{ "id": 4756069, "name": "STATE OF NORTH CAROLINA v. WILLIAM SIDNEY ALBERT, MICHAEL STEPHEN DEAREN, DORIS MANGUM MILLS", "name_abbreviation": "State v. Albert", "decision_date": "1985-01-08", "docket_number": "No. 524A83", "first_page": "567", "last_page": "580", "citations": [ { "type": "official", "cite": "312 N.C. 567" } ], "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": "296 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560679 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0087-01" ] }, { "cite": "306 S.E. 2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "455" }, { "page": "455" } ], "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "226 S.E. 2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "301 S.E. 2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] }, { "cite": "280 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574927 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0551-01" ] }, { "cite": "232 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567601 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0132-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "639", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "325-26", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "206 S.E. 2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565262 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0497-01" ] }, { "cite": "284 S.E. 2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568926 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0394-01" ] }, { "cite": "300 S.E. 2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565330 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0608-01" ] }, { "cite": "282 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "453" } ], "opinion_index": 0 }, { "cite": "304 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565398 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0122-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "311 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401728 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0040-01" ] } ], "analysis": { "cardinality": 1078, "char_count": 32429, "ocr_confidence": 0.822, "pagerank": { "raw": 4.11110074842365e-07, "percentile": 0.9100694673704914 }, "sha256": "e7c967b4e33271c5a24a7d4b441643b93807a8ae6e4d136b6220ab7b702a3791", "simhash": "1:9bbfd02cc77a99fd", "word_count": 5333 }, "last_updated": "2023-07-14T18:10:57.145273+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice VAUGHN did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM SIDNEY ALBERT, MICHAEL STEPHEN DEAREN, DORIS MANGUM MILLS" ], "opinions": [ { "text": "MITCHELL, Justice.\nOn November 6, 1982 Coy Mills was murdered in front of his home in Greensboro, North Carolina. Two witnesses watched as Coy Mills and his wife Doris Mills, a defendant in this case, drove up to the house. Doris Mills was driving. She left the car and walked quickly toward the house, while the victim remained near the car. After hearing two gunshots, the witnesses watched as an assailant held a gun to the victim\u2019s head and shot a third time. One of the witnesses followed the assailant and saw him drive away in a blue Datsun.\nBrenda King, the daughter of the defendant William Albert, testified at trial for the State. Her testimony tended to show that William Albert and Doris Mills had been planning to murder Coy Mills for several months. Albert first solicited the help of his daughter Beverly and her boyfriend Michael Tillman. Tillman was to arrange to have Coy Mills killed in return for which he was to receive marijuana. When Tillman refused to cooperate, Albert asked Brenda King to supply him with drugs which would put Coy Mills \u201cto sleep.\u201d Doris Mills was present on one occasion when Brenda King gave William Albert some insecticide which contained arsenic. When the plan to poison Coy Mills failed, Albert solicited the help of Michael Dearen, Brenda King\u2019s boyfriend. King took $300.00 from the drugstore where she was working so that Dearen could buy a gun. Albert then arranged with Doris Mills to have Coy Mills home by 9:00 p.m. on the evening of the murder. Doris Mills was to delay the victim Coy Mills by having him get an item from the trunk of the car while she ran to the house. Earlier that evening, Brenda King had seen Albert and Dearen together in Albert\u2019s truck. Albert had a gun in his hands. Shortly before 9:00 p.m. Dearen left driving King\u2019s blue Datsun. At approximately 9:30 p.m., Michael Dearen returned home and informed Brenda King that Coy Mills had been shot three times. Dearen said that he was unable to get Coy Mills\u2019 money because Mills had fallen on his side. Over twelve thousand dollars was found in Coy Mills\u2019 pocket after the killing.\nBrenda King was questioned shortly after the murder and denied any involvement. William Albert later agreed to testify on behalf of the State and encouraged Brenda King to tell the truth. She gave a statement in which she admitted her involvement and implicated Albert, Dearen and Doris Mills. Charges against her were dismissed on the condition that she give truthful testimony at trial.