{ "id": 8560872, "name": "STATE OF NORTH CAROLINA v. MARCUS B. SHRADER III", "name_abbreviation": "State v. Shrader", "decision_date": "1976-06-17", "docket_number": "No. 7", "first_page": "253", "last_page": "266", "citations": [ { "type": "official", "cite": "290 N.C. 253" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "194 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566644 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0431-01" ] }, { "cite": "221 S.E. 2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567445 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0159-01" ] }, { "cite": "171 S.E. 2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560417 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0142-01" ] }, { "cite": "187 S.E. 2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573255 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0665-01" ] }, { "cite": "215 S.E. 2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564309 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0578-01" ] }, { "cite": "79 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "239 N.C. 78", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625717 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/239/0078-01" ] }, { "cite": "196 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559349 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0541-01" ] }, { "cite": "221 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567721 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0232-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "200 S.E. 2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560715 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0190-01" ] }, { "cite": "218 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568029 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0254-01" ] }, { "cite": "220 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "288 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570236 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/288/0514-01" ] }, { "cite": "194 S.E. 2d 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557587 ], "year": 1973, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0017-01" ] }, { "cite": "202 S.E. 2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562851 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0485-01" ] }, { "cite": "202 S.E. 2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564742 ], "year": 1974, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0625-01" ] }, { "cite": "13 S.E. 319", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1891, "opinion_index": 0 }, { "cite": "34 S.C. 120", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 4394773 ], "year": 1891, "opinion_index": 0, "case_paths": [ "/sc/34/0120-01" ] }, { "cite": "56 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "231 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629425 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/231/0301-01" ] }, { "cite": "185 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570854 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0202-01" ] } ], "analysis": { "cardinality": 1077, "char_count": 31917, "ocr_confidence": 0.627, "pagerank": { "raw": 2.2248756203457477e-07, "percentile": 0.7780349356275211 }, "sha256": "fa0e7d2eaf62e1c8a54c6a6c819d7e5817b35f401cfa024b3a5fd04ae2e918cf", "simhash": "1:232a046a15ba7d7c", "word_count": 5552 }, "last_updated": "2023-07-14T22:57:34.654413+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. MARCUS B. SHRADER III" ], "opinions": [ { "text": "LAKE, Justice.\nThe killing of another human being, whether intentional or otherwise, while the person who kills is engaged in the perpetration of a felony, which felony is inherently or foreseeably dangerous to human life, is murder at common law. State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972); State v. Streeton, 231 N.C. 301, 56 S.E. 2d 649 (1950); State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891); Regina v. Horsey, 3 Fost. & F. 287 (Kent Assizes, 1862); Regina v. Serne, 16 Cox Crim. Cas. 311 (1887); Harno Cases and Materials on Criminal Law and Procedure, 318 (Callaghan, 1939); 40 C.J.S., Homicide, \u00a7 21 (1944). Kidnaping and robbery are such felonies. State v. Streeton, supra; State v. Jarrette, 284 N.C. 625, 651, 202 S.E. 2d 721 (1974); State v. Moore, 284 N.C. 485, 202 S.E. 2d 169 (1974). A killing is committed in the perpetration of a felony when an unbroken chain of events leads from such felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction. State v. Thompson, supra; 40 Am. Jur. 2d, Homicide, \u00a7 73 (1968). In the present case, the evidence, both that for the State and that for the defendant, shows an unbroken chain of events leading from the kidnaping to the robbery and thence to the shooting of Mrs. Boyd. Thus, even if the defendant\u2019s testimony that he did not intend to fire the pistol is taken as true, the killing of Mrs. Boyd was murder, there being no statute of this State changing the definition of murder from that of the common law. A murder committed with premeditation and deliberation or in the perpetration of a kidnaping or in the perpetration of a robbery is murder in the first degree. G.S. 14-17. The prescribed punishment for such a murder is death by asphyxiation. G.S. 14-17.