{ "id": 8566912, "name": "STATE OF NORTH CAROLINA v. DAVID BERNARD FOSTER", "name_abbreviation": "State v. Foster", "decision_date": "1977-12-15", "docket_number": "No. 38", "first_page": "674", "last_page": "688", "citations": [ { "type": "official", "cite": "293 N.C. 674" } ], "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": "158 S.E. 2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "272 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573149 ], "year": 1967, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0408-01" ] }, { "cite": "234 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "579" } ], "opinion_index": 0 }, { "cite": "292 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571639 ], "year": 1977, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0617-01" ] }, { "cite": "199 S.E. 2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "284 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559900 ], "year": 1973, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0067-01" ] }, { "cite": "428 U.S. 280", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177464 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0280-01" ] }, { "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": "50 L.Ed. 2d 301", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "97 S.Ct. 339", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 932", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7686, 5955, 6294, 7343 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0932-03", "/us/429/0932-04", "/us/429/0932-01", "/us/429/0932-02" ] }, { "cite": "225 S.E. 2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560849 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0236-01" ] }, { "cite": "238 S.E. 2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563846 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0276-01" ] }, { "cite": "189 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575699 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0592-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] }, { "cite": "50 L.Ed. 2d 278", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "97 S.Ct. 301", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 912", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6211, 7260, 7615 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0912-01", "/us/429/0912-03", "/us/429/0912-02" ] }, { "cite": "224 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572654 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0668-01" ] }, { "cite": "233 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569830 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0391-01" ] }, { "cite": "158 S.E. 2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572379 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0239-01" ] }, { "cite": "188 S.E. 2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574824 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0275-01" ] }, { "cite": "172 S.E. 2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561475 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0381-01" ] }, { "cite": "47 L.Ed. 2d 102", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "96 S.Ct. 886", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "423 U.S. 1091", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6514491, 6514340, 6514795, 6515212, 6515120, 6514896, 6514417, 6514995, 6514579, 6514715 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/423/1091-03", "/us/423/1091-01", "/us/423/1091-06", "/us/423/1091-10", "/us/423/1091-09", "/us/423/1091-07", "/us/423/1091-02", "/us/423/1091-08", "/us/423/1091-04", "/us/423/1091-05" ] }, { "cite": "218 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568094 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0285-01" ] }, { "cite": "98 S.E. 2d 13", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "15" } ], "opinion_index": 0 }, { "cite": "246 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625590 ], "year": 1957, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0205-01" ] }, { "cite": "22 A.L.R. 3d 717", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1968, "pin_cites": [ { "page": "721" } ], "opinion_index": 0 }, { "cite": "83 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278919 ], "year": 1880, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc/83/0619-01" ] }, { "cite": "63 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278058 ], "year": 1869, "opinion_index": 0, "case_paths": [ "/nc/63/0518-01" ] }, { "cite": "95 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274895 ], "year": 1886, "pin_cites": [ { "page": "557-58" } ], "opinion_index": 0, "case_paths": [ "/nc/95/0551-01" ] }, { "cite": "47 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682335 ], "year": 1855, "opinion_index": 0, "case_paths": [ "/nc/47/0257-01" ] } ], "analysis": { "cardinality": 1331, "char_count": 32977, "ocr_confidence": 0.806, "pagerank": { "raw": 2.9808068516918845e-07, "percentile": 0.8509992281403279 }, "sha256": "aff02d43be36e0421e2268c53dd97cc9a1177cd6c0281392317a9dd92a679352", "simhash": "1:3f1170ae843100df", "word_count": 5602 }, "last_updated": "2023-07-14T16:59:49.379337+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DAVID BERNARD FOSTER" ], "opinions": [ { "text": "SHARP, Chief Justice.