{ "id": 8565671, "name": "STATE OF NORTH CAROLINA v. GEORGE LEE HAWKINS", "name_abbreviation": "State v. Hawkins", "decision_date": "1981-03-04", "docket_number": "No. 39", "first_page": "364", "last_page": "370", "citations": [ { "type": "official", "cite": "302 N.C. 364" } ], "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": "157 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570611 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0060-01" ] }, { "cite": "185 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569823 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0067-01" ] }, { "cite": "220 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "288 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570429 ], "year": 1975, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0608-01" ] }, { "cite": "389 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11374915, 11375246, 11375058, 11375123, 11375411, 11374868, 11374995, 11375186, 11375325 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/389/0865-02", "/us/389/0865-07", "/us/389/0865-04", "/us/389/0865-05", "/us/389/0865-09", "/us/389/0865-01", "/us/389/0865-03", "/us/389/0865-06", "/us/389/0865-08" ] }, { "cite": "157 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565553 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0576-01" ] }, { "cite": "158 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573176 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0417-01" ] }, { "cite": "81 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] } ], "analysis": { "cardinality": 610, "char_count": 13391, "ocr_confidence": 0.762, "pagerank": { "raw": 4.425915258789617e-08, "percentile": 0.27728141679302537 }, "sha256": "3a6bb07962f7044bee20d5d7a4744b42b321acd4115434bf62723bb1b7f89e70", "simhash": "1:972bd006f6249e73", "word_count": 2304 }, "last_updated": "2023-07-14T17:25:15.704346+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE LEE HAWKINS" ], "opinions": [ { "text": "BRITT, Justice.\nI.\nBy his first assignment of error, defendant contends the trial court committed prejudicial error by allowing witnesses \u201cto testify to misconduct of the defendant when the defendant had not testified in his own behalf\u201d. This assignment has no merit.\nUnder this assignment defendant refers to his exceptions number 1, 2 and 3. Exception number 1 relates to the testimony of Donnell Hayes. On direct examination Hayes testified that on the night in question he and defendant were friends and that they \u201csnuck\u201d into the fair. The witness was then asked, \u201cwhy did you sneak in the fair?\u201d After the witness answered \u201cGeorge Lee didn\u2019t have no money\u201d, defense counsel objected. The objection was overruled and the witness testified again that he and defendant \u201csnuck in the fair\u201d because defendant did not have any money.\nExceptions 2 and 3 relate to the redirect examination of Hayes. On cross-examination he had been asked about his prior criminal record and, particularly, his conviction for breaking and entering Rose\u2019s Warehouse and larceny of property therefrom. On redirect examination, Hayes was asked who was with him on the night he went to the Rose\u2019s Warehouse. Over objection he testified that four other persons, including defendant, went with him. He further testified that the five of them went there to drink wine.\nDefendant argues that by admitting the challenged testimony the trial court violated the general rule laid down in State v. McLain, 240 N.C. 171, 81 S.E.2d 364 (1954), \u201cthat in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense\u201d. While defendant has accurately set forth the general rule restated in McClain, that decision also sets forth eight exceptions to the rule. The testimony challenged by exception number 1 comes within at least one of the exceptions to the rule. The testimony challenged by exceptions 2 and 3 does not come within the rule at all.\nAdmittedly, the evidence that defendant sneaked into the fair without paying tends to show that defendant committed a misdemeanor. However, it also tends to show that defendant had no money when he entered the fair. Other evidence showed that sometime thereafter he met with decedent and that later that night he (defendant) had $60.00 or $80.00. One of the exceptions set forth in McLain to the general rule is:\nWhere evidence tends to prove a motive on the part of the accused to commit the crime charged, it is admissible, even though it discloses the commission of another offense by the accused. (Citations.) 240 N.C. at 176, 81 S.E.2d at 367.\nWe hold that the testimony challenged by exception number 1 was admissible because it tended to show that defendant\u2019s motive for committing the crime of murder was pecuniary gain.\nWith respect to the testimony challenged by exceptions 2 and 3, we do not think that testimony tended to show the commission of a separate criminal offense by defendant. While the evidence showed that Hayes was convicted of breaking and entering Rose\u2019s Warehouse, there was no evidence that defendant was convicted of, or even participated in, the offense. The evidence tended to show only that sometime that night- defendant and three others went with Hayes to Rose\u2019s Warehouse and that the only thing they did there was drink wine. This did not show the commission of a crime or degrading conduct by defendant.