{ "id": 4761187, "name": "STATE OF NORTH CAROLINA v. AMEEN KAREEM ABDULLAH", "name_abbreviation": "State v. Abdullah", "decision_date": "1983-08-09", "docket_number": "No. 552A82", "first_page": "63", "last_page": "78", "citations": [ { "type": "official", "cite": "309 N.C. 63" } ], "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": "220 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570429 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0608-01" ] }, { "cite": "301 S.E. 2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "243 S.E. 2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "274 S.E. 2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "204" } ], "opinion_index": 0 }, { "cite": "302 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563765 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0028-01" ] }, { "cite": "301 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "301 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "61 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521972 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/61/0500-01" ] }, { "cite": "302 S.E. 2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "303 S.E. 2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "86" } ], "opinion_index": 0 }, { "cite": "296 S.E. 2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "313", "parenthetical": "emphasis added" }, { "page": "312" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525929 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0157-01" ] }, { "cite": "271 S.E. 2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565888 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0262-01" ] }, { "cite": "277 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571616 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0133-01" ] }, { "cite": "241 S.E. 2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573193 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0365-01" ] }, { "cite": "221 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567692 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0223-01" ] }, { "cite": "220 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "403 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12043280, 12043226 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/us/403/0948-02", "/us/403/0948-01" ] }, { "cite": "174 S.E. 2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563378 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0703-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "259 S.E. 2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "298 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572408 ], "year": 1979, "pin_cites": [ { "page": "368-69" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0355-01" ] }, { "cite": "301 S.E. 2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710824 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0169-01" ] }, { "cite": "3 L.Ed. 2d 1991", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "170 F. Supp. 200", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 439295 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f-supp/170/0200-01" ] }, { "cite": "72 L.Ed. 2d 450", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "456 U.S. 932", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6277825, 6278627, 6276296, 6279499, 6277195, 6278351, 6276593, 6276851, 6275989, 6278968, 6278105, 6279802, 6277502 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/456/0932-07", "/us/456/0932-10", "/us/456/0932-02", "/us/456/0932-12", "/us/456/0932-05", "/us/456/0932-09", "/us/456/0932-03", "/us/456/0932-04", "/us/456/0932-01", "/us/456/0932-11", "/us/456/0932-08", "/us/456/0932-13", "/us/456/0932-06" ] }, { "cite": "284 S.E. 2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568926 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0394-01" ] }, { "cite": "229 S.E. 2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "907" }, { "page": "908" } ], "opinion_index": 0 }, { "cite": "291 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557860 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "240" }, { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0235-01" ] } ], "analysis": { "cardinality": 1232, "char_count": 34616, "ocr_confidence": 0.825, "pagerank": { "raw": 6.106861423517358e-07, "percentile": 0.9557136342697972 }, "sha256": "bb3b4a205b2d8ffc7e34545cedc3556d864f5c639f5d8350a1dcbf340b2fce7f", "simhash": "1:cb2de5be660abcd0", "word_count": 5738 }, "last_updated": "2023-07-14T18:05:00.577130+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. AMEEN KAREEM ABDULLAH" ], "opinions": [ { "text": "MEYER, Justice.\nDefendant first contends that he is entitled to a new trial because of the prosecutor\u2019s actions in allegedly coercing a witness, Clarence Buchanan, to identify the defendant as the man who sold him Officer Cannon\u2019s service revolver.