\nDefendant brings forward seven assignments of error. We consider first his assignment No. 4, which is the basis for his assertion that \u201cthe major question presented by this appeal\u201d is whether the trial judge erred in refusing to direct a verdict of not guilty as to defendant Foster after the jury had acquitted defendant Boulware. Defendant Foster stresses the fact that although the State\u2019s case against both defendants Foster and Boulware depended upon the testimony of Martin, who implicated them both in the attempted robbery, the jury acquitted Boulware and \u201cconvicted Foster on the same testimony.\u201d He argues that if the jury disbelieved Martin with reference to Boulware\u2019s participation in the crime, then logic also required them to reject his testimony as to Foster\u2019s complicity. This contention has no merit, and it is overruled.\nWhile it is true that the State\u2019s case against both defendants rested upon Martin\u2019s testimony, it is not true that the jury was required to accept his testimony either in its entirety or not at all. Further, Boulware offered evidence tending to show that she was not a knowing accomplice to the attempted robbery.\nIn this State the maxim falsus in uno, falsus in omnibus is not to be used as a rule of law by which evidence is withdrawn from the jury as if the witness were incompetent. It is merely a permissive aid in weighing and sifting evidence. State v. Williams, 47 N.C. 257 (1855). See Ferrall v. Broadway, 95 N.C. 551, 557-58 (1886); Black\u2019s Law Dictionary 727 (4th Ed. 1951). More than a century ago, speaking through Justice Rodman, this Court approved the trial judge\u2019s charge that \u201cthe rule Jalsus in uno, falsus in omnibus\u2019 does not prevail in this State; that the jury could believe a part, all, or none of the testimony, and that it was a question of credit, of which they were the sole Judges.\u201d State v. Brantley and Watkins, 63 N.C. 518 (1869). The substance of that portion of the charge quoted above has been a standard part, a sine qua non, of the trial judge\u2019s charge during the memory of any lawyer now alive. As Chief Justice Smith said in State v. Hardee, 83 N.C. 619, 622 (1880): \u201cEven the clear perjury of a witness committed on the trial does not authorize the court to direct the jury to disregard the testimony, but it goes to his credit only.\u201d\nUpon the evidence in this case the jury would have been fully justified in finding both B\u00f3ulware and Foster guilty as charged. It is equally clear that the two differing verdicts rendered can be explained on a rational basis. We note, however, the following statement from Annot., 22 A.L.R. 3d 717, 721 (1968): \u201c[M]ost modern courts are agreed that the verdicts as between two or more defendants tried together in a criminal case need not demonstrate rational consistency. . . .\n\u201cOf course, if the court determines that the verdicts are actually consistent notwithstanding defendant\u2019s attack upon them, affirmance will result regardless of the court\u2019s views respecting the necessity for consistency. Such a determination may be made where, considering the facts and circumstances disclosed, the verdicts can be explained on some rational basis or where the evidence adduced against the one defendant was different from or weaker than that adduced against the other.\u201d See also State v. Meshaw, 246 N.C. 205, 207, 98 S.E. 2d 13, 15 (1957).\nAssignments of error 1, 2, and 3 challenge the court\u2019s rulings admitting certain evidence over defendant\u2019s objection.\nOn direct examination Martin was permitted to testify that while he, Foster, Williams, and B\u00f3ulware sat in her mother\u2019s car at the home of Joyce Pettus, Williams said \u201cthat down there is a store \u2018we can rob for some money\u2019 . . . that he had cased it out earlier.\u201d Defense counsel objected on the ground that Williams\u2019 statement was hearsay. The objection was overruled and assignment No. 1 is based on this ruling. It is without merit.\nDefendant, who admitted being in the store when the attempted robbery and murder took place, based his defense to th\u00e9 charge of murder on his lack of knowledge that Williams and Martin planned to rob the store and his lack of participation in the plot or its attempted execution. Thus, Williams\u2019 challenged statements were competent to prove defendant\u2019s knowledge that Boulware, Martin, and Williams planned to rob Jimmy\u2019s Supermarket. 