State v. Stocks

355 S.E.2d 492, 319 N.C. 437, 1987 N.C. LEXIS 2025
CourtSupreme Court of North Carolina
DecidedMay 5, 1987
Docket543A86
StatusPublished
Cited by39 cases

This text of 355 S.E.2d 492 (State v. Stocks) 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. Stocks, 355 S.E.2d 492, 319 N.C. 437, 1987 N.C. LEXIS 2025 (N.C. 1987).

Opinions

WHICHARD, Justice.

Defendant was convicted of first degree murder and sentenced to life imprisonment. Evidence pertinent to the arguments presented is set forth infra. We find no error.

Defendant contends the trial court erred in failing to dismiss the first degree murder charge, at the close of the State’s evidence and all of the evidence, for insufficient evidence of premeditation and deliberation. A motion to dismiss for insufficiency of the evidence is tantamount to a motion for nonsuit under N.C.G.S. 15-173. State v. Greer, 308 N.C. 515, 519, 302 S.E. 2d 774, 777 (1983). Under N.C.G.S. 15-173, a defendant who introduces evidence waives any motion for dismissal or nonsuit made prior to the introduction of his evidence and cannot urge the prior motion as ground for appeal. N.C.G.S. 15-173 (1983); State v. Bruce, 315 N.C. 273, 280, 337 S.E. 2d 510, 515 (1985); see also N.C.R. App. P. 10(b)(3). Because defendant offered evidence following denial of his motion to dismiss at the close of the State’s evidence, the denial of that motion is not properly before us for review. Id.

[439]*439Defendant did not renew the motion to dismiss at the close of all the evidence. N.C.G.S. 15A-1446(d)(5) provides that errors based upon insufficiency of the evidence may be the subject of appellate review even though no objection, exception or motion has been made in the trial division. N.C.R. App. P. 10(b)(3), however, provides that a defendant “may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial.” To the extent that N.C.G.S. 15A-1446(d)(5) is inconsistent with N.C.R. App. P. 10(b)(3), the statute must fail. State v. Bennett, 308 N.C. 530, 535, 302 S.E. 2d 786, 790 (1983); State v. Elam, 302 N.C. 157, 160-61, 273 S.E. 2d 661, 664 (1981). While we thus are not compelled to do so, we have nevertheless reviewed the evidence in our discretion, State v. Fikes, 270 N.C. 780, 781, 155 S.E. 2d 277, 278 (1967), and we conclude that it sufficed to take the case to the jury.

On a motion to dismiss the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it. State v. Williams, 319 N.C. 73, 79, 352 S.E. 2d 428, 432 (1987) (quoting State v. Young, 312 N.C. 669, 680, 325 S.E. 2d 181, 188 (1985)). If there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied. Id.

This Court has said, with regard to premeditation and deliberation:

Premeditation means that the act was thought out beforehand for some length of time, however short .... State v. Myers, 299 N.C. 671, 263 S.E. 2d 768 (1980). Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982). . . .
Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circum[440]*440stantial evidence. State v. Buchanan, 287 N.C. 408, 215 S.E. 2d 80 (1975). Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. [Citations omitted.] We have also held that the nature and number of the victim’s wounds is a circumstance from which premeditation and deliberation can be inferred.

State v. Williams, 319 N.C. at 80, 352 S.E. 2d at 433 (quoting State v. Brown, 315 N.C. 40, 58-59, 337 S.E. 2d 808, 822-23 (1985)).

The evidence at trial showed that defendant invited the victim and two other men to his trailer in the early morning hours of 11 May 1985 to talk and drink liquor. Defendant had not seen the victim for some time but had lived with him in Atlanta sixteen years earlier. Through their prior acquaintance defendant had learned that the victim became violent when he drank.

After some time defendant and the victim began to argue over which of them had the better dog. During the argument the victim threatened that he would kill both defendant and his dog. He had no weapon when he made that statement. The victim also tried to “poke” defendant in the eyes and “picked [defendant] up and slammed [him] down on the stove.”

Immediately after this incident defendant went to the bathroom. On his way back defendant looked behind his recliner for his axe handle so he could “go up against [the victim’s] hard head,” but he found his shotgun instead. According to defendant he picked up the shotgun, not intending to kill the victim but thinking the victim would leave on seeing the gun. As he came into the kitchen with the shotgun, defendant said to the victim: “Get the hell out, . . . [o]r you can go for that gun.” Defendant was referring to a pistol defendant had placed on the kitchen table when he first entered his trailer. The victim went for the pistol. The other two men grabbed his arm, and it was held until [441]*441“just a second before the shot” when it was released in anticipation of the shot. Defendant raised the shotgun and shot the victim at a range of about six feet. Defendant testified that he believed the victim would have killed him had he not shot first.

Viewed in the light most favorable to the State, as required, the foregoing evidence establishes that defendant returned from the bathroom after having time to think. By his own testimony he planned to hit the victim with an axe handle but later decided to shoot him, although not to kill him. Defendant clearly challenged the victim to a duel in which defendant had the upper hand and then proceeded to shoot him in the head at close range. The victim’s arm was held by the other two men until “just a second before the shot” and was released only in anticipation of the shot. Although defendant testified that he was initially glad to see the victim after so many years, the jury could infer that defendant developed the intent to kill the victim as a result of the ill-will that arose during the argument over the dogs. The premeditation and deliberation issue thus was correctly submitted to the jury.

Defendant next assigns as error the trial court’s denial of his motion for mistrial. During cross-examination of the defendant he became nauseated and had to leave the court. He returned, however, and continued to testify until the lunch recess. At this recess defendant’s attorney moved for a mistrial on the ground that defendant continued to feel ill. The court held a hearing and had the jail nurse take defendant’s temperature, which was one degree above normal.

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Bluebook (online)
355 S.E.2d 492, 319 N.C. 437, 1987 N.C. LEXIS 2025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stocks-nc-1987.