\nThe indictment for murder under which the defendant was charged is in the form prescribed by G.S. 15-144. It alleges that the defendant \u201cfeloniously, wilfully, and of his malice aforethought, did kill and murder Cheryl Potter Boyd contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.\u201d Such an indictment is sufficient to support a verdict of guilty of murder in the first degree if the jury finds from the evidence, beyond a reasonable doubt, that the defendant killed the deceased with malice and after premeditation and deliberation or that he killed her in the perpetration of a robbery or of a kidnaping. The evidence is ample to support a verdict on each of these three theories. The jury was instructed completely and accurately upon each of them. The defendant assigns no error in the charge to the jury.\nThe defendant contends that the trial court erred in accepting his plea of guilty to the charge of kidnaping. It is the defendant\u2019s contention that, when the defendant, at the close of all the evidence, changed his plea as to the charge of kidnaping from \u201cnot guilty\u201d to \u201cguilty,\u201d this was tantamount to his entering a plea of guilty to first degree murder because of the above mentioned rules of law.\nAs Justice Sharp, now Chief Justice, said in State v. Watkins, 283 N.C. 17, 30, 194 S.E. 2d 800 (1973), after noting a lack of statutory authority to sustain the rule promulgated by our predecessors on this Court that an accused will not be permitted to plead guilty to a crime for which the penalty is death, \u201cIt has long since become the public policy of this State.\u201d Nevertheless, there is no merit in this contention of the defendant. Kidnaping is not a crime punishable by death. Indeed, no punishment has yet been imposed upon the defendant for the crime of kidnaping. He was sentenced to death for the crime of murder in the first degree. He did not plead guilty of that offense.\nThe public policy upon which the defendant relies is simply that no person shall be put to death in this State for a crime until he has been duly indicted therefor and, at a trial, conducted pursuant to law, evidence has been introduced sufficient to support a finding of every element of the offense and a duly constituted jury, properly instructed upon the law, has found from the evidence, beyond a reasonable doubt, that he has committed each element of such offense. A plea of guilty, when accepted, being the equivalent of a conviction, no evidence of guilt is required and no verdict of a jury is required as a prerequisite to the imposition of a lawful sentence. Thus, the said public policy, established by our predecessors on this Court, precludes the acceptance of a plea of guilty to a crime for which the penalty is death. This policy, however, does not preclude the State from offering evidence of a confession, voluntarily and lawfully made by the accused, nor does it preclude the accused from testifying voluntarily at his trial or the jury from considering matters to which he testified in arriving at the verdict that he is guilty of a capital crime.\nIn the present case, the defendant, voluntarily, contrary to the advice of his counsel, and after careful interrogation by the court in the absence of the jury, testified. His testimony corroborated the evidence introduced by the State in virtually every particular. There was no error in permitting him to do so, or in permitting the jury to consider his testimony in arriving at its verdict. The court carefully and correctly instructed the jury that the defendant\u2019s plea of guilty to the offense of kidnaping did not absolve the jury from the necessity of finding, beyond a reasonable doubt, that the offense of kidnaping had been committed, in order for the jury to reach a verdict of guilty of murder in the first degree on the theory that the murder occurred in the perpetration of the felony of kidnaping. No error is assigned with reference to instructions of the court on this or any other matter. We find no error therein.\nIt was not error to accept the defendant\u2019s plea of guilty of the offense of kidnaping and thus to withdraw that charge, as a separate criminal offense, from the jury\u2019s consideration, but had this been error, it would clearly be harmless in view of the defendant\u2019s own testimony describing in detail the kidnaping and the events leading in an unbroken chain therefrom to the death of Mrs. Boyd.