{ "id": 4761257, "name": "STATE OF NORTH CAROLINA v. ROBERT CARLMAN BONDURANT", "name_abbreviation": "State v. Bondurant", "decision_date": "1983-12-06", "docket_number": "No. 426A82", "first_page": "674", "last_page": "695", "citations": [ { "type": "official", "cite": "309 N.C. 674" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "103 S.Ct. 839", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "292 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "450 U.S. 1025", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6384011, 6384236, 6384379 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/450/1025-01", "/us/450/1025-02", "/us/450/1025-03" ] }, { "cite": "271 S.E. 2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565925 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0279-01" ] }, { "cite": "103 S.Ct. 503", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1982, "opinion_index": 0 }, { "cite": "293 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567859 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0151-01" ] }, { "cite": "448 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787666, 1787631 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/448/0918-02", "/us/448/0918-01" ] }, { "cite": "448 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787596, 1787636, 1787637, 1787575, 1787641, 1787643 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/448/0907-04", "/us/448/0907-02", "/us/448/0907-06", "/us/448/0907-01", "/us/448/0907-05", "/us/448/0907-03" ] }, { "cite": "259 S.E. 2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572332 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0306-01" ] }, { "cite": "455 U.S. 1038", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11385393, 11385354 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/455/1038-02", "/us/455/1038-01" ] }, { "cite": "283 S.E. 2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567383 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0201-01" ] }, { "cite": "103 S.Ct. 3552", "category": "reporters:federal", "reporter": "S. 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Supp.", "case_ids": [ 3899523 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f-supp/423/0611-01" ] }, { "cite": "297 S.E. 2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "279 S.E. 2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "550" } ], "opinion_index": 0 }, { "cite": "303 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573967 ], "year": 1981, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0439-01" ] }, { "cite": "432 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178254 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0233-01" ] }, { "cite": "220 S.E. 2d 575", 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7615 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0912-01", "/us/429/0912-03", "/us/429/0912-02" ] }, { "cite": "224 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572654 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0668-01" ] }, { "cite": "192 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564416 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0297-01" ] }, { "cite": "230 S.E. 2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558004 ], "year": 1976, "opinion_index": 0, "case_paths": 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}, { "cite": "250 S.E. 2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "302 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707923 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0272-01" ] }, { "cite": "290 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "261 S.E. 2d 803", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574128 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0126-01" ] } ], "analysis": { "cardinality": 1501, "char_count": 47056, "ocr_confidence": 0.829, "pagerank": { "raw": 9.447676132546806e-07, "percentile": 0.9807486845758189 }, "sha256": "4cf3447b04d6307453c6ad3c5d3ced254252b7ee9c257bae69ff0771e1d845bc", "simhash": "1:196f713418015cf3", "word_count": 7817 }, "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. ROBERT CARLMAN BONDURANT" ], "opinions": [ { "text": "BRANCH, Chief Justice.\nGuilt-Innocence Phase\nBy his first assignment of error, defendant contends that by death qualifying the jury and excluding for cause those who expressed opposition to the death penalty, the trial court violated his rights as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Defendant concedes the decided cases are against him and presents no arguments in support of his position that were not carefully considered by this Court in State v. Avery, 299 N.C. 126, 261 S.E. 2d 803 (1980); State v. Davis, 305 N.C. 400, 290 S.E. 2d 574 (1982); and State v. Ladd, 308 N.C. 272, 302 S.E. 2d 164 (1983). This contention is without merit.\nDefendant further argues that the trial judge erred in denying his pretrial motion concerning the manner in which the jurors should have been selected. Defendant\u2019s motion reads as follows, in pertinent part:\nthat jurors who may be opposed to capital punishment be allowed to sit . . . during the guilt or innocence phase of . . . [the] trial . . .; and, further, that the State and defendant be permitted to pick an alternate juror who is not opposed to capital punishment to take the place of the juror who is opposed to capital punishment to sit as a juror during the sentencing phase of . . . [the] trial.\nWe hold that the trial judge correctly refused to permit jury selection in accordance with the method proposed by defendant. Selecting a jury composed both of those opposed and unopposed to capital punishment for the purpose of determining guilt and then, at the sentencing phase, replacing those opposed by alternates who are unopposed to the death penalty contravenes G.S. 15A-2000(a)(2), which contemplates that the same jury which determines guilt will recommend the sentence. General Statute 15A-2000(a)(2) permits alternate jurors to serve during the sentencing phase in extraordinary circumstances involving the death, incapacitation or disqualification of an empaneled juror, but does not provide for the exchange of jurors for the sentencing phase based upon their convictions concerning the death penalty. This assignment is overruled.\nDefendant next contends that the trial judge erred in denying his motion to dismiss at the close of the State\u2019s evidence and at the close of all the evidence. He argues that there was not sufficient evidence of premeditation and deliberation to carry the case to the jury on the charge of first-degree murder.