\nAs a condition of a plea arrangement with Albert, he was to have no further contact with Doris Mills. Following numerous violations of this condition, the plea arrangement was withdrawn.\nWe will address each defendant\u2019s assignments of error separately.\nWilliam Sidney Albert\nThe defendant William Albert first contends that the trial court erred in denying his motion to suppress the testimony of Brenda King and in allowing her to testify in violation of his constitutional rights. The argument is premised on the defendant\u2019s assertion that his statement, given as a result of a plea arrangement which was later revoked, must be treated as involuntary. Thus, he reasons, Brenda King\u2019s testimony, which he alleges was based upon information taken from his statement, was inadmissible as \u201cfruit of the poisonous tree.\u201d We disagree. Even assuming arguendo that some portions of King\u2019s testimony reflected facts supplied by Albert\u2019s recollection of the events leading up to the murder, Albert\u2019s statement was entirely voluntary.\nAt the defendant\u2019s request, the trial court conducted a voir dire on the admissibility of Brenda King\u2019s testimony. The trial court\u2019s findings can be summarized as follows: the defendant was represented by the public defender for the Eighteenth Judicial District who advised him that he did not have to make any statement to anyone; that on behalf of the defendant, his attorney contacted the district attorney and offered to enter into a plea arrangement; that as a result of such negotiations, the defendant was to be granted immunity in return for his truthful testimony at trial and Brenda King, his daughter, would receive a suspended sentence; the defendant was at all times represented by counsel, was fully advised of his rights, and was not coerced or induced into making his statement; that the defendant subsequently violated a condition of the plea arrangement and, as a result, it was revoked. The trial court concluded that Albert\u2019s statement was voluntary and King\u2019s testimony was admissible. These findings of fact are fully supported by the evidence. Therefore, they are binding upon this Court. See State v. Corley, 310 N.C. 40, 311 S.E. 2d 540 (1984).\nWe are not concerned here with the admissibility of Albert\u2019s extrajudicial statement, but rather with his tenuous assertion that King\u2019s testimony was influenced in some measure by what she learned from his statement. We find nothing in the present case which would preclude King from testifying concerning facts divulged to her by Albert.\nThe defendant Albert next contends that the trial court expressed an opinion by stating to the jury that the evidence tended to show that Brenda King \u201cwas an accomplice in the commission of these crimes that are charged.\u201d The defendant did not object to this portion of the instructions. Our review is therefore limited to determining whether \u201cplain error\u201d was committed. State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983).\nWe do not agree that the trial court\u2019s statement expressed an opinion that the crimes had, in fact, been committed. The trial court correctly referred to the crimes as charged. Furthermore, the evidence clearly tended to show that Brenda King was, in fact, an accomplice but was testifying under a grant of immunity. The statement complained of was made during the portion of the instructions dealing with the credibility of the witnesses and immediately following the statement, the trial court cautioned the jury to examine King\u2019s testimony with great care because of her involvement in the crimes charged. Under these circumstances, we find the trial court\u2019s statement was not error.\nMichael Stephen Dearen\nThe defendant Dearen first contends that the trial court erred by allowing the State\u2019s motion for joinder of all defendants and consolidation of the charges and by denying his motion for a separate trial. Although the defendant objected prior to trial, he did not renew his motion to sever at the close of the State\u2019s evidence or at the close of all the evidence. We held in State v. Silva, 304 N.C. 122, 282 S.E. 2d 449 (1981), that failure to renew a motion for severance as required by N.C.G.S. 15A-927(a)(2) waived any right to severance and that review was limited to whether the trial court abused its discretion in ordering joinder at the time of the trial court\u2019s decision \u201cand not with the benefit of hindsight.\u201d Id. at 127, 282 S.E. 2d at 453.\nN.C.G.S. 15A-926(a) provides in pertinent part that: \u201cTwo or more offenses may be joined ... for trial when the offenses . . . are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\u201d In the present case the State\u2019s motion for joinder was based on the theory that the defendants William Albert, Michael Dearen and Doris Mills formed a scheme to murder Coy Mills and steal his money. Albert and Mills would then be able to develop their relationship and Michael Dearen would receive a share of the victim\u2019s money. All of the acts of the defendants the State sought to prove tended to support this theory. We find no abuse of discretion in the trial court\u2019s decision to allow consolidation and joinder.