State v. WootenAnnotate this Case
245 S.E.2d 699 (1978)
STATE of North Carolina v. James Edward WOOTEN.
Supreme Court of North Carolina.
July 14, 1978.
*703 Rufus L. Edmisten, Atty. Gen., by Donald W. Grimes, Associate Atty., Raleigh, for the State of North Carolina.
Gerald L. Bass, Raleigh, for defendant-appellant.
By his first assignment defendant contends the trial court erred in denying his *704 motion for judgment as of nonsuit and submitting the issue of his guilt of first degree murder to the jury.
The record reveals that the State proceeded on the theory that defendant killed Tucker while robbing him, i. e., felony murder; this was the only theory of first degree murder submitted to the jury. Defendant argues that there was no evidence tending to show he killed Tucker while committing or attempting to commit a robbery. On the contrary, defendant contends all the evidence, including his own extrajudicial statements which were put into evidence by the State, tends to show that he made two trips to The Entertainer Club in the early morning of 21 October 1976; that he killed Tucker during the first trip; and that he stole property belonging to Tucker only on the second trip, several hours later, when he returned to the club for the purpose of eliminating evidence which might implicate him in Tucker's death. We find no merit in this contention.
G.S. 14-17, insofar as pertinent to the present case, provides: "A murder . . which shall be committed in the perpetration or attempted perpetration of any . . robbery ... shall be deemed to be murder in the first degree ..." In order to support defendant's conviction of first degree murder, the evidence taken in the light most favorable to the State must be adequate to support a legitimate inference that defendant killed Tucker while robbing or attempting to rob him, i. e., that the killing was part of the res gestae of the robbery or attempted robbery. State v. Squire, 292 N.C. 494, 234 S.E.2d 563 (1977). A killing is committed in the perpetration or attempted perpetration of another felony when there is no break in the chain of events between the felony and the act causing death, so that the felony and homicide are part of the same series of events, forming one continuous transaction. State v. Squire, supra; State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972). If there is evidence tending to show that defendant took property belonging to Tucker immediately after killing him, such evidence would support a jury determination that the killing occurred during the perpetration of a robbery. See, e. g., State v. Rich, 277 N.C. 333, 177 S.E.2d 422 (1970). If, on the other hand, there is no evidence tending to show that defendant went to The Entertainer Club with the intent to rob Tucker, and there is no evidence tending to show that defendant took Tucker's property during the same continuous series of events that resulted in Tucker's death, defendant could not be convicted of first degree murder under the felony-murder doctrine.
On defendant's motion for judgment as of nonsuit the evidence must be considered in the light most favorable to the State all contradictions and discrepancies are to be resolved in the State's favor, and the State is entitled to every favorable legitimate inference arising from the evidence. E. g., State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). When the evidence in the present case is so considered, we hold it is adequate to support the jury's finding that defendant killed Tucker while engaged in a robbery or attempted robbery. Our conclusion is based on the following evidentiary matters which tend to support the State's theory of felony-murder:
1. Immediately prior to Tucker's death defendant was short of money, unable to afford food or heat for the apartment in which he lived.
2. Shortly after Tucker's death defendant had enough money to purchase groceries and clothing, pay $87 for heat, treat his housemates to a night at the State Fair, and offer a friend $200 cash as a down payment for the purchase of a car.
3. When defendant went to The Entertainer Club on the night of October 20-21, 1976, he parked the vehicle he was driving at the side of the club, out of sight of the front entrance, even though the parking lot was virtually empty and there was space to park by the club's front entrance.
4. When he walked to the entrance of the club defendant carried a blackjack with him.
*705 5. Shortly after Tucker's death defendant explained his newly acquired wealth to a housemate by saying he had seen "a friend that owed him some money and the friend wouldn't give it to him and he had to take it."
6. On the second trip to The Entertainer Club, immediately after gathering up various objects from around Tucker's body, defendant drove to nearby Gresham's Lake and threw "an armful of stuff" into the lake. Apparently all objects defendant took from the nightclub's parking lot except Tucker's money and pistol were thrown into the lake. Defendant offered no explanation why, if Tucker's money and pistol were taken on this second trip, he did not dispose of these items in the same manner.
7. Defendant's avowed purpose in making the second trip to The Entertainer Club was the elimination of evidence tending to connect him with Tucker's death. His action in throwing objects picked up from the club's parking lot into Gresham's Lake was consistent with this purpose. His action in retaining possession of Tucker's money and pistol was inconsistent with this purpose, and their retention tends to support the State's theory of felony-murder.
8. Defendant's own statement tends to show that he took Tucker's pistol immediately after killing him. In his written statement, introduced by the State, defendant described the conclusion of his struggle with Tucker as follows: "And I finally got away from him [Tucker] and I finally got away from him with the gun in my hand.... I ran to the truck."