1 Stansbury\u2019s N.C. Evidence \u00a7 83 (Brandis rev. 1973). Notwithstanding, had the admission of this testimony constituted error it would have been rendered harmless when Martin, without objection, thereafter gave substantially identical testimony both on direct and cross-examination. State v. Sanders, 288 N.C. 285, 218 S.E. 2d 352 (1975), cert. denied, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed. 2d 102 (1976).\nDefendant\u2019s assignment No. 2 charges that the trial judge erred in permitting the jury to view the scars from the wounds which, Martin testified, Small had inflicted upon him with a butcher knife at the time he shot Small. These scars were illustrative of relevant and material testimony. Their exhibition to the jury, therefore, was not error. 1 Stansbury\u2019s N.C. Evidence \u00a7 119 (Brandis rev. 1973). See also State v. Barrow, 276 N.C. 381, 172 S.E. 2d 512 (1970).\nAssignment No. 3 is directed to an allegedly leading question. The record discloses that this question was both timesaving and harmless. See State v. Cox et al, 281 N.C. 275, 188 S.E. 2d 356 (1972); State v. Johnson, 272 N.C. 239, 158 S.E. 2d 95 (1967). In his brief defendant concedes that the rulings challenged by assignments 2 and 3 were on matters \u201ccommitted to the discretion of the trial court.\u201d He suggests no abuse of discretion and there obviously was none. Both assignments are overruled.\nThe substance of defendant\u2019s assignment No. 5 is that the trial judge erred by allowing the district attorney to question defendant and his witness Franckewitz about their respective criminal convictions and specific acts of misconduct. This assignment is based upon an objection which the record reports as follows:\n\u201cMr. Blum: I object to continuing along this line of questioning. (The district attorney was reading from arrest records.)\n\u201cCourt: He can cross examine him.\u201d\nIn his brief defendant argues that to permit the district attorney to cross-examine a witness about convictions while referring to an arrest record is to permit him to insinuate that he \u201chas a long arrest record and is not telling the truth about it.\u201d This argument, if carried to its logical conclusion, would prevent the prosecuting attorney from using any unidentified notes while cross-examining a witness. At the time the district attorney was cross-examining defendant the record contains no suggestion that the jury knew the nature of the paper the district attorney was using. Later, when examining Franckewitz, defense counsel himself identified the paper in making the following objection: \u201cYour Honor, I object to the use of unconfirmed arrest records not reduced to conviction, as we have objected before, in use in impeachment. I believe that an arrest record has no meaning.\u201d The court\u2019s response was, \u201cObjection overruled. He can ask if she committed the acts. Go ahead.\u201d\nWhen the examinations were completed defendant had admitted that he had been convicted of the possession of marijuana in January 1976, of receiving stolen goods in 1975, and of resisting arrest in 1974. He had denied that he had robbed Robert Owens in 1976 and that he had ever committed larceny from the Charlottetown Mall. Franckewitz had admitted that in 1971 she had written four worthless checks in Florida and fifteen in Charlotte in 1974. She denied that she had ever been convicted of embezzlement.\nA defendant who elects to testify in his own behalf knows that he is subject to impeachment by questions relating not only to his conviction of crime but also to any criminal or degrading act which tends to discredit his character and challenge his credibility. Such questions, however, must be asked in good faith. It would be highly improper for the prosecuting attorney to ask a witness an impeaching question without reasonable grounds for belief that the witness had committed the crime or degrading act about which he was inquiring. State v. Williams, 292 N.C. 391, 233 S.E. 2d 507 (1977); State v. McKenna, 289 N.C. 668, 224 S.E. 2d 537, death sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed. 2d 278 (1976); State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972); State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). See 1 Stansbury\u2019s N.C. Evidence \u00a7 112 (Brandis rev. 1973).\nWhether the cross-examination transcends propriety or is unfair is a matter resting largely in the sole discretion of the trial judge, who sees and hears the witnesses and knows the background of the case. His ruling thereon will not be disturbed without a showing of gross abuse of discretion. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972). This record evinces neither bad faith on the part of the district attorney nor any attempt to badger or humiliate the witness. Assignment No. 5 is overruled.\nAssignment No. 6, that the court erred in overruling defendant\u2019s objection to an \u201cargumentative question,\u201d is frivolous. The question combined two related queries and was, therefore, bad form. Nevertheless defendant understood the question perfectly. He answered it favorably to himself and the district attorney dropped the matter without further ado.