State v. Prevette

345 S.E.2d 159 (1986)

STATE of North Carolina
v.
Garfield Noah PREVETTE.

No. 62A85.

Supreme Court of North Carolina.

July 2, 1986.

Lacy H. Thornburg, Atty. Gen. by Reginald L. Watkins, Sp. Deputy Atty. Gen., for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Geoffrey C. Mangum, Asst. Appellate Defender, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first assigns as error the trial court's denial of his motion to dismiss the kidnapping charge against him. He contends that the State failed to produce substantial evidence of the kidnapping element of restraint which was separate and distinct from the restraint evidence necessary to sustain his murder conviction. Because the jury found defendant guilty of first degree murder on theories of premeditation and deliberation and felony murder, there was no merger of the kidnapping conviction with the murder conviction, and additional punishment could be imposed for kidnapping. State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979).

When a defendant is tried in a single trial for violations of two statutes that punish the same conduct the amount of punishment allowable under the double jeopardy clause of the Federal Constitution and the law of the land clause of our State Constitution is determined by the intent of the legislature.

State v. Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39 (1986).

On a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving it the benefit of every reasonable intendment and inference to be drawn therefrom. State v. Brown, 315 N.C. 40, 58, 337 S.E.2d 808, 822 (1985).

In order to sustain a conviction for kidnapping, the State must prove that "the defendant unlawfully confined, restrained, or removed the person for one of the eight purposes set out in the statute." State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986). The trial court in the case sub judice submitted the offense of kidnapping to the jury on the theory that defendant had confined and restrained Goldie Jones for the purpose of terrorizing her. See N.C.G.S. § 14-39(a)(3) (Cum.Supp.1985). The trial court in its instructions correctly defined terrorizing as "more than just putting another in fear. It means putting that person in some high degree of fear, a state of intense fright or apprehension." See State v. Moore, 315 N.C. at 745, 340 S.E.2d at 405. The trial judge further instructed as follows:

So I charge that if you find from the evidence beyond a reasonable doubt that on or about January 7 and 8, 1984 Garfield Noah Prevette unlawfully confined Goldie Gray Jones in a bedroom and restrained her, that is, by binding or tying up her hands, knees and feet, and Goldie Gray Jones did not consent to this confinement and restraint, and that this was for the purpose of terrorizing Goldie Gray Jones by preventing her from removing a mouth gag to get a sufficient passage of air into her body, and that Goldie Gray Jones was not released in a safe place and had been seriously injured, it would be your duty to return a verdict of guilty of first degree kidnapping.

The trial court's charge on first degree murder based on premeditation and deliberation provided that the State, among other things, must prove that "defendant intentionally and with malice placed a gag across the mouth of Goldie Gray Jones, thereby causing her suffocation" and that "the placing of a gag across the mouth of Goldie Gray Jones ... was a proximate cause of [her] death." Proximate cause was defined by the trial judge as "a cause without which Goldie Gray Jones' death would not have occurred."

In light of the evidence produced by the State and by virtue of these instructions, we are constrained to find that the restraint essential to the kidnapping conviction was an inherent and inevitable feature of this particular murder. We recognize the fact that murder is not within that class of felonies, such as forcible rape and armed robbery, which cannot be committed without some restraint of the victim. State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). However, we agree with defendant's assertion that in this case the placement of the gag over Ms. Jones' mouth could not have been the proximate cause of her death without the binding of her hands and feet which prevented the removal of the gag. Based on the State's evidence, the victim's death would not have occurred without these other ligatures. Therefore, the restraint of the victim which resulted in her murder is indistinguishable from the restraint used by the State to support the kidnapping charge.

Contrary to the State's argument, the circumstances of this case did not involve a situation where two criminal offenses stemmed from the same course of action. See State v. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351-52; State v. Price, 313 N.C. 297, 327 S.E.2d 863 (1985). The State presented no evidence which would indicate that defendant restrained the victim by any other means than by the bindings. Nor was there evidence that defendant terrorized her prior to committing the acts constituting the murder. Although there was evidence that the victim was struck in the face less than an hour before her death, there was no evidence indicating whether the victim was struck before being bound. Even the State's evidence tending to show that the victim may have been sexually assaulted does not support its theory that defendant bound the victim for the purpose of terrorizing her due to the fact that the victim was bound at the knees, creating a reasonable inference that any sexual assault occurred prior to the placement of the bindings.

In any event, the trial court's specific instruction that the victim was restrained for the purpose of terrorizing the victim "by preventing her from removing a mouth gag to get a sufficient passage of air" requires this Court to assume that the jury impermissibly relied on the same evidence of restraint which was an inherent feature of the victim's murder by suffocation to support the restraint element of kidnapping. State v. Fulcher, 294 N.C. at 523, 243 S.E.2d at 351; see generally, State v. Freeland, 316 N.C. 13, 340 S.E.2d 35.