\nThe evidence at trial tended to show that defendant, after killing Officer Cannon and taking the officer\u2019s revolver, together with Owens and Randolph, fled the scene in the car driven by Washington. A short distance from the store, defendant threw Officer Cannon\u2019s revolver from the car window. The following day, 24 November 1981, Martin apparently retrieved the revolver and he, Owens, and the defendant traveled to Chester, South Carolina, for the purpose of selling both Officer Cannon\u2019s revolver and the murder weapon. In Chester, the three men met with Clarence Buchanan to whom defendant sold the weapons for $70.00. Buchanan gave the money to the defendant and an ounce of marijuana to Owens.\nPolice officers retrieved the two weapons from Buchanan on 23 December 1981 following confessions by Owens, Randolph and Washington, and took a statement from him on 30 December. Buchanan did not mention defendant by name in this statement. Police interviewed Buchanan again on either 13 or 14 January 1982, at which time Buchanan picked out only Owens\u2019 photograph from an array which also included a photograph of the defendant. On 26 January 1982 Buchanan failed to pick the defendant out of a corporeal lineup. In early March, Buchanan was interviewed by Charlotte Police Officer Crowell and Mecklenburg County Assistant District Attorney Richard Gordon. Buchanan reviewed his earlier statement and viewed a photograph of the 26 January corporeal lineup which included the defendant. He first stated that he did not recognize anyone in the lineup photograph. Gordon then pointed to the defendant in the photograph and identified him as Abdullah. He reminded Buchanan that he would be called upon to testify and asked him how he would respond when asked if that particular man in the photograph had sold him the guns. Buchanan then admitted that he recognized everyone in the photograph, including the defendant. He explained his earlier reluctance to identify the defendant by stating, \u201cI didn\u2019t want to get involved. I have to live in the streets down here, and I just didn\u2019t want to get involved.\u201d\nDuring voir dire, Gordon testified as follows:\nI said, \u2018Well, are you picking him out just because I\u2019m pointing him out to you?\u2019 He said, \u2018No, I recognize him.\u2019 I said, \u2018Are you picking him out just because you want to make me happy?\u2019 He said, \u2018No, I recognize him.\u2019 I said, \u2018Has anybody pointed him out to you before today and told you he\u2019s the man you\u2019re supposed to identify?\u2019 And he said, \u2018No.\u2019 I said, \u2018How come you didn\u2019t point him out to me on this picture when I showed it to you a few minutes ago?\u2019 He said, T just didn\u2019t want to get involved. I didn\u2019t want to have to testify.\u2019 And I asked him at least twice more whether he was identifying this man because I pointed him out to him or whether he was identifying him from his house that day, from his kitchen, the twenty-fourth of November. He said, T recognize him from being in the kitchen that day.\u2019 I said, \u2018Do you feel like anybody has suggested to you this man should be identified and is that the reason why you\u2019re doing it?\u2019 I pressed him on that very closely because I knew this issue was going to come up, and he said, \u2018No, I\u2019m identifying him because I recognize him.\u2019\nAfter hearing this evidence, the trial court found that Buchanan\u2019s identification was the result of his own observations on 24 November. Defendant\u2019s motion to suppress Buchanan\u2019s in-court identification of the defendant was denied.\nDefendant argues that by his actions, Assistant District Attorney Gordon improperly interfered with Buchanan\u2019s \u201cchoice of whether or not to testify and with the content of his testimony.\u201d He asserts that Gordon\u2019s \u201cinterference\u201d infringed upon his constitutional right to present witnesses to establish his defense. In support of his argument, defendant cites two cases in which the prosecutor or trial judge attempted to intimidate or otherwise discourage a vital defense witness from testifying on behalf of the defendant. These cases are inapposite. Correct analysis of this issue turns, rather, on the legal principles set forth in State v. Montgomery, 291 N.C. 235, 229 S.E. 2d 904 (1976); accord State v. Williams, 304 N.C. 394, 284 S.E. 2d 437; cert. denied, 456 U.S. 932, 72 L.Ed. 2d 450 (1982). In Montgomery, this Court said:\nIt is self evident that a denial of due process occurs when the State contrives a conviction by the knowing use of perjured testimony. However, when a witness testifies as to facts earlier obtained by coercive police action and all of the circumstances surrounding the alleged coercive acts are before the jury, the requirements of due process are met. It is then for the jury to determine the weight, if any, to be given to the testimony. United States v. West, 170 F. Supp. 200; 3 Wigmore, Evidence \u00a7 815 (Chadbourne rev. 1970); Annot., 3 L.Ed. 2d 1991, Due Process \u2014 Perjured Testimony.\n291 N.C. at 240, 229 S.E. 2d at 907.