{ "id": 2542427, "name": "STATE OF NORTH CAROLINA v. JOHNNY MICHAEL SMALL", "name_abbreviation": "State v. Small", "decision_date": "1991-02-07", "docket_number": "No. 265A89", "first_page": "175", "last_page": "190", "citations": [ { "type": "official", "cite": "328 N.C. 175" } ], "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": "33 ALR3d 17", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "338 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "594-95", "parenthetical": "victim suffered more psychologically than the average armed robbery victim where the perpetrator was her son" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523701 ], "year": 1986, "pin_cites": [ { "page": "694", "parenthetical": "victim suffered more psychologically than the average armed robbery victim where the perpetrator was her son" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0686-01" ] }, { "cite": "334 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "228", "parenthetical": "\"a conviction of an offense covered by the Fair Sentencing Act may not be aggravated by contemporaneous convictions of offenses joined with such offense\"" } ], "opinion_index": 0 }, { "cite": "314 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695328 ], "year": 1985, "pin_cites": [ { "page": "449", "parenthetical": "\"a conviction of an offense covered by the Fair Sentencing Act may not be aggravated by contemporaneous convictions of offenses joined with such offense\"" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0442-01" ] }, { "cite": "368 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "322 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517170 ], "year": 1988, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0440-01" ] }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "786", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "pin_cites": [ { "page": "414", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "379 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "841" }, { "page": "841" } ], "opinion_index": 0 }, { "cite": "324 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2484471 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "463" }, { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0452-01" ] }, { "cite": "372 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "707-08", "parenthetical": "in part quoting N.C.G.S. \u00a7 15A-1340.4(a)(l)p (1983)" }, { "page": "707-08" } ], "opinion_index": 0 }, { "cite": "323 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561485 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "312", "parenthetical": "in part quoting N.C.G.S. \u00a7 15A-1340.4(a)(l)p (1983)" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0306-01" ] }, { "cite": "356 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4744688 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0645-01" ] }, { "cite": "85 L. Ed. 2d 526", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1094", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6337807 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1094-01" ] }, { "cite": "324 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "259" } ], "opinion_index": 0 }, { "cite": "312 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755047 ], "year": 1985, "pin_cites": [ { "page": "511-12" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0499-01" ] }, { "cite": "307 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "309 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761933 ], "year": 1983, "pin_cites": [ { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0239-01" ] }, { "cite": "293 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "164" } ], "opinion_index": 0 }, { "cite": "306 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568572 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "344" }, { "page": "344" }, { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0342-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "pin_cites": [ { "page": "421" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "98", "parenthetical": "quoting State v. Davis, 305 N.C. 400, 421, 290 S.E.2d 574, 587 (1982)" }, { "page": "98" } ], "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "169", "parenthetical": "quoting State v. Davis, 305 N.C. 400, 421, 290 S.E.2d 574, 587 (1982)" }, { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] }, { "cite": "231 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "651" }, { "page": "651" } ], "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "537" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "cite": "297 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "579" }, { "page": "579" }, { "page": "580" } ], "opinion_index": 0 }, { "cite": "307 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561289 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "222" }, { "page": "222" }, { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0213-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0959-02", "/us/484/0959-01" ] }, { "cite": "357 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "911" }, { "page": "911" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "253" }, { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "364 S.E.2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569559 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0570-01" ] }, { "cite": "90 L. Ed. 2d 733", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "opinion_index": 0 }, { "cite": "476 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12444, 12982, 12847 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/1165-02", "/us/476/1165-03", "/us/476/1165-01" ] }, { "cite": "337 S.E.2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "822-23", "parenthetical": "citations omitted" }, { "page": "823" } ], "opinion_index": 0 }, { "cite": "315 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4716135 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "58-59", "parenthetical": "citations omitted" }, { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0040-01" ] }, { "cite": "352 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "year": 1987, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] }, { "cite": "315 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "224 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610332 ], "year": 1944, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0574-01" ] }, { "cite": "293 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "764", "parenthetical": "in part quoting State v. Mull, 224 N.C. 574, 576, 315 S.E.2d 764, 765 (1944)" } ], "opinion_index": 0 }, { "cite": "306 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571311 ], "year": 1982, "pin_cites": [ { "page": "496", "parenthetical": "in part quoting State v. Mull, 224 N.C. 574, 576, 315 S.E.2d 764, 765 (1944)" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0491-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "184 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "866" } ], "opinion_index": 0 }, { "cite": "280 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569800 ], "year": 1971, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0060-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1988, "pin_cites": [ { "page": "382-83", "parenthetical": "citations omitted" }, { "page": "383" }, { "page": "382-83" }, { "page": "382-83" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "358", "parenthetical": "citations omitted" }, { "page": "358" }, { "page": "358" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "308 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "309 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767283 ], "year": 1983, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0528-01" ] }, { "cite": "487 U.S. 815", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1774727 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/us/487/0815-01" ] } ], "analysis": { "cardinality": 1312, "char_count": 35494, "ocr_confidence": 0.763, "pagerank": { "raw": 5.35846568591711e-07, "percentile": 0.9435455503390352 }, "sha256": "c057b7d920e1cc0e5072d15b8f4635fb484a4b2f4624c221fcdc41fe8facad8d", "simhash": "1:c7e8513a947e9d5a", "word_count": 5812 }, "last_updated": "2023-07-14T22:58:40.693084+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOHNNY MICHAEL SMALL" ], "opinions": [ { "text": "WHICHARD, Justice.\nPursuant to a juvenile order entered 8 November 1988, defendant\u2019s case was transferred to Superior Court, New Hanover County, where he was tried as an adult on true bills of indictment charging him with murder in the first degree and armed robbery. Defendant pled not guilty, and the murder case was tried noncapitally because he was under the age of sixteen at the time of the crimes. See Thompson v. Oklahoma, 487 U.S. 815, 101 L. Ed. 2d 702 (1988). The jury found him guilty of first degree murder by premeditation and deliberation and under the felony murder rule, and of robbery with a firearm. We find no prejudicial error in the guilt phase of defendant\u2019s trial, but we remand for a new sentencing hearing on the armed robbery charge.\nOn 13 July 1988, at approximately 6:00 p.m., Joe Bryant found Pamela Dreher\u2019s body lying face down on the floor of the tropical fish store she operated at Delgado Square in Wilmington. Dreher had been shot in the head. The cash register drawer was open, and the money clips were up; there were no bills in the register. The time each cash register receipt was generated appeared on the receipt. Dreher\u2019s last customer receipt showed 5:29 p.m. as the time the register printed it. Dreher\u2019s brother testified that the register\u2019s timing mechanism was a few minutes slow. Evidence introduced at trial included this and three other sales slips, one showing the day\u2019s receipts of $93.83 at 5:39 p.m. and two \u201cno sales\u201d slips at 5:46 p.m. and 5:49 p.m.\nThe investigating officers found only one fingerprint in the store, and it did not match defendant\u2019s. Joe Bryant, who operated the store next door, testified that he did not hear a shot that afternoon. He testified that he noticed some unusual lights in Dreher\u2019s store, and that when he looked in he saw her lying in a pool of blood.\nOn 29 October 1988, the police arrested David Wayne Bollinger while he and defendant were working together at the New Hanover County Fair. After the police interrogated Bollinger, they returned to arrest defendant. They found defendant in the woods approximately fifty feet from where he and Bollinger had been standing approximately an hour earlier.