\nWhen defendant elected to offer evidence on his own behalf at trial, he thereby waived his right to assert as error on appeal the denial of his motion for dismissal made at the close of the State\u2019s evidence. G.S. 15-173. We therefore consider only his motion to dismiss made at the close of all the evidence.\nIn considering this assignment of error, we apply the familiar rule that upon a motion for dismissal, all the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Thomas, 296 N.C. 236, 250 S.E. 2d 204 (1978); State v. Snead, 295 N.C. 615, 247 S.E. 2d 893 (1978). When so considered, if there is substantial evidence to support a finding that the offense has been committed and the defendant was the perpetrator of the offense, the motion to dismiss should be denied. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967).\nMurder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Thomas, supra. Premeditation has been defined as \u201cthought beforehand for some length of time no matter how short,\u201d while deliberation is \u201can intention to kill executed by the defendant in a \u2018cool state of blood\u2019 in furtherance of a \u2018fixed design to gratify a feeling of revenge or, to accomplish some unlawful purpose.\u2019 \u201d State v. Calloway, 305 N.C. 747, 751, 291 S.E. 2d 622, 625 (1982).\nWhen considered in the light most favorable to the State, the evidence in the instant case reveals that after firing the .22 caliber pistol, defendant retrieved the .45 caliber revolver and turned to point it at Reynolds\u2019 head. There is no evidence that the decedent provoked this menacing gesture in any way. Monty Vernon testified that defendant said to the victim, \u201cYou don\u2019t believe I\u2019ll shoot you, do you?\u201d Each occupant of the car stated that defendant held the gun on the decedent for at least two minutes and that they were begging him not to shoot. Unmindful of their pleadings, defendant shot Reynolds in the head. The State presented evidence that the .45 caliber revolver was a \u201csingle action\u201d type; that to fire the weapon the hammer had to be pulled back and set and the trigger pulled.\nWe hold that there was plenary and substantial evidence from which the jury could infer that defendant acted with premeditation and deliberation when he shot and killed Michael Roby Reynolds. The trial court properly denied defendant\u2019s motion to dismiss.\nDefendant next assigns as error the trial court\u2019s denial of his motion for mistrial following the district attorney\u2019s first question to him on cross-examination.\nDefendant took the witness stand and testified extensively on his own behalf. On cross-examination, he was asked: \u201cMr. Bondurant, on May 30, 1968, did you unlawfully kill and slay one Ricky Cook?\u201d Objection to this question was immediately sustained and a motion for mistrial denied. Defendant was then asked: \u201cMr. Bondurant, on the 13th day of January, 1970, were you charged and convicted of involuntary manslaughter?\u201d Defendant replied: \u201cYes sir; as a result of a car accident.\u201d Defendant further admitted that on the evening that he struck and killed Ricky Cook, he was driving the car without a license at speeds up to 120 miles per hour while under the influence of alcohol.\nDefendant\u2019s argument is that the first question implied that he had been convicted of voluntary manslaughter as opposed to involuntary manslaughter. We do not agree.\nInvoluntary manslaughter is the unlawful and unintentional killing of another human being without malice and which proximately results from (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Redfern, 291 N.C. 319, 230 S.E. 2d 152 (1976).\nThe first question posited to defendant was \u201c. . . did you unlawfully kill and slay one Ricky Cook?\u201d The prosecutor\u2019s emphasis was on the unlawfulness of defendant\u2019s act and unlawfulness is clearly an element of the crime for which defendant had been convicted. Contrary to defendant\u2019s contention, the question did not suggest an intentional act and thereby imply that defendant had been convicted of voluntary manslaughter.\nSince the prosecutor\u2019s question was, by defendant\u2019s own admission, asked in good faith and since the question conformed to the law of involuntary manslaughter, we hold that the trial judge did not abuse his discretion in denying defendant\u2019s motion for mistrial.\nWe next consider defendant\u2019s contention that the trial judge erred in excluding certain testimony of Clark Bondurant and in excluding a photograph illustrative of his testimony.\nThe challenged evidence was offered to impeach the testimony of two prosecution witnesses, Helen Dianne Bowman and Fern Tate. These two women testified, in substance, that on 5 April 1981, they lived in an apartment over The Cupboard Number 5 in Bannertown, near Mount Airy, North Carolina. Their testimony was that sometime after 11:00 p.m. on 5 April, they observed a car similar to that occupied by defendant and his companions drive up in front of The Cupboard between the gas pumps. Each remembered that the area where the car stopped was well lighted and that there was at least one light on inside the car. They also recalled that at least one of the windows in the car was down and that they could hear the occupants talking loudly in an argumentative tone. Ms. Tate testified that she saw the passenger in the front seat shoot out the window. Both Ms. Tate and Ms. Bowman saw the same person point a gun into the back seat. After several minutes, they heard another gunshot and saw the car speed away. They copied down the license number of the automobile and Ms. Tate called the police to report the incident.\nIn order to impeach the testimony of Ms. Bowman and Ms. Tate, defendant sought to introduce testimony of his brother, Clark Bondurant. Several days prior to trial, Clark, defendant\u2019s wife, defense counsel and a photographer drove the car in which the group was riding on the night of the shooting to The Cupboard Number 5. They parked the automobile between the gas pumps in front of the building and took photographs of the car from ground level and from the apartment above. At trial, defense counsel asked Clark Bondurant to describe what he saw from the apartment window. The prosecution objected and a voir dire was held. Clark testified on voir dire that from the apartment window, he was unable to see a person sitting in the front seat of the automobile. He further stated that he was unable to see the object which the person in the front seat was holding, a broom handle intended to approximate the length of the gun held by defendant on the night of 5 April.