\nThe defendant Dearen next contends that the trial court erred in its instruction to the jury that in order to find Dearen\u2019s codefendants guilty of aiding and abetting an attempted armed robbery and second degree murder, they must first find that the armed robbery was in fact attempted by Dearen and that he committed the murder. In the absence of objection to this instruction, we only review for \u201cplain error.\u201d\nUnder the State\u2019s theory of the case, Dearen was the perpetrator while Albert and Mills aided and abetted him. Dearen first argues that he was prejudiced by the instructions as given in that they failed to inform the jury that Albert and Mills could be convicted if the jury found Dearen or some other person was the perpetrator of the crimes. \u201c[T]he charge was presented in such a manner,\u201d argues the defendant, \u201cas to lead the jury to believe that the guilt of William Albert and Doris Mills hinged solely on the jury\u2019s finding that appellant did the actual shooting.\u201d It is true that the instructions, as fully supported by the evidence at trial, reflected the State\u2019s theory that Dearen was the perpetrator in fact and Albert and Mills aided and abetted. In so instructing the trial court properly conformed its instructions to the evidence as presented. N.C.G.S. 15A-1232. Absent an objection or a request to the contrary, we cannot say that more was required. Certainly, there was no \u201cplain error.\u201d See State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983).\nThe defendant Dearen\u2019s final assignment of error concerns the trial court\u2019s decision to permit the jury to examine certain exhibits pertaining to the testimony of the witness Brenda King. Pursuant to N.C.G.S. 15A-1233(a), the trial court permitted the jury to examine the following documents: a calendar King used to organize her version of the sequence of events; her November 18 statement; a later handwritten statement; and her November 13 statement in which she denied any involvement in the crimes and which she later repudiated. It is the defendant\u2019s contention that the trial court abused its discretion in granting the jury\u2019s request to review these documents because they included not only the words previously read to the jury in open court, but also markings or underlining which had been used for emphasis or notation.\nThe record does not indicate exactly what markings appeared on the documents. The jury was specifically instructed to ignore underlining on one of the documents. The trial court fully complied with the procedures set forth in N.C.G.S. 15A-1233(a) and, under the facts presented, the defendant has failed to meet his burden of showing that the trial court abused its discretion in permitting the jury to examine these documents. See State v. Barnett, 307 N.C. 608, 300 S.E. 2d 340 (1983).\nDoris Mangum Mills\nThe defendant Doris Mills first contends that the trial court abused its discretion in allowing the State\u2019s motion for joinder. Although the defendant did move for severance prior to a voir dire hearing held on the admissibility of extrajudicial statements of the defendant Albert and the witness King, her motion was not renewed at the close of the State\u2019s evidence, nor at the close of all the evidence. As a result the defendant waived any right to severance, and our review is limited to whether the trial court abused its discretion as of the time it ordered joinder. State v. Silva, 304 N.C. 122, 282 S.E. 2d 449 (1981). For the reasons previously stated herein with regard to the defendant Dearen\u2019s similar contention, the trial court did not err when it ordered joinder.\nThe defendant next contends that the trial court erred in allowing the State\u2019s motion to revoke her bond, in ordering that she be arrested and held without bond and by denying her motion that bond be set. We find no error.\nFollowing her arrest on a warrant issued November 18, 1982, the defendant was released on a $20,000.00 secured bond \u201con the condition that she not have any contact with Bill Albert.\u201d On January 28, 1983, a detective with the Greensboro Police Department followed the defendant from her place of work to Sherwood Street where she met Albert. The two proceeded to the Ramada Inn Motel where they registered. On January 31 the district attorney made a motion to revoke the defendant\u2019s bond. The motion was allowed and the defendant was rearrested. The defendant\u2019s subsequent motion to set a new bond was denied. On February 28 the defendant filed a written motion to be released on bond citing health reasons and inability to confer with counsel. On April 5 this Court denied the defendant\u2019s petition for a Writ of Habeas Corpus.\nWe find nothing in the record which would indicate that the defendant\u2019s health problems were not properly treated. There is no indication that her ability to confer with counsel or prepare her defense was in any way impaired by her incarceration. Inasmuch as N.C.G.S. 15A-534(f) provides that \u201cany judge may . . . revoke an order of pretrial release\u201d such decisions are discretionary. The defendant\u2019s violation of a condition of her release was a legitimate reason for the trial court\u2019s exercise of its discretion to revoke her bond. This contention is without merit.