\nIn Montgomery, the only evidence of police coercion was that police officers questioned several of the State\u2019s witnesses on several occasions and told them that they \u201ccould get ten years\u201d if they lied under oath. The Court concluded:\nThe evidence in this case reveals a tenacious investigation by the police officers but shows little evidence of coercive action against the witnesses, Dula, Shuford and Richards. Even had there been strong evidence of coercion, this record does not disclose that defendant\u2019s conviction resulted from the use of known perjured testimony. A full disclosure of the alleged coercive police action was before the jury. Under vigorous and searching cross-examination each witness steadfastly asserted the truth of the material facts.\nUnder these circumstances, we hold that the evidence was admissible. Evidence of any police coercion or of contradictory statements and withholding of information on the part of the witnesses goes to their credibility. This, of course, is a jury question.\n291 N.C. at 241, 229 S.E. 2d at 908.\nDefendant concedes, and we are in agreement, that there is no evidence on this Record to suggest that Buchanan\u2019s testimony was perjured. While the State sought \u201ctenaciously\u201d to encourage Buchanan\u2019s identification of the defendant, as in Montgomery, the jury was fully apprised of the alleged coercive action and Buchanan was subjected to \u201cvigorous and searching\u201d cross-examination. Furthermore, Buchanan\u2019s testimony was cumulative and not vital to the State\u2019s case as it merely corroborated the testimony of Mark Owens that the defendant had accompanied Owens to South Carolina where they had sold the two weapons the day after the murder. We find no error.\nWe find further that Buchanan\u2019s in-court identification of the defendant as one of the men who sold him the guns was of independent origin based solely on what Buchanan saw at the time of the transaction. See State v. Chatman, 308 N.C. 169, 301 S.E. 2d 71 (1983).\nDefendant next challenges portions of the prosecutor\u2019s remarks to the jury during closing argument, alleging that the prosecutor personally vouched for the credibility of the State\u2019s witnesses and misstated the evidence bearing on the credibility of a State\u2019s witness. No objection was taken during the argument to these allegedly improper remarks. As we recently stated in State v. Johnson, 298 N.C. 355, 368-69, 259 S.E. 2d 752, 761 (1979):\nIt is well settled in North Carolina that counsel is allowed wide latitude in the argument to the jury. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Williams, 276 N.C. 703, 174 S.E. 2d 503 (1970), rev'd on other grounds, 403 U.S. 948. Even so, counsel may not place before the jury incompetent and prejudicial matters by injecting his own knowledge, beliefs and personal opinions not supported by the evidence. State v. Britt, 288 N.C. 699, 220 S.E. 2d 283 (1975). The control of the arguments of counsel must be left largely to the discretion of the trial judge, State v. Britt, supra; State v. Monk, supra, and the appellate courts ordinarily will not review the exercise of the trial judge\u2019s discretion in this regard unless the impropriety of counsel\u2019s remarks is extreme and is clearly calculated to prejudice the jury in its deliberations. State v. Taylor, 289 N.C. 223, 221 S.E. 2d 359 (1976). In capital cases, however, an appellate court may review the prosecution\u2019s argument, even though defendant raised no objection at trial, but the impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it. State v. Smith, 294 N.C. 365, 241 S.E. 2d 674 (1978).\nIt is the State\u2019s position that the remarks were not improper and were in answer to matters argued by defense counsel and thereby \u201cinvited.\u201d Thus we turn to a review of the jury arguments, including that of defense counsel, to determine whether, in this context, the prosecutor engaged in conduct that was grossly unfair and calculated to mislead and prejudice the jury in its deliberations.\nDefense counsel, in a vigorous, well-organized and polished argument, developed, as one of the themes of the defense, that the State had deliberately attempted to conceal evidence by refusing to call as witnesses Larry Smith and John Benchina. These witnesses testified for the defense and, with respect to what the killer was wearing at the time Officer Cannon was shot, their testimony was inconsistent with the State\u2019s theory.