State v. Upright

323 S.E.2d 479 (1984)

STATE of North Carolina v. Ray Daniel UPRIGHT, Jerome Herman Fink and John Henry Russell.

No. 8419SC205.

Court of Appeals of North Carolina.

December 28, 1984.

*483 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David W. Broome, Jr., Raleigh, for the State.

Donald L. Weinhold, Jr., Salisbury, for defendant-appellant Ray Daniel Upright.

Corriher & Whitley by James A. Corriher, Salisbury, for defendant-appellant Jerome Herman Fink.

Appellate Defender Adam Stein by Asst. Appellate Defender David W. Dorey, Raleigh, for defendant-appellant John Henry Russell.

WEBB, Judge.

In his first three assignments of error, defendant Upright contends that the trial court erred in denying his motions for dismissal and judgment notwithstanding the verdict because the evidence was insufficient to find that he committed the crime charged beyond a reasonable doubt. Defendant Upright argues that the evidence was wholly circumstantial and that the State's principal witness admitted that he did not see him shoot Brooks. It is defendant Upright's position that for these reasons the evidence adduced at trial was insufficient to go the jury and to support the verdict of guilty of second degree murder.

By presenting evidence at trial Upright waived his right to assert the denial of his motion for dismissal made at the close of the State's evidence as error on appeal. G.S. 15-173, State v. Mendez, 42 N.C.App. 141, 146-47, 256 S.E.2d 405, 408 (1979). However, his motion to dismiss at the close of all the evidence draws into question the sufficiency of all the evidence to go to the jury. State v. Stewart, 292 N.C. 219, 223, 232 S.E.2d 443, 447 (1977). The evidence is considered in the light most favorable to the State, with the State being entitled to every reasonable inference therefrom. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982). State v. McKinney, 288 N.C. 113, 215 S.E.2d 578, 581-82 (1975). If there is substantial evidence, irrespective of whether it is direct or circumstantial or both, that the crime charged was committed by the defendant, then a motion to dismiss is properly denied. State v. McKinney, supra. Turning to the facts in this case, we believe that the evidence adduced at trial was sufficient to render defendant Upright's guilt an issue for the jury. There was evidence that defendant Upright was one of four people within close proximity to Brooks as he fell to the floor. There was eyewitness testimony that defendant Upright was the only one with a gun in his hand seconds after Brooks was shot. There was also expert medical testimony that the fatal wound was inflicted by a bullet shot from a weapon pressed directly against the victim's back. From this evidence a jury could reasonably infer that defendant Upright committed the offense charged. While the finding of defendant Upright's guilt depended solely on circumstantial evidence, it has long been established in this State that "[t]he chain of circumstantial evidence ..." may be sufficient to establish guilt of a crime beyond a reasonable doubt. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965).

Defendant Upright argues, however, that the discrepancies and inconsistencies between the testimony of the State's principal witness, Morris Mullins, and the physical evidence rendered the evidence insufficient to support the verdict. There was uncontroverted physical evidence that Brooks had received several minor injuries in a scuffle prior to the shooting but that the fatal bullet wound was made by a gun pressed tightly against his back. Morris Mullins testified that he did not hear or see a scuffle prior to the shooting. He also testified that moments after the fatal shot, he saw Brooks slide forward on his hands and knees and that Brooks did not fall backward or hit his head. At this time, defendant Upright was facing Brooks. This evidence would arguably indicate that *484 Brooks was shot by someone other than defendant Upright. Such variance in the evidence, however, is one which goes to the credibility rather than the sufficiency. It is within the province of the jury to pass upon the credibility of the witnesses and weight to be accorded the evidence. State v. White, 298 N.C. 430, 440, 259 S.E.2d 281, 287 (1979). Furthermore, one of the fundamental responsibilities of a jury is to choose between competing versions of the facts. Simply stated, the resolution of discrepancies in the evidence is within the province of the jury. Here the jury resolved these discrepancies in favor of the State, and this it was entitled to do. Accordingly, we hold that these assignments of error are without merit.