\nFollowing the voir dire, the trial judge ruled that the evidence sought to be admitted had been developed by means of an experiment. He further ruled that the conditions under which the experiment was conducted were too dissimilar from those existing on 5 April 1981 to permit the admission of Clark Bondurant\u2019s testimony and a photograph taken from the apartment.\nDefendant first argues that the viewing of the inside of the car from the apartment window was not an experiment and that the trial judge erred by considering it in that context.\nResolution of this argument requires little discussion. An experiment is simply a restaging of past events in which significant conditions are artificially reproduced and results observed. 1 Brandis, North Carolina Evidence \u00a7 94 (2d rev. ed. 1982).\nThe procedure conducted by Clark Bondurant and others was an admitted attempt to recreate the scene observed by Ms. Bowman and Ms. Tate on the night of 5 April. Furthermore, the viewing was made in an obvious effort to discredit the testimony of the two women by showing that Clark was unable to see what they described from the same vantage point. Clearly, the trial judge correctly denominated the viewing an experiment.\nDefendant further argues that even if the procedure is appropriately considered an experiment, the testimony regarding the viewing should have been admitted because the experiment was conducted under conditions substantially similar to those existing on 5 April 1981.\nWe note that the trial judge is commonly afforded broad discretion in determining whether the conditions and circumstances of an experiment are sufficiently similar to those sought to be duplicated to render the results admissible. State v. Carter, 282 N.C. 297, 192 S.E. 2d 279 (1972).\nAfter hearing the voir dire evidence, the trial judge made findings of fact and entered conclusions of law as follows:\n1. That defendant\u2019s exhibits 1, 2, and 3 are all photographs taken in the daylight hours at Cupboard No. 5, and the events of April 5, 1981, at Cupboard Number 5, as described by the witnesses, occurred during the evening hours and during darkness.\n2. That the vehicle depicted in defendant\u2019s exhibits 1, 2 and 3 is in approximately the same location as it was on April 5, 1981, when the events occurred giving rise to this trial.\n3. That on April 5, 1981, when the events occurred which gave rise to this trial, the interior lights of the car depicted in defendant\u2019s Exhibits 1, 2 and 3 were burning.\n4. That at the time of the taking of defendant\u2019s Exhibits 1, 2 and 3, only one person was in the back seat of the vehicle depicted in said exhibits; and on the night of April 5, 1981, there were three persons in the back seat of the said vehicle.\nBased on the foregoing findings the court concludes as follows:\n1. That what might be seen through the rear window glass of the vehicle depicted in defendant\u2019s Exhibit Number 3 would be increased by simply moving the vehicle depicted in said exhibit a slight distance.\n2. That the angle of view from above the vehicle depicted in defendant\u2019s Exhibits 1, 2 and 3 would be greatly influenced by the height of an individual above the window sill, as would the view of the camera, and there has been no showing that the camera lens at the time of the taking of defendant\u2019s Exhibits 1, 2 and 3 approximated the height of the view of either the witness Dianne Bowman or Fern Tate.\n3. That it is common knowledge and the court takes judicial notice that one\u2019s view into a darkened area from a lighted area is not the same as viewing from a darkened area or through a darkened area into a lighted area, the view of the latter being the better of the two.\n4. That the height of the alleged pistol and its exact location in the vehicle would affect one\u2019s ability to view the same from above particularly when one considers that the location of the vehicle as shown in defendant\u2019s Exhibits 1, 2 and 3 is approximate.\n5. That the conditions under which defendant\u2019s Exhibits 1, 2 and 3 were taken do not even approximate the conditions existing on April 5, 1981, as hereinabove concluded, and for that reason the same should not be admitted, nor should the same be admitted as indicating what the view from a window above the vehicle so depicted was on the night of April 5, 1981.\nIt is clear that the crucial findings of fact are supported by the evidence offered on voir dire. That evidence establishes only two circumstances that were ascertainably similar between the night in question and the staged recreation \u2014 the automobile and The Cupboard Number 5. The location of the car and viewers, the lighting conditions and the relative positions of the passengers and the weapon were not demonstrably similar.\nWe therefore hold that the trial judge did not abuse his discretion in excluding evidence of this experiment.\nDefendant contends that the trial judge erred in failing to declare a mistrial following improper jury arguments by the prosecutor.\nThe argument which forms the basis for defendant\u2019s first exception under this assignment of error was as follows: \u201cSomebody somewhere said that the best way to tell the future is to look in the past, particularly when you are talking about human beings. You look at their past conduct and you can pretty well tell what their future is going to be.\u201d Defense counsel\u2019s objection was immediately sustained, a motion to strike allowed and the court instructed the jury to disregard the remarks and to consider evidence of defendant\u2019s past deeds only as the judge would later explain in his charge.\nThe following argument forms the basis of defendant\u2019s second exception: \u201cAnd you put that with, \u2018You don\u2019t believe I\u2019ll shoot you\u2019 and you put that with a man with a record like he\u2019s got of shooting into cars, a truck, shooting into a floorboard, shooting into the side of the wall and the ceiling and shooting the window lights out \u2014 \u201d Again defendant\u2019s objection was sustained and a cautionary instruction given. Defendant did not make a motion for mistrial after either argument.