\nThe State\u2019s witness Hines identified the defendant in court as the man he saw in Mrs. Boyd\u2019s automobile with her as they passed him while he was stopped waiting to make a left turn at an intersection only minutes before her death. In the absence of the jury, the court conducted a voir dire and found the in-court identification of the defendant by this witness was not tainted by any extraneous or unlawful or impermissible suggestion by anyone, or by photographs exhibited to him by the police, to whom this witness gave an accurate description of the defendant prior to him seeing such photographs. The evidence on the voir dire supports the findings of the judge and there was no error in admitting the in-court identification of the defendant by this witness. The defendant virtually so concedes in his brief in view of our decision in State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1976). Even if there had been error in the admission of this evidence, it pales into insignificance and is clearly harmless in view of the defendant\u2019s own testimony describing the kidnaping of Mrs. Boyd, the robbery of the bank and his compelling her to drive from the bank to the place where she was shot. There is no merit in this assignment of error.\nOn cross-examination of the defendant\u2019s stepdaughter, the defendant\u2019s counsel attempted to discredit her testimony by showing she had been promised that, in exchange for her testimony, she, herself, would be charged only with aiding and abetting in the kidnaping of Mrs. Boyd. She testified in the course of such cross-examination, \u201cI am not worried about being charged with two other kidnapings and two other murders.\u201d She acknowledged that a note exhibited to her by the cross-examining counsel revealed her involvement in the kidnap-murder of two other girls. On redirect examination by the district attorney, she testified that she had made a statement to the officers on the day she was arrested concerning \u201cthe other two murders and kidnapings\u201d and directed the officers to places where evidence of those crimes might be found. Her statement concerning these other murders and kidnapings was introduced in evidence. It was to the effect that, in her company, two weeks prior to the kidnaping and killing of Mrs. Boyd, the defendant had kidnaped and murdered two other girls, these crimes being described in substantial detail. The defendant assigns the admission of this evidence on redirect examination as error.\nIt is, of course, true that, nothing else appearing, the State cannot, through its own witnesses, offer evidence tending to show the defendant has committed another distinct, independent, separate offense having no relation to the crime charged, except its tendency to show his disposition to commit a crime of the nature of the one for which he is on trial. State v. Carey, 288 N.C. 254, 218 S.E. 2d 387 (1975); State v. Patterson, 284 N.C. 190, 200 S.E. 2d 16 (1973); State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). However, the nature of the defendant\u2019s cross-examination of this witness for the purpose of impeaching her credibility was such as to suggest to the jury that the witness, independent of the defendant, had been involved in other kidnapings and murders. On redirect examination, for the purpose of rebutting this impeaching evidence, the State was entitled to show that the defendant was the kidnaper and murderer on the other occasion. State v. Patterson, swpra.\nFurthermore, the record does not show any objection to this evidence on the redirect examination of the stepdaughter. The failure to object to the introduction of the evidence is a waiver of the defendant\u2019s right to do so, and the admission of such evidence, even if incompetent, is not ground for a new trial. State v. Hedrick, 289 N.C. 232, 221 S.E. 2d 350 (1976); State v. Gurley, 283 N.C. 541, 196 S.E. 2d 725 (1973); State v. Howell, 239 N.C. 78, 79 S.E. 2d 235 (1953).\nThe defendant next contends that \u201cthe trial court erred in allowing the testimony of Debra Brown\u201d (the stepdaughter of the defendant). The basis of this contention is that she testified on cross-examination by the defendant that she had been promised, in exchange for her testimony as a witness for the State, that she, herself, would be charged only with the offense of aiding and abetting in the kidnaping of Mrs. Boyd and would not be prosecuted for her murder. The record discloses no motion to suppress the testimony of this witness and no motion to strike her testimony, or any objection on the ground of her competence as a witness. Furthermore, this assignment of error has no merit for the reason that the witness was competent. The defendant virtually so concedes in his brief in the light of our decision in State v. Woodson, 287 N.C. 578, 215 S.E. 2d 607 (1975), which clearly so holds.\nThe defendant further contends that the trial court erred in \u201callowing the jury access to TV and other news sources.\u201d The record shows that when recessing for the night, the court instructed the jury not to discuss the case with anyone, not even among themselves, and directed them: \u201cPlease don\u2019t listen to anything about it. If there be anything on the radio or on the local TV about it, just cut it off until you think that part of it would be over. Don\u2019t read anything about it in the newspapers. In all due respect to whomever may write the newspaper or the TV or radio people, you have heard everything that has happened here. They can\u2019t tell you anything that you don\u2019t know from what has developed in this evidence. So just keep your mind free and open about the case until you have heard all of the evidence, the arguments of counsel, and the charge of the court.