{ "id": 8561289, "name": "STATE OF NORTH CAROLINA v. CLEASTER WOODS", "name_abbreviation": "State v. Woods", "decision_date": "1982-12-07", "docket_number": "No. 229A82", "first_page": "213", "last_page": "224", "citations": [ { "type": "official", "cite": "307 N.C. 213" } ], "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": "1981 N.C. Sess. Laws 984", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "weight": 2, "opinion_index": 0 }, { "cite": "17 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "28" } ], "opinion_index": 0 }, { "cite": "220 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11301082 ], "year": 1941, "pin_cites": [ { "page": "231-32" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0226-01" ] }, { "cite": "240 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "398-99" } ], "opinion_index": 0 }, { "cite": "294 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572419 ], "year": 1978, "pin_cites": [ { "page": "228-29" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0220-01" ] }, { "cite": "240 S.E. 2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "420-21" } ], "opinion_index": 0 }, { "cite": "294 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572534 ], "year": 1978, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0253-01" ] }, { "cite": "70 L.Ed. 2d 392", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "opinion_index": 0 }, { "cite": "102 S.Ct. 523", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1981, "opinion_index": 0 }, { "cite": "281 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "12-13" } ], "opinion_index": 0 }, { "cite": "303 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575033 ], "year": 1981, "pin_cites": [ { "page": "617-18" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0608-01" ] }, { "cite": "44 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "726" } ], "opinion_index": 0 }, { "cite": "228 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624639 ], "year": 1947, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0153-01" ] }, { "cite": "172 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "54" } ], "opinion_index": 0 }, { "cite": "276 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561802 ], "year": 1970, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0482-01" ] }, { "cite": "227 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "290 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561887 ], "year": 1976, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0511-01" ] }, { "cite": "229 S.E. 2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "569" } ], "opinion_index": 0 }, { "cite": "291 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557304 ], "year": 1976, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0073-01" ] }, { "cite": "283 S.E. 2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "767-68" } ], "opinion_index": 0 }, { "cite": "304 N.C. 249", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567447 ], "year": 1981, "pin_cites": [ { "page": "256-58" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0249-01" ] }, { "cite": "97 L.Ed. 387", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1953, "pin_cites": [ { "page": "390-91" } ], "opinion_index": 0 }, { "cite": "344 U.S. 357", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300005 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "358-59" }, { "page": "294-95" } ], "opinion_index": 0, "case_paths": [ "/us/344/0357-01" ] }, { "cite": "98 L.Ed. 561", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1954, "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "347 U.S. 128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299591 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "129-30" } ], "opinion_index": 0, "case_paths": [ "/us/347/0128-01" ] }, { "cite": "208 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "285 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569885 ], "year": 1974, "pin_cites": [ { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0741-01" ] }, { "cite": "269 S.E. 2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "300 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562647 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0381-01" ] }, { "cite": "287 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "year": 1975, "pin_cites": [ { "page": "699" } ], "opinion_index": 0 }, { "cite": "303 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "year": 1981, "pin_cites": [ { "page": "716-17", "parenthetical": "amending 287 N.C. 669, 699 (1975)" } ], "opinion_index": 0 }, { "cite": "244 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "384" } ], "opinion_index": 0 }, { "cite": "295 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561881 ], "year": 1978, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0147-01" ] }, { "cite": "53 L.Ed. 2d 226", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 0 }, { "cite": "97 S.Ct. 2178", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 0 }, { "cite": "431 U.S. 916", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1729, 1731, 2025, 1737, 1995, 2155, 1943, 1978, 2171, 1661, 1983 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/431/0916-03", "/us/431/0916-04", "/us/431/0916-08", "/us/431/0916-01", "/us/431/0916-10", "/us/431/0916-02", "/us/431/0916-06", "/us/431/0916-09", "/us/431/0916-05", "/us/431/0916-11", "/us/431/0916-07" ] }, { "cite": "230 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "291 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557872 ], "year": 1976, "pin_cites": [ { "page": "256-57" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0253-01" ] }, { "cite": "272 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567847 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0407-01" ] }, { "cite": "250 S.E. 2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "208-09" } ], "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "pin_cites": [ { "page": "244-45" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "184 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "279 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571231 ], "year": 1971, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0573-01" ] }, { "cite": "261 S.E. 2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] } ], "analysis": { "cardinality": 990, "char_count": 24780, "ocr_confidence": 0.81, "pagerank": { "raw": 7.596185301570636e-07, "percentile": 0.9707481015302436 }, "sha256": "527084f190e3c144130c4474fd25bc6ebc21f1c35270470d4c555514d2578992", "simhash": "1:1d61c4f077228770", "word_count": 4063 }, "last_updated": "2023-07-14T20:07:32.557624+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. CLEASTER WOODS" ], "opinions": [ { "text": "CARLTON, Justice.\nI.\nDefendant, Cleaster Woods, was indicted for the murder of her husband, Leinster Woods, and for conspiring with Danny Lee Nichols to kill Leinster Woods. At the guilt-innocence phase of the trial Nichols, the State\u2019s chief witness, testified as follows under a plea arrangement:\nNichols and defendant were lovers. About two weeks before defendant\u2019s husband was killed, defendant talked to Nichols about a life insurance policy which would pay $104,000 upon her husband\u2019s death. Nichols stated that defendant offered him a portion of the insurance proceeds \u2014$10,000\u2014to find someone who would \u201crig up\u201d her husband\u2019s car so that he would be blown up. When Nichols was unable to find anyone to \u201crig up\u201d the car, defendant suggested Nichols find a \u201chit man\u201d who would shoot her husband while he was driving. Again, she offered Nichols $10,000 in life insurance proceeds for his help. When Nichols was unable to find a \u201chit man,\u201d defendant proposed a third plan. She asked Nichols to do the shooting himself. Her scheme, according to Nichols, was as follows:\nAfter Leinster Woods had fastened all the locks on the door and gone to bed, defendant would unlock all the locks on the door except one so that it would be easier for Nichols to enter the house and kill defendant\u2019s husband. Nichols stated defendant then would \u201cgrab her kid and wait five or ten minutes after we get out of sight and then holler \u2018help, someone killed my husband.\u2019 \u201d\nIn proposing this plan, defendant offered Nichols $30,000 in insurance proceeds and told Nichols\u2019 friend, Craig Davis, she would give him $5,000 if he would accompany Nichols when he carried out the plan.\nNichols and Davis went to defendant\u2019s home on Tuesday night, 25 August 1981. Nichols stated that while trying to find something with which to cut a screen, \u201cthe door slammed and the car took off.\u201d Nichols, not knowing who drove off in Leinster Woods\u2019 car, left the scene with Davis. Nichols returned to defendant\u2019s house early the next morning with Davis, waited beside the house, and shot defendant\u2019s husband when he walked out the front door to go to work. The State and defendant stipulated that Leinster Woods died on 26 August 1981 as a result of a gunshot wound through the head.