\nThe State\u2019s evidence tended to show that when witness Nina Raeford walked past the victim\u2019s store on her way home from work between 5:40 p.m. and 6:00 p.m. on 13 July, she saw defendant leave the store and get in a brown car driven by Bollinger. Bollinger, who was charged with being an accessory after the fact, testified that he and defendant were driving around on the afternoon of the murder. At defendant\u2019s request, he stopped at Delgado Square. As the car turned into the parking area, defendant turned the car radio to its maximum volume. Defendant told Bollinger he needed to make a phone call. Bollinger parked facing the street and sat in the car listening to the radio. When defendant returned a few minutes later, he was wearing a different shirt, and he told Bollinger to drive to defendant\u2019s mother\u2019s house. There, defendant gave Bollinger $10.00, telling him he got the money from the pet store. Bollinger asked if defendant had robbed the store, and defendant replied, \u201csort of.\u201d Defendant then pulled out a gun, stated that he \u201chad to shoot [the pet store operator],\u201d and threatened to shoot Bollinger if Bollinger told anyone about the incident.\nThe State\u2019s evidence also included testimony of Raymond Eugene Brigman, Jr., to the effect that his .25 caliber automatic pistol disappeared from the glove compartment of Bollinger\u2019s car in May 1988 after defendant borrowed the automobile. Dreher was shot with a .25 caliber weapon, but the weapon was never recovered. Dr. Charles Garrett, a pathologist, testified that Dreher\u2019s wound was a \u201chard contact\u201d wound and whoever inflicted it would have been \u201cspattered\u201d with blood.\nDefendant\u2019s evidence tended to show that Nina Raeford did not \u201cpunch out\u201d at her job at McDonald\u2019s until 5:55 p.m. on the day of the murder and that the restaurant is a forty-five minute walk from Delgado Square. Raeford did not contact law enforcement authorities until August, after Crimestoppers had offered a $5,000 reward for information leading to an indictment in the case. Also, Woodrow Ward, Bollinger\u2019s employer, testified that he and Bollinger left Wilmington between 5:30 and 6:00 (a.m. or p.m. not specified) on 13 July to attend an auto auction in Conway, South Carolina. Defendant\u2019s evidence also tended to show that Bollinger had a .25 caliber automatic weapon in the glove compartment of his car \u201cat one time.\u201d\nDefendant first assigns as error the trial court\u2019s denial of his motion to dismiss at the close of all the evidence. He contends that his conviction for first degree murder must be vacated because there is insufficient evidence both that: (1) he was the perpetrator, and (2) the killing was premeditated and deliberated. Defendant also contends that his conviction for armed robbery must be vacated because there is insufficient evidence both that he (1) was the perpetrator, and (2) took and carried away property.\n\u201cOn a motion to dismiss on the ground of insufficiency of the evidence, the question for the court is whether there is substantial evidence of each element of the crime charged and of the defendant\u2019s perpetration of such crime.\u201d State v. Bates, 309 N.C. 528, 533, 308 S.E.2d 258, 262 (1983).\n[ T]he trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it. . . . If there is substantial evidence \u2014 whether direct, circumstantial, or both\u2014 to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.\nState v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988) (citations omitted). Further, \u201c[t]he defendant\u2019s evidence, unless favorable to the State, is not to be taken into consideration.\u201d State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). The determination of the witnesses\u2019 credibility is for the jury. See Locklear, 322 N.C. at 358, 368 S.E.2d at 383. \u201c[Contradictions and discrepancies do not warrant dismissal of the case \u2014 they are for the jury to resolve.\u201d State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).\nArmed robbery under N.C.G.S. \u00a7 14-87 consists of the following elements:\n(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened. \u2018Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense.\u2019\nState v. Beaty, 306 N.C. 491, 496, 293 S.E.2d 760, 764 (1982) (in part quoting State v. Mull, 224 N.C. 574, 576, 315 S.E.2d 764, 765 (1944)); see also State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 433 (1987).\nBy statute in North Carolina, first degree murder includes \u201c[a] murder . . . perpetrated by . . . willful, deliberate, and premeditated killing, or . . . committed in the perpetration or attempted perpetration of any . . . robbery ... or other felony committed or attempted with the use of a deadly weapon. . . .\u201d N.C.G.S. \u00a7 14-17 (1986). In defining premeditation and deliberation, this Court has stated:\nPremeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. . . . Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. . . .\nPremeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. . . . Instead, they usually must be proved by circumstantial evidence. Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.\nState v. Brown, 315 N.C. 40, 58-59, 337 S.E.2d 808, 822-23 (1985) (citations omitted), cert. denied, 476 U.S. 1165, 90 L. Ed. 2d 733 (1986), overruled on other grounds, State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988).