\nDefendant\u2019s final assignment, No. 7, relates to his sentence of life imprisonment. Upon the coming in of the verdict defense counsel requested the court to sentence defendant \u201cas a youthful offender.\u201d Whereupon Judge Friday entered judgment which, inter alia, provided:\n\u201cThe jury having found the defendant guilty of the offense of felony murder which is a violation of G.S. 14-17 and of the grade of felony;\nIt is ADJUDGED that the defendant be imprisoned for the term of the remainder of your natural life in the North Carolina Department of Correction. It is ordered that the defendant be given credit on this sentence for 113 days spent in custody pending trial.\u201d\nAfter announcing the foregoing judgment, Judge Friday stated, \u201cNow, as the court understands it, this life sentence will be served as a committed youthful offender; at least that is, to my knowledge.\u201d\nThis judgment did not specify that defendant was committed to the custody of the Secretary of Correction for treatment and supervision under N.C. Gen. Stats., Ch. 148, Art. 3A (1975 Cum. Supp.), \u201cFacilities and Programs for Youthful Offenders.\u201d Notwithstanding, in view of the court\u2019s statement that he understood defendant\u2019s life sentence would be served as a \u201ccommitted youthful offender,\u201d defendant contends the case should be remanded to the Superior Court \u201cfor correction\u201d in accordance with the trial judge\u2019s intention that defendant be confined only \u201cfor up to four years and must then be paroled.\u201d From this record we are unable to divine the trial judge\u2019s intention. However, his intention is rendered immaterial by our decision in State v. Niccum, 293 N.C. 276, 238 S.E. 2d 141, filed 11 October 1977. In Niccum we held that neither N.C. Gen. Stats., Ch. 148, Art. 3A, \u00a7\u00a7 148-49.1 through 148-49.9 (repealed 1 October 1977) nor its substitute, N.C. Gen. Stats., Ch. 148, Art. 3B, \u00a7\u00a7 148-49.10 through 148-49.16 (effective 1 October 1977) was intended to apply to a youthful offender who commits a crime for which death or a life sentence is the mandatory punishment.\nJudge Friday properly imposed upon defendant the mandatory sentence of life imprisonment, and in his trial we find no error.\nHowever, there is one matter which we must consider ex mero motu. Defendant was indicted in a bill drawn under G.S. 15-144 for first-degree murder as defined by G.S. 14-17 (Cum. Supp. 1975). This statute declares, inter alia, that any murder \u201cwhich shall be committed in the perpetration or attempt to perpetrate any . . . robbery . . . shall be deemed murder in the first degree.\u201d Evidence for the State tended to show that defendant intentionally and voluntarily participated with three other persons in an unsuccessful attempt to rob Jimmy\u2019s Supermarket; that in the attempt one of his co-conspirators shot Mr. Small, who died approximately two weeks later from the wounds then inflicted. This evidence, which the jury found to be true, established defendant\u2019s guilt of murder in the first degree. State v. Peplinski, 290 N.C. 236, 225 S.E. 2d 568, cert. denied, 429 U.S. 932, 97 S.Ct. 339, 50 L.Ed. 2d 301 (1976); State v. Woodson, 287 N.C. 578, 215 S.E. 2d 607 (1975), rev\u2019d on other grounds, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed. 2d 944 (1976). However, in response to the written issue submitted by the trial judge the jury returned a verdict of \u201cguilty of felony murder.\u201d\nThe term \u201cfelony murder\u201d is an abbreviation for a homicide committed in the commission of or attempt to commit a felony such as specified in G.S. 14-17. Any felony \u201cwhich is inherently dangerous to human life, or foreseeably dangerous to human lif\u00e9 due to the circumstances of its commission, is within the purview of G.S. 14-17.\u201d State v. Williams, 284 N.C. 67, 72, 199 S.E. 2d 409, 412 (1973). \u201cFelony murder\u201d is a term well understood, and frequently used, by both bench and bar. By statute in this State, however, murder is either murder in the first degree or murder in the second degree, and the punishment specified for murder is for each degree respectively. Notwithstanding, since \u201cfelony murder\u201d is not a statutory term, its use in an issue submitted to the jury is ill-advised and we expressly disapprove its usage. It is a misnomer which will, of course, be reflected in the verdict whenever it is so used.\nIn State v. Lee, 292 N.C. 617, 626, 234 S.E. 2d 574, 579 (1977), the trial judge, in his charge, submitted to the jury the issue of defendant\u2019s guilt of \u201cfirst-degree murder when a deadly weapon is used.\u201d In disapproving this instruction, which we held to be prejudicial error, Justice Branch, writing for the Court, said: \u201cThis instruction creates a new offense without benefit of statute or court decision.