\nOne witness testified that defendant had said that \u201csometimes that man [Leinster Woods] makes me so mad I could kill him.\u201d Another witness testified that on the day before Leinster Woods was shot defendant spoke about having had a fight with her husband and that Leinster Woods \u201cwas good as dead.\u201d She had remarked to one other witness that she would share the proceeds from a large insurance policy with him if he would kill her husband.\nDefendant did not offer any evidence.\nThe jury found defendant guilty of both charges. A sentencing hearing was held and the jury found that the aggravating circumstance \u2014 that the murder was committed for monetary gain \u2014 outweighed the mitigating circumstances. However, it also found that the aggravating factor was not sufficiently substantial to call for imposition of the death penalty and recommended a sentence of life imprisonment. Defendant was sentenced as noted above.\nII.\nDefendant presents several issues in this appeal. We will discuss each briefly in turn.\nA.\nWe address first defendant\u2019s contention that the evidence was not sufficient to support convictions of first-degree murder and conspiracy to commit murder, and, therefore, that the trial judge erred in submitting the case to the jury.\nIn determining whether the evidence is sufficient to go to the jury, the trial court is to ascertain whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant\u2019s being the perpetrator of the offense. If so, the evidence is sufficient, as a matter of law,, to go to the jury. State v. Earnhardt, 307 N.C. 62, 63, --- S.E. 2d ---, --- (1982); State v. Powell, 299 N.C. 95, 98, 261 S.E. 2d 114, 117 (1980); State v. Roseman, 279 N.C. 573, 580, 184 S.E. 2d 289, 294 (1971). Substantial evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E. 2d 164, 169 (1980). The trial court is to determine whether the evidence allows a \u201creasonable inference\u201d to be drawn as to the defendant\u2019s guilt. State v. Thomas, 296 N.C. 236, 244-45, 250 S.E. 2d 204, 208-09 (1978).\nIn the case at bar, defendant was tried for first-degree murder. Although Nichols\u2019 testimony, as outlined above, indicates defendant solicited Nichols\u2019 assistance in carrying out the killing, defendant was not present when her husband was shot. Under these circumstances, a defendant is considered an accessory before the fact of murder, not a principal in the crime. The guilt and sentencing distinctions formerly made between an accessory before the fact and a principal in the felony have been abolished, however. G.S. 14-5.2 (1981). In responding to this Court\u2019s holding in State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980), which had recognized those distinctions, the General Assembly enacted G.S. 14-5.2 (1981). That statute provides: \u201cEvery person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony.\u201d After enacting the new statute, the legislature repealed G.S. 14-5, G.S. 14-5.1 and G.S. 14-6, the statutes which previously had applied to those charged as accessories before the fact of felony. The language of G.S. 14-5.2 indicates that the essential elements of the offense have not changed. The legislature merely abolished the difference in guilt and sentencing treatment between the principal to the felony and an accessory in repealing G.S. 14-5, G.S. 14-5.1 and G.S. 14-6 and replacing them with G.S. 14-5.2. Therefore, cases decided under the repealed statutes delineating the essential elements of accessory before the fact of felony are applicable to cases brought under the new statute. The elements of accessory before the fact of felony are: (1) that defendant counseled, procured or commanded the principal to commit the offense; (2) that defendant was not present when the principal committed the offense; and (3) that the principal committed the offense. State v. Sauls, 291 N.C. 253, 256-57, 230 S.E. 2d 390, 392 (1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2178, 53 L.Ed. 2d 226 (1977).