\nDefendant contends that because Raeford\u2019s and Bollinger\u2019s testimony is all that places him in the pet store at or about the time of the offenses, and because that evidence is contradicted by the respective witnesses\u2019 employers, the evidence is insufficient to support the conviction. Raeford\u2019s and Bollinger\u2019s testimony, if believed, however, establishes that (1) defendant was at Delgado Square sometime between 5:40 p.m. and 6:00 p.m. on the date the offenses were committed, (2) defendant left Bollinger' waiting in the car for five minutes, (3) defendant returned to Bollinger\u2019s car wearing a different shirt from the one worn when he entered the store, (4) Raeford saw defendant leaving the pet store, and (5) a few minutes later defendant gave Bollinger $10.00, told him he had gotten the money from the pet store, stated that he had to \u201cshoot her,\u201d and threatened to shoot Bollinger if he told anyone about the incident. The cash register\u2019s \u201cread-out\u201d slip showing the day\u2019s sales of over $93.00 permits an inference that the register drawer contained money moments before Dreher was killed. Further, Dreher\u2019s brother testified that his sister normally kept at least $80.00 in the register drawer.' The drawer contained only coins when Dreher\u2019s body was discovered. The evidence that money had been in the drawer, that the money clips were up and there were no paper bills, and that defendant gave Bollinger $10.00, stating that he \u201cgot it from the pet store,\u201d permits a finding that defendant took and carried away property belonging to the victim. Bollinger testified that defendant possessed a .25 caliber weapon immediately after the incident, and the weapon used in the murder was .25 caliber. This evidence, viewed in the light most favorable to the State, Locklear, 322 N.C. at 358, 368 S.E.2d at 382-83, permits a finding that defendant used a firearm in the robbery.\nThe foregoing evidence, viewed \u2014 as required \u2014 in the light most favorable to the State, constituted substantial evidence that defendant committed the offense of armed robbery. It also sufficed to support defendant\u2019s first degree murder conviction under the felony murder rule. See N.C.G.S. \u00a7 14-17 (1986).\nFurther, there is sufficient evidence of murder in the first degree on the basis of premeditation and deliberation. The State\u2019s evidence tended to show that Dreher was shot while she was lying face down on the floor. The wound was a \u201chard contact\u201d wound; the killer placed the gun directly against the victim\u2019s skull before pulling the trigger. There was no evidence of provocation by the victim. The store was orderly, and the victim was a former bank employee who had been trained to submit without resistance to an armed robber\u2019s demands. Lying face down on the floor with her hands above her head, the victim was helpless. The evidence presented, viewed in the light most favorable to the State, Locklear, 322 N.C. at 358, 368 S.E.2d at 382-83, supports the inference that the victim did not provoke defendant and that defendant killed the victim after she \u201cha[d] been felled and rendered helpless.\u201d See Brown, 315 N.C. at 59, 337 S.E.2d at 823. Defendant\u2019s first assignment of error is thus overruled.\nDefendant next assigns as error the admission of portions of the prosecutor\u2019s closing arguments to the jury. He contends that the argument contains four errors, any one of which entitles him to a new trial: (1) the prosecutor\u2019s incorrect argument that Bollinger had confessed to armed robbery and murder, (2) the prosecutor\u2019s statements about how long defendant would be in prison, which constituted an impermissible comment on parole, (3) the prosecutor\u2019s argument injecting his personal opinion into the case, and (4) the prosecutor\u2019s reference to defendant\u2019s \u201cflight\u201d just prior to arrest, which was not supported by the evidence.\nThe relevant portions of the closing argument are:\n[Prosecutor]: \u201cDo you believe that David Bollinger has in effect confessed to participating in an armed robbery and a first degree murder while in the company of [defendant] just for the heck of it? ... . Would you confess to a first degree murder and an armed robbery if you had an airtight alibi and you weren\u2019t involved? Of course not.\n[Defense counsel]: Objection, Your Honor. It\u2019s not confessed to first degree murder or armed robbery. He\u2019s entered a plea of not guilty.\nThe Court: Overruled.\n[Prosecutor]: I apologize. Would you give a statement that in effect would amount to a confession to participating in an armed robbery and a first degree murder? Not just a first degree murder, but a first degree murder of one of the most heinous kind I have ever come in contact with.\u201d\n[Prosecutor]: \u201c[The police] went back and where did they find Johnny Small? They found him in the woods crouched down behind some shrub bushes. An innocent person? Would an innocent person do that? Use your common sense. Use your intelligence and your common sense. Is that the reaction of an honest, innocent person?\u201d\n[Prosecutor]: \u201cWhat I have heard about 15-, 16-, 17- and 18- and 19-year-olds and what they participated in, in this particular matter saddens me. The thing that really frightens me is Johnny Small, because as I told you in the beginning, this is a first degree murder case and an armed robbery case, \u25a0 but it\u2019s not a capital case, because of his age, no matter what you do, Johnny Small won\u2019t stay in prison forever.