{ "id": 4719180, "name": "STATE OF NORTH CAROLINA v. ANTHONY DALE FIELDS", "name_abbreviation": "State v. Fields", "decision_date": "1985-12-10", "docket_number": "No. 653A84", "first_page": "191", "last_page": "208", "citations": [ { "type": "official", "cite": "315 N.C. 191" } ], "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": "215 S.E. 2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564055 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0505-01" ] }, { "cite": "266 S.E. 2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "300 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561114 ], "year": 1980, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0313-01" ] }, { "cite": "293 S.E. 2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "764" } ], "opinion_index": 0 }, { "cite": "306 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571311 ], "year": 1982, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0491-01" ] }, { "cite": "72 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698732 ], "year": 1875, "pin_cites": [ { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc/72/0598-01" ] }, { "cite": "75 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "year": 1876, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "90 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698772 ], "year": 1884, "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc/90/0724-01" ] }, { "cite": "257 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "582", "parenthetical": "citation omitted" }, { "page": "581-82" } ], "opinion_index": 0 }, { "cite": "298 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568313 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "18-20" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0001-01" ] }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "213 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569931 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0597-01" ] }, { "cite": "275 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565360 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0223-01" ] }, { "cite": "246 S.E. 2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564853 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0534-01" ] }, { "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": "305 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762614 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0047-01" ] }, { "cite": "88 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12117558 ], "year": 1883, "opinion_index": 0, "case_paths": [ "/nc/88/0694-01" ] }, { "cite": "195 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558331 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0218-01" ] }, { "cite": "65 A.L.R. 3d 705", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "pin_cites": [ { "page": "\u00a7 2" } ], "opinion_index": 0 }, { "cite": "150 S.E. 2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1966, "pin_cites": [ { "page": "200" } ], "opinion_index": 0 }, { "cite": "268 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560774 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0167-01" ] }, { "cite": "308 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "309 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767980 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0549-01" ] }, { "cite": "322 S.E. 2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "322 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "321 S.E. 2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759556 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0162-01" ] }, { "cite": "278 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572874 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0293-01" ] }, { "cite": "309 S.E. 2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "237" }, { "page": "237" } ], "opinion_index": 0 }, { "cite": "309 N.C. 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4764212 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "768" }, { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0763-01" ] }, { "cite": "56 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1949, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "231 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629425 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0301-01" ] }, { "cite": "290 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "185 S.E. 2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1972, "pin_cites": [ { "page": "673" }, { "page": "672", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "280 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570854 ], "weight": 4, "year": 1972, "pin_cites": [ { "page": "213" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0202-01" ] }, { "cite": "279 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "303 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573792 ], "year": 1981, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0321-01" ] }, { "cite": "60 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "year": 1864, "pin_cites": [ { "page": "473" } ], "opinion_index": 0 }, { "cite": "12 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688499 ], "weight": 2, "year": 1827, "pin_cites": [ { "page": "253-54" }, { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nc/12/0253-01" ] }, { "cite": "129 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662594 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/nc/129/0704-01" ] }, { "cite": "2 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "year": 1794, "opinion_index": 0 } ], "analysis": { "cardinality": 1455, "char_count": 41380, "ocr_confidence": 0.788, "pagerank": { "raw": 7.032316861350553e-07, "percentile": 0.966086053665677 }, "sha256": "7ebb0534dae61174dd976885891ed735b199d798686811648717f61f35dc48cd", "simhash": "1:315f58e627abf675", "word_count": 6942 }, "last_updated": "2023-07-14T15:13:08.433452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ANTHONY DALE FIELDS" ], "opinions": [ { "text": "MARTIN, Justice.