deputy Futrell was not on an authorized mission and that he was acting beyond his statutory authority. We conclude that he was carrying out his duty as a peace officer and therefore well within his common law authority.

N.C. Gen. Stat. section 15A-1340.4(a)(l) (1988) sets out aggravating factors that must be considered, in certain circumstances, by the trial court at sentencing. Factor (l)(e) may be found based on a preponderance of the evidence when

the offense was committed against a present or former law enforcement officer, employee of the Department of Correction, jailer, fireman, emergency medical technician, ambulance atten[92]*92dant, justice or judge, clerk or assistant or deputy clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of his official duties or because of the exercise of his official duties.

N.C.G.S. § 15A-1340.4(a)(1)(e) (1988) (emphasis added). A nearly identical aggravating factor is available in N.C. Gen. Stat. section 15A-2000(e)(8) for determining whether a defendant may or may not be tried capitally. See N.C.G.S. § 15A-2000(e)(8) (1988).

Our Supreme Court’s construction of the aggravating factor set out in N.C.G.S. section 15A-2000(e)(8) is instructive here. In State v. Gaines, the Court held that this aggravating factor may be applied to the murder of a law enforcement officer who was engaged in secondary employment at the time of the murder. State v. Gaines, 332 N.C. 461, 465, 421 S.E.2d 569, 570 (1992), cert. denied, 507 U.S. 1038, 123 L. Ed. 2d 486 (1993). Citing previous holdings, the Gaines court stated that the aggravating factor in N.C.G.S. section 15A-2000(e)(8) may be found when an “on-duty” or on-shift law enforcement officer in uniform is murdered during the performance of his employment. Id. at 470, 421 S.E.2d at 573.

Here, the trial court tracked this statement by the Gaines court in finding, under N.C.G.S. section 15A-1340.4, that “the offense was committed on a law enforcement officer, who was in uniform, while in the performance of his employment.” In tracking the Gaines language, the court used the phrase “performance of his employment” rather than the statutory phrase “in the performance of his official duties.” Neither the State nor defendant contends that the court’s re-wording of this statutory aggravating factor changed the essence of its finding. Thus, for purposes of this appeal only, we analyze the finding made by the court as a finding, under N.C.G.S. section 15A-1340.4(a)(l)(e), that the “offense was committed against a . . . law enforcement officer . . . while engaged in the performance of his official duties or because of the exercise of his official duties.”

Defendant asserts that Deputy Futrell was not engaged in the performance of his official duties when he was shot. We disagree.

A deputy sheriff acts in the performance of his official duties when he exercises his common law duty to be a peace officer. Contrary to defendant’s assertions, the duties of sheriffs and their deputies are not limited to those duties expressly set out by statute. N.C. Gen. Stat. § 4-1 provides as follows:

[93]*93All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.

N.C.G.S. § 4-1 (1986) (emphasis added). Under the common law, sheriffs are recognized as peace officers. Wilson v. Mooresville, 222 N.C. 283, 287, 22 S.E.2d 907, 911 (1942). As a peace officer, a sheriff or deputy sheriff has a duty to conserve the peace in his county and to use whatever force is necessary to preserve and prevent breaches of the peace. 80 C.J.S. Sheriffs and Constables § 42(a) (1953).

The record shows that defendant called the sheriffs department on the day preceding the offense and threatened to kill Ms. Watford if someone did not come and get her. In accompanying Ms. Watford the next day, Deputy Futrell was acting as a peace officer to protect her and the child. He was certainly acting as a peace officer when, after defendant .aimed his rifle towards him, Deputy Futrell pointed his gun at defendant and asked defendant to put the gun down.

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Related

State v. Carter
711 S.E.2d 515 (Court of Appeals of North Carolina, 2011)
Pope v. Freeman
Fourth Circuit, 1997

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Bluebook (online)
468 S.E.2d 552, 122 N.C. App. 89, 1996 N.C. App. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pope-ncctapp-1996.