{ "id": 2543102, "name": "STATE OF NORTH CAROLINA v. DANNY FURMAN RICHARDSON", "name_abbreviation": "State v. Richardson", "decision_date": "1991-04-03", "docket_number": "No. 345A90", "first_page": "505", "last_page": "515", "citations": [ { "type": "official", "cite": "328 N.C. 505" } ], "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": "39 ALR3d 791", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "247 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566696 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0640-01" ] }, { "cite": "311 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "310 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403051 ], "year": 1984, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0274-01" ] }, { "cite": "298 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "658", "parenthetical": "sufficient evidence of premeditation and deliberation where victim was bound and died of strangulation" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "year": 1983, "pin_cites": [ { "page": "295", "parenthetical": "sufficient evidence of premeditation and deliberation where victim was bound and died of strangulation" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "85 L. Ed. 2d 526", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "pin_cites": [ { "parenthetical": "evidence of a brutal attack, sexual assault, and strangulation sufficient to support a finding of premeditation and deliberation" } ], "opinion_index": 0 }, { "cite": "471 U.S. 1094", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6337807 ], "year": 1985, "pin_cites": [ { "parenthetical": "evidence of a brutal attack, sexual assault, and strangulation sufficient to support a finding of premeditation and deliberation" } ], "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": "260", "parenthetical": "evidence of a brutal attack, sexual assault, and strangulation sufficient to support a finding of premeditation and deliberation" } ], "opinion_index": 0 }, { "cite": "312 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755047 ], "year": 1985, "pin_cites": [ { "page": "515", "parenthetical": "evidence of a brutal attack, sexual assault, and strangulation sufficient to support a finding of premeditation and deliberation" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0499-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "601-02", "parenthetical": "evidence that defendant tied and choked victim sufficient to withstand motion to dismiss" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "138-39", "parenthetical": "evidence that defendant tied and choked victim sufficient to withstand motion to dismiss" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "cite": "94 L. Ed. 2d 133", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "479 U.S. 1077", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6549932, 6549836, 6549806, 6549711, 6549744, 6549978, 6549687, 6550010, 6550043, 6549885 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/479/1077-07", "/us/479/1077-05", "/us/479/1077-04", "/us/479/1077-02", "/us/479/1077-03", "/us/479/1077-08", "/us/479/1077-01", "/us/479/1077-09", "/us/479/1077-10", "/us/479/1077-06" ] }, { "cite": "343 S.E.2d 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "317 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779521 ], "year": 1986, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0001-01" ] }, { "cite": "85 L. Ed. 2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "121" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "110 L. Ed. 2d 268", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "386 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "429" } ], "opinion_index": 0 }, { "cite": "325 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487602 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "628" }, { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0607-01" ] }, { "cite": "344 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "781", "parenthetical": "premeditation and deliberation \"is not an element of . . . first-degree murder\" when the murder is perpetrated by a means enumerated in the statute" } ], "opinion_index": 0 }, { "cite": "317 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774343 ], "year": 1986, "pin_cites": [ { "page": "203", "parenthetical": "premeditation and deliberation \"is not an element of . . . first-degree murder\" when the murder is perpetrated by a means enumerated in the statute" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0193-01" ] }, { "cite": "399 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "303", "parenthetical": "\"Neither premeditation and deliberation nor intent to kill are elements of murder in the first degree when the homicide is perpetrated by [means enumerated in the statute, including] torture.\"" } ], "opinion_index": 0 }, { "cite": "328 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538877 ], "year": 1991, "pin_cites": [ { "page": "21", "parenthetical": "\"Neither premeditation and deliberation nor intent to kill are elements of murder in the first degree when the homicide is perpetrated by [means enumerated in the statute, including] torture.