Because the State has failed to furnish any evidence of restraint apart from that necessary to accomplish the murder, defendant may not be separately punished for the kidnapping unless the legislature authorized cumulative punishment. State v. Freeland, 316 N.C. 13, 21, 340 S.E.2d 35, 39; State v. Gardner, 315 N.C. 444, 460-61, 340 S.E.2d 701, 712 (1986). Nowhere in the pertinent statutes did the legislature explicitly authorize cumulative punishment. Therefore, we must determine the legislature's intent by examining the subject, language, and history of the statutes. State v. Gardner, 315 N.C. at 461, 340 S.E.2d at 712. Such an examination of the pertinent statutes yields no evidence that the legislature intended to authorize punishment for kidnapping when the restraint necessary to accomplish the kidnapping was an inherent part of the first degree murder.

Because the State failed to produce substantial evidence of restraint, independent and apart from the murder, we hold that the trial court improperly failed to allow defendant's motion to dismiss the charge of first degree kidnapping. In order to avoid a violation of the constitutional prohibition against double jeopardy, defendant's conviction for kidnapping must be vacated.

By his second assignment of error, defendant contends that the trial court improperly denied his motion to dismiss the charge of first degree murder because the evidence was insufficient to prove the elements of premeditation and deliberation. Possible verdicts of involuntary manslaughter, second degree murder, first degree felony murder, and first degree premeditated and deliberated murder were submitted to the jury. In general, before submitting the issue of a defendant's guilt to the jury, the trial court must be satisfied that the State has produced substantial evidence tending to prove each essential element of the offenses charged and that the defendant was the perpetrator. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). On a motion to dismiss, the evidence must be taken in the light most favorable to the State, and the State must be given the benefit of every reasonable inference deducible therefrom. State v. Hardy, 299 N.C. 445, 263 S.E.2d 711 (1980).

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Brown, 315 N.C. 40, 337 S.E.2d 808. 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 denotes an intent to kill carried out in a cool state of blood in furtherance of a fixed design. State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979).

The trial judge in instant case correctly instructed the jury as follows:

Neither premeditation nor deliberation are usually susceptible of direct proof. They may be proven by a proof of circumstances from which they may be inferred such as the lack of provocation by the victim; conduct of the defendant before, during and after the killing; threats and declaration of the defendant; use of grossly excessive force; brutal or vicious circumstances of the killing; and the manner in which or the means by which the killing was done.

See State v. Brown, 315 N.C. at 59, 337 S.E.2d at 822-23. Defendant argues that the evidence does not support the conclusion that defendant knew that the loose fabric of the apron would become blocked or that Ms. Jones could not breathe through her nose. According to defendant, the evidence is therefore insufficient to prove a premeditated and deliberated intent to kill. Defendant contends that at most the evidence may be sufficient to establish malice or criminal recklessness to support the submission of second degree murder or involuntary manslaughter to the jury. He also suggests that there is no evidence of brutal or vicious circumstances.

We disagree and hold that the first degree murder elements of premeditation and deliberation are substantially supported by the State's evidence and the reasonable inferences arising thereon. In the first place, there was absolutely no evidence of provocation by the victim. Ms. Jones met defendant by her involvement with a religious organization concerned with the plight of prison inmates. Ms. Jones' willingness to help defendant even extended beyond his prison stay. The State's evidence tended to show that immediately prior to her murder Ms. Jones allowed defendant to enter her home as she attempted to find him a place to wait for his roommate who defendant alleged had taken his apartment key.

Secondly, defendant's conduct and declarations before and after the killing tend to show his premeditated and deliberated intent to kill. State's witness Daley Potter testified that while in prison defendant stated that he was going "to kill the nigger loving bitch" because he had seen Ms. Jones talking to a black prisoner at a Yoke Fellows meeting. Shortly before his prison release, defendant told Potter that he had unfinished business in the area and that if he returned to prison, he "would come back with it all," meaning either a life sentence or with no release date. Moreover, Ina Mixen testified that around 6:30 p.m. on Sunday, 9 January 1984, defendant telephoned her and stated that he had just been visited by the police and learned that Ms. Jones had been brutally murdered even though Sergeant Sharp stated that he had not described for defendant the circumstances surrounding the victim's death. Sergeant Sharp also testified that upon his request defendant gave him the telephone number at Robert Sweet's apartment in case the police needed to contact him further. Robert Sweet testified that when he returned from work the following day defendant had moved out.

Finally, the manner and means by which the killing was carried out, including the force used and its brutal circumstances, constitutes substantial evidence sufficient to support a conclusion that the killing was premeditated and deliberated. The State's evidence tended to show that the victim was beaten about her face. Her hands were tied behind her back and her knees and ankles were also bound. The ligature at the knees was so securely tied that it bruised the skin directly underneath. Furthermore, these bindings securing her limbs prevented the victim from removing a gag which was tightly wrapped around her mouth and head. Defendant left the victim, an elderly and obese woman, in this position, obviously realizing that she was helpless and would not be missed or discovered for many hours.