\nDefense counsel argued as follows:\nIsn\u2019t that a strange way to prosecute a case? You go out to figure out what happened on a given night, and you bring everybody in who can tell you something about it except two people who are independent, not co-defendants, not interested in anyone, not troubled, who could tell you what happened, who say the same night it happened exactly how it happened, and what do they do? They don\u2019t bring them at all. John Benchina and Larry Smith. ... So everybody they could find who had something to say that they thought could fit their theory, they brought in and put them on the witness stand and let you hear them. Why then, why then, did they not bring in two people who had told them on the very night that it happened that they had seen it? The two men who had made a statement of what they had seen shortly after they saw it? Because they were operating on this theory that Mr. Abdullah was wearing a blue jacket and a blue hat, and if they got eyewitnesses who said, \u2018No, that\u2019s not what the killer had on,\u2019 they don\u2019t want you to hear that. So they leave them out altogether. Leave them out altogether. And who brought them in to tell you what they saw? We did.\nIn response, the State argued as follows:\nA lawyer puts a witness up and vouches for his credibility, which means if I call that witness, I have got to believe what that witness says. A lawyer may not ethically put up a witness that he believes will lie.\nThe witness Benchina, who was driving the truck in which Smith was a passenger, saw much of what happened through the rearview mirror of the vehicle as he sped away from the scene. The witness Smith had a history of public drunkenness, drunken driving, and drug use. He had attempted to avoid being jailed after being arrested for ticket scalping by telling a Charlotte police officer that he was a key witness to the Cannon killing. He failed to attend lineups arranged to view suspects in this case and eventually fled Mecklenburg County because of pending criminal charges. There was reason to believe that Officer Cannon had arrested Smith in 1978 for failure to appear in court on a marijuana charge.\nIn light of these facts, two conclusions readily emerge. First, the State had justifiable reason for not calling these two witnesses. Second, the State was justified in explaining to the jury its failure to call these witnesses in the face of defense counsel\u2019s insinuation that the failure was a deliberate attempt to. conceal evidence. Furthermore, as a general proposition of legal accuracy, the prosecutor\u2019s remark is supportable. See 1 Brandis on North Carolina Evidence \u00a7 40 (2d rev. ed. 1982) (the State may not, as a general rule, impeach its own witness). We therefore hold that the alleged impropriety of this remark was neither grossly unfair nor calculated to prejudice the jury.\nDefense counsel persuasively argued in closing that the testimony of the three co-conspirators, Owens, Randolph, and Washington, was highly suspect as each had testified \u201cto save his life . . . [w]hatever he needs to say, he\u2019s willing to say it.\u201d They were, in fact, characterized by defense counsel as \u201cthree desperate men who are seeking to save their own lives.\u201d\nIn response the prosecutor first pointed out that the crime was committed not by three, but by six individuals. He then stated \u201c[a]nd so I, as the District Attorney, who has the responsibility for administration of justice in Mecklenburg County, I made the decision that we\u2019re going to try six men and not three men, even though three men may be easily convicted.\u201d Later, in the argument, the prosecutor added, \u201cI don\u2019t want them to plead guilty. I want them to know, \u2018If you don\u2019t testify truthfully, you will go on trial for your life.\u2019 Certainly.\u201d These remarks, contends the defendant, amounted to- the injection of an improper expression of the prosecutor\u2019s personal opinions into the jury argument. Defendant does not clearly articulate how he was prejudiced.\nThe prosecutor was merely attempting to legitimize what defense counsel had suggested was somehow an unfair and nefarious practice of resorting \u201cto the criminals themselves for testimony with which to convict their confederates in crime.\u201d He did so by pointing out that while Owens, Randolph and Washington could easily be convicted on their confessions, their testimony, in return for sentence concessions, would ensure the conviction of the other three. The argument was not unfair. It was not misleading. It was not prejudicial.\nDefense counsel, having attacked the testimony of the three co-conspirators, then suggested that, because the prosecution \u201cobviously realized that that wasn\u2019t going to do it,\u201d it came up with Martin\u2019s girlfriend, Bernise Aldridge. The prosecutor\u2019s comments concerning Ms. Aldridge\u2019s testimony at trial forms the basis for defendant\u2019s final argument under this assignment of error. The prosecutor stated:\nJohn Martin\u2019s girlfriend got up here. Did she do anything to free John Martin? She got up here, and as I heard her testimony, she said, \u2018Yes, John Martin was with them. John Martin was splitting up money. John Martin was talking about what they had done.\u2019\nBernise Aldridge put her boyfriend in this thing just as deeply as anybody else, John Martin.