\nIn this case, there was substantial evidence of each of the three elements. The State\u2019s chief witness, Danny Nichols, testified to the first element: Oleaster Woods, defendant, agreed to pay Nichols, the principal, $30,000 out of the insurance proceeds if Nichols would kill defendant\u2019s husband. The jury could reasonably infer the second element: defendant was not present when Nichols shot her husband because Nichols did not mention she was there. Finally, Nichols testified to the third element: he admitted he was the principal in this first-degree murder \u2014 the one who shot the victim after lying in wait for him. Therefore, defendant was not a principal. The State\u2019s evidence, thus, presents substantial evidence of each of the essential elements of accessory before the fact of murder. The trial court also is to determine whether there was substantial evidence of defendant\u2019s being the perpetrator of the offense. Nichols testified that he and defendant were lovers, and that she was the person who offered him a portion of the proceeds from the insurance policy if he killed her husband. In so doing Nichols presented sufficient evidence of defendant\u2019s identity as the perpetrator of the offense.\nB.\nWe also find that the evidence of conspiracy to commit murder was sufficient to go to the jury. The essential elements of that crime are: (1) an agreement between two or more people; (2) to do an unlawful act, specifically, to murder another. See State v. Abernathy, 295 N.C. 147, 164, 244 S.E. 2d 373, 384 (1978).\nAbundant evidence of both elements of conspiracy to commit murder are found throughout the record. One example will suffice. On direct examination Nichols testified to the effect that he agreed with defendant that for $10,000 in insurance proceeds he would find a \u201chit man\u201d to kill defendant\u2019s husband.\nThe trial court properly allowed the jury to consider defendant\u2019s guilt of both crimes.\nC.\nDefendant also contends that the trial court erred in failing to instruct the jury on the defense of abandonment of the criminal enterprise. Under Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, 303 N.C. 713, 716-17 (1981) (amending 287 N.C. 669, 699 (1975)), defendant may not assign this omission as error. The rule states that \u201c[n]o party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection . . . .\u201d The rule is applicable to all cases tried on or after 1 October 1981. Defendant\u2019s trial began on 30 November 1981. She is barred, therefore, from claiming this omission as error. Even if we were to assume that Rule 10(b)(2) did not apply, a close examination of the record does not disclose any evidence that defendant abandoned the enterprise.\nD.\nDefendant claims that her convictions are based on invalid indictments because G.S. 15A-626 (1978), the statute \u201cplacing restrictions on any independent powers the grand jury may possess,\u201d Official Commentary to G.S. 15A-626 (1978), is unconstitutional. In State ex rel. Comm\u2019r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E. 2d 547 (1980), this Court reiterated the well-established rule in this jurisdiction that \u201cthe constitutionality of a statute will not be reviewed in the appellate court unless it was raised and passed upon in the proceedings below . . . Id. at 428, 269 S.E. 2d at 577; City of Durham v. Manson, 285 N.C. 741, 743, 208 S.E. 2d 662, 664 (1974). This is in accord with decisions of the United States Supreme Court. Irvine v. California, 347 U.S. 128, 129-30, 74 S.Ct. 381, 98 L.Ed. 561, 567 (1954); Edelman v. California, 344 U.S. 357, 358-59, 73 S.Ct. 293, 294-95, 97 L.Ed. 387, 390-91 (1953). Defendant raises this issue for the first time on appeal. Because she failed to ask the trial court to pass upon this question, we must decline to do so now.\nE.\nDefendant also claims that the murder indictment was insufficient in a constitutional sense because it failed to give notice that the first-degree murder charge carried with it the possibility that she might receive the death penalty upon conviction. Defendant claims a \u201cconstitutionally adequate indictment requires allegations of aggravating circumstances to fulfill constitutional demands of pretrial notice . . . .\u201d In State v. Taylor, 304 N.C. 249, 256-58, 283 S.E. 2d 761, 767-68 (1981), we held that the United States Constitution does not require such notice be given. These assignments of error are overruled.\nF.\nDefendant contends the trial court\u2019s denial of her motion to sequester the witnesses was reversible error. We disagree. The rule in this State is that a motion to sequester witnesses is addressed to the discretion of the trial court, and the court\u2019s denial of the motion will not be disturbed in the absence of a showing of abuse. E.g., State v. Tatum, 291 N.C. 73, 85, 229 S.E. 2d 562, 569 (1976); State v. Davis, 290 N.C. 511, 534, 227 S.E. 2d 97, 111 (1976). Defendant\u2019s sole reason for the request was \u201cbecause of the seriousness and gravity of the case.\u201d Defendant made absolutely no showing that the trial court abused its discretion and we perceive none. The trial court\u2019s ruling on the motion is without error.