Dr. Anthony testified that once the gag was placed across Ms. Jones' mouth, death resulted within one to three minutes or as long as thirty minutes. He described the physical, and surely psychological, torture that the victim would endure as she died of suffocation. Dr. Anthony explained that the entire focus of the person would be to get her breath. As she became more and more hypoxic, she would fight and struggle to catch her breath, involving not only the usual muscles of respiration but all the accessory muscles, such as the muscles of the chest and abdomen. Dr. Anthony stated that the victim would begin to thrash around vigorously and would reach a state of terror as she fought with all her strength to get air. Contrary to defendant's argument, this method of murder was extremely cruel, increasing in its brutality the longer the victim lived and was forced to suffer. Defendant, himself, described the murder as a brutal one to Ina Mixen before the circumstances were made known to him by police.

There is also evidence, tending to establish the elements of premeditation and deliberation, that defendant was present while the victim was dying. SBI Agent Dennis Honeycutt testified that a kitchen towel or hand towel was partially covering the fecal material near the victim's buttocks. Honeycutt specifically stated that fecal material was found on the bottomside of the towel, not on the top of the towel, and very close to the victim's body. The other fecal material had been smeared by the victim's body as she thrashed from side to side. Dr. Anthony testified that by the time the victim lost control of her bowels she would be very close to death. Police Sergeant Davis, who discovered the body, testified that nothing in the house was disturbed and that the rescue personnel touched only Ms. Jones' neck for vital signs.

The State's evidence, taken together and in its most favorable light, was sufficient to survive defendant's motion to dismiss. We hold that the trial court properly denied defendant's motion to dismiss the charge of first degree murder based on premeditation and deliberation.

Defendant next assigns as error the trial court's denial of his motion in limine to preclude Daley Potter's testimony concerning defendant's statement that he had "unfinished business" in the area to take care of upon his release from prison. He argues that because this testimony was never connected with the death of Ms. Jones it was irrelevant and that its admission constituted prejudicial error.

N.C.G.S. § 8C-1, Rule 401, defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." This Court has stated on numerous occasions that evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. E.g., State v. Hannah, 312 N.C. 286, 294, 322 S.E.2d 148, 154 (1984); State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983).

The State argues that this portion of Potter's testimony, when taken with the rest of his testimony, is probative on the issues of defendant's motive and intent to kill Goldie Jones. Potter testified that on two different occasions defendant expressed anger and frustration towards the victim. The first incident occurred when Ms. Jones was seen talking to a black inmate. According to Potter's testimony, defendant who was extremely upset over the incident stated, "I'm going to kill the nigger loving bitch because she was talking to a black guy at Yoke Fellows." The second incident involved defendant's attempt "to stick his hand up around [Ms. Jones'] private area." He was prevented from doing so by the victim who refused such contact. The "unfinished business" statement was made after these incidents and in response to Potter's comment that defendant upon release should return to Colorado. Potter reminded defendant that taking care of such business would only bring him back to prison. Defendant acknowledged this fact and stated that he knew that if he did return "he would come back with it all."

Through Potter's other testimony, we find that the State has provided a logical basis on which this objected to statement may be connected with the crime committed. Quoting 1 Stansbury's North Carolina Evidence § 78, at 237 (Brandis rev. ed. 1973), this Court in State v. Covington, 290 N.C. 313, 335, 226 S.E.2d 629, 645 (1976), stated:

The standard of admissibility based on relevancy and materiality is of necessity so elastic, and the variety of possible fact situations so nearly infinite, that an exact rule cannot be formulated. In attempting to express the standard more precisely, the Court has emphasized the necessity of a reasonable, or open and visible connection, rather than one which is remote, latent, or conjectural, between the evidence presented and the fact to be proved by it, at the same time pointing out that the inference to be drawn need not be a necessary one....

(Emphasis in original.)

Although the inference the State wished the jury to draw between the "unfinished business" statement and defendant's death threat against Ms. Jones was not necessarily the inference the jury would draw from this evidence, it was a reasonable one with a visible link to the crime charged against defendant. Because the "unfinished business" statement had some probative value on the issue of defendant's intent to kill the victim, we hold that the evidence was relevant and properly admitted.

By his final assignment of error, defendant asserts that the trial court committed prejudicial error by failing to reinstruct the jury on the law of second degree murder when it, in response to the jury's request for a clarification on malice, premeditation, and deliberation, reinstructed the jury on first degree murder. Defendant reasons that the reinstruction on second degree murder was required in order to avoid the placement of undue emphasis on the charge of first degree murder. This contention lacks merit.

N.C.G.S. § 15A-1234 provides that "[a]t any time the judge gives additional instructions, he may also give or repeat other instructions to avoid giving undue prominence to the additional instructions." In State v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249, 252 (1983), this Court concluded that the statute did not require that the trial judge repeat instructions previously given in the absence of some error in the charge. In fact, in State v. Dawson, 278 N.C. 351, 365, 180 S.E.2d 140, 149 (1971), we held that "needless repetition is undesirable and has been held erroneous on occasion." In view of the jury's specific request for a clarification of elements of first degree murder only, we hold that the trial court did not abuse its discretion in refusing to reinstruct on second degree murder pursuant to defendant's request. We believe it important to note that the trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions.

For reasons stated, we hold that defendant's kidnapping conviction must be vacated, but that in all other respects defendant received a fair trial free from prejudicial error.

FIRST DEGREE KIDNAPPING—VACATED.

FIRST DEGREE MURDER—NO ERROR.