\nIn so arguing, the prosecutor misstated the evidence. Ms. Aldridge testified that Martin was not present when the proceeds of the robbery were divided. Another witness placed Martin in the house at this time. The inaccuracy, however, was, in our view, not so prejudicial as to affect the outcome of the trial. Not only did it have little bearing on defendant\u2019s guilt, but it was merely a perpetration of an inaccuracy already before the jury by way of defense counsel\u2019s argument, summarizing Ms. Aldridge\u2019s testimony as follows:\nSo she comes in and says that she went home about 11:00 or 11:30 from her aunt\u2019s house on the night of the twenty-third, and that she saw Harold Gordon there, and all these others there, she said, Martin, Abdullah, Owens, and said she saw all of them there, and then she only tells you what she heard Abdullah say. Everybody can remember everything Mr. Abdullah said.\n(Emphasis added.)\nIn light of the foregoing, we do not find these arguments so improper as to persuade us to hold that the trial judge abused his discretion in not recognizing and correcting them ex mero motu.\nBy his third assignment of error, defendant raises two, but argues only one alleged error in the trial court\u2019s denial of defendant\u2019s request for an instruction to the jury relating to the recapitulation of the evidence and defendant\u2019s contentions. Defendant first requested that the trial judge state with respect to defendant\u2019s contentions concerning the testimony of the three co-conspirators who testified for the State, that they testified falsely. The trial judge declined to do so. No argument was presented on this point. We hold that the trial judge was entirely proper in this ruling. To hold otherwise would \u201copen the door\u201d to requiring at every phase of the instruction that a trial judge comment on the contentions of the parties concerning the veracity of witnesses testifying for the other party. We believe this practice is neither necessary nor advisable.\nDefendant also requested that the trial judge instruct with respect to the testimony of Wendy Jenkins, the store clerk, that \u201cafter having stated [to the police] that she would know the person with the gun if she ever saw him again, \u201d she \u201cappeared and viewed the lineup in which the defendant appeared, but could not identify him.\u201d The italicized portion of this instruction, although requested, was not given.\nWe note initially that by statute, the trial judge must, in instructing the jury, \u201cdeclare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law to the evidence. . . .\u201d G.S. \u00a7 15A-1232. Testimony which merely tends to impeach or show bias is not substantive in nature and need not be summarized. State v. Adcox, 303 N.C. 133, 277 S.E. 2d 398 (1981); State v. Moore, 301 N.C. 262, 271 S.E. 2d 242 (1980). Defendant attempts to argue that Ms. Jenkins\u2019s inability to identify the defendant is tantamount to substantive exculpatory evidence that defendant was not the gunman. We disagree. This evidence, fully explored during the cross-examination of Ms. Jenkins, served only to impeach the credibility of Owens and Randolph, the eyewitness co-conspirators, and other witnesses who testified to defendant\u2019s own admissions that it was he who murdered Officer Cannon. The trial judge properly denied defendant\u2019s request.\nDefendant next contends that the trial judge violated the language of the Fair Sentencing Act, G.S. \u00a7 15A-1340.4, when he imposed the maximum sentences upon defendant\u2019s convictions of conspiracy to commit armed robbery and armed robbery. Defendant challenges two of the four aggravating factors upon which he relied in imposing these sentences: (1) that the offense was committed for pecuniary gain, G.S. 15A-1340.4(a)(1)(c); and (2) that the defendant was armed with or used a deadly weapon at the time of the crime, G.S. \u00a7 15A-1340.4(a)(1)(i). Defendant argues that these factors were erroneously considered because evidence necessary to prove the elements of the offense was duplicated in proving these aggravating factors. G.S. \u00a7 15A-1340.4(a)(1).\nWe first determine whether defendant is entitled to a new sentencing hearing on the armed robbery charge. In support of his position that the trial judge improperly relied on G.S. \u00a7 15A-1340.4(a)(1)(c), that the armed robbery was committed for hire or pecuniary gain, defendant cites to numerous cases filed by the Court of Appeals which have held that reliance on this factor was error. Beginning with State v. Morris, 59 N.C. App. 157, 296 S.E. 2d 309 (1982), the Court of Appeals has reasoned that \u201cif the pecuniary gain at issue in a case is inherent in the offense, then that \u2018pecuniary gain\u2019 should not be considered an aggravating factor.