\nWhile it is proper to refer to evidence of prior acts of misconduct in the arguments on the issue of credibility, we agree with defendant that the prosecutor here improperly argued defendant\u2019s prior misdeeds for purposes other than mere impeachment. The district attorney was, it seems, attempting to use these prior acts as substantive evidence of defendant\u2019s guilt.\nConceding the impropriety of the prosecutor\u2019s arguments, we must determine whether the remarks were such that the trial judge was required to declare a mistrial sua sponte.\nIn a capital case, the trial judge may order a mistrial only with the consent of the defendant unless such a ruling is necessary to attain the ends of justice. State v. McKenna, 289 N.C. 668, 224 S.E. 2d 537, death sentence vacated, 429 U.S. 912 (1976). It is our conclusion that such an order was not required in this case.\nEach time defendant objected to the challenged remarks, the objections were sustained and the trial judge carefully instructed the jury that they were to consider the evidence of defendant\u2019s past behavior only as he would explain in his charge. The judge then later gave a complete and accurate instruction relating to the jury\u2019s consideration of defendant\u2019s prior acts of misconduct.\nWe hold that the district attorney\u2019s remarks did not constitute prejudice to defendant such that the trial judge was required to declare a mistrial on his own motion.\nDefendant\u2019s sixth assignment of error relates to a misstatement by the trial judge during his recapitulation of the State\u2019s evidence. The trial court summarized a portion of the evidence as follows: \u201cThat the defendant then took a .45 caliber Ruger pistol, that he pointed it at Michael Roby Reynolds and said something to the effect that, \u2018You don\u2019t believe I\u2019ll kill you.\u2019 \u201d Prosecution witness Monty Vernon had actually testified that while defendant pointed the pistol at the victim\u2019s head, he heard defendant say: \u201cYou don\u2019t believe I\u2019ll shoot you, do you?\u201d (emphasis added).\nDefendant argues that the trial judge\u2019s substitution of the word \u201ckill\u201d for \u201cshoot\u201d suggested to the jury that defendant was guilty of premeditated murder.\nDefendant concedes that he did not object to the trial judge\u2019s summation of the evidence and that when invited to offer corrections to the instructions given, he failed to bring this misstatement to the court\u2019s attention. Defendant argues, however, that this single deviation from the evidence presented constitutes \u201cplain error\u201d entitling him to a new trial.\n\u201cIn deciding whether a defect in the jury instruction constitutes \u2018plain error,\u2019 the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury\u2019s finding of guilt.\u201d State v. Odom, 307 N.C. 655, 661, 300 S.E. 2d 375, 378-79 (1983). Even when the \u201cplain error\u201d rule is applied, \u201c[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.\u201d Odom at 661, 300 S.E. 2d at 378, quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977).\nIn the instant case, a review of the whole record reveals no \u201cplain error\u201d mandating a new trial for defendant. The uncontroverted evidence is that defendant pointed a .45 caliber revolver at Reynolds\u2019 face, cocked it, and held it on the victim for at least two minutes before firing. Whether defendant commented, \u201cYou don\u2019t believe I\u2019ll shoot you\u201d or \u201cYou don\u2019t believe I\u2019ll kill you\u201d is relatively immaterial. The expressed desire to shoot someone in this context is synonymous with killing them. We simply do not believe the trial judge\u2019s misstatement connoted a premeditated intent to kill any more than the use of the word \u201cshoot\u201d would have under the factual circumstances of this case. This assignment is dismissed.\nDefendant next contends that the trial judge erred in his instruction to the jury that malice and unlawfulness are implied from an intentional shooting with a deadly weapon. Defendant bases this contention on the fact that there was some evidence of the absence of malice and unlawfulness, as evidenced by the trial court\u2019s instructions on voluntary and involuntary manslaughter.\nWe agree with defendant that when there is some evidence justifying an instruction concerning self-defense or heat of passion killing upon sudden provocation, any presumption of malice arising from a finding that defendant intentionally inflicted the wounds with a deadly weapon disappears, leaving only a permissible inference which the jury may accept or reject. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), reversed on other grounds, 432 U.S. 233 (1977). \u201cThe State is not required to prove malice and unlawfulness unless there is some evidence of their non-existence, but once such evidence is presented, the State must prove these elements beyond a reasonable doubt.\u201d State v. Simpson, 303 N.C. 439, 451, 279 S.E. 2d 542, 550 (1981).\nWe conclude that the trial judge correctly instructed the jury on the presumption of malice arising from the intentional use of a deadly weapon. We reach this conclusion because our careful review of the entire record reveals no evidence negating the existence of malice and justifying the manslaughter instructions given.\nThere were no claims of self-defense or heat of passion raised by defendant during the trial and, in fact, no evidence to support such claims. Defendant\u2019s theory of the case was that he accidentally shot the victim and the trial judge carefully and correctly instructed that the burden was on the State to disprove, beyond a reasonable doubt, defendant\u2019s assertion of accidental death.\nFurthermore, any possible error placing the burden upon defendant to show absence of malice was cured by the jury\u2019s verdict of murder in the first degree.\nIn State v. Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982), we held that when a defendant is convicted of premeditated and deliberate murder in the first degree, the State has not relied upon a mere presumption of malice. In finding a defendant guilty beyond a reasonable doubt of a willful, deliberate and premeditated killing, the jury has necessarily rejected beyond a reasonable doubt the possibility that the defendant acted in self-defense or in the heat of passion. See Street v. Warden, 423 F. Supp. 611 (D. Md. 1976), aff\u2019d, 549 F. 2d 799 (4th Cir. 1976) (unpublished opinion), cert. denied, 431 U.S. 906 (1977); Wilkins v. Maryland, 402 F. Supp. 76 (D. Md. 1975), aff\u2019d, 538 F. 2d 327 (4th Cir. 1976) (unpublished opinion), cert. denied, 429 U.S. 1044 (1977).\nWe hold that the trial judge did not err in his instructions to the jury with regard to the presumption of malice arising from an intentional killing with a deadly weapon, since there was no evidence in the case of the elements of heat of passion on sudden provocation or self-defense. Even assuming, arguendo, that the instructional error contended by defendant was committed, the first-degree murder verdict rendered any error harmless beyond a reasonable doubt. This assignment of error is overruled.\nFinally, defendant argues that the trial judge erred in denying his motion to set aside the verdict as being against the greater weight of the evidence.\nMotions to set aside the verdict are addressed to the discretion of the trial court and refusal to grant the motion is not reviewable on appeal in the absence of abuse of discretion. State v. Boykin, 298 N.C. 687, 259 S.E. 2d 883 (1979), cert. denied, 446 U.S. 911 (1980). If there is sufficient evidence to support the verdict, then the trial judge has acted within his discretion in denying the motion. State v. Leigh, 278 N.C. 243, 179 S.E. 2d 708 (1971).\nBased upon our earlier reviews of the evidence, we conclude that there was sufficient evidence to support the verdict of first-degree murder and therefore no abuse of discretion has been shown. This assignment of error is without merit.\nSentencing Phase\nDefendant has raised numerous assignments of error relating to the sentencing phase of the trial. We have carefully reviewed each of them and find them to be without merit.\nWe do not discuss defendant\u2019s various contentions, however, because in conducting our proportionality review as required by G.S. 15A-2000(d)(2), we find that the sentence of death is excessive and disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.\nAs a final matter in every capital case, we are directed by G.S. 15A-2000(d)(2) to review the record and determine (1) whether the record supports the jury\u2019s findings of any aggravating circumstance or circumstances upon which the sentencing court based its sentence of death, (2) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factor, and (3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\nAfter an exhaustive review of the transcript, record on appeal, briefs and oral arguments, we have concluded that the evidence supports the aggravating factors found by the jury. We also conclude that the record is devoid of evidence indicating that the sentence may have been imposed under the influence of passion, prejudice or any other arbitrary factor. We thus turn to our final statutory duty of proportionality review.\nIn State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, \u2014 U.S. \u2014, 104 S.Ct. 202 (1983), we established that\n[i]n comparing \u201csimilar cases\u201d for purposes of proportionality review, we use as a pool for comparison purposes all cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after the jury\u2019s failure to agree upon a sentencing recommendation within a reasonable period of time.\n308 N.C. at 79, 301 S.E. 2d at 355. In describing the methods this Court will employ in making our comparisons, we further stated in Williams that\nthis Court will not necessarily feel bound during its proportionality review to give a citation to every case in the pool of \u201csimilar cases\u201d used for comparison .... The Bar may safely assume that we are aware of our own opinions filed in capital cases arising since the effective date of our capital punishment statute, 1 June 1977.\n308 N.C. at 81-82, 301 S.E. 2d at 356.\nAfter reviewing the approximately 65 life sentence cases and 13 death sentence cases in the proportionality pool, we find that although the crime committed by this defendant was a senseless, unprovoked killing, \u201cit does not rise to the level of those murders in which we have approved the death sentence upon proportionality review.\u201d State v. Jackson, 309 N.C. 26, 46, 305 S.E. 2d 703, 717 (1983).\nIn the instant case, defendant did not murder Michael Roby Reynolds while in the perpetration of another felony. Cf State v. Craig & Anthony, 308 N.C. 446, 302 S.E. 2d 740 (1983); State v. Smith, 305 N.C. 691, 292 S.E. 2d 264, cert. denied, \u2014 U.S. \u2014, 103 S.Ct. 474 (1982); State v. Taylor, 304 N.C. 249, 283 S.E. 2d 761 (1981), cert. denied, \u2014 U.S. \u2014, 103 S.Ct. 3552 (1983); State v. Rook, 304 N.C. 201, 283 S.E. 2d 732 (1981), cert. denied, 455 U.S. 1038 (1982). The facts further demonstrate that defendant did not coldly calculate the commission of this crime for a long period of time as did the defendant in State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979), cert. denied, 448 U.S. 907, rehearing denied, 448 U.S. 918 (1980). This is evidenced by defendant\u2019s attempt to sell the gun which he used to kill the victim shortly before the killing. Finally, the record in this case does not reveal a torturous murder of the sort perpetrated by the defendants in State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, \u2014 U.S. \u2014, 104 S.Ct. 202 (1983); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569, cert. denied, \u2014 U.S. \u2014, 103 S.Ct. 503 (1982); and State v. McDowell, 301 N.C. 279, 271 S.E. 2d 286 (1980), cert. denied, 450 U.S. 1025 (1981).\nThere was substantial evidence presented at trial which indicated that defendant and his traveling companions were highly intoxicated on the evening of 5 April 1981. There appears to have been no motive for the killing; defendant was among friends and up until the incident at The Cupboard Number 5, he behaved amiably toward the other passengers in the car.