\nG.\nDefendant contends that the trial court\u2019s limiting of defendant\u2019s cross-examination of the State\u2019s chief witness, Danny Nichols, was reversible error. The long-standing rule in this jurisdiction is that the scope of cross-examination is largely within the discretion of the trial judge, and his rulings thereon will not be held in error in the absence of a showing that the verdict was improperly influenced by the limited scope of the cross-examination. E.g., State v. McPherson, 276 N.C. 482, 487, 172 S.E. 2d 50, 54 (1970); State v. Edwards, 228 N.C. 153, 154, 44 S.E. 2d 725, 726 (1947). Defendant makes absolutely no showing that the verdict was improperly influenced by any of the trial court\u2019s curtailments of her cross-examination of Nichols. Indeed, the record indicates that such a showing would have been impossible. For example, defendant claims she was prejudiced when not allowed to continue a line of questioning in which defense counsel asked Nichols if he had seen or talked with any member of defendant\u2019s family since his own arrest. Nichols stated that he had seen defendant\u2019s son once. The exchange between Nichols and defense counsel went as follows:\nQ: And did you speak with him [defendant\u2019s son]?\nA: I spoke with him.\nQ: And what did you say, if anything?\nA: I just told him everything would be all right.\nQ: Did you say \u201cHello, how are you?\u201d\n[State]: Well, objection.\nThe Court: Sustained.\nQ: What did you say?\nThe COURT: Sustained.\nA: I said everything is going to be all right.\nThe Court: I sustained the objection.\nDEFENDANT\u2019S EXCEPTION NUMBER 9.\nAs shown, the line of questioning itself was irrelevant, and the question to which the State objected was irrelevant to the line of questioning. Indeed, Nichols answered the question anyway. We fail to see how defendant was harmed. Suffice it to say that the other exceptions made on this ground are as meritless. We find no error-here.\nH.\nDefendant contends that the prosecutor\u2019s statements made in his closing argument during the guilt phase of the trial constituted prejudicial error. Where, immediately upon a defendant\u2019s objection to an improper remark made by the prosecutor in his closing argument, the trial court instructs the jury to disregard the offending statement, the impropriety is cured. E.g., State v. Sanders, 303 N.C. 608, 617-18, 281 S.E. 2d 7, 12-13, cert. denied, --- U.S. ---, 102 S.Ct. 523, 70 L.Ed. 2d 392 (1981); State v. Martin, 294 N.C. 253, 260, 240 S.E. 2d 415, 420-21 (1978).\nIn this case the State made the following improper arguments to the jury: \u201c. . . I think you should also know that you should convict that woman of first degree murder and conspiracy and should she be sentenced to a sentence of life imprisonment, she won\u2019t spend the rest of her life in a_\u201d The prosecutor also stated: \u201cYou know, when is the last time anybody went to the gas chamber in this state? Twenty years. People in this state don\u2019t believe you go to the gas chamber on murder and maybe you don\u2019t.\u201d Defense counsel objected to each argument. In both instances the trial court sustained defense counsel\u2019s objections and immediately instructed the jury to disregard the improper portion of the State\u2019s closing argument. Thus, the improprieties were cured and possible prejudice to defendant was avoided with each instruction to disregard the improper statement.\nIII.\nThis Court docketed defendant\u2019s appeal on 27 April 1982. Since that time, defendant has filed in this Court three motions for appropriate relief. We dispose of them here. G.S. 15A-1418 (1978). Since the motions were made more than ten days after entry of judgment, grounds for relief are limited to those listed in G.S. 15A-1415 (Cum. Supp. 1981).\nA.\nIn her first motion for appropriate relief, filed 21 May 1982, defendant claims that her murder conviction was obtained in violation of her rights under the fourteenth amendment to the United States Constitution because the State\u2019s principal witness, Danny Nichols, has recanted the testimony which helped convict defendant. This claim is unfounded. The affidavit submitted to support this claim, a copy of Nichols\u2019 petition for relief, shows that Nichols was not recanting his testimony; he was merely claiming (1) that his guilty plea was coerced because he was confronted with the possibility that he might be tried for first-degree murder and perhaps sentenced to death upon conviction; and (2) that he was denied effective assistance of counsel because his lawyer did not get him a better sentence. Nichols\u2019 claims do not amount to a recantation of his testimony at trial. Defendant\u2019s claim is, therefore, without merit.