{ "id": 8546757, "name": "STATE OF NORTH CAROLINA v. DAVID DOWD", "name_abbreviation": "State v. Dowd", "decision_date": "1975-12-17", "docket_number": "No. 755SC668", "first_page": "32", "last_page": "38", "citations": [ { "type": "official", "cite": "28 N.C. App. 32" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "67 S.E. 2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622098 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0354-01" ] }, { "cite": "190 S.E. 2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576314 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0645-01" ] }, { "cite": "144 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576044 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0524-01" ] }, { "cite": "184 S.E. 2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0154-01" ] }, { "cite": "215 S.E. 2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562667 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0326-01" ] }, { "cite": "185 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572320 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0426-01" ] } ], "analysis": { "cardinality": 720, "char_count": 13563, "ocr_confidence": 0.573, "pagerank": { "raw": 1.3728274445558503e-07, "percentile": 0.6386227536817783 }, "sha256": "15be23be5c836841c8269fe48d7042b57fc96381974156a91e9f0d0327f88a91", "simhash": "1:b6ace46afe2564c3", "word_count": 2352 }, "last_updated": "2023-07-14T22:58:46.500479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID DOWD" ], "opinions": [ { "text": "MARTIN, Judge.\nThe defendant contends by his first assignment of error that he was prejudiced because of the trial judge\u2019s remarks made during defense counsel\u2019s questioning of prospective jurors. The court stated that one of the defense counsel\u2019s questions was not accurate, and then proceeded to correct the error.\nThe defendant cited State v. Holden, 280 N.C. 426, 185 S.E. 2d 889 (1972), which states that remarks by the judge which tend to belittle counsel or which suggest that counsel is not acting in good faith, may cause the jury to disbelieve all evidence adduced in defendant\u2019s behalf. The judge in that instance had told the defense counsel to ask proper questions. The Supreme Court stated that this remark was indiscreet and improper, but that the totality of circumsances showed that it was harmless error.\nThe defendant contends that the judge\u2019s comment affected the jury, citing the incident of juror Delag\u2019s request to be excused from jury duty. Ms. Delag stated that she thought some of the defense counsel\u2019s questions were unnecessary. The record indicates that the juror\u2019s request was not prompted by the judge\u2019s remarks.\nThe trial judge is empowered and authorized to regulate and referee the selection of the jury to the end that both defendant and the State receive the benefit of a trial by a fair and impartial jury. State v. Vinson, 287 N.C. 326, 215 S.E. 2d 60 (1975). Counsel for defendant posed a question to the jury containing an inadequate statement of law and it was the court\u2019s duty to make a correction. Counsel\u2019s questions should be limited to material and relevant matters relating to the qualification or disqualification of the jurors. They should not anticipate the instructions of the court and demand reaction thereto.\nIn State v. Vinson, supra, Justice Huskins, speaking for the Court, stated:\n\u201cOn the voir dire examination of prospective jurors, hypothetical questions so phrased as to be ambiguous and confusing or containing incorrect or inadequate statements of the law are improper and should not be allowed. Counsel may not pose hypothetical questions designed to elicit in advance what the juror\u2019s decision will be under a certain state of the evidence or upon a given state of facts. In the first place, such questions are confusing to the average juror who at that stage of the trial has heard no evidence and has not been instructed on the applicable law. More importantly, such questions tend to \u2018stake out\u2019 the juror and cause him to pledge himself to a future course of action. This the law neither contemplates nor permits. The court should not permit counsel to question prospective jurors as to the kind of verdict they would render, or how they would be inclined to vote, under a given state of facts.\u201d\nThis assignment of error is overruled.\nDefendant next assigns error to the admission into evidence of statements which defendant made to Officer Simpson. After conducting a voir dire hearing, the trial court concluded that \u201cAt the time the defendant made such statements, if any, as were made to Officer Simpson, he did so freely, voluntarily, knowingly and understanding^.\u201d The record reveals that competent evidence supported these findings, and they in turn supported the court\u2019s conclusions. This assignment of error is overruled.