\nDefendant presents this Court with nine arguments. The first six of these challenge the sufficiency of the evidence supporting defendant\u2019s convictions for armed robbery, murder in the first degree on the theories of premeditated and deliberate murder, felony murder based on felonious breaking or entering, larceny, and burglary in the second degree. Defendant\u2019s remaining arguments concern evidentiary and sentencing issues. We find that the trial court erred only in refusing to quash the indictment for burglary in the second degree and in denying defendant\u2019s motion to dismiss that charge. All other assignments of error we find to be without merit.\nI. \u2022\nDefendant first challenges the indictment and charge of burglary in the second degree. He contends that a shed that houses tools, garden equipment, nonperishable food, and a freezer and that is located at least forty-five feet from the dwelling is not within the curtilage of the dwelling house. We find that, under the facts of this case, defendant\u2019s point is well taken: the shed from which he and his companions stole a chain saw and splitting maul was not within the curtilage of the dwelling and therefore was not protected by the burglary statute, N.C.G.S. 14-51.\nThe curtilage is the land around a dwelling house upon which those outbuildings lie that are \u201ccommonly used with the dwelling house.\u201d State v. Twitty, 2 N.C. 102 (1794). Differentiating buildings that lie within the curtilage, which can be burglarized, from those outside it, which cannot, has been a troublesome exercise for the courts, one which is necessarily repeated with each case like the one before us. However, with each iteration of the exercise, two themes consistently emerge: the function of the building and its proximity to the dwelling house.\nUnder common law, houses or buildings within the curtilage that were used as part of the dwelling, such as smokehouses and pantries, were protected by the prohibition against burglary. State v. Foster, 129 N.C. 704 (1901). The question whether a building was part of the dwelling rested upon whether it served the \u201ccomfort and convenience\u201d of the dwelling.\nBut the law throws her mantle around the dwelling of man, because it is the place of his repose, and protects not only the house in which he sleeps, but also all others appurtenant thereto, as parcel or parts thereof, from meditated harm; thus the kitchen, the laundry, the meat or smoke house, and the dairy are within its protection; for they are all used as parts of one whole, each contributing in its way to the comfort and convenience of the place as a mansion or dwelling.\nState v. Langford, 12 N.C. 253, 253-54 (1827).\nThe curtilage test rested not merely upon the building\u2019s use, but upon its convenience. Thus proximity was a second, supplementary guide to whether the protection of the burglary law extended to a particular building. If a building, even one that served the daily needs of the homeowner, was so distant from the dwelling house that an intrusion did not disturb the repose of those in the dwelling house, then that intrusion was not burglary.\n[T]he law protects from unauthorized violence the dwelling-house and those which are appurtenant, because it is the place of the owner\u2019s repose-, and if he choose to put his kitchen or smokehouse so far from his dwelling that his repose is not likely to be disturbed by the breaking into it at night, it is his own folly.\nState v. Jake, 60 N.C. 471, 473 (1864).\nIn 1889 the burglary law was modified to provide that it was burglary in the second degree to commit the crime in an unoccupied dwelling house or a building within its curtilage or in any other unoccupied building with a sleeping compartment. Because, under these circumstances, none was present to hear the entry, the potential for disturbed repose as a measure of appurtenance survived only in the abstract. Nevertheless, the visual and auditory proximity of outbuildings that serve the comfort and convenience of the homeowner is still a useful theoretical measure of whether those buildings lie within or beyond the curtilage.\nApplying this theoretical yardstick to the facts of this case, it is clear that the outbuilding \u201cused to house and secure tools and other items of personal property,\u201d as specified in the burglary indictment of defendant, does not immediately serve the comfort and convenience of those who inhabit the dwelling house.\nIt is well to remember that the law of burglary is to protect people, not property. If the intrusion is into a place where people are present, then burglary in the first degree has been committed. If the intrusion is into a place where it is likely that the repose of one of the household would be disturbed if one were present (but is not), then burglary in the second degree has been committed. The indictment for burglary in the second degree that specified that defendant broke into and entered an unoccupied toolshed at nighttime with felonious intent was defective and should have been quashed. Likewise, the trial court was remiss in not dismissing charges of burglary in the second degree based upon that indictment. We accordingly arrest the judgment upon the conviction of burglary in the second degree.\nIn addition, because defendant\u2019s conviction for burglary in the second degree cannot stand, we likewise vacate defendant\u2019s conviction for felony murder committed during the perpetration of that felony.\nII.\nDefendant takes two lines of attack on his convictions of felony murder based upon being committed in the perpetration of felonious breaking or entering and felonious larceny with the use of a deadly weapon. First, defendant insists that Fisher\u2019s death did not occur during the perpetration of the larceny, but after its completion. Second, he suggests that if a deadly weapon is not actually used to effectuate the underlying felony, then the state cannot rely upon its mere presence in order to invoke the felony murder rule. We find neither argument persuasive.