\nThe defendant argues next that the trial court erred in denying her motion to dismiss the bill of indictment for murder. The motion was grounded on the fact that the indictment alleged both a capital and a non-capital offense thereby failing to inform her of the precise charge against which she would be required to defend at trial. The indictment is in the form prescribed by N.C.G.S. 15-144. This argument is without merit. See State v. Williams, 304 N.C. 394, 284 S.E. 2d 437 (1981).\nThe defendant contends that the trial court erred in admitting as evidence against her the testimony of Brenda King concerning conversations between King and the defendants Albert and Dearen. The defendant says that the State failed to show by independent evidence the existence of a conspiracy, and therefore the declarations of Albert and Dearen were not admissible against her. We do not agree.\nThe testimony of one conspirator is competent and sufficient to establish the existence of a conspiracy. State v. Carey, 285 N.C. 497, 206 S.E. 2d 213 (1974). \u201cWhen the State shows a prima facie conspiracy, the declarations of the coconspirators in furtherance of the common plan are competent against each of them. This is so even where the defendants are not formally charged with a criminal conspiracy.\u201d State v. Covington, 290 N.C. 313, 325-26, 226 S.E. 2d 629, 639 (1976) (citations omitted). It is not error for a trial court, in its discretion, to admit such declarations subject to later proof of a conspiracy. State v. Tilley, 292 N.C. 132, 232 S.E. 2d 433 (1977).\nIn the present case there was testimony that in the late summer and early fall of 1982, the defendant Doris Mills on several occasions had given an employee of Misty\u2019s Lounge certain substances and instructed her to put them in Coy Mills\u2019 beer. The defendant and Albert at times passed love letters or notes to each other at the lounge. Brenda King testified that on at least one occasion the defendant Doris Mills was present when King gave Albert an insecticide. At that time Doris Mills asked how much insecticide she should put into the victim\u2019s drink and indicated that she wanted him dead. There was sufficient evidence to establish the existence of a conspiracy to murder Coy Mills and that Doris Mills was one of the conspirators. Therefore, the statements of Dearen and Albert made in furtherance of the conspiracy were competent evidence against Mills.\nThe defendant contends that the trial court erred in allowing Brenda King to testify regarding a purported telephone conversation with the defendant Mills and by examining the witness from the bench. By this testimony the State sought to prove the defendant\u2019s complicity in the murder of her husband, Coy Mills. Brenda King testified that on the evening of the murder and at the request of her father, William Albert, she telephoned Misty\u2019s Lounge and asked to speak to the defendant Doris Mills. The purpose of the telephone call was to insure that the defendant had Coy Mills home by 9:00 p.m. The witness testified that she spoke to the defendant Doris Mills. The trial court then asked the witness how she knew with whom she had talked. The witness responded, \u201cI said, \u2018Doris.\u2019 and she said, \u2018yes.\u2019 \u201d The witness then affirmatively answered two additional questions posed by the trial court: \u201cHad you ever talked to her before? Did you recognize her voice?\u201d\nAlthough the defendant questions the admissibility of the testimony concerning the witness\u2019s telephone conversation with her, she presents us with no argument, nor do we find any reason for its exclusion. We reject the defendant\u2019s contention that the trial court\u2019s brief interrogation of the witness constituted error. The questions were phrased in a neutral and detached manner and were intended to clarify the witness\u2019s identification of the second party to the telephone conversation. See State v. Rinck, 303 N.C. 551, 280 S.E. 2d 912 (1981).\nThe defendant\u2019s next assignment of error concerns what she characterizes as the trial court\u2019s unduly prejudicial comments upon \u201cthe quality of counsel\u2019s objections.\u201d During the examination of Brenda King, defense counsel interposed numerous and frequent objections, often before the witness could begin her answer. Defense counsel complained that he could not understand what the witness was saying. The trial court responded, \u201cWell, no wonder, you object every time she opens her mouth. But you\u2019re entitled to make your objection.\u201d The witness was then instructed that if she heard an objection, she was not to answer until the court ruled. Later, counsel for both the defendant Mills and the defendant Dearen began objecting simultaneously to the witness\u2019s testimony. The trial court stated: \u201cWe have to have some formal rulings. I understand you are entitled to make your objection and I don\u2019t object, but when you object one time, let the witness finish her answer and then make your motion to strike.