\nDefendant assigns as error the failure of the court to allow him timely made motions for nonsuit.\nIn considering a trial court\u2019s denial of a motion for judgment of nonsuit, the evidence for the State, considered in the light most favorable to it, is deemed to be true and inconsistencies or contradictions therein are disregarded. Evidence of the defendant which is favorable to the State is considered, but his evidence in conflict with that of the State is not considered upon such motion. State v. Price, 280 N.C. 154, 184 S.E. 2d 866 (1971). The question for the court is whether, when the evidence is so considered, there is reasonable basis upon which the jury might find that an offense charged in the indictment has been committed and the defendant was a principal in the commission of the crime.\nBy the terms of G.S. 14-87 an attempt to rob another of personal property, made with the use of a dangerous weapon, whereby the life of a person is endangered or threatened, is, itself, a completed crime and is punishable to the same extent as if the property had been taken as intended. State v. Spice, supra; State v. Spratt, 265 N.C. 524, 144 S.E. 2d 569 (1965). Such attempt occurs when the defendant, with the requisite intent to rob, does some overt act calculated and designed to bring about the robbery, thereby endangering or threatening the life of a person. State v. Price, supra; State v. Spratt, supra. In order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, should have done some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in the commission thereof. Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. State v. Price, supra.\nConsidered in accordance with the above stated principles, the evidence in the record is amply sufficient to justify a jury in finding that Linell Josey entered the market with the intent to rob Quillan, shot him three times in the head with a pistol, intending to kill him and inflicting serious injury, for the purpose of accomplishing the intended robbery and thereby endangered his life. Thus, the evidence of the State was sufficient to show that the offenses charged in the bills of indictment were committed.\nThe remaining question is whether the evidence is sufficient to show that the defendant was a principal in the commission of each offense. All who are present at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty. State v. Dawson, 281 N.C. 645, 190 S.E. 2d 196 (1972). A person aids when, being present at the time and place, he does some act to render aid to the actual perpetrator of the crime though he takes no direct share in its commission; and an abettor is one who gives aid and comfort, or either commands, advises, instigates or encourages, another to commit a crime. State v. Holland, 234 N.C. 354, 67 S.E. 2d 272 (1951). By its express terms G.S. 14-87 extends to one who aids and abets in an attempt to commit armed robbery.\nThe State\u2019s evidence, considered as above stated, is ample to support a finding by a jury that the defendant aided and abetted Linell Josey in feloniously assaulting and attempting to rob James Kally Quillan so as to become a principal in the second degree and equally liable with the actual perpetrator. The motion for judgment of nonsuit was, therefore, properly denied.\nWe have carefully examined defendant\u2019s remaining assignments of error and find them to be without merit. Defendant had a fair trial, free from prejudicial errors.\nNo error.\nJudges Vaughn and Clark concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Cynthia Jean Zeliff, for the State.", "Charles E. Sweeny, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID DOWD\nNo. 755SC668\n(Filed 17 December 1975)\n1. Criminal Law \u00a7 99\u2014 examination of prospective jurors \u2014 statement by court\nWhen defense counsel asked prospective jurors a question containing an inadequate statement of law, the trial court did not commit prejudicial error in stating that counsel\u2019s question was inaccurate and in proceeding to correct the error.\n2. Robbery \u00a7 1 \u2014 attempted armed robbery\nAn attempt to rob another of personal property with the use of a dangerous weapon whereby the life of the person is endangered or threatened is, itself, a completed crime and is punishable to the same extent as if the property had been taken as intended. G.S. 14-87.\n3. Criminal Law \u00a7 3\u2014 attempt defined\nIn order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, should have done some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in, the commission thereof.