\nDefendant contends that by the time Fisher arrived on the Carter property, defendant and his companions had ceased all criminal activity, including the larceny of the chain saw and maul. The test for whether the felony and the murder are so connected as to invoke the felony murder rule was articulated by this Court in State v. Hutchins, 303 N.C. 321, 345, 279 S.E. 2d 788, 803 (1981):\nA killing is committed in the perpetration or attempted perpetration of a felony for purposes of the felony murder rule where there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is part of a series of incidents which form one continuous transaction.\nIf Fisher\u2019s being shot had been an isolated event, one unrelated to the thefts from the toolshed or to the aborted inspection of the Carter home by defendant\u2019s companion Collins or to Fisher\u2019s apprehension of defendant and the others, then the killing could not be felony murder. But the time, place and cause of the shooting were all well within the scope of the larceny. The interconnectedness of events, indeed even their causal interrelationship, is obvious. We are as incredulous as Fisher himself apparently was of defendant\u2019s protestation that he and the others had just abandoned their felonious activities coincidentally the very moment Fisher arrived on Carter property.\nThe similarity of the facts in State v. Thompson, 280 N.C. 202, 185 S.E. 2d 666 (1972), superseded on other grounds by statute, and State v. Davis, 305 N.C. 400, 290 S.E. 2d 574 (1982), to those in the case now before us is illuminating on this point. In Thompson, one accomplice had already left with some stolen goods, and the other left after the defendant told him that he had everything he wanted. The defendant then went back upstairs and shot the victim. This Court determined that, under such circumstances, \u201cthe killing resulted from and was the culmination of defendant\u2019s course of criminal conduct while engaged in the perpetration of felonious breaking and entering and felonious larceny.\u201d 280 N.C. at 213, 185 S.E. 2d at 673. The events in the case at bar are even more contiguous than those in Thompson. Fisher\u2019s arrival can be viewed as a break in the chain of events only insofar as his arrival interrupted the commission of felonies that, up until that moment, had been ongoing. Like the Thompson Court, we are convinced that the killing in this case resulted from and was the culmination of defendant\u2019s course of criminal conduct.\nDefendant\u2019s second point of contention concerning the charges of felony murder raises a question of first impression for this Court about a statutory modification to the felony murder portion of the homicide statute. N.C.G.S. 14-17 now reads, in pertinent part: \u201cA murder which shall be . . . committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree . . . .\u201d (Emphasis added.) The requirement that the use of a deadly weapon distinguished the commission or attempted commission of an unspecified or \u201cother\u201d felony was added to this statute by amendment in 1977. Defendant argues that this language requires the felony underlying the felony murder charge actually to be effectuated with the use of a deadly weapon, and that it is not enough merely to possess such a weapon during the commission of the felony. We find that not only do the facts of this case not support such a proposition, but the proposition itself is more restrictive than the legislature intended in amending the \u201cother felony\u201d phrase, and we reject the argument.\nIn State v. Davis, 305 N.C. 400, 290 S.E. 2d 574, this Court surmised that the amendment to the unspecified, \u201cother felony\u201d phrase was a response to holdings such as that in State v. Streeton, 231 N.C. 301, 56 S.E. 2d 649 (1949), in which this Court interpreted \u201cany other felony\u201d to mean \u201cany other felony inherently dangerous to human life.\u201d 231 N.C. at 305, 56 S.E. 2d at 652. The Davis Court also cited Thompson, 280 N.C. 202, 185 S.E. 2d 666, in which a formula for \u201cother felony\u201d even broader than the \u201cinherently dangerous\u201d classification in Streeton was articulated:\nIn our view, and we so hold, any unspecified felony is within the purview of G.S. 14-17 if the commission or attempted commission thereof creates any substantial foreseeable human risk and actually results in the loss of life. This in-eludes, but is not limited to, felonies which are inherently dangerous to life.\n280 N.C. at 211, 185 S.E. 2d at 672 (emphasis added). The Davis Court stated that holdings concerning the pre-1977 phrase such as those is Streeton and Thompson \u201cshould be disregarded on this point involving murders committed after that date.\u201d Davis, 305 N.C. at 423, 290 S.E. 2d at 588.\nUnder the amended statute, where the perpetrator of such felony carries a deadly weapon, the balance is tipped: the simple fact that the felon has a weapon in his possession creates a substantial, foreseeable human risk. Thus, in the case before us, defendant\u2019s carrying a gun in the course of the felonious larceny would have satisfied the more vague, pre-1977 requisite for the dangerous nature of the unspecified felony. The question now before us is to what extent the legislature, by tightening the definition for unspecified felonies, has shifted the meaning from a risky or dangerous felony to a definition requiring the actual use of a deadly weapon in the commission or attempted commission of the felony. If one carries a gun throughout a larceny but never uses it to break a latch, for example, or to threaten bystanders to remain at bay, and a victim dies as a result of the crime (but not necessarily by wounds inflicted by that gun), is the defendant guilty of felony murder? Does mere \u201cpossession\u201d of the deadly weapon satisfy the \u201cuse\u201d language of the statute?