Defendant Upright next contends that the trial court erred in granting the State's motion to consolidate the trials of defendant Upright and co-defendants Jerome Fink and John Russell. Specifically, he contends that joinder was improper because his co-defendants were charged with different offenses which were not lesser included offenses of the charge of second degree murder.

The decision whether to join cases against co-defendants is one within the sound discretion of the trial court. State v. Barnett, 307 N.C. 608, 619, 300 S.E.2d 340, 346 (1983). State v. Jones, 57 N.C.App. 460, 462-63, 291 S.E.2d 869, 871 (1982). Absent a showing that a consolidated trial has deprived a defendant of a fair trial, the exercise of trial court discretion will not be disturbed. State v. Smith, 291 N.C. 505, 519, 231 S.E.2d 663, 672 (1977). State v. Jones, supra. Since the co-defendants were charged with an offense different from the offense for which defendant Upright was charged, the propriety of conducting a joint trial is governed by G.S. 15A-926. Under this statute, joinder of defendants for trial is permitted when the crimes charged grew out of the same acts or transactions and much of the same evidence is necessary or applicable to all defendants. G.S. 15A-926(b)(2)(b)(2), (3). Joinder is also proper whether the motion is made orally or in writing. G.S. 15A-951(a). State v. Slade, 291 N.C. 275, 282, 229 S.E.2d 921, 926 (1976). Finding consolidation properly authorized, we conclude that there was no abuse of discretion. This assignment of error is without merit.

Defendant Upright's next assignment of error concerns the misconduct of the prosecutor in passing his statements to the jury. He contends that the submission of these statements to the jury, which were in violation of an order of the court, tended to prejudice and confuse the jury. We do not agree.

The record reveals that the trial court admitted Morris Mullins' statements into evidence, but denied the prosecutor the right to pass these statements to the jury. There is no evidence in the record, however, that defendant Upright's statements were within this prohibition. Furthermore, the record reveals that these statements were used on cross-examination of defendant Upright. Additionally, these statements, upon objection, were immediately withdrawn from the jury. There is no evidence in the record that defendant Upright was prejudiced by the actions of the prosecutor. This assignment of error is, therefore, without merit.

Defendant Upright next contends that the trial court erred in failing to charge the jury on the issue of voluntary manslaughter. He argues that there was sufficient evidence to compel such a charge even though a special request was not made.

A defendant is entitled to instructions on a lesser included offense when there is evidence from which a jury could find that the defendant committed the lesser offense. State v. Ford, 297 N.C. 144, 150, 254 S.E.2d 14, 18 (1979). When there is no such evidence, then the trial court should refuse to charge on the unsupported lesser offense. State v. Hampton, 294 N.C. 242, 250, 239 S.E.2d 835, 841 (1978).

In the case before us, we find that there is simply no evidence to warrant an instruction on voluntary manslaughter. Voluntary manslaughter is defined as unlawful *485 killing of a human being without malice, in the heat of passion as a result of legally sufficient provocation. G.S. 14-18. State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 916 (1978). Therefore, to warrant an instruction on voluntary manslaughter, there must be evidence that the killing occurred while the defendant was in heat of passion caused by legally sufficient provocation.

Here, defendant Upright presented no evidence to show either adequate provocation or an action taken in heat of passion. To the contrary, defendant Upright claimed that he did not do the killing. The only inference of provocation is that Brooks grabbed defendant Upright's gun and used it to beat another patron of The Rail. There is no evidence that Brooks assaulted or threatened to assault defendant Upright. Brooks' assault on another patron, unknown to defendant Upright, is not legally sufficient provocation warranting an instruction on voluntary manslaughter. This assignment of error is without merit.

Defendant Upright assigns error to the failure of the trial court to give full instructions regarding second degree murder. He contends that the court failed to inform the jury that "if they had any reasonable doubt as to any one or more elements of the offense ..., they should return a verdict of not guilty."