\u201d We find nothing improper in the trial court\u2019s comments. They were well within its discretion in an effort to control the conduct of the trial and promote an orderly examination of the witness. See State v. Harris, 308 N.C. 159, 301 S.E. 2d 91 (1983).\nThe defendant next contends that the trial court erred in allowing into evidence Brenda King\u2019s November 18 statement implicating herself, Albert Dearen and Doris Mills in the murder of Coy Mills, and in allowing King\u2019s testimony concerning the veracity of that statement. The defendant argues that as an accomplice Brenda King could not corroborate herself and that the voluntary confession of a conspirator made after the conspiracy has ended cannot be used against a fellow conspirator.\nThe record discloses that it was the defendant, not the prosecution, who initiated the testimony concerning this statement on cross examination. Once the defendant had opened the door during the cross examination of the witness, the State merely introduced the entire statement during its redirect examination. The prosecutor\u2019s question to the witness concerning the veracity of the statement was a proper subject for redirect examination. We find no error.\nBy her next assignment of error, the defendant contends that testimony of the witnesses Michael Tillman, Becky Albert Thore and Beverly Albert was improperly admitted. Tillman testified that the defendant Albert had, prior to November 6, solicited Tillman\u2019s help in an effort to secure someone to murder Coy Mills. Becky Albert Thore testified that she was present and observed Brenda King give pills to the defendant Albert and was present during conversations between Albert, King, and Tillman concerning plans to murder Coy Mills. Beverly Albert testified that she observed Brenda King give the defendant William Albert pills and was also aware, through conversations between various members of the group, of the plan to murder Coy Mills. The testimony, in addition to corroborating much of Brenda King\u2019s testimony, was admissible as it related to acts or declarations by conspirators in furtherance of a conspiracy. See State v. Covington, 290 N.C. 313, 226 S.E. 2d 692 (1976). We find no error.\nThe defendant Mills next contends, as did the defendant Albert, that the trial court erred in its charge to the jury by identifying Brenda King as \u201can accomplice in the commission of these crimes that are charged.\u201d As noted in our earlier discussion of this issue, we do not agree that the trial court expressed an opinion that the crimes had been committed. We find no error.\nLikewise, we have previously addressed the defendant\u2019s next assignment of error pertaining to the propriety of the trial court\u2019s decision to permit the jury to examine Brenda King\u2019s statements and a calendar prepared by the witness. As discussed under the defendant Dearen\u2019s final assignment of error, the trial court fully complied with the statutory procedures which allow, at the trial court\u2019s discretion, the jury to reexamine requested materials introduced into evidence. The defendant has failed to demonstrate an abuse of discretion.\nThe defendant\u2019s final assignment of error concerns the sentencing phase of her trial. The trial court imposed the maximum sentence of life imprisonment upon her conviction of second degree murder based on its finding of one aggravating factor \u2014 that the murder was premeditated and deliberated, and one mitigating factor \u2014 that she was a person of good character. The defendant argues that the trial court erred in failing to find two statutory mitigating factors: lack of prior criminal record, N.C.G.S. 15A-1340.4(a)(2)a; and that she was a passive participant, N.C.G.S. 15A-1340.4(a)(2)c. She further argues that the trial court erred in failing to find two non-statutory mitigating factors: that she was a female of advanced years; and that she was the primary supporting spouse of the family.\nThe evidence may support, but does not compel a finding that the defendant was a passive participant in the crimes. The defendant\u2019s age, fifty-three years, would not support a finding in mitigation that she was of advanced years. The fact that the defendant was the primary supporting spouse bears little relevance in mitigation of the crimes charged. Therefore, we hold that the trial court properly rejected these factors in mitigation.\nWith respect to the defendant\u2019s contention that she was entitled to a finding in mitigation that she had no record of criminal convictions, we agree that the trial court erred in failing to find this factor. The State correctly points out that \u201cthe defendant bears the burden of persuasion on mitigating factors if he seeks a term less than the presumptive.\u201d State v. Jones, 309 N.C. 214, 219, 306 S.E. 2d 451, 455 (1983). The State argues that the only evidence on this factor came through an assertion by the defendant\u2019s attorney that the defendant had \u201cno record at all in her lifetime\u201d and had \u201cnever been in court before\u201d except as a juror. Were this the case, we would agree that the defendant, by failing to offer testimony as to her lack of a criminal record, failed to carry her burden on this factor. However, the record discloses that the trial court inquired of the prosecutor, \u201cMr. Solicitor do any of them have a prior criminal record?