State v. ThompsonAnnotate this Case
203 S.E.2d 781 (1974)
285 N.C. 181
STATE of North Carolina v. Colley THOMPSON.
Supreme Court of North Carolina.
April 10, 1974.
*784 Robert Morgan, Atty. Gen. by Raymond W. Dew, Jr., Asst. Atty. Gen., Raleigh, for the State.
Grover Prevatte Hopkins, Tarboro, for defendant appellant.
Defense counsel of record was privately employed throughout the trial in the superior court. Thereafter, upon a showing of the defendant's indigency, Mr. Hopkins was appointed by the trial court to prosecute this appeal. At all stages he has been careful and vigilant in discharging his duties as counsel in these cases.
Immediately following his employment, counsel moved for and obtained an order committing the defendant to Cherry Hospital for psychiatric examination. Thereafter at the arraignment and before plea, counsel filed an affidavit stating that Dr. Camp, a psychiatrist in Florence, South Carolina, in 1972 examined the defendant and found him to be "very psychotic," "depressed and paranoid." Upon the basis of the affidavit, the defendant first moved for a bifurcated trial on the issue of the defendant's mental capacity to stand trial, and that the issue be tried by a jury and not by the court. The motion was denied.
By his first assignment of error the defendant challenges the court's denial of his motion for a jury trial on the question of defendant's competency to stand trial. It is not contended, however, that the defendant became mentally irresponsible after the homicide and before the trial. The mental capacity to plead and assist in the defense were preliminary questions to determine whether there should be a trial.
The preliminary question of a defendant's mental capacity to plead to a bill of indictment and to aid in the preparation and conduct of his defense, is properly a question to be decided by the trial judge. The rule is stated in State v. Propst, 274 N.C. 62, 161 S.E.2d 560: "Ordinarily, it is for the court, in its discretion, to determine whether the circumstances brought to its attention are sufficient to call for a formal inquiry to determine whether defendant has sufficient mental capacity to plead to the indictment and conduct a rational defense. . . . Whether defendant is able to plead to the indictment and conduct a rational defense should be determined prior to the trial of defendant for the crime charged in the indictment.. . . `(T)he defendant's capacity to enter upon a trial, should be determined before he is put upon the trial;. . ." See also State v. Moore, 245 N.C. 158, 95 S.E.2d 548; State v. Sullivan, 229 N.C. 251, 49 S.E.2d 458; State v. Khoury, 149 N.C. 454, 62 S.E. 638.
In this case, Judge Webb after a voir dire hearing in the absence of the jury, upon the basis of lay and expert testimony, found the defendant was competent to stand trial. The facts found and the conclusion drawn from them are supported by the evidence before the court. The defendant's assignment of error is not sustained. State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516; State v. Spence, 271 N.C. 23, 155 S.E.2d 802.
The defendant has excepted to and assigned as error the court's admission of his confession before the jury. When the State indicated its intention to offer the defendant's confession in evidence, the court excused the jury and conducted a thorough voir dire. Sheriff Womble of Nash County and Mr. W. F. Dowdy, Special Agent of the State Bureau of Investigation, testified the defendant was given all warnings and cautions required by the State and Federal rules of evidence; that the defendant understood them and freely and voluntarily waived the right to have counsel present. He told the officers that he had shot Miss Breedlove with a pistol taken from the place of business; and that he took $50 or $60 from the cash register and left for South Carolina.
One of the store's customers, Mr. Deans, had seen the defendant at the store on other occasions, had been suspicious, and had *785 noted the South Carolina license number of the Pontiac automobile he was driving. This license number led to the defendant's almost immediate arrest in South Carolina.
When confronted by Deans' story, defendant confessed, first stating he threw the pistol in a pond, later saying he sold it to a boy in South Carolina for $20.00. The officers recovered the pistol. The serial number on the box in which it came was the same as the number on the pistol. The ballistics test disclosed that the bullet which caused the death of Miss Breedlove had been fired from that pistol.
The defendant did not offer evidence on the voir dire which the court held to determine the admissibility of the confession. The defendant was in lawful custody under a fugitive warrant. He waived extradition and consented to accompany the North Carolina officers to Nash County. The admissions dovetailed with the facts independently developed by the investigating officers. The evidence on the voir dire supported the findings that his confession was free and voluntary. The findings, having support in the evidence, are conclusive on appeal. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Vickers, 274 N.C. 311, 163 S.E.2d 481; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Outing, 255 N.C. 468, 121 S.E.2d 847.
The defendant's counsel has argued before this Court other objections not herein discussed. They have been considered with a care commensurate with the seriousness and gravity of the offenses charged. The determination that the defendant is competent to stand trial, and his detailed confession, form solid support for the jury's finding of guilt. Nothing in the evidence suggests innocence.
Judge Webb instructed the jury that in order to return a verdict of guilty of murder in the first degree, the jury was required to find from the evidence beyond a reasonable doubt that the defendant acted with malice and after premeditation and deliberation in killing Amy Claire Breedlove. At no time did the court permit the jury to consider or rely on the felony murder rules as a basis for finding the defendant guilty of murder in the first degree.
Under the court's instructions, the jury was not permitted to consider armed robbery in connection with the charge of murder. In the court's charge, murder and robbery were treated as entirely separate and independent crimes. The charges were consolidated for trial under G.S. § 15-152 on the ground that they were separate and distinct felonies, connected in time, place, and surrounding circumstances. State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Fox, 277 N.C. 1, 175 S.E.2d 561; State v. White, 256 N.C. 244, 123 S.E.2d 483. The decision that both charges may be upheld in this case is not inconsistent with our holdings in State v. Moore, 284 N.C. 485, 202 S.E.2d 169; State v. Lock, 284 N.C. 182, 200 S.E.2d 49; State v. Carroll & Stewart, 282 N.C. 326, 193 S.E.2d 85; State v. Peele, 281 N.C. 253, 188 S.E.2d 326. In the cited cases, the armed robbery charges were merged into and made a part of the first degree murder charges because of the instruction to the jury that if the defendant killed the deceased in the perpetration or in the attempt to perpetrate the robbery, the finding would justify a verdict of guilty of murder in the first degree without a finding or proof of malice or of premeditation and deliberation.
The court charged that a verdict of guilty of murder in the first degree could be rendered only upon a finding from the evidence beyond a reasonable doubt that the killing was done with malice and after premeditation and deliberation. The felony murder rule was not submitted to the jury in this case.
A careful review of the record fails to disclose any error of law or legal inference committed by the trial court. The verdicts and judgments will be upheld.