When read contextually, as required, the trial judge's instructions sufficiently emphasized that proof beyond a reasonable doubt, of the existence of the essential elements of second degree murder and that defendant Upright was the perpetrator, was necessary to sustain a finding of defendant Upright's guilt. The phrase "[i]f the killing was unlawful and was done with malice, then the defendant would be guilty of second degree murder" clearly relates to the preceding clause and other portions of the jury charge regarding the standard of proof necessary for a conviction. We note, parenthetically, that defendant Upright failed to properly preserve for appeal error as to the instructions. Rule 10(b)(2), Appellate Rules of Procedure. However, the Court has reviewed the jury charge in its entirety and finds no prejudicial error. Accordingly, we hold that this assignment of error is without merit.

Finally, defendant Upright contends that the trial court erred in sentencing him to a term in excess of the presumptive term. Defendant contends that the trial court's finding of a single factor in aggravation does not justify the substantial increase in the sentencing. We do not agree.

The sentencing guidelines fixed in the Fair Sentencing Act are clear. A presumptive sentence of fifteen years applies to a conviction of second degree murder. G.S. 15A-1340.4(f)(1). A sentence greater than the presumptive term may be imposed when there is a preponderance of the evidence which supports the finding of one or more aggravating factors. G.S. 15A-1340.4(b). Specifically, a finding of a single factor in aggravation supported by a preponderance of evidence is sufficient to support a sentence greater than the presumptive term. State v. Baucom, 66 N.C. App. 298, 302, 311 S.E.2d 73 (1984). The weight attached to a particular aggravating or mitigating circumstance in a case is within the discretion of the trial judge. State v. Salters, 65 N.C.App. 31, 37, 308 S.E.2d 512, 516 (1983). State v. Davis, 58 N.C.App. 330, 293 S.E.2d 658, 661, disc. rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982).

In this case, the trial judge found as an aggravating factor that defendant Upright had a prior conviction or convictions for criminal offenses punishable by more than sixty days confinement at which time he was represented by counsel. Since the sentence imposed was within the statutory maximum, the court judgment in sentencing will not be disturbed on appeal. As there was no abuse of the trial court's discretion, we find no merit to this assignment of error.

Defendant Russell challenges the sufficiency of the evidence to go the jury. He *486 contends first that the evidence was insufficient to establish that defendant Upright killed Brooks, and therefore he could not have been an accessory after the fact. For the reasons stated in our consideration of defendant Upright's assignments of error challenging the sufficiency of the evidence, which we need not reiterate here, we summarily reject this contention.

Defendant Russell next contends that the evidence was insufficient to show that the murder was complete at the time he allegedly left the scene. In a prosecution for accessory after the fact under G.S. 14-7, the State need only show that the defendant knew: (1) that a felony had been committed; (2) that the principal had committed it; and (3) that the defendant rendered assistance to the principal personally. State v. Earnhardt, supra 307 N.C. at 68, 296 S.E.2d at 653. State v. Squire, 292 N.C. 494, 505, 234 S.E.2d 563, 569, cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493 (1977).

A review of the evidence in this case tended to show that after the shooting of Brooks, defendant Russell aided defendant Upright by disposing of the murder weapon. The evidence also showed that before defendant Russell left the scene, he knew that Brooks had been shot and killed. Indeed, there was eyewitness testimony that defendant Russell and defendant Upright rolled Brooks over and searched his pockets. Viewed in the light most favorable to the State, the evidence clearly indicated that defendant Russell saw the shooting, the person who did it, and the seriousness of Brooks' wound before rendering assistance to defendant Upright by disposing of the murder weapon. While it is possible that defendant Russell did not know Brooks was dead at the time he left the scene, the totality of the evidence permits an inference that defendant Russell knew a felony had been committed before he rendered assistance to the felon. Accordingly, we find no merit in this assignment of error.