\u201d Id. at 161-62, 296 S.E. 2d at 313 (emphasis added). See State v. Thompson, \u2014 N.C. App. \u2014, 303 S.E. 2d 85 (1983); State v. Thompson, \u2014 N.C. App. \u2014, 302 S.E. 2d 310 (1983); State v. Setzer, 61 N.C. App. 500, 301 S.E. 2d 107 (1983); but see State v. Crews, No. 829SC520 (N.C. App. filed Dec. 21, 1982), cert. denied, \u2014 N.C. \u2014, 301 S.E. 2d 391 (1983). In Crews, the Court of Appeals, relying on State v. Oliver, 302 N.C. 28, 274 S.E. 2d 183 (1981), found no error in the submission of this factor. In a footnote in Morris, the Court of Appeals had, however, distinguished our holding in Oliver by pointing out that \u201cour capital punishment statute does not contain a statutorily mandated proscription against the use of evidence necessary to prove an element of the offense as does our Fair Sentencing Act.\u201d 59 N.C. App. at 161, 296 S.E. 2d at 312. In Oliver, defendants were convicted of first degree murder perpetrated during the course of an armed robbery. We held that \u201c[t]he circumstance that the capital felony was committed for pecuniary gain, ... is not an essential element ... [of the offense];\u201d and that \u201cit is appropriate for [pecuniary gain] to be considered on the question of [defendant\u2019s] sentence\u201d since \u201c[t]his circumstance examines the motive of the defendant rather than his acts.\u201d 302 N.C. at 62, 274 S.E. 2d at 204.\nWhile it is true that our capital punishment statute, G.S. \u00a7 15A-2000, differs from the Fair Sentencing Act in that the former does not include a proscription against the use of evidence necessary to prove an element of the offense, we are also bound by the language of G.S. \u00a7 15A-1340.4(a)(1) which states, in pertinent part, that \u201c[ejvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. . . .\u201d (Emphasis added.) By this language it seems clear that it is not the use of evidence which is merely \u201cinherent in the offense\u201d but the use of evidence necessary to prove an element of the offense which is proscribed. It is also equally clear that pecuniary gain is not an essential element of the crime of armed robbery. Those elements include (1) the unlawful taking, or attempted taking of personal property from another; (2) the possession, use of threatened use of \u201cfirearms or other dangerous weapon, implement or means\u201d; and (3) danger or threat to the life of the victim. See State v. Joyner, 295 N.C. 55, 243 S.E. 2d 367 (1978). Thus, if defendant\u2019s sole argument was based on the assumption that the aggravating factor, pecuniary gain, is an essential element of armed robbery and thereby precluded under G.S. \u00a7 15A-1340.4 (a)(1), his argument would fail.\nHowever, defendant further argues that the correct interpretation of G.S. \u00a7 15A-1340.4(a)(1)(c) precludes the use of this aggravating factor in any circumstance other than when a defendant is hired or paid to commit the offense. In support of this interpretation, defendant points to 1983 Session Law, Chapter 70, which, effective 1 October 1983, would amend G.S. \u00a7 15A-1340.4 (a)(1)(c), changing the present language that \u201c[t]he offense was committed for hire or pecuniary gain\u201d to \u201c[t]he defendant was hired or paid to commit the offense.\u201d Significantly, the amendment was styled \u201cAn Act to Clarify the Aggravating Factor Regarding Pecuniary Gain.\u201d (Emphasis added.)\nJudge Becton, in State v. Thompson, recently discussed the effect of the amendment:\nThat amendment, in our view, clearly evinces the Legislature\u2019s intent to avoid the enhancement of a defendant\u2019s sentence simply because money or other valuable items were involved in the crime charged. Bound as we are fairly to interpret legislative enactments, and charged both to divine and carry out the intent of the Legislature, we are compelled to hold that the trial court erred in considering pecuniary gain as a factor in aggravation of defendant\u2019s sentence.\n\u2014 N.C. App. at \u2014, 303 S.E. 2d at 86.\nWe find this reasoning sound and therefore hold that in the case sub judice, where there is no evidence that defendant was hired or paid to commit the crime, the trial court improperly relied on G.S. \u00a7 15A-1340.4(a)(1)(c) in sentencing defendant in the armed robbery.\nFurthermore we agree with the defendant that the trial judge improperly relied on G.S. \u00a7 15A-1340.4(a)(1)(i), i.e., that the defendant was armed with or used a deadly weapon at the time of the crime, in enhancing his sentence for armed robbery. One essential element necessary to prove the offense of armed robbery is that of the possession, use or threatened use of a firearm or other dangerous weapon. Thus the use of this factor is proscribed under G.S. \u00a7 15A-1340.4(a)(1). State v. Thompson, \u2014 N.C. App. \u2014, 302 S.E. 2d 310; State v. Brooks, \u2014 N.C. App. \u2014, 301 S.E. 2d 421 (1983).\nWith respect to the use of the aggravating factor of \u201cpecuniary gain\u201d in sentencing on the conspiracy charge, the State notes correctly that:\nA criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. The conspiracy is the crime and not its execution. No overt act is necessary to complete the crime of conspiracy. As soon as the union of the wills for the unlawful purpose is perfected, the offense of conspiracy is complete. State v. Bindyke, 288 N.C. 608, 220 S.E. 2d 521 (1975).