\nWe deem it important in amelioration of defendant\u2019s senseless act that immediately after he shot the victim, he exhibited a concern for Reynolds\u2019 life and remorse for his action by directing the driver of the automobile to the hospital. Defendant himself entered the hospital to seek medical assistance for the decedent. In no other capital case among those in our proportionality pool did the defendant express concern for the victim\u2019s life or remorse for his action by attempting to secure immediate medical attention for the deceased. E.g., State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, \u2014 U.S. \u2014, 103 S.Ct. 474 (1982), rehearing denied, 103 S.Ct. 839 (1983). Finally, we note that defendant readily spoke with policemen at the hospital, confessing that he fired the shot which killed Michael Reynolds but explaining that the shooting was accidental.\nConsidering both the crime and the defendant, we hold as a matter of law that the death sentence imposed in this case is disproportionate within the meaning of G.S. 15A-2000(d)(2). We are therefore required by the statute to sentence defendant to life imprisonment in lieu of the death sentence.\nBy this action, we intend no criticism of the able trial judge. The proportionality review is a duty vested solely in this Court by statute.\nThe sentence of death is vacated and defendant is hereby sentenced to imprisonment in the State\u2019s prison for the remainder of his natural life. Defendant is entitled to credit for days spent in confinement prior to the date of this judgment.\nGuilt-Innocence Phase: No error;\nSentencing Phase: Death sentence vacated, sentence of life imprisonment imposed.\n. By emphasizing this particular factor in mitigation of defendant\u2019s act, we do not mean to imply that this factor is determinative of our proportionality consideration. In conducting our proportionality review, we will consider the totality of the circumstances presented in each individual case and the presence or absence of a particular factor will not necessarily be controlling.", "type": "majority", "author": "BRANCH, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Charles M. Hensey, Assistant Attorney General, for the State.", "Stephen G. Royster and Michael F. Royster for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT CARLMAN BONDURANT\nNo. 426A82\n(Filed 6 December 1983)\n1. Jury \u00a7 5.1\u2014 jury selection \u2014 proposed selection of jurors opposed and unopposed to capital punishment \u2014 correctly refused\nThe trial judge correctly refused to permit jury selection in accordance with a method proposed by defendant in which the jury would have been composed of both those opposed and unopposed to capital punishment for the purpose of determining guilt and then, at the sentencing phase, replacing those opposed by alternates who are unopposed to the death penalty since such a method contravenes G.S. 15A-2000(a)(2) which contemplates that the same jury which determines guilt will recommend the sentence.\n2. Homicide \u00a7 21.5\u2014 first degree murder \u2014 sufficiency of evidence\nThe evidence was sufficient to support a verdict of murder in the first degree where the evidence tended to show that defendant, in the front seat of a car which contained four other people, pointed a .45 caliber revolver at the victim\u2019s head; that there was no evidence that the decedent provoked this menacing gesture in any way; that another occupant of the car testified that defendant said to the victim \u201cYou don\u2019t believe I\u2019ll shoot you, do you?\u201d; that each occupant of the car stated that defendant held the gun on the decedent for at least two minutes and that they were begging him not to shoot; that unmindful of their pleadings, defendant shot the victim in the head; and that the .45 caliber revolver was a \u201csingle action\u201d type which required that the hammer had to be pulled back and set and the trigger pulled before it fired.\n3. Criminal Law \u00a7 170.2\u2014 improper question by prosecutor not requiring mistrial\nThe trial court properly denied defendant\u2019s motion for a mistrial after, on cross-examination of defendant, he was asked if he had \u201cunlawfully kill[ed] and slay[ed] one Ricky Cook.\u201d Objection to this question was immediately sustained, the question was in reference to an involuntary manslaughter conviction in which defendant killed Ricky Cook when he was driving a car without a license at a speed of up to 120 miles per hour while under the influence of alcohol, and the question was asked in good faith and conformed to the law of involuntary manslaughter.\n4. Criminal Law \u00a7 45.1\u2014 experimental evidence \u2014properly excluded\nThe trial court did not abuse its discretion in excluding a photograph illustrative of defendant\u2019s brother\u2019s testimony which was offered to impeach the testimony of two prosecution witnesses. The witnesses had testified that they had lived in an apartment over a building and that on the night of the murder they had observed cars similar to that occupied by defendant and his companions drive up in front of the building; that the area where the car stopped was well lighted; that there was at least one light on inside the car; that at least one of the windows in the car was down; that they could hear the occupants talking loudly in an argumentative tone; that one of the witnesses saw a passenger in the front seat shoot out the window; and that both witnesses saw the same person point a gun into the backseat and after several minutes heard another gunshot and saw the car speed away. Defendant sought to introduce evidence that, from the apartment window, the witnesses would have been unable to see a person sitting in the front seat of the automobile but the trial judge properly ruled that the evidence sought to be admitted had been developed by means of an experiment, and the findings of fact found to support his ruling were supported by the evidence offered on voir dire.\n5. Criminal Law \u00a7 102.10\u2014 jury argument \u2014 reference to prior convictions or criminal conduct \u2014 improper\u2014not prejudicial\nAlthough a prosecutor improperly argued defendant\u2019s prior misdeeds for purposes other than mere impeachment in his argument to the jury, the remarks were not such that the trial judge was required to declare a mistrial sua sponte since each time defendant objected to the challenged remarks, the objections were sustained and the trial judge carefully instructed the jury that they were to consider the evidence of defendant\u2019s past behavior only as he would explain in his charge, and since the judge later gave a complete and accurate instruction relating to the jury\u2019s consideration of defendant\u2019s prior acts of misconduct.