\nWe hold that possession is enough, and the defendant is guilty of felony murder, even if the weapon is not physically used to actually commit the felony. If the defendant has brought the weapon along, he has at least a psychological use for it: it may bolster his confidence, steel his nerve, allay fears of his apprehension. Even under circumstances where the weapon is never used, it functions as a backup, an inanimate accomplice that can cover for the defendant if he is interrupted.\nAnd under the circumstances of this case, there is no question that the facts fit the language of the statute. Fisher\u2019s arrival was an interruption in the larceny, not an event marking its completion. Killing Fisher was clearly part of defendant\u2019s attempt to escape apprehension for the breaking and entering and the theft from the toolshed. Under these facts, defendant\u2019s use \u2014both physical and psychological \u2014 of his gun put his actions squarely within the definition of N.C.G.S. 14-17. We hold the killing of Fisher was effected during the perpetration of a felony committed with the use of a deadly weapon.\nIII.\nDefendant urges this Court to reverse his conviction for premeditated and deliberate murder in the first degree because, he asserts, the evidence shows the shooting to have been a purely instinctive reflex reaction and his motive to have been no more than self-preservation. We disagree.\n\u201cPremeditation\u201d means that the defendant thought about killing for some length of time, however short, before he killed. State v. Lowery, 309 N.C. 763, 768, 309 S.E. 2d 232, 237 (1983); State v. Corn, 303 N.C. 293, 278 S.E. 2d 221 (1981). \u201cDeliberation\u201d means that the intent to kill was formulated in a \u201ccool state of blood,\u201d one \u201cnot under the influence of a violent passion suddenly aroused by some lawful or just cause or legal provocation.\u201d Lowery, 309 N.C. at 768, 309 S.E. 2d at 237.\nOn more than one occasion this Court has enumerated several circumstances that tend to prove premeditation and deliberation. See, e.g., State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837 (1984); State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984); State v. Huffstetler, 312 N.C. 92, 322 S.E. 2d 110 (1984). Among these are three circumstances that are directly applicable to the facts of this case: (1) lack of provocation by the deceased, (2) defendant\u2019s conduct before and after the killing, and (3) the infliction of lethal blows after the deceased has been felled and rendered helpless.\nViewed in a light most favorable to the state, the evidence before us shows that Fisher\u2019s own conduct was not so threatening as either to cause Boney and defendant to fear for their lives or otherwise to provoke them. The fact that defendant was even carrying a gun was conduct preceding Fisher\u2019s murder that evinced defendant\u2019s anticipation of a possible confrontation and some forethought of how he would deal with it. Once interrupted by Collins\u2019 warning, defendant and Boney walked from the shed to defendant\u2019s own truck, then to Fisher\u2019s. This was ample time and opportunity for defendant to formulate an intent to kill Fisher. He did not shoot Fisher immediately, but bided his time, waiting until Fisher turned away. Defendant took advantage of Fisher\u2019s diminished vigilance to draw his own gun and to warn Fisher to \u201cHold it.\u201d Then, as Fisher turned around, defendant shot him. Fisher fell to the ground, dropping his shotgun after the first shot hit him, but defendant shot four more times, three times into Fisher\u2019s body. At no time does the evidence show defendant not to have been a reasoning being. He was not operating under the influence of overwhelming fear or passion, but with a cool, deliberate state of mind. Following the murder, defendant still had the presence of mind to take Fisher\u2019s gun, to agree with the others to keep silent about the affair, and later to have the murder weapon melted down.\nWe find the above to be evidence sufficient to sustain the jury\u2019s verdict of murder in the first degree based upon deliberation and premeditation.\nIV.\nDefendant contends that he took Fisher\u2019s shotgun as an afterthought and that by then Fisher was already dead. He argues that an intent to steal formed only after the use of force has culminated in the victim\u2019s death vitiates the charge of armed robbery and that a corpse is incapable of possessing personal property.\nTo accept defendant\u2019s argument would be to say that the use of force that leaves its victim alive to be dispossessed falls under N.C.G.S. 14-87, whereas the use of force that leaves him dead puts the robbery beyond the statute\u2019s reach. That the victim is already dead when his possessions are taken has not previously been an impediment in this jurisdiction to the defendant\u2019s conviction for armed robbery. See, e.g., State v. Webb, 309 N.C. 549, 308 S.E. 2d 252 (1983). All that is required is that the elements of armed robbery occur under circumstances and in a time frame that can be perceived as a single transaction. When, as here, the death and the taking are so connected as to form a continuous chain of events, a taking from the body of the dead victim is a taking \u201cfrom the person.\u201d See 67 Am. Jur. 2d Robbery \u00a7 14 at 65 (1985).\nDefendant\u2019s reasoning is on no firmer ground with his belated intent argument. Not only does his intent to deprive Fisher of his gun appear to be so joined in time and circumstances with his use of force against Fisher that these elements appear inseparable, but this Court has held that mixed motives do not negate actions that point undeniably to a taking inconsistent with the owner\u2019s possessory rights.\nIn State v. Smith, 268 N.C. 167, 150 S.E. 2d 198 (1966), the defendant insisted that he had taken a rifle from his victim in self-defense, theoretically negating any intent to steal the weapon. Although the Court agreed that disarming another in self-defense with no intent to steal is not robbery, it noted that the circumstances in that case pointed at the very least to defendant\u2019s mixed motives. Even assuming that the defendant had taken the rifle \u201cfor temporary use,\u201d his later abandoning it evinced \u201c \u2018such reckless exposure to loss\u2019 . . . consistent only with an intent permanently to deprive the owner of his property.