\u201d In this we see no error. The defendant concedes in his brief that he is unaware of any misconduct on the part of any juror or any disregard of the instructions of the trial court. In the absence of any indication to the contrary, the jurors are presumed to have complied with the instructions of the court. State v. Self, 280 N.C. 665, 187 S.E. 2d 93 (1972); State v. Moore, 276 N.C. 142, 171 S.E. 2d 453 (1970). The record discloses no objection by the defendant to this instruction or any request for further instruction or action by the court in this respect.\nThe defendant, acknowledging that we have repeatedly-ruled to the contrary, contends that it was error to sentence the defendant to death for the reason that such sentence constitutes cruel and unusual punishment. Further discussion of this contention would be needlessly repetitious of our former decisions. See: State v. Bush, 289 N.C. 159, 221 S.E. 2d 333 (1976); State v. Woodson, supra; State v. Jarrette, supra; State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973).\nFinally, the defendant in his brief requests us to consider all assignments of error made in his statement of the case on appeal, whether brought forward in the brief or not. We have done so and have also carefully considered the entire record. We find no merit in any assignment of error and no error in the record which would entitle the defendant to a new trial. The record, in its entirety, discloses a carefully planned and coldly executed murder of a young woman, unknown to the defendant, seized and used as a shield or hostage in the bank robbery and, when she was no longer useful to the defendant for that purpose, murdered in cold blood in order to eliminate a witness who could identify him as the robber. The defendant has had a fair trial free from any substantial error.\nNo error.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Lester V. Chal-mers, Jr., Assistant Attorney General, for the State.", "Donald P. Brock for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARCUS B. SHRADER III\nNo. 7\n(Filed 17 June 1976)\n1. Homicide \u00a7 4 \u2014 killing in perpetration of felony \u2014 first degree murder\nThe killing of another human being, whether intentional or otherwise, while the person who kills is engaged in the perpetration of a felony, which felony is inherently or foreseeably dangerous to human life, is murder at common law.\n2. Homicide \u00a7 4\u2014 when killing is in perpetration of felony\nA killing is committed in the perpetration of a felony when an unbroken chain of events leads from such felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction.\n3. Homicide \u00a7 21 \u2014 homicide in perpetration of robbery and kidnapping \u2014 absence of intent to fire pistol\nWhere all the evidence showed an unbroken chain of events leading from a kidnapping of the victim to a bank robbery and thence to the shooting of the victim with a pistol, the killing of the victim was murder in the first degree even if defendant\u2019s testimony that he did not intend to fire the pistol is taken as true.\n4. Homicide \u00a7 12 \u2014 indictment \u2014 first degree murder \u2014 premeditation and deliberation or perpetration of felony\nAn indictment for murder in the form prescribed by G.S. 15-144 was sufficient to support a verdict of guilty of murder in the first degree if the jury found from the evidence, beyond a reasonable doubt, that defendant killed the deceased with malice and after premeditation and deliberation or that he killed deceased in the perpetration of a robbery or of a kidnapping.\n5. Criminal Law \u00a7 23; Homicide \u00a7 13 \u2014 guilty plea to capital crime \u2014 public policy\nPublic policy, established by previous decisions of the Supreme Court, precludes the acceptance of a plea of guilty to a crime for which the penalty is death; this policy, however, does not preclude the State from offering evidence of a confession, voluntarily and lawfully made by the accused, nor does it preclude the accused from testifying voluntarily at his trial or the jury from considering matters to which he testified in arriving at its verdict that he is guilty of a capital crime.\n6. Criminal Law \u00a7 23; Homicide \u00a7 13 \u2014 guilty plea to kidnapping \u2014 no guilty plea to first degree murder\nIn a prosecution for first degree murder wherein the evidence tended to show that the killing was committed in the perpetration of a robbery and kidnapping, the acceptance of defendant\u2019s plea of guilty of kidnapping at the close of all the evidence was not tantamount to the acceptance of a plea of guilty of first degree murder in violation of public policy precluding the acceptance of a plea of guilty to a capital crime.\n7. Criminal Law \u00a7 66 \u2014 in-court identification \u2014 admissibility\nThe trial court did not err in the admission of an in-court identification of defendant where the evidence on voir dire supported findings by the court that the in-court identification of defendant by the witness was not tainted by any extraneous or unlawful or impermissible suggestion by anyone, or by photographs exhibited to him by the police, to whom the witness had given an accurate description of defendant prior to his seeing such photographs.