\nB.\nDefendant\u2019s second motion, filed 25 June 1982, attacks the validity of her murder conviction, claiming that her lawyer was not provided with information about various concessions the prosecutor made to Danny Nichols in exchange for his testimony. G.S. 15A-1054 (1978). The record does not support this claim. The trial transcript shows defense counsel was informed at some time before trial of the charge reduction arrangements made with Nichols. Indeed, defense counsel stated before trial he knew of Nichols\u2019 plea of guilty to second-degree murder. If defendant did not receive the information in written form within a reasonable time before trial, her only remedy under G.S. 15A-1054(c) was to move for a recess, not suppression of the testimony. State v. Lester, 294 N.C. 220, 228-29, 240 S.E. 2d 391, 398-99 (1978).\nDefendant also submits with this second motion several letters Nichols wrote to defendant which we find not relevant to the case at all.\nC.\nDefendant\u2019s last motion, filed 19 October 1982, repeats the claims made in the first two motions and adds the contention that based on our decision in State v. Small, 301 N.C. 407, 272 S.E. 2d 128 (1980), she cannot be convicted of first-degree murder under G.S. 14-5.1 because she was only an accessory before the fact. This contention is meritless because defendant was tried after the effective date of G.S. 14-5.2, the statute which replaced G.S. 14-5, G.S. 14-5.1 and G.S. 14-6, and abolished the guilt and punishment distinction, recognized in Small, between an accessory before the fact to a felony and the principal in a felony. G.S. 14-5.2 is applicable to all offenses committed on or after 1 July 1981. Defendant\u2019s husband was murdered 26 August 1981.\nIV.\nIn reviewing the record, we note that defendant received a ten-year prison sentence for conspiracy to commit murder. Although conspiracy to commit a felony is itself a felony, State v. Abernethy, 220 N.C. 226, 231-32, 17 S.E. 2d 25, 28 (1941), it is not assigned by statute to any particular felony class. Therefore, under G.S. 14-1.1(b) (1981), it is a Class J felony. As such, the maximum sentence which can be imposed is three years\u2019 imprisonment, not ten. Therefore, we remand the conspiracy conviction to the superior court for resentencing.\nThe order committing defendant to ten years in prison for conspiracy to commit murder is\nVacated.\nThe case is\nRemanded for resentencing on conspiracy charge.\nIn the trial of this defendant on both charges we find\nNo error.\n. The General Assembly repealed G.S. 14-5, G.S. 14-5.1 and G.S. 14-6 by Act of 25 June 1981, ch. 686, \u00a7 2, 1981 N.C. Sess. Laws 984. The legislature enacted G.S. 14-5.2 by Act of 25 June 1981, ch. 686, \u00a7 1, 1981 N.C. Sess. Laws 984.", "type": "majority", "author": "CARLTON, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Charles M. Hensey, Assistant Attorney General, for the State.", "Reginald L. Frazier and Bowen C. Tatum, Jr., for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CLEASTER WOODS\nNo. 229A82\n(Filed 7 December 1982)\n1. Criminal Law \u00a7 10.2\u2014 accessory before the fact of murder \u2014 sufficiency of evidence\nThere was substantial evidence of each of the three elements of accessory before the fact of murder where (1) there was testimony that defendant agreed to pay the principal $30,000.00 out of the insurance proceeds on her husband\u2019s life if the principal would kill defendant\u2019s husband, (2) the jury could reasonably infer that defendant was not present when the principal shot her husband, and (3) the principal admitted that he was the one who shot defendant\u2019s husband after lying in wait for him. Defendant\u2019s life sentence was proper in that the Legislature abolished the difference in guilt and sentencing treatment between the principal to the felony and an accessory by repealing G.S. 14-5, G.S. 14-5.1 and G.S. 14-6 and replacing them with G.S. 14-5.2.\n2. Conspiracy \u00a7 6\u2014 conspiring to commit murder \u2014 sufficiency of the evidence\nThe evidence was sufficient to convict defendant of conspiring to commit murder where the State\u2019s witness testified to the effect that he agreed with defendant that for $10,000.00 in insurance proceeds he would find a \u201chit man\u201d to kill defendant\u2019s husband.