\nConceding, arguendo, that the trial court erred in admitting any of the testimony which is the subject of defendant\u2019s first assignment of error, considering the overwhelming evidence of defendant\u2019s guilt, we perceive no prejudicial error. Defendant has the burden not only to show error but also to show that the error complained of affected the result adversely to him. E.g., State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968); State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4, cert. denied sub. nom., Manning v. North Carolina, 389 U.S. 865 (1967).\nDefendant\u2019s assignment of error number 1 is overruled.\nII.\nDefendant has abandoned his second assignment of error which relates to the denial of his motion for non-suit.\nIII.\nBy his third assignment of error defendant contends the trial court erred \u201cin restating factual matters in the charge to the jury.\u201d Specifically, defendant contends that the court expressed an opinion on the evidence in violation of G.S. \u00a715A-1222 (1978). We find no merit in this assignment.\nThe portion of the charge challenged by this assignment was given when the court was instructing the jury as to what the state must prove beyond a reasonable doubt in order for the jury to find defendant guilty of first-degree murder. Defendant excepts to this portion of the charge:\n... That the defendant had in his possession a dangerous weapon. That is a weapon dangerous to the life of Owen Ira Ayscue. In determining whether a stick was dangerous to the life of Owen Ira Ayscue you would consider the nature of the stick, the manner in which the defendant used it or threatened to use it and the size and strength of the defendant as compared to Owen Ira Ayscue.\nDefendant argues that a stick \u201cwas never mentioned in the indictment, testimony or even by circumstantial evidence\u201d. We reject this argument. Melvin Lewis, a witness for the state, testified, among other things, that he and defendant were friends, that he spent the night of 6 October 1978 with defendant, that defendant told him that night that he killed a man at the fairgrounds, and that \u201che beat him with a stick\u201d. (R.p. 28)\nAssignment of error number 3 is overruled.\nIV.\nBy his fourth assignment of error defendant contends the trial court erred in denying his motion to set the verdict aside and for a new trial. There is no merit in this assignment.\nAfter the jury had returned their verdict of first-degree murder, but before the court conducted the sentencing phase of the trial, defendant moved to set the verdict aside on the ground of improper conduct on the part of the jury. Defendant contended then, as he does now, that five or six members of the jury left the jury room at various intervals during their deliberations and that the jurors remaining in the room continued to talk while others were absent. He argues that this conduct violated the principle stated in State v. Bindyke, 288 N.C. 608, 623, 220 S.E.2d 521, 531 (1975), that\n... [T]here can be no doubt that the jury contemplated by our Constitution is a body of twelve persons who reach their decision in the privacy and confidentiality of the jury room.\nThe trial judge conducted a hearing on defendant\u2019s motion in the absence of the jury at which time the bailiff and deputy sheriff who had waited on the jury during the course of the trial testified. Following the hearing, His Honor made findings of fact summarized in pertinent part as follows:\nAt all times during their deliberations on the guilt or innocence of defendant, the jury was entrusted to the care of bailiff T. E. Cook who was assisted by Deputy Sheriff R. F. Wade, Jr. Neither Mr. Cook nor Mr. Wade entered the jury room when any deliberations were taking place. The jury used the grand jury room and it did not have toilet facilities. Messrs. Cook and Wade maintained positions in a hallway near a door leading to the jury room for purpose of protecting the jury and answering reasonable requests for drinks and cigarettes.\nDuring the jury\u2019s deliberation, no person other than the jury entered the jury room. On the morning That the verdict was returned, five or six jurors came out of the jury room at different intervals for the purpose of using a restroom. On those occasions each juror was escorted down the hallway (some 30 feet away) by either Mr. Cook or Mr. Wade. No person was allowed to speak to a juror during the time the juror was out of the room and no juror was away from the room for more than 2 minutes. The officer determined that no one else was in the restroom when a juror was using it.\nThe trial court found and concluded that there was no misconduct on the part of the jurors and denied the motion for mistrial. The court did not err. As to defendant\u2019s argument that while one or more of the jurors went to the restroom the jurors remaining in the jury room continued to talk, there was no evidence as to what was being said. The only evidence was that \u201cI could just hear a mumble in there at times, you couldn\u2019t hear a word that they said, you\u2019d just hear them talking and that\u2019s all\u201d.