\u201d Id. at 173, 150 S.E. 2d at 200.\nSimilarly, in State v. Webb, 309 N.C. 549, 308 S.E. 2d 252 (1983), the defendant shot and killed his victim, disposed of the body, then took the victim\u2019s car. Justice Exum, speaking for this Court, said that the defendant\u2019s being \u201cscared and confused\u201d and his motivation to escape did not exculpate him.\nAs in Smith, all the evidence here tends to show defendant never intended to return the car and that he took it and disposed of it under circumstances rendering it unlikely that it would ever be recovered and with indifference to the rights of the car\u2019s owner. Therefore, even if defendant did use the car to escape the scene at a time when he was confused and scared, these facts, under Smith, would not exculpate him.\nId. at 557, 308 S.E. 2d at 257.\nWhatever defendant\u2019s actual intentions were regarding Fisher\u2019s gun and whenever they were formulated was a dilemma for the jury. Nonetheless, we hold that when the circumstances of the alleged armed robbery reveal defendant intended to permanently deprive the owner of his property and the taking was effectuated by the use of a dangerous weapon, it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use or threat of force can be perceived by the jury as constituting a single transaction.\nV.\nDefendant contends it was error for the trial court to admit the testimony of defendant\u2019s companions, Boney and Collins, into evidence. Defendant asserts that because Boney and Collins were abusers of alcohol and hallucinogenic and psychotropic drugs and because they were impaired by the use of drugs and alcohol on the night in question, their testimony was inherently incredible. Defendant suggests that a combination of the \u201cdrug-damaged and deranged minds\u201d of these witnesses plus their proclivity for self-preservation made them susceptible to permitting gaps in their memories to be supplied by interrogators. In addition, defendant opines that Boney and Collins were inherently incredible witnesses generally and that as such they were incompetent to testify. Defendant also points to arguably incoherent testimony by Boney and Collins in the record as evidence of their alleged incompetency.\nRule 601(b) of the North Carolina Rules of Evidence provides that \u201cA person is disqualified to testify as a witness when the court determines that he is (1) incapable of expressing himself concerning the matter to be understood ... or (2) incapable of understanding the duty of a witness to tell the truth.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 601(b) (Cum. Supp. 1985). A witness is not incompetent to testify on the basis of drug use alone, but only insofar as such use affects his ability to be understood or to respect the importance of veracity. We do not consider the testimony of Boney and Collins quoted in defendant\u2019s brief or in the record as a whole to be incoherent. The ability of Boney and Collins to communicate appears generally adequate.\nIn addition, the trial court\u2019s determination that a witness is competent to testify is with good reason within the discretion of that court, which has the opportunity itself to observe the comportment of the witness. And where the effect of drug use is concerned, in particular, the question is more properly one of the witness\u2019s credibility, not his competence. As such, it is in the jury\u2019s province to weigh his evidence, not in the court\u2019s to bar it. See Annot., 65 A.L.R. 3d 705, \u00a7 2(a) (1975) (competency of witness \u2014drug use).\nAccordingly, we hold it was not error for the trial court to refuse to strike the testimony of witnesses Boney and Collins.\nDefendant\u2019s second argument based on the rules of evidence concerns the common law anti-impeachment rule in effect at the time of his trial, which prohibited the state from discrediting its own witness. See, e.g., State v. Anderson, 283 N.C. 218, 195 S.E. 2d 561 (1973); State v. Taylor, 88 N.C. 694 (1883). Even if defendant\u2019s argument were meritorious and this Court were to order a new trial, it would be both feasible and just to conduct that trial under the new rules, not the old. Even so, having examined the bases for defendant\u2019s argument, we find it to be without merit.\nOn direct examination, Boney, the state\u2019s witness, was asked if, \u201cat the time that Mr. Fisher was out there at the scene and when he was holding the shotgun,\u201d he believed himself to be in imminent danger of death or bodily harm. Boney responded that he did not.\n\u25a0 Later, on cross-examination, Boney was asked how he was feeling right at the moment that Fisher turned around to face Boney and defendant, his gun pointed at them, after defendant had told Fisher to \u201cHold it.\u201d Boney agreed that he was \u201cscared\u201d and \u201cin shock\u201d because he thought he was going to be shot. Subsequently, Boney was asked again by defense counsel what he thought \u201cright at that minute\u201d that Fisher turned back around in response to defendant\u2019s remark. Again, Boney said he was \u201cin shock\u201d because he thought Fisher was going to shoot them.\nOn redirect examination, Boney said he thought that, \u201cwhenever Dale said hold it, he was coming around with the gun so I thought he was gonna shoot.\u201d He then indicated that it had been the noise of the gun\u2019s discharge and seeing Fisher get shot that had scared and shocked him. When asked whether \u201cup until the time that Mr. Fisher got shot, did [he] believe that anybody was gonna get shot?\u201d he answered \u201cNo.