\u201d\nIn this case, however, the ambiguity in the issue and verdict is cured by the charge, to which no exception is taken. \u201cA verdict, apparently ambiguous, \u2018may be given significance and correctly interpreted by reference to the allegations, the facts in evidence, and the instructions of the court\u2019 .... \u2018The verdict should be taken in connection with the charge of his Honor and the evidence in the case.\u2019 \u201d (Citations omitted.) State v. Tilley, 272 N.C. 408, 416, 158 S.E. 2d 573, 578 (1967).\nAfter telling the jury that defendants were indicted under G.S. 14-17 and reading the statute to them, Judge Friday explained that \u201cunder this statute, any killing of a human being by a person committing or attempting to commit armed robbery is first-degree murder without anything further being shown.\u201d Thereafter he several times charged the jury in words substantially as follows: If you find from the evidence beyond a reasonable doubt that on 17 August 1976 defendants Boulware and Foster accompanied Martin and Williams to Jimmy\u2019s Supermarket for the avowed purpose of robbing that store; that while they were there, aiding and abetting each other in attempting to perpetrate the robbery, one of them shot the attendant Small; and that subsequently Small died in consequence of the shooting, those facts \u201cwould make them all equally guilty and make them guilty of murder in the first degree.\u201d In his final mandate the judge again instructed the jury that if they found the facts postulated in the preceding sentence \u201cfrom the evidence and beyond a reasonable doubt\u201d they \u201cwould return a verdict of murder, that is, guilty as to the first issue submitted to you, guilty of felony murder.\u201d\nConstruing the verdict, \u201cguilty of felony murder,\u201d with reference to the charge we have no doubt that it can only be interpreted as a verdict of guilty of murder in the first degree. For that reason, albeit we condemn the use of the term \u201cfelony murder\u201d in an issue and verdict, we find no prejudicial error in the trial and affirm this verdict. In doing so, however, we strongly recommend to the trial judges that in instructing the jury as to permissible verdicts they abstain from innovations.\nNo error.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General and Jane Rankin Thompson, Associate Attorney for the State.", "Shelley Blum for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID BERNARD FOSTER\nNo. 38\n(Filed 15 December 1977)\n1. Criminal Law \u00a7 124.5\u2014 two defendants \u2014 verdicts of guilty and not guilty \u2014 no requirement of consistency\nThe trial court did not err in refusing to direct a verdict of not guilty as to defendant Foster after the jury had acquitted another defendant, even though the State\u2019s case against both defendants depended upon the testimony of an accomplice who implicated them both in the attempted robbery, since the jury could believe the accomplice\u2019s testimony with respect to one defendant\u2019s participation in the crime, and disbelieve the accomplice\u2019s testimony with respect to the other defendant\u2019s complicity.\n2. Criminal Law \u00a7 73.2\u2014 statement made in defendant\u2019s presence \u2014 no hearsay\nIn a prosecution for first degree murder committed during an attempted armed robbery at which defendant was present, the judge did not err in allowing one participant to testify that another, in his presence and defendant\u2019s, suggested the robbery, such testimony being competent to show defendant\u2019s knowledge that his companions planned to rob a supermarket when the group entered it; moreover, the witness thereafter gave substantially identical' testimony without objection.\n3. Homicide \u00a7 20\u2014 murderer\u2019s scars \u2014 showing to jury proper\nIn a prosecution for first degree' murder committed during an attempted armed robbery, the trial court did not err in permitting the jury to view the scars from the wounds which, an accomplice testified, the victim had inflicted upon him with a butcher knife at the time he shot the victim, since the scars were illustrative of relevant and material testimony.\n4. Criminal Law \u00a7 89.10\u2014 prior criminal conduct \u2014 cross-examination\u2014reference to arrest record\nThe trial court did not err in allowing the district attorney to question two witnesses concerning their criminal convictions and specific acts of misconduct while the district attorney was referring to arrest records.\n5. Criminal Law \u00a7 134.4\u2014 death or life imprisonment mandatory \u2014 youthful offender statutes inapplicable\nSince neither N.C. Gen. Stats. Ch. 148, Art. 3A, \u00a7\u00a7 148-49.1 through 148-49.9 (repealed) nor N.C. Gen. Stats., Ch. 148, Art. 3B, \u00a7\u00a7 148-49.10 through 148-49.16 providing for Programs for Youthful Offenders was intended to apply to a youthful offender who commits a crime for which death or a life sentence is the mandatory punishment, the trial court in a felony murder prosecution properly imposed upon defendant the mandatory sentence of life imprisonment.