\nIt is apparent that the elements of the crime of conspiracy to commit armed robbery do not include the commission of the crime for pecuniary gain or possession or use of a deadly weapon at the time of the crime. However, in light of our adoption of the interpretation given G.S. \u00a7 15A-1340.4(a)(1)(c), as amended, and because there is no evidence that defendant was hired or paid to commit this crime, we hold that the trial court improperly relied on this factor in enhancing defendant\u2019s sentence in the conspiracy case. We find no error in the trial court\u2019s reliance on G.S. \u00a7 15A-1340.4 (a)(l)(i), that defendant was armed with a deadly weapon at the time of the crime.\nDefendant\u2019s convictions for first degree murder, armed robbery and conspiracy to commit armed robbery are affirmed. The armed robbery and conspiracy cases are remanded to Superior Court, Mecklenburg County, for resentencing.\nCase No. 81CRS85033, First Degree Murder \u2014no error.\nCase No. 81CRS85034, Robbery with a Firearm \u2014 remanded for resentencing.\nCase No. 82CRS3027, Felonious Conspiracy to Commit Robbery with a Firearm \u2014 remanded for resentencing.", "type": "majority", "author": "MEYER, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Thomas F. Moffitt, Assistant Attorney General, for the State.", "Adam Stein, Appellate Defender, by James H. Gold and Ann B. Petersen, Assistant Appellate Defenders, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. AMEEN KAREEM ABDULLAH\nNo. 552A82\n(Filed 9 August 1983)\n1. Constitutional Law \u00a7 28\u2014 alleged coerced testimony \u2014 no violation of due process\nAlthough the prosecutor sought tenaciously to encourage a witness\u2019s identification of defendant as the man who sold him a slain police officer\u2019s service revolver, defendant\u2019s murder conviction was not obtained in violation of due process because of the witness\u2019s identification testimony at trial where there was no evidence to suggest that the witness\u2019s testimony was perjured; the jury was fully apprised of the prosecutor\u2019s alleged coercive action and the witness was subjected to a vigorous and searching cross-examination; and the witness\u2019s testimony was cumulative and not vital to the State\u2019s case.\n2. Criminal Law \u00a7 102.7\u2014 jury argument \u2014 vouching for credibility of witnesses\nWhere defense counsel argued to the jury that the State had deliberately attempted to conceal evidence by refusing to call two named persons as witnesses, the prosecutor\u2019s jury argument that a lawyer vouches for the credibility of his witness and that a lawyer may not ethically put up a witness who he believes will lie was not grossly unfair or calculated to prejudice the jury since (1) the evidence showed that the State had justifiable reason for not calling the two witnesses, (2) the State was justified in explaining to the jury its failure to call these witnesses in the face of defense counsel\u2019s argument, and (3) the prosecutor\u2019s argument was supportable as a legally accurate general proposition.\n3. Criminal Law \u00a7 102.7\u2014 jury argument \u2014 necessity for testimony by co-conspirators\nWhere defense counsel in a robbery-murder case argued that the testimony of three co-conspirators was highly suspect because each had testified in order to save his life, it was not improper for the prosecutor thereafter to argue that six people were involved in the crimes and that, while the three co-conspirators could easily be convicted on their confessions, their testimony, in return for sentence concessions, would ensure the conviction of the other three.\n4. Criminal Law \u00a7 102.6\u2014 misstatement in jury argument \u2014 absence of prejudice\nThe prosecutor\u2019s misstatement in his jury argument that a co-conspirator\u2019s girlfriend testified that the co-conspirator took part in splitting the money from a robbery was not prejudicial error, although the girlfriend actually testified that the co-conspirator was not present when the proceeds were divided, since the misstatement had little bearing on defendant\u2019s guilt and was a mere perpetration of an inaccuracy already before the jury by way of defense counsel\u2019s argument.\n5. Criminal Law \u00a7 118\u2014 contention that testimony was false \u2014 refusal to instruct\nThe trial judge did not err in refusing to give defendant\u2019s requested instruction on his contention that he had presented evidence tending to show that three co-conspirators who were State\u2019s witnesses had testified falsely.\n6. Criminal Law \u00a7 113.1\u2014 impeachment testimony \u2014 refusal to summarize\nThe trial court in a robbery-murder case did not err in refusing to give defendant\u2019s requested instruction that defendant\u2019s evidence tended to show that a State\u2019s witness could not identify defendant in a lineup \u201cafter having stated [to the police] that she would know the person with the gun if she ever saw him again,\u201d since such evidence tended only to impeach other State\u2019s witnesses, and testimony which merely tends to impeach or show bias is not substantive in nature and need not be summarized.