\n8. Criminal Law \u00a7 34 \u2014 evidence of other crimes\nNothing else appearing, the State cannot, through its own witnesses, offer evidence tending to show the defendant has committed another distinct, independent, separate offense having no relation to the crime charged, except its tendency to show his disposition to commit a crime of the nature of the one for which he is on trial.\n9.Criminal Law \u00a7\u00a7 34, 89 \u2014 evidence of other crimes \u2014 rebuttal of impeachment of witness \u25a0\nWhere the nature of defendant\u2019s cross-examination of a witness for impeachment purposes in a kidnapping and murder trial was such as to suggest to the jury that the witness, independent of the defendant, had been involved in other kidnappings and murders, the State was entitled, for the purpose of rebutting this impeaching evidence, to show on redirect examination that defendant was the kidnapper and murderer on the other occasion; furthermore, defendant\u2019s failure to object to the introduction of such evidence on redirect examination was a waiver of his right to do so, and the admission of such evidence, even if incompetent, is not ground for a new trial.\n10. Criminal Law \u00a7 87; Witnesses \u00a7 1\u2014 competency of witness \u2014 promise of State not to prosecute for certain crimes\nIn this prosecution for kidnapping and murder, defendant\u2019s stepdaughter was not incompetent as a witness on the ground that she had been promised, in exchange for her testimony as a witness for the State, that she would be charged only with the offense of aiding and abetting in the kidnapping of the victim and would not be prosecuted for her murder.\n11. Criminal Law \u00a7 101 \u2014 allowing jury access to news sources \u2014 instructions by court\nThe trial court in a kidnapping and murder case did not err in allowing the jury access to television and other news sources where the court instructed the jury not to discuss the case with anyone and not to read about the ease in the newspapers or watch or listen to anything about it on television or radio, and where there was no indication of any misconduct on the part of any juror or any disregard of the court\u2019s instructions.\n12. Constitutional Law \u00a7 36 \u2014 death penalty \u2014 constitutionality\nThe death penalty for first degree murder does not constitute cruel and unusual punishment.\nAppeal by defendant from Fountain, Jat the 2 December 1974 Criminal Session of Onslow.\nThe defendant was brought to trial upon two indictments, one charging him with the murder of Cheryl Potter Boyd, the other charging him with kidnaping her. To each indictment he originally entered a plea of not guilty. At the conclusion of all of the evidence, he changed his plea to the kidnaping charge to a plea of guilty. This was done after an extensive interrogation by the court, in the absence of the jury, in which the court fully explained the possible consequences of such plea with reference to the charge of murder, and after the court ascertained that the defendant\u2019s decision to change his plea was made by him voluntarily, after full consultation with his counsel and with understanding of its consequence upon the charge of kidnaping and its possible consequence on the charge of murder.\nThe court thereupon instructed the jury that by reason of the defendant\u2019s change of his plea, the charge of kidnaping was no longer for their consideration, as such, but, by such plea, the defendant was not to be deemed to have admitted the fact of kidnaping insofar as it related to the murder charge. In its instructions to the jury on the murder charge, the court fully instructed the jury as to the law relating to murder committed in the perpetration of kidnaping, as to the elements of kidnaping and as to the burden of proof resting upon the State with reference to the commission of a murder in the perpetration of a kidnaping. The defendant assigns as error the acceptance by the court of the defendant\u2019s plea of guilty to the charge of kidnaping but makes no assignment of error as to the charge of the judge to the jury.\nThe evidence for the State consisted of the testimony of the defendant\u2019s stepdaughter, who testified that she was his companion throughout the series of events and an eyewitness to the kidnaping and the shooting of Mrs. Boyd, the testimony of another witness identifying the defendant as the companion of Mrs. Boyd during the brief interval between her kidnaping and her death, the testimony of other witnesses identifying photographs of a masked bank robber using Mrs. Boyd as a hostage as photographs of the defendant, the testimony of numerous expert witnesses and a large number of exhibits.\nIf true, the State\u2019s evidence was ample to show:\nThe defendant and his stepdaughter, for some ten days prior to 16 August 1974, drove about the vicinity of Camp Lejeune, where he was stationed as a member of the Marine Corps, and the Town of Jacksonville, looking for a car to use in a bank robbery. While so driving in the late morning of 16 August 1974, they observed Mrs. Cheryl Potter Boyd, previously unknown to them, park her car in the parking lot of the post office in Jacksonville. At the defendant\u2019s direction the stepdaughter parked beside Mrs. Boyd\u2019s car.