The evidence adduced at defendant's trial clearly shows that defendant killed Tucker and made off with Tucker's money and handgun. We think the evidence, taken in the light most favorable to the State, permits a legitimate inference that defendant was engaged in the perpetration or attempted perpetration of a robbery at the time Tucker was killed. The jury was entitled to draw this inference, notwithstanding the State's introduction of defendant's extrajudicial declarations in which he stated he killed Tucker in self-defense rather than in the course of a robbery. In State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575, reversed on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977), the State introduced into evidence defendant's extrajudicial statements which included assertions that the killing with which he was charged was committed in self-defense. Justice Exum, writing for this Court, overruled defendant's contention that the charges against him should be dismissed. His reasoning there is pertinent here:"While none of these circumstances taken individually flatly contradicts defendant's statement, taken together they are sufficient to `throw a different light on the circumstances of the homicide' and to impeach defendant's version of the incident. The State is not bound, therefore, by the exculpatory portions of defendant's statement. The case is for the jury."
288 N.C. at 638, 220 S.E.2d at 581. Also see State v. May, 292 N.C. 644, 235 S.E.2d 178, cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288 (1977); State v. Bolin, 281 N.C. 415, 189 S.E.2d 235 (1972); State v. McKnight, 279 N.C. 148, 181 S.E.2d 415 (1971); State v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968); State v. Mangum, 245 N.C. 323, 96 S.E.2d 39 (1957); State v. Bright, 237 N.C. 475, 75 S.E.2d 407 (1953). See especially State v. Carter, 289 N.C. 35, 220 S.E.2d 313, death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).
So it is here. The issue of defendant's guilt of first degree murder was properly submitted to the jury. Defendant's first assignment of error is overruled.
By his second assignment defendant contends the trial court erred by sustaining objections to two questions asked of defendant on direct examination: (1) "Did you go out there [to The Entertainer Club] . . with the intentions of robbing Mr. Tucker?" (2) "Did you go out there, Mr. Wooten, with the intent to harm Mr. Tucker?" The record shows that if permitted to answer, defendant would have answered "No" to each question.
*706 As heretofore noted, the State proceeded on the theory that defendant killed Tucker while engaged in perpetration or attempted perpetration of a robbery. Intent to steal is an essential element of the crimes of robbery and attempted robbery. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 (1965); State v. Lunsford, 229 N.C. 229, 49 S.E.2d 410 (1948). It therefore follows that unless defendant was possessed of an intent to steal Bernest Tucker's property at the time Tucker was slain, defendant could not be convicted of first degree murder under the felony-murder doctrine. Defendant's own testimony regarding his purpose or intention in visiting The Entertainer Club was thus competent and relevant; the exclusion of this testimony was error. See State v. Freeman, 280 N.C. 622, 187 S.E.2d 59 (1972).
Our examination of the record convinces us, however, that defendant suffered no prejudice as a result of the exclusion of this testimony. Defendant testified without objection that his purpose in going to The Entertainer Club was to meet his wife and talk with her about surgery which she was about to undergo. Deputy Sheriff John Stubbs, as a witness for the State, related the substance of two oral statements defendant made shortly after being arrested. Deputy Stubbs testified that in each of these statements defendant said his purpose in going to The Entertainer Club was to see and speak with his wife, Grace Wooten. The whole fabric of defendant's account of events which transpired at The Entertainer Club is entirely inconsistent with his having gone to the club for the purpose of robbing Bernest Tucker. Moreover, the trial court, in summarizing defendant's evidence, stated that defendant contended "he went [to the club] for the purpose of talking with [his wife Grace] about surgery that she had planned and which she was to undergo at some time in the near future."
Thus it is obvious that the jury was fully aware of defendant's contention that he went to The Entertainer Club to see his wife and not for the purpose of robbing Bernest Tucker. Under such circumstances the trial court's error in refusing to permit defendant to testify that he had no intention of robbing Bernest Tucker did not prejudice him. State v. Sanders, 276 N.C. 598, 174 S.E.2d 487, death sentence vacated, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Tyson, 242 N.C. 574, 89 S.E.2d 138 (1955). We are convinced that defendant's conviction did not stem from the fact that the jury was deprived of his testimony regarding his intentions; rather, the jury was fully aware of defendant's contentions and chose to believe the true facts were otherwise. Defendant's second assignment of error is overruled.
By his remaining assignments defendant contends the trial court erred in an evidentiary ruling, in making certain comments out of the presence of the jury, in instructions pertaining to reasonable doubt and self-defense and in suggesting to the jurors how they should go about considering the evidence presented. We have considered these further exceptions and find no merit in any of them. No useful purpose would be served by discussing these assignments separately and reiterating principles of law well established by prior decisions of this Court.
We hold that defendant has received a fair trial, free from prejudicial error. The verdict and judgment must be upheld.