\n4. Robbery \u00a7 4 \u2014 armed robbery \u2014 guilt as principal \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury to find that defendant was a principal in the offenses of armed robbery and felonious assault where it tended to show that defendant and his three companions discussed robbing a convenience store, defendant entered the store to check on the clerk, when defendant left the store one of his companions entered the store and shot the clerk, and the other two companions then entered the store for the purpose of taking the money but became scared and ran from the store without doing so.\nAppeal by defendant from Fountain, Judge. Judgment entered 11 April 1975 in Superior Court, New Hanover County. Heard in the Court of Appeals 18 November 1975.\nDefendant was charged with armed robbery and assault with a deadly weapon with intent to kill, inflicting serious injury not resulting in death. Upon arraignment he entered a plea of not guilty to both charges. He was found guilty as charged in both charges and was sentenced to prison for a term of years on each charge, sentences to run concurrently.\nThe evidence for the State tended to show the following:\nJames Kally Quillan was an employee at the Zip Mart on 25 January 1975. He was alone at the time someone entered and shot him four times. He fell to the floor, triggered the burglar alarm and picked up a firearm. Just prior to the shooting Quillan had used the phone to call his residence and request that coffee be brought to him so that he could stay awake. The first bullet struck under Quillan\u2019s ear, went through his lower jaw, and lodged behind his left ear. This bullet has not been removed surgically due to the danger of loss of hearing in the left ear. The second bullet entered above the right eye, and lodged in the left eye, necessitating the removal of the entire left eye, and the use of a glass eye. The third bullet hit the right arm and made a scar and the fourth shot caused a superficial wound on the left side.\nLined Josey, age 15, testified for the State and stated that he and defendant David Dowd, Nathaniel Scott, and Donald Frazier discussed robbing the Zip Mart. They had a .25 caliber automatic pistol which had been shown to defendant prior to their going to the Mart. When they arrived at the store they saw Quillan making a phone call and defendant Dowd was instructed to go inside and learn what he could about the call. Dowd went inside the store and walked around like he was going to buy something, and he came back out and reported that the man called his wife to bring him some coffee. The plan called for Josey to shoot Quillan and for Scott and Frazier to run in and get the money. He further testified:\n\u201cI don\u2019t think the man knew any of us. Seems like I recall that there was a conversation about him being able to identify us. I believe someone said, \u2018Well, the man in the Zip Mart, if you go in there and you just hold him up, he will go down there and identify you, to testify you give him some trouble;\u2019 and somebody said the best thing to do is go in there and shoot the man, because if you shoot him, he can\u2019t testify against you.\nWhen I went into the Zip Market, I think David Dowd was by the Zip Mart or, you know, close near the Zip Mart. I can\u2019t really recall where he was at.\nI went into the Zip Mart and shot the man. I don\u2019t know where I shot him. I shot him about three times. When I shot him, I guess he was putting up cigarettes with his back to me. He never saw me that I can recall.\u201d\nNathaniel Scott testified for the State. His testimony tended to corroborate Josey\u2019s testimony and added that Scott and Frazier ran into the store after the shooting, saw Quillan on the floor, got scared and ran out of the store without taking any money. He confirmed that Dowd assisted in the planning and the preparation for the robbery.\nThe court conducted a voir dire to determine the admissibility of defendant\u2019s statement and thereafter made findings of fact. Detective Simpson testified that Dowd signed a waiver of his rights, stated that he and the other three boys discussed robbing the Zip Mart, and admitted going into the store. Simpson further testified that Dowd told him that Josey entered the store as he was walking out of it, and that he heard shots being fired as he reached the parking lot. Officer Brown corroborated the evidence which indicated that Dowd\u2019s function in the robbery was to see who was in the store before Josey went in to shoot the clerk.\nThe defendant, age 15, testified that he did not speak with the three boys about robbing the Zip Mart. He stated that he went to the store on his own and bought a coke, that he saw Frazier and Scott across the street from the market, and that Josey passed him without speaking. He further testified that he returned to the pool hall and saw Linell Josey and a lot of his friends there. He denied knowledge of a shooting.\nAttorney General Edmisten, by Associate Attorney Cynthia Jean Zeliff, for the State.\nCharles E. Sweeny, Jr., for defendant appellant." }, "file_name": "0032-01", "first_page_order": 60, "last_page_order": 66 }