\nDefendant objected to the prosecutor\u2019s characterization of Bollinger\u2019s actual \u201cnot guilty\u201d plea as a \u201cconfession\u201d and to the prosecutor\u2019s reference to the possible duration of defendant\u2019s sentence if he was convicted. The trial court overruled the first objection. In response to the second objection, it instructed the jury to disregard the portion of the argument relating to defendant\u2019s not staying in prison because of his age. Defendant did not object to the prosecutor\u2019s innuendo that defendant fled because he was guilty or to the prosecutor\u2019s expression of his opinion that the murder was among the most heinous with which he had had contact.\n\u201cProsecutors are granted wide latitude in the scope of their argument.\u201d State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). \u201cAn attorney may, ... on the basis of his analysis of the evidence, argue any position or conclusion with respect to a matter in issue.\u201d N.C.G.S. \u00a7 15A-1230(a) (1988). \u201cA prosecutor\u2019s argument is not improper when it is consistent with the record and does not travel into the fields of conjecture or personal opinion.\u201d State v. Zuniga, 320 N.C. at 253, 357 S.E.2d at 911. \u201cWhere, immediately upon a defendant\u2019s objection to an improper remark made by the prosecutor in his closing argument, the trial court instructs the jury to disregard the offending statement, the impropriety is cured.\u201d State v. Woods, 307 N.C. 213, 222, 297 S.E.2d 574, 579 (1982).\nFurther,\n[t]he conduct of the arguments of counsel is left to the sound discretion of the trial judge. In order for defendant to be granted a new trial, the error must be sufficiently grave that it is prejudicial. Ordinarily, an objection to the arguments by counsel must be made before verdict, since only when the impropriety is gross is the trial court required to correct the abuse ex mero motu.\nState v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977). Unless the defendant objects, the trial court is not required to interfere ex mero motu unless the arguments \u201c \u2018stray so far from the bounds of propriety as to impede the defendant\u2019s right to a fair trial.\u2019 \u201d State v. Harris, 308 N.C. 159, 169, 301 S.E.2d 91, 98 (1983) (quoting State v. Davis, 305 N.C. 400, 421, 290 S.E.2d 574, 587 (1982)).\nWe first consider those portions of the argument to which defendant objected. The standard of review is whether defendant was prejudiced. See State v. Britt, 291 N.C. at 537, 231 S.E.2d at 651.\nThe prosecutor stated incorrectly that Bollinger had \u201cconfessed\u201d to participating in an armed robbery and a first degree murder, and defendant\u2019s objection was improperly overruled. However, this erroneous ruling was not prejudicial. The prosecutor immediately apologized and clarified the misstatement, and defendant has not shown that he was prejudiced.\nDefendant also objected to the prosecutor\u2019s statement that \u201cbecause of his age, no matter what you do, Johnny Small won\u2019t stay in prison forever.\u201d Because the trial court immediately instructed the jury to disregard that portion of the prosecutor\u2019s argument, the impropriety was cured. State v. Woods, 307 N.C. at 222, 297 S.E.2d at 579. The prosecutor\u2019s statements here were very similar to those in Woods. There, the prosecutor argued:\nI think you should also know that you should convict that woman of first degree murder and conspiracy and should she be sentenced to a sentence of life imprisonment, she won\u2019t spend the rest of her life in a_ .... You know, when is the last time anybody went to the gas chamber in this state? Twenty years. People in this state don\u2019t believe you go to the gas chamber on murder and maybe you don\u2019t.\nWoods, 307 N.C. at 222, 297 S.E.2d at 580. The Court held that the improprieties were cured because the trial court sustained defense counsel\u2019s objections and instructed the jury to disregard the statements. Here, just as in Woods, the trial court sustained the objection, and the instruction corrected any improprieties.\nNext, we consider the two statements to which defendant did not object at trial. The prosecutor stated that this murder was \u201ca first degree murder of one of the most heinous kind I have ever come into contact with\u201d and that defendant frightened him. These infusions of the prosecutor\u2019s personal opinion were improper, but they were not so grossly improper as to require a new trial. The evidence supported the characterization of the murder as heinous. The statement that defendant frightened the prosecutor was not, standing alone, so prejudicial as to make a fair trial impossible. See State v. Harris, 308 N.C. at 169, 301 S.E.2d at 98. Lastly, in instructing the jury, the trial court remedied any possible prejudice from these statements by admonishing the jurors to disregard any personal opinions any attorney may have expressed during closing argument.\nThe prosecutor also referred to the fact that, when arrested, defendant was found in the woods fifty yards from the fairground ride by which he and Bollinger were standing when the police arrested Bollinger about ninety minutes earlier. Defendant contends the prosecutor\u2019s argument that this action demonstrated a consciousness of guilt is not a reasonable inference from the record. We disagree and find this assignment to be without merit. See N.C.G.S. \u00a7 15A-1230(a) (1988).