\u201d Boney was later asked to recall a prior statement made to Lieutenant Pickett and, when his memory flagged, he was shown a portion of that statement. It indicated his earlier feeling that Fisher\u2019s intention was not to shoot but only to hold the three men and that Boney had not been afraid for his life until defendant said \u201chold it\u201d and Fisher turned around.\nWe consider this testimony distinguishable from impeachment situations in which the testimony of the state\u2019s witness reveals prior statements to be lies or vice versa. See, e.g., State v. Cope, 309 N.C. 47, 305 S.E. 2d 100 (1983). In the case before us, the state did not appear to be contradicting Boney\u2019s cross-examination testimony, but clarifying it. This Court has approved efforts by the state to clear up confusion as to its witness\u2019s statements. State v. Williams, 304 N.C. 394, 284 S.E. 2d 437 (1981); State v. Berry, 295 N.C. 534, 246 S.E. 2d 758 (1978). It is apparent to us that this was the state\u2019s intention here: defendant\u2019s counsel had elicited a broad statement from Boney that he had been scared and shocked, feelings that the jury might have understood him to have had throughout the entire episode after Fisher\u2019s initial apprehension of the three men. The record of cross-examination and redirect examination reveals the state\u2019s purpose was to identify more precisely that moment at which Boney was first afraid for his life.\nThis Court finds no irregularity in the state\u2019s use of Boney\u2019s statement to refresh his recollection. See 1 Brandis on North Carolina Evidence \u00a7 32 (1982). And because we perceive the intention and effect of the state\u2019s questions on redirect examination to have been not the impeachment but the clarification of testimony elicited on cross-examination, we find that the trial court did not err in ruling those questions and answers admissible.\nVI.\nThe jury found defendant guilty of murder in the first degree based upon four theories \u2014murder on the basis of malice, premeditation, and deliberation, murder committed during the perpetration of burglary in the second degree, murder committed during the perpetration of felonious breaking or entering, and murder committed during the perpetration of felonious larceny. Defendant urges this Court to initiate a rule that the jury must rank the theories upon which its murder verdicts rest. Thus, if the jury were to decide that murder committed during the commission of a particular felony was the primary basis for its verdict of murder in the first degree, the merger rule would automatically prevent the underlying felony even from being before the trial court during the sentencing phase of the trial.\nPrecedent as well as logic militate against adopting such a rule. In State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981), this Court held that when a defendant is charged with both felony murder and premeditated and deliberate murder, but the jury returns a verdict of guilty for first degree murder without specifying upon which theory it relied, the court is to treat the verdict as a conviction for felony murder. The merger rule would then prohibit the court from considering the underlying felony in the sentencing hearing. See also State v. McLaughlin, 286 N.C. 597, 213 S.E. 2d 238 (1975), death sentence vacated, 428 U.S. 903 (1976).\nIn State v. Goodman, 298 N.C. 1, 257 S.E. 2d 569 (1979), the jury specifically found the defendant guilty of both premeditated and deliberate murder and felony murder. This Court made it clear that, when the jury\u2019s verdict specifies both theories in its verdict of murder in the first degree, it is the court\u2019s decision, not that of the jury, to select the theory on which the sentence for the homicide is to be based. And where the sentence for homicide rests upon the premeditated and deliberate murder conviction, the merger rule does not apply.\nAs we have already said, no merger of the felony occurs when the homicide conviction is based upon the theory of premeditation and deliberation. . . . Defendant was found guilty by virtue of premeditation and deliberation as well as by application of the felony-murder rule. Thus, the court could disregard the felony-murder basis of the homicide verdict and impose additional punishment upon defendant for the crimes of armed robbery and kidnapping.\nId. at 20, 257 S.E. 2d at 582 (citation omitted). There can be no question that the sentencing issue before us is governed by this Court\u2019s decision in Goodman.\nIn addition, to adopt defendant\u2019s proposed rule would be to disregard the facts of this case, to vitiate the jury\u2019s determinations, and to confound the logic of the merger rule. Defendant contends that the jury must have relied more heavily upon the felony murder theory than upon a basis in premeditation and deliberation because he perceives little evidence in the record to support the latter. This notion is belied both by the actual evidence (see our discussion at III, supra) and by the jury\u2019s actual verdict. The jury found defendant guilty of murder based upon four theories. It did not determine that defendant was any more or less guilty of murder on the basis of one theory than on the basis of another, nor was it the jury\u2019s duty to make such distinctions. Where the evidence is sufficient to support such verdicts, the trial court should perceive them as being equally ranked for sentencing purposes, except for the application of such rules of law as the merger rule.\nThe result is:\n83CRS38438 \u2014 murder in the first degree \u2014 no error.\n83CRS39442 \u2014 felonious larceny \u2014 no error.\n84CRS4840 \u2014 armed robbery \u2014 no error.\n83CRS39442 \u2014burglary in the second degree \u2014 judgment arrested.\n\u2014 felony murder based upon burglary \u2014 verdict vacated.\n. The Court in Langford recognized that distance alone was an unsatisfactory test: \u201cMust the off-house be within one foot, ten, or a hundred feet? Or, as some say, a bow\u2019s shot? Those who speak of distance ascertain it only by its being reasonable, and what may be reasonable to the mind of one man may not be to that of another.