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0001-01" ] }, { "cite": "357 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "634", "parenthetical": "citing Manson v. Brathwaite, 432 U.S. at 114, 53 L. Ed. 2d at 154" } ], "opinion_index": 0 }, { "cite": "320 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726337 ], "year": 1987, "pin_cites": [ { "page": "99-100", "parenthetical": "citing Manson v. Brathwaite, 432 U.S. at 114, 53 L. Ed. 2d at 154" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0096-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "106" }, { "page": "149" }, { "page": "114" }, { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "198" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "274 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "194", "parenthetical": "citations omitted" }, { "page": "194" }, { "page": "195" }, { "page": "194" } ], "opinion_index": 0 }, { "cite": "302 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563765 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "44-45", "parenthetical": "citations omitted" }, { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0028-01" ] }, { "cite": "109 L. Ed. 2d 541", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "pin_cites": [ { "parenthetical": "citing Cotton, 318 N.C. at 667, 351 S.E.2d at 279-80" } ], "opinion_index": 0 }, { "cite": "386 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "575" }, { "page": "576" }, { "page": "576" }, { "page": "575" } ], "opinion_index": 0 }, { "cite": "325 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2489106 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "561" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0550-01" ] }, { "cite": "351 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "279" }, { "page": "279-80" }, { "page": "279" }, { "page": "279" } ], "opinion_index": 0 }, { "cite": "318 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4733270 ], "weight": 5, "year": 1987, "pin_cites": [ { "page": "666" }, { "page": "667" }, { "page": "667" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0663-01" ] } ], "analysis": { "cardinality": 1034, "char_count": 23067, "ocr_confidence": 0.758, "pagerank": { "raw": 1.6752445852341568e-07, "percentile": 0.6965815381514521 }, "sha256": "b93f9e7b4b404dafd57fa232ee5a3553921fb4468545c4b9bd0692b390ba8e96", "simhash": "1:97f9d08a662439f0", "word_count": 3695 }, "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. DANNY FURMAN RICHARDSON" ], "opinions": [ { "text": "WHICHARD, Justice.\nDefendant was indicted for the common law robbery, rape, and murder of Gladys Byrum. He pled not guilty and was tried (capitally on the murder charge) at the 30 October 1989 session of Superior Court, Union County. The jury returned verdicts of guilty of common law robbery, first-degree rape, and first-degree murder, finding both that the murder occurred during the commission of the felonies of rape and common law robbery and that it was committed with malice, premeditation and deliberation. The jury found aggravating circumstances and no mitigating circumstances, but nevertheless recommended life imprisonment for the murder conviction. The trial court sentenced defendant to two consecutive terms of life imprisonment for the first-degree murder and first-degree rape convictions and to a further consecutive ten-year term of imprisonment for the common law robbery conviction. We find no error.\nShortly after 6:15 a.m. on 3 May 1989, Paulette Maske, an employee of Union Memorial Hospital, went to see Gladys Byrum, the victim, at Byrum\u2019s work station, the sewing room in the hospital basement. The only door to the sewing room opens from the basement corridor near the elevators, and Maske found it propped open with a screwdriver rather than the usual doorstop. When she did not find the victim there but noticed that a sewing machine was running unattended, Maske turned off the machine and asked four times, \u201cAre you doing all right this morning?\u201d A voice that Maske testified was not the victim\u2019s responded \u201cuh-huh\u201d through the closed bathroom door at the end of the sewing room. Maske could see that the bathroom lights were not on and that the victim\u2019s purse was on top of the desk, which was unusual. Maske went to her office and commented to two co-workers that the voice she heard did not sound like the victim\u2019s. Approximately six minutes later, she and James Meadows left the nearby storeroom and walked toward the sewing room; They saw a black man with short hair and a \u201crattail\u201d \u2014 wearing a blue jean jacket, black pants, dark rubber gloves, and dark tennis shoes \u2014 pushing a cart rapidly. Looking in the room, Maske saw the victim\u2019s leg, whereupon she alerted others. She saw an aerosol can, on which defendant\u2019s prints later were found, but did not see the victim\u2019s purse.\nHospital employee James Stokes testified that as he went to clock in at about 5:55 a.m., he passed defendant in the basement hallway. Other witnesses testified that the hall is well-lit by overhead fluorescent lights. A few minutes later Stokes saw defendant again for a period of about two or three minutes from a distance of about two feet. He noticed that defendant was holding black, elbow-length rubber gloves in his hand. Stokes also testified that the hallway was well-lit, and his description of defendant\u2019s clothing and hairstyle matched that of Maske.\nEmployee David Baskins testified that as he parked his truck coming to work that morning at 6:25 a.m., he noticed defendant running from the corner of the hospital building. When defendant looked in Baskins\u2019 direction, he quit running. Baskins testified that the natural lighting was adequate to enable him to see defendant. Baskins observed defendant from distances ranging from sixty-five yards to twenty yards. Baskins testified that defendant walked past before turning to look at him. His description of defendant\u2019s clothing comported with that of Stokes and Maske, and he testified that defendant was carrying a bag.