\n7. Criminal Law \u00a7 138\u2014 Fair Sentencing Act \u2014 pecuniary gain aggravating factor\nSince pecuniary gain was not an essential element of armed robbery or conspiracy to commit armed robbery, G.S. 15A-1340.4(a)(l) did not prohibit the trial court from considering the fact that the offenses were committed for pecuniary gain in imposing sentences for such offenses. However, pecuniary gain could not be considered as an aggravating circumstance in imposing sentences for such offenses where there was no evidence that defendant was hired or paid to commit the offenses.\n8. Criminal Law \u00a7 138\u2014 Fair Sentencing Act \u2014 armed with deadly weapon aggravating circumstance\nThe trial judge improperly relied on G.S. 15A-1340.4(a)(l)(i), i.e., that the defendant was armed with a deadly weapon at the time of the crime, in enhancing his sentence for armed robbery, since the possession, use or threatened use of a firearm or other dangerous weapon is an essential element of the offense of armed robbery, and the use of such factor is thus proscribed by G.S. 15A-1340.4(a)(l). However, the trial court could rely on the fact that defendant was armed with a deadly weapon in imposing a sentence for conspiracy to commit armed robbery since such factor was not an element of conspiracy.\nFROM judgments entered by Ferrell, J., at the 7 June 1982 Criminal Session of Superior Court, MECKLENBURG County, defendant appeals his convictions of first degree murder, robbery with a firearm, and felonious conspiracy to commit robbery with a firearm. Pursuant to G.S. \u00a7 15A-2000(b), the jury recommended a sentence of life imprisonment on the first degree murder conviction. Upon findings of four aggravating factors pursuant to G.S. \u00a7 15A-1340.4(a)(l), defendant was sentenced to the maximum of forty years imprisonment on the armed robbery conviction and to the maximum of three years imprisonment on the conspiracy conviction. Defendant appeals as of right from the sentence of life imprisonment. G.S. \u00a7 7A-27(a). Motion to bypass the Court of Appeals on the robbery and conspiracy convictions was allowed 15 March 1983.\nDefendant\u2019s assignments of error fall into two categories. With respect to the guilt determination phase of the trial, he alleges improper coercion of a State\u2019s witness to testify; prosecutorial misconduct in the State\u2019s closing argument to the jury; and failure of the trial judge to properly summarize the evidence. We find no error sufficiently prejudicial to warrant the granting of a new trial on these issues. Defendant further contends that the trial judge erred, under the Fair Sentencing Act, in imposing the maximum sentence upon the defendant for the armed robbery and conspiracy convictions. We agree that the trial judge improperly relied on two aggravating factors in imposing the maximum sentence for these convictions and remand that case for purposes of resentencing.\nThe facts necessary to resolve the issues presented will, for the most part, be discussed under the pertinent assignments of error. For purposes of background information, we add here only that defendant\u2019s convictions arose out of the fatal shooting of police officer Edmond Cannon during the armed robbery of a Charlotte convenience store on 23 November 1981. Involved were the defendant and Mark Owens, who rode in one car driven by Charlie Brown, and John Martin and Antonio Randolph, who rode in a second car driven by Richard Washington. The evidence tended to show that the defendant, together with Owens and Randolph, entered the store after determining that the store clerk, Wendy Jenkins, was alone. After taking money from her, defendant forced Jenkins into a food cooler. During the course of the robbery, Officer Cannon entered the store. The defendant shot Officer Cannon twice, immobilizing him. After the officer had fallen, the defendant shot him three more times in the back. Defendant took the officer\u2019s service revolver.\nMark Owens, Antonio Randolph and Richard Washington testified for the State. Other witnesses for the State included Wendy Jenkins, the store clerk, several of defendant\u2019s acquaintances and relatives who heard him admit to the shooting, and a number of individuals who were in the area of the convenience store during and shortly after the robbery.\nDefendant\u2019s evidence consisted of the testimony of twelve witnesses, the thrust of which was to impeach the credibility of the State\u2019s witnesses and to draw inconsistencies from, and inject uncertainty into the State\u2019s case.\nRufus L. Edmisten, Attorney General, by Thomas F. Moffitt, Assistant Attorney General, for the State.\nAdam Stein, Appellate Defender, by James H. Gold and Ann B. Petersen, Assistant Appellate Defenders, for defendant-appellant." }, "file_name": "0063-01", "first_page_order": 91, "last_page_order": 106 }