\nWhen Mrs. Boyd emerged from the post office and reentered her car, the defendant, armed with a .45 caliber automatic pistol, got out of his car and entered the car of Mrs. Boyd. Thereupon, Mrs. Boyd drove her car from the parking lot, the defendant directing his stepdaughter to follow, which she did. They proceeded to another parking lot where, at the defendant\u2019s direction, the stepdaughter handed him a parachute bag from which he removed a green ski mask, a blue jacket with red and yellow stripes, a white pillow case and brown gloves. The stepdaughter remained in the second parking lot in the defendant\u2019s automobile. Mrs. Boyd\u2019s car left the parking lot, Mrs. Boyd driving and the defendant riding therein.\nWithin a few moments, Mrs. Boyd, accompanied by a man wearing a green ski mask and a blue jacket with red and yellow stripes, carrying a white pillow case and brandishing a .45 caliber pistol, entered the North Carolina National Bank in Jacksonville. Mrs. Boyd was obviously frightened. The defendant compelled three tellers of the bank to put money of the bank into the pillow case. A portion of the money placed therein by the tellers consisted of bills, known as \u201cbait money,\u201d the serial numbers of which were recorded by the bank. Cameras in the bank, activated by the tellers, took photographs of the robbery. Persons acquainted with the defendant identified the photographs of the robber, wearing the green ski mask, as photographs of the defendant.\nThe robber and Mrs. Boyd then left the bank, she being compelled by the robber to accompany him, entered her automobile and drove away. They returned to the parking lot where the defendant\u2019s stepdaughter awaited them, Mrs. Boyd driving. The Boyd car then left the parking lot, the defendant directing his stepdaughter to follow. They proceeded to an alley in the rear of the A & P store in Jacksonville where both cars stopped adjacent to each other. Mrs. Boyd threw out the keys to her car. The defendant then got out of the Boyd car on the passenger side, threw his gloves into his own automobile, driven by the stepdaughter, then turned around and shot Mrs. Boyd with the .45 caliber pistol, got into his own car, driven by the stepdaughter, carrying the white pillow case. They drove to yet another point at which the defendant had previously parked a van owned by him and in which he had earlier changed from his military uniform to the clothes worn during the above mentioned events. Reentering the van, he changed back into his military uniform and returned to the Marine Base.\nThe robbery of the bank occurred at 1:30 p.m. A police alarm was immediately activated. At approximately 2 p.m., Mrs. Boyd\u2019s car was discovered by police officers at the rear of the A & P store. Mrs. Boyd was in the driver\u2019s seat. She was dead, having sustained a bullet wound in or near the right eye. The motor of her car was still warm. The cause of her death was the bullet wound, death apparently being instantaneous. The fatal bullet was recovered from Mrs. Boyd\u2019s head and was identified by a ballistics expert as having been fired from the defendant\u2019s pistol. A fingerprint made by the defendant\u2019s right ring finger, pointing downward, was found on the outside of the glass of the window of Mrs. Boyd\u2019s car on the passenger side, this glass being almost completely rolled down.\nPackages of money in substantially the total amount taken from the bank were found in the freezer in the defendant\u2019s home. These included the \u201cbait money\u201d placed in the pillow case at the robber\u2019s direction by two of the bank tellers.\nAt the conclusion of the State\u2019s evidence, the defendant\u2019s counsel, in the absence of the jury, advised the court that the defendant, contrary to the advice of his counsel, insisted upon taking the witness stand. Having ascertained from the defendant\u2019s counsel that this was contrary to their advice and that they had fully and completely conferred with the defendant concerning his right to testify and his right not to testify, the court interrogated the defendant and ascertained that, notwithstanding the advice of his counsel, he desired to testify. He did so, his testimony being the only evidence for the defendant. His testimony was to the following effect:\nOn the morning of 16 August 1974, after parking his van and therein changing from his military uniform to civilian clothes, he and his stepdaughter drove about in his automobile, the stepdaughter driving. Observing Mrs. Boyd, whom he did not know, entering the post office, the defendant told his stepdaughter, \u201cI\u2019m going to take that girl, I\u2019m going to rob a bank.\u201d They, thereupon, parked beside Mrs. Boyd\u2019s automobile.\nWhen Mrs. Boyd returned to her automobile, the defendant got out of his car With his .45 caliber pistol in his hand, opened the door of Mrs. Boyd\u2019s car and slid into the passenger seat. He told Mrs. Boyd: \u201cStay calm, you\u2019re going to be all right, you\u2019re not going to get hurt. You and I are going to rob a bank.