{ "id": 2570433, "name": "STATE OF NORTH CAROLINA v. FLOYD DIXON", "name_abbreviation": "State v. Dixon", "decision_date": "1987-11-05", "docket_number": "No. 680A86", "first_page": "111", "last_page": "114", "citations": [ { "type": "official", "cite": "321 N.C. 111" } ], "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": "261 S.E. 2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574388 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0298-01" ] }, { "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": "29 L.Ed. 2d 860", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "403 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12043280, 12043226 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/403/0948-02", "/us/403/0948-01" ] }, { "cite": "174 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563091 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0598-01" ] }, { "cite": "307 S.E. 2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760257 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0326-01" ] }, { "cite": "340 S.E. 2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "676 F. 2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002", "parenthetical": "footnotes omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "471 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202354 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/0307-01" ] } ], "analysis": { "cardinality": 453, "char_count": 7371, "ocr_confidence": 0.824, "pagerank": { "raw": 4.9644486078017406e-08, "percentile": 0.3125678369665567 }, "sha256": "434a6fa8a3dafa21915080277e886970b4f10952231c9955070ccbaa5d3fcebd", "simhash": "1:800f273afe7594c6", "word_count": 1256 }, "last_updated": "2023-07-14T17:04:28.747837+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. FLOYD DIXON" ], "opinions": [ { "text": "WEBB, Justice.\nThe defendant\u2019s only assignment of error is to the charge to the jury. The court charged the jury in part as follows:\nNeither premeditation nor deliberation are usually susceptible of direct proof. They may be proved by circumstances from which they may be inferred such as the lack of provocation by the victim, conduct of the defendant before, during and after the killing, threats and declarations of the defendant, use of grossly excessive force, brutal or vicious circumstances of the killing, the manner in which or the means by which the killing was done.\nThe defendant contends this charge was erroneous in two respects. He says that it recites circumstances which were not in evidence and that it alleviated the requirement of the State that it prove premeditation and deliberation beyond a reasonable doubt. The defendant, relying on Francis v. Franklin, 471 U.S. 307, 85 L.Ed. 2d 344 (1985), contends that by charging as it did, the court told the jury the State had satisfied its burden of proof as to premeditation and deliberation when it proved any of the predicate facts upon which premeditation and deliberation could be based.\nThe defendant did not object to the charge when given. He has waived his right to appeal from this portion of the charge. N.C.R. App. P. 10(b)(2). If we are to review it, we must do so pursuant to the plain error rule, which was first enunciated in this state in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). In Odom we said,\n\u201c[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or \u2018where [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u2019 or the error has \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 or where the error is such as to \u2018seriously affect the fairness, integrity or public reputation of judicial proceedings\u2019 or where it can be fairly said \u2018the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u2019 \u201d\nId. at 660, 300 S.E. 2d at 378 (quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982) (footnotes omitted)). In State v. Walker, 316 N.C. 33, 340 S.E. 2d 80 (1986) and State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983), we said that in order to consider an assignment of error under the plain error rule, an appellate court must determine that the alleged error \u201ctilted the scales\u201d and caused the jury to reach its verdict convicting the defendant.\nWe hold that if there was error in the charge, as contended by the defendant, it was not plain error. The evidence of first degree murder against the defendant was overwhelming. It showed that he deliberately shot and killed Walter Speight when Walter Speight was walking away from him. It takes little time to premeditate and deliberate. State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (1970), reversed on other grounds, 403 U.S. 948, 29 L.Ed. 2d 860 (1971). It would be hard not to infer that the defendant\u2019s action was the result of premeditation and deliberation. We do not believe it may reasonably be said that the jury\u2019s verdict depended on the fine distinctions defendant makes in his complaint about the charge. We hold that what the defendant contends was error in the charge did not \u201ctilt the scales\u201d against the defendant. There was not plain error in the charge of the court.\nPrior to the trial the prosecuting attorney announced \u201cthere are no aggravating circumstances on the bill of indictment and therefore, the State is not seeking the death penalty.\u201d It is not necessary to list aggravating circumstances on the bill of indictment in order to seek the death penalty. State v. Williams, 304 N.C. 394, 284 S.E. 2d 437 (1981). This was error favorable to the defendant. State v. Jones, 299 N.C. 298, 261 S.E. 2d 860 (1980).\nNo error.", "type": "majority", "author": "WEBB, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Christopher P. Brewer, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Louis D. Bilionis, Assistant Appellate Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FLOYD DIXON\nNo. 680A86\n(Filed 5 November 1987)\n1. Homicide \u00a7 25.2\u2014 premeditation and deliberation \u2014 instructions\u2014no plain error\nThere was no plain error in the trial court\u2019s instruction on premeditation and deliberation in a first degree murder prosecution where the evidence showed that defendant deliberately shot and killed the victim while the victim was walking away from him. It may not reasonably be said that the jury\u2019s verdict depended on the fine distinctions defendant made in his complaint about the charge.\n2. Homicide \u00a7 12\u2014 first degree murder \u2014 indictment\u2014no aggravating factors listed\nThe error in a first degree murder prosecution was in defendant\u2019s favor where the prosecutor announced prior to trial that the State was not seeking the death penalty because there were no aggravating factors listed on the indictment. It is not necessary to list the aggravating factors on the bill of indictment in order to seek the death penalty.\nAppeal of right pursuant to N.C.G.S. \u00a7 7A-27(a) by defendant from a judgment by Lewis (John B., Jr.), Judge, imposing a life sentence after the defendant was convicted of first degree murder at the 18 August 1986 criminal term of Superior Court, Greene County. Heard in the Supreme Court 14 October 1987.\nThe defendant was tried for first degree murder. The evidence for the State showed that on 19 January 1986 Walter Speight, accompanied by his relative Reggie Speight, was in a \u201cdrinking establishment\u201d operated by the defendant. Walter Speight was in an altercation with Calvin Aytch which ended in a handshake between the two men. Shortly after the altercation, Calvin Aytch engaged in a conversation with the defendant. Reggie Speight overheard the defendant say, \u201cDo you want it . . . but do you want it?\u201d Reggie Speight then told Walter Speight, \u201cMan, they are talking about shooting; let\u2019s go.\u201d\nThe defendant was observed leaving the premises after talking to Calvin Aytch. The defendant returned a few minutes later with a 12 gauge shotgun and met Walter Speight who was standing in the door of the \u201cdrinking establishment.\u201d The defendant pointed the shotgun at Walter Speight and forced him into the building. Walter Speight said, \u201cCome on, no need of that.\u201d As the defendant advanced, Walter Speight raised his arms and begged for his life. Walter Speight backed into the area of the \u201cjukebox\u201d and dropped his arms. He turned his back on the defendant and started to walk away from him. At this time, the defendant followed Walter Speight and shot him in the back at point blank range. Walter Speight fell to the floor. At this time, Reggie Speight started into the building. The defendant turned to Reggie Speight and said, \u201cIf you come in I will shoot you too.\u201d The defendant then left the scene, appearing to be calm. Walter Speight died as a result of the gunshot wounds.\nThe defendant was convicted of first degree murder. The question as to whether the death penalty would be imposed was not submitted to the jury and the court sentenced the defendant to life imprisonment.\nLacy H. Thornburg, Attorney General, by Christopher P. Brewer, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Louis D. Bilionis, Assistant Appellate Defender, for defendant appellant." }, "file_name": "0111-01", "first_page_order": 139, "last_page_order": 142 }