Defendant Fink also assigns error to the failure of the trial court to grant his motion to sever his trial from that of co-defendants Upright and Russell. He contends that separate trials were necessary to promote a fair determination of his guilt or innocence since he and defendant Upright presented antagonistic defenses at trial. We do not agree.

Our review of the record indicates that all defendants pleaded not guilty and the State's evidence as to the offenses charged was consistent and free from material conflicts. The critical question in determining whether antagonistic defenses warrant severance is "whether the conflict in defendants' respective positions at trial is of such a nature that considering all of the other evidence in the case, defendants were denied a fair trial." State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979) cert. denied, 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980). State v. Boykin, 307 N.C. 87, 91, 296 S.E.2d 258, 260 (1982). Defendant Upright's defense was that a scuffle occurred and Brooks was killed by an unknown person. Defendant Fink's defense was that Brooks was not shot at The Rail. We find no prejudice to defendant Fink in joinder because there was no material conflict in the defenses which would prevent the jury from reaching a fair determination of his guilt or innocence. Finally, we do not see how defendant Upright's decision to testify placed defendant Fink in an untenable position. Defendant Upright's testimony in no way implicated defendant Fink. We hold that defendant Fink's motion to sever the trials was properly denied. Defendant Fink's assignments of error one and two are, therefore, without merit.

Defendant Fink next contends that he was denied due process by the failure of the prosecutor to dismiss the murder indictment against him while simultaneously proceeding to trial on the charge of accessory after the fact to second degree murder. More specifically, he contends that the failure to dismiss the murder indictment *487 chilled his constitutional right to testify and impeded the preparation of his defense. We summarily reject these contentions. Where a defendant is charged in separate bills of indictment with mutually exclusive offenses growing out of the same transactions or occurrences, the State may proceed to trial on either indictment without dismissing the other.

In his next assignment of error, defendant Fink contends that the trial court erred in denying his motions to dismiss. He contends that there was insufficient evidence that defendant Fink personally assisted the principal in escaping detection, arrest, or punishment.

Viewed in the light most favorable to the State, there was substantial evidence that defendant Fink assisted defendant Upright in avoiding detection and arrest. There was competent evidence that after the killing, defendant Fink grabbed two shotguns from behind the bar. He gave one to the man guarding the door, and he kept one. Defendant Fink then told everyone to line up against the wall, and he told them that if they were contacted by the police, they should tell the police "that [Brooks] walked in off the street and fell in the floor shot." There was also eyewitness testimony that defendant Fink held a gun on the crowd while defendant Upright took the name and address of each patron. In light of all of this, we are of the opinion that the court correctly denied defendant Fink's motions to dismiss. This assignment of error is without merit.

By assignment of error six and seven, defendant Fink contends that the court erred in imposing a sentence in excess of the presumptive term since the aggravating factors did not outweigh the mitigating factors. He contends that the trial court should have found as a mitigating factor that "[he] was suffering from a mental or physical condition insufficient to constitute a defense but significantly reduced his culpability for the offense." G.S. 15A-1340.4(a)(2)(d). He argues that the evidence that he had been drinking on the morning of the shooting should have been considered in mitigation. We do not agree.

The trial court found as a factor in aggravation that defendant Fink had a prior conviction for criminal offenses punishable by more than sixty days confinement. The trial court found no factors in mitigation. A defendant has the burden of establishing such factors by a preponderance of the evidence. G.S. 15A-1340.4(b). State v. Jones, 309 N.C. 214, 219, 306 S.E.2d 451, 455 (1983). State v. Hinnant, 65 N.C.App. 130, 133, 308 S.E.2d 732, 734 (1983). Evidence that defendant Fink had been drinking, without more, does not show that he was in such a state of inebriation so as to impair his ability to understand the consequences of his conduct. Accordingly, we hold that the trial judge acted properly in refusing to find as factor in mitigation that defendant Fink had been drinking. Defendant Fink's contentions are, therefore, without merit.

For the reasons stated in the consolidated trials of defendants, we find

No error.

BRASWELL and EAGLES, JJ., concur.