\n6. Homicide \u00a7 25.1\u2014 felony murder \u2014 term improper in issue\nUse of the term \u201cfelony murder\u201d in an issue submitted to the jury is ill-advised, and the Supreme Court expressly disapproves its usage.\n7. Homicide \u00a7 31\u2014 guilty of felony murder \u2014 verdict interpreted as guilty of first degree murder\nWhere the evidence, which the jury found to be true, established defendant\u2019s guilt of murder in the first degree, and the trial court properly instructed the jury that \u201cany killing of a human being by a person committing or attempting to commit armed robbery is first degree murder without anything further being shown,\u201d ambiguity in the verdict of \u201cguilty of felony murder\u201d is interpreted as a verdict of guilty of murder in the first degree.\nAPPEAL by defendant under G.S. 7A-27(a) from Friday, J., at the January 1977 Session of the Superior Court of MECKLENBURG.\nUpon a bill of indictment drawn under G.S. 15-144, defendant was tried and convicted of the first-degree' murder of James A. Small. Defendant Foster\u2019s trial was consolidated with that of Annette Lindsay Boulware, who had been indicted for the same offense. The State\u2019s evidence tended to establish, the following facts:\nJames A. Small, aged 43, owned and operated Jimmy\u2019s Market, a grocery located on Old Statesville Road (Highway No. 21) in Mecklenburg County. Between 8:30 and 9:00 p.m. on 17 August 1976 James Luckey, a customer, was approaching the entrance of Jimmy\u2019s Market. There he was stopped by a young black man with a gun who said, \u201cIt\u2019s a robbery.\u201d When Luckey \u201cfroze\u201d the man with the gun entered the store. About five minutes later Luckey heard three or four shots. Then three black men ran from the store. They entered a dark, four-door Chevrolet parked beside the building. A fourth black person, at the wheel of this car, immediately drove it away. Luckey was unable to identify any of the men who fled the store.\nInside the store, Rommie Ross, an employee tending the cash register at the front of the store, had seen the three black males enter and go down different aisles to the rear. Ross continued checking out customers until he heard two shots fired at the rear of the store. One of the men then appeared at his cash register with a .38 caliber pistol and ordered Ross to put up his hands. Almost immediately Ross heard two more shots at the back and saw a black male run out the front door. Another, bleeding badly, followed as the one covering Ross backed out of the store. Mr. Small called from the rear of the store that he had been shot. Ross found him standing by the butcher block; his shirt was bloody and he looked as if he had \u201ca couple of puncture wounds.\u201d Of the three men who entered the store, Ross was able to identify only the State\u2019s witness, Kenneth Martin, the man who had left the store bleeding.\nLoretta Mitchell, a customer in the store at the time Small was shot, identified Kenneth Martin as the black male she saw behind the meat counter holding a gun on Small. Upon observing Martin she moved to the front of the store where she saw another black male with a gun. He was not defendant Foster. At that time she heard about five shots come from the meat counter at the rear of the store. The man at the front then pointed the gun at her and she backed into another aisle.\nA commotion at the entrance to Jimmy\u2019s Market had attracted the attention of Mr. Eddie Burleson, who was sitting in his parked automobile. He saw a black man holding a gun leave the store and walk briskly to a dark, four-door Chevrolet in which two people were sitting. The man with the gun was joined by another person who emerged from the shadows and both jumped into the car, which sped away. Burleson followed the fleeing vehicle until it pulled off the road into an abandoned filling station. Before passing he saw two people leave the vehicle. He \u201cavoided pulling into where they were,\u201d and he was unable to ascertain the license number of the automobile or to identify any of its occupants.\nKenneth Martin, heretofore identified as the black male who left the store bleeding profusely, was the primary witness for the State. His testimony, summarized below, tended to show:\nOn the evening of 17 August 1976 Martin, aged 16, defendant Foster, 17, and Boulware, 23, were attending \u201ca little get-together\u201d at the home of Joyce Pettus. About 8:30 the three left the Pettus house to go to a store two blocks away to buy some beer. Outside they were joined by Ernest Williams, aged 22, also known as \u201cNew York.