\nDefendant next contends he is entitled to a new trial because the trial court admitted his post-arrest statement to police officers without first making findings of fact to establish that he knowingly, willingly, and understandingly waived his rights, as required by N.C.G.S. \u00a7 7A-595(d) (1989). The statute provides in pertinent part that:\n(a) Any juvenile in custody must be advised prior to questioning:\n(1) That he has a right to remain silent; and\n(2) That any statement he does make can be and may be used against him; and\n(3) That he has a right to have a parent, guardian or custodian present during questioning; and\n(4) That he has a right to consult with an attorney and that one will be appointed for him if he is not represented and wants representation.\n(d) Before admitting any statement resulting from custodial interrogation into evidence, the judge must find that the juvenile knowingly, willingly, and understandingly waived his rights.\nN.C.G.S. \u00a7 7A-595(a), (d) (1989).\nIt is true that the record does not contain the finding this statute requires. The purpose of the requirement, however, is to establish the basis for admitting the statement. The statement merely gave somewhat differing versions of defendant\u2019s whereabouts and activities on the day in question; it was not inculpatory. In light of the State\u2019s compelling evidence incriminating defendant, there is no \u201creasonable possibility that ... a different result would have been reached at trial\u201d whether defendant\u2019s statement was admitted or excluded. N.C.G.S. \u00a7 15A-1443(a) (1988). The failure to make the finding thus did not affect the outcome of defendant\u2019s trial, and defendant has failed to carry his burden of showing prejudice from the trial court\u2019s failure to make the finding. Id.\nDefendant also argues that the trial court improperly denied his motion for a change of venue due to prejudicial pre-trial publicity. News coverage of the crimes included twelve to fifteen stories on television stations over a six-month period, radio reports, and six newspaper articles. A local newspaper printed a photograph of defendant in handcuffs. Some of the articles mentioned defendant\u2019s suicide attempt after his arrest, his previous larceny conviction, and a pending unrelated larceny charge. Only two of the six articles mentioned defendant\u2019s name. Except for the article regarding defendant\u2019s suicide attempt, the articles merely reported the facts of the case.\nWhether to grant a motion for a change of venue is in the trial court\u2019s discretion, and the \u201cdecision will not be disturbed on appeal unless the defendant can show an abuse of discretion.\u201d State v. Dobbins, 306 N.C. 342, 344, 293 S.E.2d 162, 164 (1982). \u201cThe test ... is whether, due to pretrial publicity, there is a reasonable likelihood that the defendant will not receive a fair trial.\u201d State v. Jerrett, 309 N.C. 239, 254, 307 S.E.2d 339, 347 (1983).\nThe burden of proving that pretrial publicity precludes a fair and impartial trial rests with defendant. State v. Dobbins, 306 N.C. at 344, 293 S.E.2d at 163.\n[ W]hen a defendant alleges prejudice on the basis of pretrial publicity and does not show that he exhausted his p[er]emptory challenges, or that there were jurors who were objectional or had prior knowledge of the case, defendant has failed to carry his burden of establishing the prejudicial effect of the pretrial publicity.\nId. at 345, 293 S.E.2d at 164. Further, if the defendant shows only that publicity consists of factual, noninflammatory news stories, denial of a motion for change of venue is proper. State v. Vereen, 312 N.C. 499, 511-12, 324 S.E.2d 250, 259, cert. denied, 471 U.S. 1094, 85 L. Ed. 2d 526 (1985).\nHere, defendant has not carried his burden of showing that he exhausted his peremptory challenges or that jurors sat who were objectionable or had prior knowledge of the case. Cf. State v. Moore, 319 N.C. 645, 356 S.E.2d 336 (1987). Although the trial court misstated the applicable standard in making its ruling, defendant here has failed to establish the prejudicial effect of the pretrial publicity. State v. Dobbins, 306 N.C. at 345, 293 S.E.2d at 164. This assignment of error is therefore overruled.\nDefendant finally contends the trial court erred in finding as an aggravating factor on the armed robbery charge that the robbery was especially heinous, atrocious, or cruel. We agree.\nThe Fair Sentencing Act and our cases interpreting it establish several rules which determine what evidence a sentencing judge may properly consider in aggravating a crime covered by the Act. First, a conviction may not be aggravated by prior convictions of other crimes which could have been joined for trial or by a contemporaneous conviction of a crime actually joined [or by] acts which form the gravamen of these convictions. . . . Second, evidence used to prove an element of a crime may not also be used to prove a factor in aggravation of that same crime. . . . Third, \u2018the same item of evidence may not be used to prove more than one factor in aggravation.\u2019 . . . Fourth, acts which could have been, but were not, the basis for other joinable criminal convictions may be used to aggravate the conviction for which defendant is being sentenced. . . . Finally, evidence used in proving an element of one crime may also be used to support an aggravating factor of a separate, though joined, crime for which defendant is being sentenced.