\nDefendant has failed to show error and the presumption is in favor of the regularity of the trial. State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971); State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967).\nFor the reasons stated, in defendant\u2019s trial and the judgment entered we find\nNo error.", "type": "majority", "author": "BRITT, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General T. Buie Costen, for the state.", "J. Henry Banks for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE LEE HAWKINS\nNo. 39\n(Filed 4 March 1981)\n1. Criminal Law \u00a7 34.7\u2014 defendant\u2019s commission of another crime \u2014 admissibility to show motive\nIn a prosecution for murder of a person whom defendant met at a county fair, testimony that defendant sneaked into the fair without paying because he had no money was competent to show that defendant\u2019s motive for killing the victim was pecuniary gain where other evidence showed that later the night of the killing defendant had $60 to $80 in his possession.\n2. Criminal Law \u00a7 34\u2014 evidence of defendant\u2019s commission of another crime \u2014 inapplicability of rule\nThe rule prohibiting evidence that the accused has committed another distinct, independent or separate offense was not violated by a witness\u2019s testimony that he had been convicted of breaking and entering a warehouse and larceny of property therefrom and that defendant went to the warehouse with him on the night in question to drink wine, since there was no evidence that defendant participated in any criminal offense.\n3. Criminal Law \u00a7 114.2\u2014 instructions \u2014 no expression of opinion on evidence\nThe trial court in a murder prosecution did not express an opinion on the evidence in instructing the jury on a stick as a dangerous weapon where a witness had testified that defendant told him he killed a man and that \u201che beat him with a stick.\u201d\n4. Criminal Law \u00a7 130\u2014 motion to set aside verdict \u2014 jurors leaving jury room during deliberations\nThe trial court did not err in the denial of defendant\u2019s motion to set aside the verdict on the ground that five or six members of the jury left the jury room at various intervals during their deliberations and that the jurors remaining in the room continued to talk while others were absent where the evidence at a hearing on the motion showed that five or six jurors left the jury room at different intervals for the purpose of using a restroom but that no person was allowed to speak to a juror during the time the juror was out of the room and no juror was away from the room for more than two minutes, and where there was no evidence as to what was said by the remaining jurors while a juror was out of the jury room.\nAPPEAL by defendant from Britt, J., 18 February 1980 Session of VANCE Superior Court.\nUpon a plea of not guilty, defendant was tried on a bill of indictment charging him with the first degree murder of Owen Ira Ayscue on 6 October 1978. Evidence presented by the state is summarized in pertinent part as follows:\nOn the afternoon of 17 October 1978 a hunter in a wooded area of Vance County near the fairgrounds found the body of Owen Ira Ayscue. The body was in an advanced state of decomposition. A medical examiner testified that the body bore indications of extensive injuries, including lacerations about the head, a broken jaw, and several cracked ribs.\nState\u2019s witness Donnell Hayes testified that he and defendant attended the Vance County Fair together on 6 October 1978; that they sneaked into the fair because they had no money; that they met a man known as \u201cBoJo\u201d, and defendant left with the man to get some wine. Upon his return a short while later, defendant had blood on his clothes and told Hayes that he had killed the man.\nAnother witness for the state, Melvin Lewis, testified that defendant told him that he had killed a man at the fair and that he had beat him with a stick. Other witnesses testified that defendant was seen at the fair with decedent; that thereafter defendant had blood on his clothing; and that he had approximately $60.00 to $80.00 in one of his hands.\nDefendant offered no evidence.\nOther evidence relating to the assignments of error will be summarized in the opinion.\nThe jury returned a verdict finding defendant guilty of first-degree murder by virtue of the felony-murder rule.\nThe court then conducted a sentencing hearing as mandated by G.S. \u00a715A-2000 (1978). Pursuant to written issues submitted, the jury found that the murder was committed for pecuniary gain but that the murder was not especially heinous, atrocious or cruel. They then found that the aggravating circumstance found by them was not sufficiently substantial to call for the imposition of the death penalty and that the age of defendant at the time of the murder was a mitigating circumstance. The jury unanimously recommended that defendant be sentenced to life imprisonment.\nFrom judgment imposing a life sentence, defendant appealed.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General T. Buie Costen, for the state.\nJ. Henry Banks for defendant appellant." }, "file_name": "0364-01", "first_page_order": 396, "last_page_order": 402 }