\u201d The four got into the automobile which Boulware had driven to the party but which belonged to her mother. In the car Williams and Boulware began reminiscing about an armed robbery effected together. Williams suggested to the group that Jimmy\u2019s Supermarket was a store they could \u201crob for some money.\u201d Martin testified that Williams was carrying a .32 or .38 pistol; that defendant had a blue steel .22 pistol; and that he was armed with the .32 pistol which he \u201cusually carried\u201d with him albeit he was on parole for breaking and entering. They \u201cdecided to go to Jimmy\u2019s\u201d and Boulware drove them to Small\u2019s Supermarket.\nAt the store Boulware parked the car at the side facing the street, and the three men went inside where they met in the restroom. There they agreed that Martin was to remain at the back and watch the butcher; Williams was to be at the door; and Foster, at the cash register. Pursuant to plan, Martin approached Small and, with gun in hand, directed him to enter the restroom. Small, after starting in that direction, suddenly attacked Martin with a butcher knife. In the ensuing scuffle Martin shot Small three times, once in his midsection and twice in the chest area. Martin, however, received stab wounds in his back and severe cuts on his arms and legs. While they were wrestling on the floor Martin felt Small go limp and he \u201ctook off running toward the front of the store.\u201d In front of him Martin saw Williams at the door with a gun in his hand. At the door Martin looked around and Foster was behind him also holding a gun. The three jumped into the back seat of Boulware\u2019s car and she drove off down the highway. Martin announced that he was bleeding badly and Boulware said, \u201cWe\u2019ve got to get out of the car.\u201d Williams requested her to pull over and let him out. Martin said that he was not going to get out and instead requested that he be carried to the hospital. When the car stopped, however, defendant Foster pushed Martin out into a trench. Foster and Williams then jumped from the car and ran in opposite directions. Boulware then drove away.\nWith some aid from a passing bicyclist Martin managed to reach his home where his sister summoned aid.. The ambulance and police cars arrived simultaneously.\nOn 21 August 1976, after he had been fully advised of all his rights and had signed a written waiver of counsel, Martin made an oral statement to the police which he himself thereafter put in writing. Introduced into evidence as State\u2019s Exhibit No. 12 the written statement corroborated Martin\u2019s testimony at the trial in all material aspects. Additional adminicular evidence, not necessary to detail here, substantiated Martin\u2019s testimony.\nOn cross-examination Martin testified that in exchange for his testimony in this case the district attorney had agreed that Martin would be charged with second-degree murder instead of first-degree murder. Martin admitted that before. he left the hospital he had written Foster that he himself would \u201ctake the rap\u201d and \u201ccut Foster loose.\u201d By that he meant Foster did not kill the man and that he wanted Foster to get out of jail and shoot \u201cNew York,\u201d whom he has not seen since that night. Martin also stated that he was still angry with Foster for pushing him out of the car and running into the woods; that he could never forget the treatment he received from his confederates and that their conduct was \u201cpartially\u201d the reason he was testifying for the State against defendant and Boulware. He further admitted that in jail he also had told Boulware he was going \u201cto cut her loose\u201d but he had said it only to end their conversation.\nMartin further testified, \u201cBoulware was driving the car. She knew we were going to go into Jimmy\u2019s. She knew we were going to rob them. We all knew it. We sat out in the car and discussed it before we took off and while we were driving to the store. Ernest Williams suggested robbing the place.\u201d Martin \u201cnever saw Ernest Williams put a gun at Boulware\u2019s head\u201d to force her to drive the car away from Jimmy\u2019s Supermarket. \u201cThe car was already running.\u201d\nExpert medical testimony tended to show that Small was brought to the Charlotte Memorial Hospital on the evening of 17 August 1976. He . had been shot three times. One bullet had penetrated the colon, the pancreas, and the posterior wall of the stomach. Another bullet had entered his arm and the third, the left hip area. After undergoing two operations, Small died on 4 September 1976 from peritonitis and other complications resulting from these gunshot wounds.\nDefendant Foster\u2019s testimony as a witness for himself tended to show:\nAbout dark on 17 August 1976 Martin went to the basketball court where defendant Foster, had been playing most of the day. Martin asked Foster if he would go with him \u201cto get high some more.