\nState v. Hayes, 323 N.C. 306, 312, 372 S.E.2d 704, 707-08 (1988) (in part quoting N.C.G.S. \u00a7 15A-1340.4(a)(l)p (1983)) (citations omitted). \u201cIn the context of the Fair Sentencing Act, one of the primary purposes of sentencing is to impose a punishment commensurate with the injury caused by the crime.\u201d State v. Cofield, 324 N.C. 452, 463, 379 S.E.2d 834, 841 (1989). Aggravating factors must be \u201cproved by a preponderance of the evidence.\u201d N.C.G.S. \u00a7 15A-1340.4(a) (1988). In determining .whether a crime was especially heinous, atrocious, or cruel under the Fair Sentencing Act, \u201cthe focus should be on whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.\u201d State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786 (1983) (emphasis in original). This Court has emphasized that comparisons must be drawn between offenses of the same type. See State v. Torres, 322 N.C. 440, 446, 368 S.E.2d 609, 612 (1988). \u201cThe test ... is whether the State proved by a preponderance of the evidence that the victim\u2019s mental and emotional injury in this case was in excess of the injury normally present in the offense.\u201d State v. Cofield, 324 N.C. at 464, 379 S.E.2d at 841.\nUnder Hayes, it is clear that evidence presented to support the conviction of first-degree murder by premeditation and deliberation could also support an aggravating factor in the armed robbery conviction. However, the premeditated and deliberate murder that occurred during the armed robbery may not be used as an aggravating factor in the armed robbery sentencing here because the murder was a joined offense. See State v. Hayes, 323 N.C. at 312, 372 S.E.2d at 707-08; see also State v. Westmoreland, 314 N.C. 442, 449, 334 S.E.2d 223, 228 (1985) (\u201ca conviction of an offense covered by the Fair Sentencing Act may not be aggravated by contemporaneous convictions of offenses joined with such offense\u201d). Here, apart from the murder for which defendant was contemporaneously convicted, and which thus cannot be considered in aggravation of the armed robbery charge, there was no evidence of excessive brutality, physical pain, psychological suffering, or dehumanizing aspects not present in every armed robbery. While any armed robbery is frightening to the victim and repugnant to lawful society, the aggravating factor set forth in N.C.G.S. \u00a7 15A-1340.4(a)(l)(f) expressly applies only to especially heinous, atrocious, or cruel offenses. The State presented no evidence to show that defendant\u2019s actions in the robbery were more excessively brutal than those of other armed robbers or that the victim endured more psychological or physical pain or dehumanizing aspects than other armed robbery victims. Cf. State v. Bush, 78 N.C. App. 686, 694, 338 S.E.2d 590, 594-95 (1986) (victim suffered more psychologically than the average armed robbery victim where the perpetrator was her son).\nThus, the State has failed to meet its burden of proving by the preponderance of the evidence that the armed robbery was especially heinous, atrocious, or cruel. Accordingly, defendant must be resentenced on the armed robbery charge.\nFirst degree murder: no error.\nRobbery with a dangerous weapon: guilt phase, no error; remanded for resentencing.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNY MICHAEL SMALL\nNo. 265A89\n(Filed 7 February 1991)\n1. Robbery \u00a7 4.3 (NCI3d); Homicide \u00a7 21.6 (NCI3d|- armed robbery \u2014 felony murder \u2014 evidence sufficient\nThere was substantial evidence of armed robbery and felony murder where the State\u2019s evidence established that defendant was at Delgado Square, the location of the pet store which was robbed, sometime between 5:40 p.m. and 6:00 p.m. on the date the offenses were committed; defendant left an accomplice waiting in a car for five minutes and returned wearing a different shirt from the one worn when he entered the store; a witness saw defendant leaving the pet store; defendant gave the accomplice $10.00 a few minutes later, told him that he had gotten the money from the pet store, stated that he had to \u201cshoot her,\u201d and threatened to shoot the accomplice if he told anyone; the cash register\u2019s read-out slip permits an inference that the register drawer contained money moments before the victim was killed; the victim\u2019s brother testified that she normally kept at least $80.00 in the register drawer; the drawer contained only coins when the body was discovered; the accomplice testified that defendant possessed a .25 caliber weapon immediately after the incident; and the weapon used in the murder was a .25 caliber.\nAm Jur 2d, Homicide \u00a7 435; Robbery \u00a7 64.\n2. Homicide \u00a7 21.5 (NCI3d)\u2014 premeditation and deliberation\u2014 evidence sufficient\nThere was sufficient evidence of first degree murder based on premeditation and deliberation where the State\u2019s evidence tended to show that the victim, who operated a pet store, was shot while lying face down on the floor; the killer placed the gun directly against the victim\u2019s skull before pulling the trigger; there was no evidence of provocation by the victim; the store was orderly; the victim was a former bank employee who had been trained to submit without resistance to an armed robber\u2019s demands; and the victim was helpless while lying face down on the floor with her hands above her head.