\u201d 12 N.C. at 254.\n. The evidence indicated that the building also contained a freezer and nonperishable foodstuffs. Although it could be argued that a building containing such provisions is a pantry, not a tool or garden shed, this is not how the building was described in the indictment. Even if the indictment had been so specific, the shed\u2019s lack of proximity to the dwelling house indicates that its contents were not indispensable to the comfort and convenience of the dwelling.\n. At common law, a building where the homeowner\u2019s servants habitually slept, as well as the house where he and his family slept, was protected by the law. But if the building housed a reposing watchman, whose job was solely to protect property, \u201cthen the house cannot be treated as a dwelling-house, and to break into it in the night-time with a felonious purpose would not be burglary.\u201d State v. Williams, 90 N.C. 724, 729 (1884). Accord State v. Potts, 75 N.C. 128, 131 (1876); State v. Outlaw, 72 N.C. 598, 602 (1875).\n. Whether Fisher was killed outright is not clear from the record. The state refers to testimony from Collins that Fisher was still alive even as defendant drove off with the others.\n. The elements of armed robbery under N.C.G.S. 14-87 are \u201c(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by the use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened.\u201d State v. Beaty, 306 N.C. 491, 496, 293 S.E. 2d 760, 764 (1982).\n. In State v. Handsome, the defendant argued that because the victim\u2019s money was taken after he had been shot, the theft was not armed robbery. The Court disagreed: \u201cThe elements of violence and taking were so joined in time and circumstances in one continuous transaction amounting to armed robbery as to be inseparable.\u201d 300 N.C. 313, 318, 266 S.E. 2d 670, 674 (1980).\n. The fact that the victim was dead by the time his car was stolen did not even elicit comment from the Court.\n. The text of this rule is identical to that in the rules in effect at the time of defendant\u2019s trial.\n. See N.C. R. Evid. 607 (1984) and 1983 N.C. Sess. Laws ch. 701, \u00a7 3.\n. In Cope, the procedure suggested in State v. Pope, 287 N.C. 505, 215 S.E. 2d 139 (1975), for invoking the \u201csurprise\u201d exception to the anti-impeachment rule was not followed by the state. For this reason this Court, speaking through Justice Exum, held that it was prejudicial error to permit testimony about the prior statements that contradicted the witness\u2019s testimony. Because we do not believe that Boney\u2019s prior statements differed significantly from his testimony, the surprise exception has no application to this case.\n. Defendant argues that an extended colloquy in Goodman between the court and the jury foreman, by which the court clarified the fact that the jury found Goodman guilty of murder in the first degree under both the felony murder and the premeditation and deliberation theories of law, distinguishes that case from the one before us. We disagree. No such quizzing was necessary in this case. In Goodman, the jury initially gave an ambiguous verdict. The court\u2019s questions simply elucidated the fact that the jurors were convinced that Goodman had been guilty of murder under both theories, not under one or the other, without specifying which. See State v. Goodman, 298 N.C. at 18-20, 257 S.E. 2d at 581-82.", "type": "majority", "author": "MARTIN, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Christopher P. Brewer, Assistant Attorney General, for the state.", "Robert A. Hassell for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTHONY DALE FIELDS\nNo. 653A84\n(Filed 10 December 1985)\n1. Burglary and Unlawful Breakings \u00a7 3.1\u2014 tool shed \u2014not within curtilage \u2014 indictment for burglary should have been quashed\nAn indictment for second degree burglary that specified that defendant broke and entered an unoccupied tool shed at nighttime with felonious intent should have been quashed, and convictions for second degree burglary and felony murder committed during the burglary could not stand, where the shed contained house tools, garden equipment, non-perishable food, and a freezer; was located forty-five feet from the dwelling; and was not within the curtilage of the dwelling house. The visual and auditory proximity of outbuildings that serve the comfort and convenience of the homeowner is a useful theoretical measure of whether those buildings lie within or beyond the curtilage; an outbuilding used to house and secure tools and other items of personal property does not immediately serve the comfort and convenience of those who inhabit the dwelling house.\n2. Homicide \u00a7 4.2\u2014 felony murder \u2014 larceny interrupted\nA homicide victim\u2019s death occurred during the perpetration of a larceny, not after its completion, where defendant and his companions had entered a storage shed and removed a chain saw and maul and were checking to see if the house was occupied when the victim approached to investigate. The killing resulted from and was the culmination of defendant\u2019s course of conduct.\n3. Homicide \u00a7 4.2\u2014 weapon carried but not used in underlying burglary and larceny-evidence sufficient\nA killing was effected during the perpetration of a felony committed with the use of a deadly weapon within the definition of N.C.G.S. 14-17 where defendant carried a gun during the commission of a larceny but did not use it to commit the larceny. Possession is enough; moreover, the victim\u2019s arrival was an interruption of the larceny, not an event marking its completion, and killing the victim was clearly part of defendant\u2019s attempt to escape apprehension for the breaking and entering and theft from the tool shed.