\u201d Earlier the two had spent thirty minutes together smoking marijuana. Foster followed Martin to a blue 1972 Chevrolet in which Boulware and Ernest Williams (\u201cNew York\u201d) were sitting. Defendant had never before seen Williams; he had seen Boulware but was not acquainted with her. Defendant was told that they were going to a store, Evans & Sons on Statesville Avenue, to get some kerosene for Boulware\u2019s mother. When they found Evans & Sons closed Williams requested Boulware to take him to Jimmy\u2019s Supermarket to get some canned goods and, upon his promise to buy her some gas, she agreed to do so. Once at Jimmy\u2019s Boulware did not get out of the car because Jimmy\u2019s did not sell kerosene. Defendant got out with Martin and Williams because he wanted to buy a can of Beenie Weenies. In the car defendant never heard any discussion about an armed robbery.\nInside the store, defendant was searching for the Beenie Weenies when he heard shots. He walked toward the door and saw Williams holding a gun on the cashier. Defendant left the store, returned to the car and said to Boulware, \u201cAnnette, they pulled a gun on these people, shooting and going on. Let\u2019s go.\u201d She turned the car around but traffic prevented her from entering the highway. This delay enabled Martin and Williams, who had run out of the store, to jump into the car, Martin in back with defendant and Williams in front with Boulware. Williams put a gun to her head and said, \u201cBitch, drive this car.\u201d He cocked the gun back and she drove off. Before going into Jimmy\u2019s defendant had seen no guns.\nAbout ten blocks down the street Boulware stopped the car and ordered them to get out. Martin said he was cut badly and wasn\u2019t going to get out. Williams jumped out and fled across the street, defendant pushed Martin out of the car and then walked up the street.\nIn jail defendant had an opportunity to talk with Martin and he asked him why he put him \u201cin all this mess.\u201d Martin replied that he was going to get even with him for pushing him out of the car.\nCodefendant Boulware also testified in her own behalf. In brief summary her testimony tended to show:\nAt 7:00 p.m. on 17 August 1976 she was at the home of her mother playing cards with her mother, sister, and two friends. (These persons later testified in corroboration of this testimony.) About 7:40 p.m. her mother gave her some money and the keys to her car for the purpose of going to the store to buy kerosene. En route to the G & M store to get the kerosene she saw Martin and Williams thumbing a ride. She had not previously seen them or Foster that day. She picked them up and, at Martin\u2019s request, she detoured by the basketball court so that he could speak to his friend Foster. In a few minutes Martin returned to the car with Foster, who said \u201che wanted to pick up some things at the store.\u201d Since she was going to Evans & Sons she agreed to take him.\nFrom this point on Boulware\u2019s testimony dovetails with that of defendant Foster; there is no material variation. She testified that there was never any conversation about an armed robbery or \u201cwho had what pistol\u201d; that she had never committed an armed robbery with Williams; and that she never saw a pistol until Williams came out of the store with one. Boulware also testified that on the first day of the term, while she was in a holding cell convenient to the courtroom, she had \u201ccalled through the cells\u201d to Martin and asked him why he had lied about her and got her into \u201cthis trouble when he knew she was not involved in any robbery.\u201d His reply was, \u201cWhen I go to court, I\u2019m going to tell them you didn\u2019t have anything to do with it.\u201d\nAnother prisoner not involved in this case, Arlene Francke-witz, was also in a holding cell in the Mecklenburg County jail during this trial. She testified that she had overheard the conversation between Martin and Boulware in which he had told her he would testify that she was not a party to what he had done. Deputy Sheriff Mareellus Brown, who \u201cworked the court rooms,\u201d testified that on two occasions while he was escorting Martin between the jail and the courtroom Martin had told him he was going \u201cto take down the fat bitch who carried them to this place\u201d although she thought they were only going to the Supermarket to buy beer.\nNotwithstanding Martin\u2019s testimony the jury found defendant Boulware not guilty of murder in the first degree and acquitted her of any complicity in the attempted robbery of Jimmy\u2019s Supermarket. Defendant Foster, however, was found guilty of first-degree murder, and Judge Friday adjudged that he be imprisoned for \u201cthe remainder of his natural life.\u201d\nAdditional facts pertinent to the decision will be stated in the opinion.\nRufus L. Edmisten, Attorney General and Jane Rankin Thompson, Associate Attorney for the State.\nShelley Blum for defendant appellant." }, "file_name": "0674-01", "first_page_order": 708, "last_page_order": 722 }