\nAm Jur 2d, Homicide \u00a7 439.\n3. Criminal Law \u00a7 464 (NCI4th)\u2014 closing argument \u2014 prosecutor\u2019s misstatement of evidence \u2014not prejudicial\nThere was no prejudice in a prosecution for first degree murder and armed robbery from the erroneous overruling of defendant\u2019s objection to an incorrect statement in the prosecutor\u2019s closing argument where the prosecutor immediately apologized and clarified the misstatement.\nAm Jur 2d, Trial \u00a7\u00a7 280, 296-299.\n4. Criminal Law \u00a7 451 (NCI4th)\u2014 prosecutor\u2019s closing argument\u2014 comment on defendant\u2019s age and prospects for prison release\u2014 no error\nThere was no prejudicial error in a noncapital prosecution for first degree murder and armed robbery from the prosecutor\u2019s closing argument that defendant was young and wouldn\u2019t stay in prison forever no matter what the jury did. The trial court immediately cured the impropriety by instructing the jury to disregard that portion of the prosecutor\u2019s argument.\nAm Jur 2d, Trial \u00a7\u00a7 280, 296-299.\n5. Criminal Law \u00a7 445 (NCI4th)\u2014 prosecutor\u2019s closing argument\u2014 personal opinion \u2014 fear of defendant\nThere was insufficient prejudice to require a new trial for first degree murder and armed robbery where the prosecutor argued to the jury that this was one of the most heinous murders with which he had had contact and that defendant frightened him where the evidence supported the characterization of the murder as heinous and the statement that defendant frightened the prosecutor was not, standing alone, so prejudicial as to make a fair trial impossible. The trial court removed any possible prejudice by admonishing the jurors to disregard any personal opinions any attorney may have expressed during closing argument.\nAm Jur 2d, Trial \u00a7\u00a7 280, 296-299.\n6. Criminal Law \u00a7 460 (NCI4th)\u2014 prosecutor\u2019s closing argument \u2014 inference of consciousness of guilt \u2014 no error\nThere was no merit in a prosecution for murder and armed robbery to defendant\u2019s contention that the prosecutor in closing arguments unreasonably inferred consciousness of guilt from the fact that defendant was found in the woods approximately fifty feet from the fairground ride at which an accomplice was arrested.\nAm Jur 2d, Trial \u00a7 261.\n7. Infants \u00a7 17 (NCI3d)\u2014 murder and armed robbery \u2014 tried as adult \u2014 inculpatory statement \u2014 failure to make required findings\nThere was no prejudicial error in a prosecution of a juvenile as an adult for first degree murder and armed robbery from the failure to make the findings required by N.C.G.S. \u00a7 7A-595(d) to establish that defendant knowingly, willingly and understandingly waived his rights when making his post-arrest statement. The statement gave somewhat differing versions of defendant\u2019s whereabouts and activities, was not inculpatory, and, in light of the State\u2019s compelling evidence incriminating defendant, there was no reasonable possibility that a different result would have been reached at trial whether defendant\u2019s statement was admitted or excluded.\nAm Jur 2d, Evidence \u00a7\u00a7 611-614.\n8. Criminal Law \u00a7 76 (NCI4th|\u2014 murder and armed robbery\u2014 pretrial publicity \u2014 change of venue denied \u2014 no error\nThere was no prejudicial error in a prosecution for murder and armed robbery in the denial of defendant\u2019s motion for a change of venue due to pretrial publicity, even though the trial court misstated the applicable standard in making its ruling, where defendant failed to carry his burden of showing that he exhausted his peremptory challenges or that jurors sat who were objectionable or who had prior knowledge of the case.\nAm Jur 2d, Criminal Law \u00a7\u00a7 374, 378.\nPretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.\n9. Criminal Law \u00a7 1148 (NCI4th)\u2014 armed robbery \u2014 contemporaneous murder \u2014aggravating factor \u2014 especially heinous, atrocious or cruel\nThe trial judge erred when sentencing defendant for armed robbery by finding in aggravation that the offense was especially heinous, atrocious or cruel where the State presented no evidence, apart from the murder for which defendant was contemporaneously convicted, to show that defendant\u2019s actions in the robbery were more excessively brutal than those of other armed robbers or that the victim endured more psychological or physical pain or dehumanizing aspects than other armed robbery victims. N.C.G.S. \u00a7 15A-1340.4(a)(l)f.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599; Homicide \u00a7 554.\nAPPEAL of right by defendant pursuant to N.C.G:S. \u00a7 7A-27(a) from a judgment imposing the sentence of life imprisonment upon a jury verdict finding defendant guilty of murder in the first degree, entered by Grant, Sr., J., at the 3 April 1989 Criminal Session of Superior Court, New HANOVER County. On 5 January 1990 we allowed defendant\u2019s motion to bypass the Court of Appeals as to a judgment of imprisonment for twenty years entered upon his conviction of robbery with a dangerous weapon. Heard in the Supreme Court 14 November 1990.\nLacy H. Thornburg, Attorney General, by David Roy Blackwell, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant appellant." }, "file_name": "0175-01", "first_page_order": 209, "last_page_order": 224 }