\n4. Homicide \u00a7 18.1\u2014 murder during larceny \u2014 evidence of premeditation sufficient\nThe evidence supported defendant\u2019s conviction for first degree murder based on premeditation where defendant and his companions entered a tool shed and were examining the house to see if it was vacant when the victim approached with a shotgun to investigate; the victim\u2019s conduct was not so threatening as to cause defendant and his companions to fear for their lives or to otherwise provoke them; the fact that defendant was even carrying a gun was conduct preceding the murder that evinced defendant\u2019s anticipation of a possible confrontation and some forethought of how he would deal with it; once warned of the victim\u2019s approach by a companion, defendant had ample time and opportunity to formulate an intent to kill the victim; defendant did not shoot the victim immediately, but waited until the victim turned his head; defendant took advantage of the victim\u2019s diminished vigilance to draw his own gun and to warn him to \u201cHold it\u201d; defendant shot the victim as he turned around; the victim fell to the ground and dropped his shotgun after the first shot hit him; defendant fired four more times, three times into the victim\u2019s body; and defendant had the presence of mind after the murder to take the victim\u2019s gun, agree with the others to keep silent, and later to have the murder weapon melted down.\n5. Robbery \u00a7 4.3\u2014 armed robbery \u2014 victim dead \u2014 use of force in theft \u2014 single transaction \u2014 evidence sufficient\nThe evidence was sufficient to support a conviction for armed robbery where defendant took the shotgun the victim had been carrying after killing the victim. When the circumstances of the alleged armed robbery reveal that defendant intended to permanently deprive the owner of his property and the taking was effectuated by the use of a dangerous weapon, it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use or threat of force could be perceived by the jury as constituting a single transaction. N.C.G.S. 14-87.\n6. Criminal Law \u00a7 89; Witnesses \u00a7 1.3\u2014 State\u2019s witnesses abusers of alcohol and drugs \u2014 testimony admissible\nThe trial court did not err in a prosecution for murder, robbery, larceny, and burglary by admitting the testimony of defendant\u2019s two companions, who were abusers of alcohol and hallucinogenic and psychotropic drugs and who had been impaired by drugs and alcohol on the night in question. A witness is not incompetent to testify on the basis of drug use alone, and the ability of these witnesses to communicate appeared generally adequate; moreover, the trial court\u2019s determination that a witness is competent to testify is with good reason within the discretion of that court. N.C.G.S. 8C-1, Rule 601(b) (Cum. Supp. 1985).\n7. Criminal Law \u00a7 86.9\u2014 impeachment by State of its own witness \u2014questions designed to clarify testimony \u2014 no error\nIn a prosecution for robbery, burglary, larceny, and murder which arose from defendant\u2019s shooting of a neighbor who came to investigate with a shotgun after defendant and his companions broke into a tool shed, the court did not err by allowing the State on redirect examination to impeach one of defendant\u2019s companions who was testifying for the State. Defense counsel had elicited a broad statement from the witness that he had been scared and shocked, and the State\u2019s purpose was to identify more precisely that moment at which the witness was afraid for his life rather than to impeach his cross-examination testimony.\n8. Criminal Law \u00a7\u00a7 124.4, 135.4\u2014 murder \u2014 verdict based on four theories \u2014 jury not required to rank theories\nIn a prosecution in which defendant was found guilty of first degree murder based on malice, premeditation and deliberation, murder committed during the perpetration of a burglary, murder committed during the perpetration of felonious breaking or entering, and murder committed during the perpetration of felonious larceny, the Supreme Court declined to initiate a rule requiring the jury to rank the theories upon which its murder verdict rested.\nAPPEAL by defendant from judgments entered by Lee, J., at the 14 May 1984 session of Superior Court, Wake County. Heard in the Supreme Court 14 October 1985.\nOn 21 February 1983, defendant, Anthony Dale Fields, and his two companions, Norman David Collins, Jr., and Douglas Glenn Boney, having consumed quantities of beer and Quaaludes, took a drive around Wake County in defendant\u2019s truck. At approximately 8:30 p.m., they entered the driveway of Ernest Carter. Defendant and Boney slid open the door of a storage shed located some forty-five feet from the Carter house and removed a chain saw and maul. Collins was knocking on the doors and looking into the windows of the Carter home to determine whether anyone was there. Meanwhile, Samuel McBridge Fisher, Jr., who lived next door to the Carters and who knew the Carters not to be at home, had seen defendant\u2019s truck enter the Carter property. He took his single-shot, 12-gauge shotgun and drove down the Carter driveway to investigate.\nWhen Collins saw Fisher\u2019s truck approaching, he shouted a warning to the other two, who threw the chain saw and maul into the bushes and their gloves into defendant\u2019s truck. Fisher approached the three with the gun under his arm and ordered them to get up against his truck with their hands up. When they had done so, Fisher turned away from them to look towards the Carter house. Defendant, drawing a .38-caliber pistol from his waistband, told Fisher to \u201cHold it.\u201d Fisher turned back around and was immediately shot five times by defendant. Defendant grabbed Fisher\u2019s shotgun, which had fallen from Fisher\u2019s hands after the first shot had hit him, put it in the bed of his truck, hurriedly got in the cab with his companions, and drove off. Fisher died as a result of his wounds.\nLacy H. Thornburg, Attorney General, by Christopher P. Brewer, Assistant Attorney General, for the state.\nRobert A. Hassell for defendant." }, "file_name": "0191-01", "first_page_order": 219, "last_page_order": 236 }