\n6. Criminal Law \u00a7 113.1\u2014 recapitulation of evidence by trial court \u2014 error immaterial\nIn a prosecution for first degree murder where the trial court, in summarizing the evidence, stated that defendant said something to the effect that \u201cYou don\u2019t believe I\u2019ll kill you\u201d rather than \u201cYou don\u2019t believe I\u2019ll shoot you,\u201d the error was not \u201cplain error\u201d mandating a new trial for defendant since how defendant commented was relatively immaterial in that the express desire to shoot someone in the context in which it was stated was synonymous with killing him.\n7. Homicide g 24.2\u2014 first degree murder \u2014 instruction regarding malice\nIn a prosecution for first degree murder, the trial judge correctly instructed the jury that malice and unlawfulness are implied from an intentional shooting with a deadly weapon since there was no evidence in the case of the elements of heat of passion on sudden provocation or self-defense, and since even if an instructional error was committed, the first-degree murder verdict rendered any error harmless beyond a reasonable doubt.\n8. Criminal Law g 135.4\u2014 death case \u2014proportionality review \u2014sentence of death excessive and disproportionate\nIn a prosecution for first degree murder, the death sentence imposed was disproportionate within the meaning of G.S. 15A-2000(c)(2) in that it did \u201cnot rise to the level of those murders in which [the Court] [has] approved the death sentence upon proportionality review.\u201d Defendant did not murder his victim while in the perpetration of another felony; defendant did not coldly calculate the commission of the crime for a long period of time; the murder was not torturous as in other death cases; there was substantial evidence indicating that defendant and his traveling companions were highly intoxicated; there was no motive for the killing; and immediately after defendant shot the victim, he exhibited a concern for the victim\u2019s life and remorse for his action by directing the driver of the automobile to the hospital and by entering the hospital himself to seek medical assistance for the decedent. In no other capital case among those in our proportionality review did the defendant express concern for the victim\u2019s life or remorse for his action by attempting to secure immediate medical attention for the deceased.\nAppeal by defendant from Smith, Judge, at the 22 March 1982 Criminal Session of SURRY County Superior Court.\nDefendant was arrested on 6 April 1981 pursuant to a warrant charging the first-degree murder of Michael Roby Reynolds. On 29 June 1981, defendant was indicted for this crime by the Surry County grand jury. Defendant entered a plea of not guilty to the offense charged.\nAt trial, the State offered evidence tending to show that on the night of 5 April 1981, defendant was drinking beer and shooting pool at Tilley\u2019s Grocery in Mount Airy, North Carolina. Defendant called his stepson, Randy Hawks, to come to Tilley\u2019s and take him home. As defendant and Hawks prepared to leave the store, they met some friends of defendant, Monty Vernon, Mark Snow and the deceased, Michael Roby Reynolds. The five of them had a brief discussion and decided to ride around together and drink beer. Hawks agreed to drive the group in his automobile.\nAfter they had driven around for a short while, defendant directed Hawks to Mayberry Paint and Wallpaper, defendant\u2019s place of employment. Defendant Bondurant and Monty Vernon went inside the store and returned a few minutes later with two guns, a .22 caliber pistol and a .45 caliber revolver. Defendant and Vernon then joined the others in the car and they continued to drive around and drink beer.\nThe group next stopped at the Snack Shack in Mount Airy. Defendant and Vernon went in to have a drink while the others remained in the car, listening to the radio. Defendant unsuccessfully attempted to sell the guns to several of the patrons and, shortly thereafter, he and Vernon rejoined the group outside. Defendant climbed into the front seat with his stepson, while Vernon rode in the back with Snow and Reynolds. Defendant carried the two weapons in the front with him, along with a shotgun he had earlier purchased at Tilley\u2019s Grocery.\nRandy Hawks then drove the group to the Cupboard Number 5 on Highway 89. After Hawks pulled into the parking lot, defendant rolled down the window on the passenger side of the car and fired the .22 caliber pistol into the air several times. Mark Snow testified that following this action by defendant, Reynolds asked if they could go home because he had to get up early for work the next morning. After the decedent spoke about going home, defendant reached for the .45 caliber revolver, turned to Reynolds in the back seat and pointed the gun at his head. Vernon, Hawks and Snow each testified that defendant pointed the weapon at Reynolds for at least two minutes. Vernon further recalled that defendant taunted the victim by saying, \u201cYou don\u2019t believe I\u2019ll shoot you, do you?\u201d Everyone in the car begged defendant not to shoot Reynolds, but defendant ignored their protestations and fired the weapon, shooting the victim in the head.\nDefendant then turned and directed his stepson to Northern Hospital of Surry County. While enroute to the emergency room, defendant pointed the gun at Mark Snow for \u201ctwo or three minutes\u201d and asked him what he would say when they got to the hospital.\nUpon arrival at the hospital, defendant went in to seek medical assistance for Reynolds. When he returned with the hospital attendants who removed the victim from the car, defendant told Hawks and Vernon to go wash the blood out of the car and to throw the guns away. Hawks and Vernon complied with defendant\u2019s demands. Defendant then reentered the hospital and talked with several police officers regarding the incident. Defendant told each of them that the shooting was an accident. The officers testified that none of the occupants of the car, including defendant, appeared to be drunk or under the influence of alcohol.\nFinally, the State presented the testimony of several witnesses which tended to show that defendant had a violent and quick temper with a history of shooting into objects. Their testimony also revealed that defendant had a history of alcohol abuse which tended to aggravate his outbursts of temper.