\u201d The prosecutor answered \u201conly Mr. Dearen. . . .\u201d In State v. Jones, we recognized that evidence is credible as a matter of law when the \u201cnonmovant establishes proponent\u2019s case by admitting the truth of the basic facts upon which the claim of the proponent rests.\u201d Id. at 220, 306 S.E. 2d at 455. Inasmuch as the State appears to have stipulated that neither the defendant Mills nor the defendant Albert had a criminal record, we hold that the trial court erred in failing to find this fact in mitigation. We remand the second degree murder case against Doris Mills to Superior Court, Guilford County, for resentencing.\nAlthough the defendant Albert did not raise the issue of his sentence or argue it in his brief, we note that the trial court failed to find this factor in mitigation of his sentence for second degree murder. Pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, we remand the second degree murder case against Albert to Superior Court, Guilford County, for resentencing, in order to prevent a manifest injustice. See State v. Boykin, 307 N.C. 87, 296 S.E. 2d 258 (1982).\nAlbert \u2014 83CRS15628 \u2014 no error.\nAlbert \u201483CRS15629\u2014remanded for resentencing.\nDearen \u2014 82CRS54185 \u2014no error.\nDearen \u2014 83 CRS15534 \u2014 no error.\nMills \u2014 82CRS54198\u2014remanded for resentencing.\nMills-83CRS15533-no error.\nJustice VAUGHN did not participate in the consideration or decision of this case.", "type": "majority", "author": "MITCHELL, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Charles M. Hensey, Assistant Attorney General, for the State.", "Neill A. Jennings, Jr. for defendant-appellant Albert.", "E. Raymond Alexander, Jr. for defendant-appellant Dearen.", "John F. Comer for defendant-appellant Mills." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM SIDNEY ALBERT, MICHAEL STEPHEN DEAREN, DORIS MANGUM MILLS\nNo. 524A83\n(Filed 8 January 1985)\n1. Criminal Law \u00a7\u00a7 75, 84\u2014 revocation of plea arrangement \u2014 confession not involuntary-testimony not fruit of poisonous tree\nDefendant\u2019s statement given as a result of a plea arrangement was not involuntary because the plea arrangement was subsequently revoked when defendant violated a condition thereof where defendant was at all times represented by counsel, was fully advised of his rights, and was not coerced or induced into making the statement. Therefore, even if a portion of the testimony of defendant\u2019s daughter was based on information taken from de.fendant\u2019s statement, such testimony was not inadmissible as \u201cfruit of the poisonous tree.\u201d\n2. Criminal Law \u00a7 114.2\u2014 instruction on witness as accomplice \u2014 no expression of opinion\nThe trial court\u2019s instruction that the evidence tended to show that a witness \u201cwas an accomplice in the commission of these crimes that are charged\u201d did not constitute an expression of opinion that the crimes had, in fact, been committed.\n3. Criminal Law \u00a7 92.5\u2014 failure to renew motion for severance\nFailure to renew a motion for severance as required by G.S. 15A-927(a)(2) waived any right to severance, and review was limited to whether the trial court abused its discretion in ordering joinder at the time of the trial court\u2019s decision.\n4. Criminal Law \u00a7 92.1\u2014 consolidation of charges against three defendants\nThe trial court did not abuse its discretion in allowing consolidation and joinder of murder and attempted armed robbery charges against three defendants where the State's motion for joinder was based on the theory that all three defendants formed a scheme to murder the victim and steal his money. G.S. 15A-926(a).\n5. Criminal Law \u00a7 113.7\u2014 charge on aiding and abetting\nThe trial court\u2019s instruction that in order to find the two codefendants guilty of aiding and abetting an attempted armed robbery and a second-degree murder, the jury must first find that the armed robbery was in fact attempted and the murder was committed by defendant properly conformed to the evidence as presented, and the court did not commit plain error in failing to instruct that the codefendants could be convicted if the jury found that defendant \u201cor some other person\u201d was the perpetrator of the crimes.\n6. Criminal Law \u00a7 101.4\u2014 jury examination of documents containing markings\nDefendant failed to show that the trial court abused its discretion in permitting the jury to examine certain documents because they contained markings or underlining where the record did not indicate what markings appeared on the documents, the jury was instructed to ignore underlining on one document, and the court fully complied with the procedures set forth in G.S. 15A-1233(a).