\u201d Mrs. Boyd was frightened.\nAt the defendant\u2019s direction, Mrs. Boyd drove out of the post office parking lot, the defendant\u2019s stepdaughter following in his car. They drove to another parking lot where the two vehicles again parked side by side. At the defendant\u2019s direction, the stepdaughter handed to th\u00e9 defendant a parachute bag containing a blue jacket, gloves, a ski mask and a pillow case.\nAt the defendant\u2019s direction, Mrs. Boyd then drove to the bank. He put on the ski mask and, with his pistol in his hand, directed Mrs. Boyd to precede him into the bank, which she did. There he directed the three tellers to put their money in the pillow case and directed all other persons in the bank to remain still. These directions were followed. Taking the pillow case, now containing the money, the defendant handed it to Mrs. Boyd and, taking her by the arm and trying to calm her fears, he directed Mrs. Boyd out of the bank and into her car. He also entered the car and, with the pistol in his lap, directed Mrs. Boyd to drive away, which she did, following his direction.\nThey returned to the parking lot at which they had left the defendant\u2019s stepdaughter and proceeded from there, with the stepdaughter following in the defendant\u2019s car, to the alley where both cars were brought to a stop. At the defendant\u2019s direction, Mrs. Boyd turned off the engine of her car and, also at his direction, threw her keys out of the window. The defendant raised his hand and as Mrs. Boyd started to turn around, \u201cher head jumped back, like that [demonstrating]. Her head was still in the air. She was smiling when she was turning back and her hand dropped down to her lap and her body started to shake [demonstrating], tremors, I had seen it before and I knew she was dead. Didn\u2019t hear a gun shot.\u201d He looked at the pistol and the safety was off.\nThe defendant got out of Mrs. Boyd\u2019s car, carrying the pillow case with the money, entered his car and he and the stepdaughter drove away, returning to the place where he had previously parked his van, which he entered and therein changed back to his military uniform.\nThe defendant testified: \u201cI did not mean for her to die then, I shot her at that time but I didn\u2019t want her to die, not then. I did not mean to shoot her, not then, but when I first saw her. I did not deliberately shoot Cheryl Boyd. I didn\u2019t form an intent to destroy the girl. I knew I was going to rob a bank. She didn\u2019t behave the way she was supposed to behave. Things didn\u2019t go right at the bank. When she threw the keys out I was just confused. I just wanted to get to Debbie [the stepdaughter] and get the hell out of there.\u201d The defendant expressed concern for his stepdaughter and his desire to absolve her from all complicity in the events of the morning on the ground that she was simply doing what he had told her to do. He further testified that the investigating officers told him of his constitutional rights and he understood them. He consented to the search of his house by these officers, through which search they discovered the pistol. (A subsequent search pursuant to a search warrant disclosed the money in the freezer.)\nThe defendant testified that he had been having sexual relations with his stepdaughter for approximately two years but denied her earlier testimony that he raped her when she was 12 years of age. He further testified: \u201cI don\u2019t know why I robbed the NCNB bank. It was mostly the girl. When I first saw her ,1 knew what I was going to do. I knew I was going to destroy her. Killing her was my primary thinking. She was an example of my wife. * * * I am responsible for the abduction of Cheryl Potter Boyd. I did the bank robbery at NCNB. I didn\u2019t deliberately shoot her. I initially intended to destroy her. I changed my mind at the bank. I couldn\u2019t go through with it. It was on and off. I was coming apart.\u201d\nOn cross-examination, the defendant testified that he knew it was against the law to kidnap and to rob a bank, that murder is a capital crime and that he was kidnaping Mrs. Boyd at the post office and at that time he \u201cwas going to destroy her.\u201d He further testified on cross-examination: \u201cThe girl was frightened. I told her what to do and it didn\u2019t work out that way. I had no intention about killing her from part way through the bank robbery. It was a matter of her behavior. She was \u25a0frightened. That was one of the reasons. There were others.\u201d He acknowledged his ownership of the pistol, identified by the State\u2019s evidence, as the weapon from which the fatal bullet was fired.\nDefendant\u2019s trial counsel having ceased to practice law, Donald P. Brock was appointed to represent him on appeal.\nRufus L. Edmisten, Attorney General, by Lester V. Chal-mers, Jr., Assistant Attorney General, for the State.\nDonald P. Brock for defendant." }, "file_name": "0253-01", "first_page_order": 285, "last_page_order": 298 }