\nDefendant\u2019s evidence, which included his own testimony, revealed that he planned to attend the automobile races in North Wilkesboro on 5 April 1981. Since the races were postponed due to rainy weather, defendant and a friend, Sonny Montgomery, decided to spend the afternoon riding around Surry County and parts of Virginia. Before leaving on the trip, defendant purchased several cartons of beer at Tilley\u2019s Grocery. Montgomery had three bottles of whiskey in the truck. Defendant testified that while they drove around, he drank all of the beer and part of Montgomery\u2019s liquor.\nLate in the afternoon, Montgomery drove to his home and defendant came inside with him. Montgomery\u2019s wife and daughter testified that defendant was very drunk. Defendant stayed at Montgomery\u2019s house for a short while talking and then Montgomery took him to Tilley\u2019s Grocery where he met Vernon, Snow and Reynolds.\nDefendant\u2019s evidence is consistent with that presented by the State regarding Hawks\u2019 arrival to take defendant home, the agreement among the five of them to ride around drinking beer and the stops they made during the trip. Defendant\u2019s evidence differs, however, as to what occurred in the parking lot at the Cupboard Number 5.\nDefendant admitted that after Hawks drove the car into the parking lot and turned off the ignition, he picked up the .22 caliber pistol and fired it out the window several times. Defendant testified that he then retrieved the .45 caliber revolver and, as he started to shoot it out the window, he heard someone in the back seat say something to him. He stated that as he turned around to respond, the gun accidentally discharged, shooting Reynolds in the head.\nSeveral witnesses for defendant testified that they saw Vernon, Snow and Reynolds on the night of 5 April and that each of these men was under the influence of alcohol. Several other witnesses stated that they observed defendant both before and after the shooting and that he was highly intoxicated.\nThe jury returned a verdict of guilty of first-degree murder.\nA sentencing hearing was held pursuant to G.S. 15A-2000 et seq., following the first-degree murder conviction.\nThe State presented no evidence during the sentencing phase of the trial, electing to rely on its evidence presented during the guilt determination phase.\nDefendant presented the testimony of several relatives, including his wife, Claudine Bondurant. The essence of their testimony was that defendant had a drinking problem; that he was kind to his family, visiting with them often; and that he had a good relationship with his children. Maggie Poore, defendant\u2019s employer, testified as to defendant\u2019s excellent work habits and described him as a dependable employee.\nThe trial court submitted two aggravating circumstances:\n1. Was this murder especially heinous, atrocious or cruel?\n2. Was this murder part of a course of conduct in which Robert Carlman Bondurant engaged and did that course of conduct include the commission by the defendant of other crimes of violence against another person or other persons?\nThe trial court submitted the following mitigating circumstances:\n1. Does Robert Carlman Bondurant have no significant history of prior criminal activity?\n2. Was the capacity of Robert Carlman Bondurant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law impaired?\n3. Was Robert Carlman Bondurant married to Claudine Bondurant and:\na. Was he a good husband which you deem to have mitigating value?\nb. Was he a good provider which you deem to have mitigating value?\n4. Was Robert Carlman Bondurant the father of Shannon or Jeff Bondurant or both and:\na. Did he have a good relationship with either or both of them which you deem to have mitigating value?\nb. Did he frequently visit with either or both of them which you deem to have mitigating value?\n5. Was Robert Carlman Bondurant employed on the 5th day of April, 1981, which you deem to have mitigating value?\n6. Did Robert Carlman Bondurant help his family on the farm as he was growing up which you deem to have mitigating value?\n7. Has Robert Carlman Bondurant been a hardworking individual during his life which you deem to have mitigating value?\n8. Did Robert Carlman Bondurant acquire:\na. a high school diploma or the equivalent thereof which you deem to have mitigating value?\nb. two years of education at a community college which you deem to have mitigating value?\n9. Has Robert Carlman Bondurant expressed remorse for the death of Michael Roby Reynolds which you deem has mitigating value?\n10. Did Robert Carlman Bondurant, after the shooting of Michael Roby Reynolds:\na. Direct Randy Hawks to the hospital which you deem to have mitigating value?\nb. Seek medical assistance at the hospital for Michael Roby Reynolds which you deem to have mitigating value?\n11. Has Robert Carlman Bondurant been a loving and kind brother to his sisters and brothers which you deem to have mitigating value?\n12. Was Robert Carlman Bondurant cooperative with law enforcement officers after the shooting of Michael Roby Reynolds which you deem to have mitigating value?\n13. Do you find any other circumstance or circumstances which you deem to have mitigating value?\nThe jury found beyond a reasonable doubt that both aggravating circumstances existed and that these were sufficiently substantial to call for the imposition of the death penalty. The jury also found the existence of three mitigating circumstances: that defendant sought medical assistance for his victim, that he cooperated with law enforcement officers and, under number 13, that since the event of 5 April 1981, defendant had shown consideration and respect toward his stepson. The jury specifically rejected the mitigating circumstances of impaired capacity and lack of significant prior criminal activity. They also found that defendant\u2019s education, work habits and relationship to his family had no mitigating value. Finally, the jury found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances and recommended that defendant be sentenced to death.\nThe trial court sentenced defendant to die for the first-degree murder of Michael Roby Reynolds and defendant appealed his death sentence directly to this Court pursuant to G.S. 7A-27(a).\nRufus L. Edmisten, Attorney General, by Charles M. Hensey, Assistant Attorney General, for the State.\nStephen G. Royster and Michael F. Royster for defendant appellant." }, "file_name": "0674-01", "first_page_order": 702, "last_page_order": 723 }