\n3. Criminal Law \u00a7 163\u2014 failure to object to jury charge \u2014waiver of objection\nUnder Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, defendant may not assign the trial court\u2019s failure to instruct the jury on the defense of abandonment of the criminal enterprise as error where defendant failed to object thereto before the jury retired.\n4. Criminal Law \u00a7 146.4\u2014 failure to raise constitutional question at trial level \u2014 inability to raise question on appeal\nBecause defendant failed to ask the trial court to pass upon the constitutionality of G.S. 15A-626, the Supreme Court declined to review the constitutionality of the statute on appeal.\n5. Homicide \u00a7 12\u2014 no constitutional right to indictment stating aggravating circumstances\nThe United States Constitution does not require that a first-degree murder indictment give allegations of aggravating circumstances to fulfill constitutional demands of pretrial notice.\n6. Criminal Law 8 98.2\u2014 denial of motion to sequester witnesses \u2014 no abuse of discretion\nDefendant made no showing that the trial court abused its discretion in denying her motion to sequester the witnesses, and the Court perceived none.\n7. Criminal Law 8 88\u2014 cross-examination limited \u2014 no abuse of discretion\nDefendant failed to show that the verdict was improperly influenced by the trial court\u2019s limiting of defendant\u2019s cross-examination of the State\u2019s chief witness.\n8. Criminal Law 8 102.3\u2014 closing argument by State \u2014 objection to, and cure of, impropriety\nWhere defense counsel objected to each of two improper arguments to the jury, and in both instances, the trial court sustained defense counsel\u2019s objections and immediately instructed the jury to disregard the improper portion of the State\u2019s closing argument, the improprieties were cured and possible prejudice to the defendant was avoided.\n9. Constitutional Law 8 28\u2014 claim that witness recanted testimony unfounded\nThere was no merit to defendant\u2019s claim that her murder conviction was obtained in violation of her rights under the Fourteenth Amendment to the United States Constitution because the State\u2019s principal witness recanted his testimony which helped convict defendant since the affidavit submitted to support the claim showed that the witness was not recanting his testimony at all.\n10. Constitutional Law 8 30\u2014 informing defendant of charge reduction arrangements made with State\u2019s witness\nThe record did not support defendant\u2019s claim that her lawyer was not provided with information about various concessions the prosecutor made to the State\u2019s chief witness in exchange for his testimony. Even if defendant did not receive the information in written form within a reasonable time before trial, her only remedy under G.S. 15A-1054(c) was to move fpr a recess, not suppression of the testimony.\n11. Criminal Law 8 138\u2014 conspiracy to commit murder \u2014sentence imposed exceeding maximum\nUnder G.S. 14-l.Kb) the trial court erred in giving defendant a 10-year prison sentence for conspiracy to commit murder since the maximum sentence which can be imposed is 3 years imprisonment.\nDefendant Oleaster Woods appeals directly to this Court as a matter of right under G.S. 7A-27(a) (1981) from the judgment of Brown, Judge, entered 2 December 1981, which imposed a life sentence. Defendant was tried during the 21 November 1981 Session of Superior Court, Craven County. The life sentence was imposed after a jury found defendant guilty of first-degree murder. Defendant was also convicted of conspiring to commit murder, a felony, and given a ten-year prison term on that conviction. On 24 May 1982 we allowed defendant\u2019s motion under G.S. 7A-31(b) (1981) to bypass the Court of Appeals on the conspiracy to commit murder conviction.\nDefendant raises a potpourri of contentions in this appeal. Some of the issues we address below are: (1) the sufficiency of the evidence supporting defendant\u2019s convictions; (2) the trial court\u2019s omission of a jury instruction on the defense of abandonment; (3) the constitutionality of G.S. 15A-626 (1978); (4) the sufficiency of the indictments; (5) the trial court\u2019s denial of a motion to sequester the witnesses; and (6) the trial court\u2019s limiting of cross-examination of the State\u2019s principal witness.\nRufus L. Edmisten, Attorney General, by Charles M. Hensey, Assistant Attorney General, for the State.\nReginald L. Frazier and Bowen C. Tatum, Jr., for defendant." }, "file_name": "0213-01", "first_page_order": 241, "last_page_order": 252 }