\n7. Arrest and Bail \u00a7 9.1\u2014 breach of condition of bail bond \u2014 revocation of bond\nDefendant\u2019s violation of a condition of her release on bond that she have no contact with a male codefendant was a legitimate reason for the trial court\u2019s exercise of its discretion to revoke her bond. G.S. 15A-534(f).\n8. Homicide \u00a7 12\u2014 propriety of murder indictment\nA murder indictment in the form prescribed by G.S. 15-144 was proper although it alleged both a capital and a non-capital offense and thereby failed to inform defendant of the precise charge against which she would be required to defend at trial.\n9. Conspiracy \u00a7 5.1; Criminal Law \u00a7 79\u2014 admissibility of statements by coconspirators\nThere was sufficient evidence to establish the existence of a conspiracy to murder the female defendant\u2019s husband and that the female defendant was one of the conspirators, and statements of the two male codefendants made in furtherance of the conspiracy were competent evidence against the female defendant.\n10. Criminal Law \u00a7\u00a7 69, 99.2\u2014 telephone conversation \u2014 admissibility\u2014propriety of court\u2019s questions\nA witness was properly permitted to testify regarding a telephone conversation with the female defendant tending to show her complicity in the murder of her husband, and the trial court did not err in asking the witness questions to clarify the witness\u2019s identification of the second party to the telephone conversation.\n11. Criminal Law \u00a7 99.4\u2014 court\u2019s comments upon ruling on objections \u2014 no expression of opinion\nThe trial judge did not improperly express an opinion on the quality of counsel\u2019s objections when, upon complaint by counsel that he couldn\u2019t understand a witness, he commented, \u201cWell, no wonder, you object every time she opens her mouth. But you\u2019re entitled to make your objection,\u201d or when he remarked to counsel for two defendants who were objecting simultaneously to the witness\u2019s testimony that \u201cwhen you object one time, let the witness finish her answer and then make your motion to strike.\u201d The trial judge\u2019s comments were well within his discretion in an effort to control the conduct of the trial and promote an orderly examination of the witness.\n12. Criminal Law \u00a7\u00a7 79.1, 87.4\u2014 statement by coconspirator \u2014 opening of door by defendant \u2014 veracity of statement proper subject for redirect\nThe trial court properly allowed into evidence during redirect examination a pretrial statement made by the witness implicating herself, defendant and a codefendant in a murder where defendant opened the door to evidence concerning the statement on cross-examination of the witness. Furthermore, the prosecutor\u2019s question to the witness concerning the veracity of the statement was a proper subject for redirect examination.\n13. Criminal Law \u00a7 79\u2014 acts or declarations by coconspirators\nThe testimony of three witnesses, in addition to corroborating another witness\u2019s testimony, was admissible as relating to acts or declarations by conspirators in furtherance of a conspiracy to murder the female defendant\u2019s husband.\n14. Criminal Law \u00a7 138\u2014 mitigating factors \u2014 passive participant \u2014 advanced age \u2014 supporting spouse \u2014 insufficient evidence\nThe trial court did not err in failing to find as factors in mitigation of the second-degree murder of defendant\u2019s husband that defendant was a passive participant, that she was a female of advanced years, and that she was the primary supporting spouse of the family since (1) the evidence did not compel a finding that defendant was a passive participant, (2) the defendant\u2019s age of fifty-three years would not support a finding in mitigation of the crime charged, and (3) the fact that defendant was the primary supporting spouse bears little relevance in mitigation of the crime charged.\n15. Criminal Law \u00a7 138\u2014 mitigating factor \u2014 no prior criminal record \u2014necessity for finding\nThe trial court erred in failing to find as a factor in mitigation of a second-degree murder that the female defendant had no record of criminal convictions where the prosecutor stipulated, in response to a question by the court as to whether any of the three defendants had a prior criminal record, that only a male codefendant had a prior criminal record.\nJustice Vaughn did not participate in the consideration or decision of this case.\nBEFORE Judge Julius A. Rousseau, at the 16 May 1983 Criminal Session of Superior Court, Guilford County, each of the defendants were convicted of second degree murder and attempted armed robbery. They each appeal as a matter of right from sentences of life imprisonment for second degree murder. Their motions to bypass the Court of Appeals on fourteen year sentences of imprisonment for attempted armed robbery we,re allowed on December 13, 1983. Heard in the Supreme Court September 12, 1984.\nRufus L. Edmisten, Attorney General, by Charles M. Hensey, Assistant Attorney General, for the State.\nNeill A. Jennings, Jr. for defendant-appellant Albert.\nE. Raymond Alexander, Jr. for defendant-appellant Dearen.\nJohn F. Comer for defendant-appellant Mills." }, "file_name": "0567-01", "first_page_order": 597, "last_page_order": 610 }