\nOfficer Debbie Tetlow testified that she saw bloodstains on the bathroom wall, a silver and green aerosol can on which defendant\u2019s prints were found, a bracelet, and a woman\u2019s tennis shoe.\nOfficer Jerry Whitaker testified that he was patrolling the area around the hospital and observed Officer Deese talking to defendant, who wore a rattail. About fifteen minutes later, with defendant\u2019s permission, Whitaker took defendant to the hospital. At this time defendant was carrying a bag containing a jean jacket and black pants. The following day Whitaker found the victim\u2019s ring on the passenger side of his patrol car.\nOfficer Mitch Deese testified that at about 6:30 a.m. he received a call to assist investigating officers. He spotted defendant sporting a rattail and wearing jam shorts, a tee shirt, and tennis shoes, and he detained him briefly. Upon receiving information that the suspect had a rattail, Deese radioed that defendant might be the man sought. After Officer Whitaker took defendant to the hospital, Deese, with defendant\u2019s permission, looked in defendant\u2019s bag. The bag contained a jean jacket and black pants.\nNurse Sylvia O\u2019Brian testified that she saw defendant in the emergency room at about 3:30 a.m. the day of the murder; she said he was waiting with the Polk family in connection with a drug overdose case.\nThe State\u2019s physical evidence was as follows: The samples recovered through rape kit procedures neither eliminated nor implicated defendant conclusively. Combings of the white victim\u2019s pubic hair yielded two Negroid hairs. The cause of death was strangulation by hand.\nDefendant\u2019s evidence showed that he cut his hand at work on 2 May. He testified that he worked until 6:30 or 7:00 p.m. that day, then visited friends before packing a bag at 3:15 a.m. to go to his girlfriend\u2019s house. After finding someone else there, defendant was en route to his aunt\u2019s house to spend the night when police stopped him near the hospital. Officer Jackson and several members of the Polk family (the family that Nurse O\u2019Brian testified was waiting in the emergency room) testified that defendant was not waiting in the emergency room in the early morning.\nDefendant sought unsuccessfully to introduce evidence that on 3 March 1989 Sondra Melton was attacked in the hospital basement by a black male attired similarly to the suspect the hospital employees described here. Defendant argues that the trial court erred in excluding this evidence. He contends that under State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987), the evidence should have been admitted to show that someone else committed the crime.\nIn Cotton the Court concluded that Rule 404(b) applies both to the State and to the defendant, and that a defendant can \u201cintroduce evidence of very similar crimes of another, when such evidence tends to show that the other person committed the crime for which the defendant is on trial.\u201d Cotton, 318 N.C. at 666, 351 S.E.2d at 279. To be admissible, however, \u201csuch evidence must point directly to the guilt of another specific party and must tend both to implicate that other party and be inconsistent with the guilt of the defendant.\u201d State v. Brewer, 325 N.C. 550, 561, 386 S.E.2d 569, 575 (1989), cert. denied, --- U.S. ---, 109 L. Ed. 2d 541 (1990) (citing Cotton, 318 N.C. at 667, 351 S.E.2d at 279-80). To be admissible under Rule 401, the evidence must do more than simply raise conjecture or speculation. Id. at 561-62, 386 S.E.2d at 576. Rather, \u201c[i]t must point directly to the guilt of the other party.\u201d Cotton, 318 N.C. at 667, 351 S.E.2d at 279.\nThe defendant in Brewer sought to introduce evidence that the passenger in a white, \u201cHonda-type\u201d automobile, rather than the defendant, fired shots into homes. At most this evidence established that a white Honda was in the vicinity at the time of the shootings. Brewer, 325 N.C. at 562, 386 S.E.2d at 576. The evidence was not admissible because \u201cit fail[ed] to point to a specific other person as the perpetrator of the crime with which defendant [was] charged.\u201d Id. at 562, 386 S.E.2d at 575. In Cotton, by contrast, the identity of another was specific and all three crimes were identical; the attacker entered rear doors to homes and shouted \u201cHey baby, how are you doing?\u201d before assaulting the victims. Cotton, 318 N.C. at 665, 351 S.E.2d at 279.\nHere, the crimes were not similar; Melton was not raped and there was no indication that her attacker was attempting to rape her. Further, the attacker\u2019s identity was not known. Last, there was no evidence to indicate that the man who grabbed Melton also committed the offense against the victim here two months later. On these facts, Cotton does not control and this assignment of error is overruled.\nDefendant next contends that identification testimony should have been excluded because the pre-trial identification procedures were unduly suggestive and created a substantial likelihood of misidentification.\nBoth the United States Supreme Court and this Court have criticized the \u201cpractice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup This Court has recognized that such a procedure, sometimes referred to as a \u201cshowup,\u201d may be \u201cinherently suggestive\u201d because the witness \u201cwould likely assume that the police had brought [him] to view persons whom they suspected might be the guilty parties.\u201d\nState v. Oliver, 302 N.C. 28, 44-45, 274 S.E.2d 183, 194 (1981) (citations omitted).\nIn determining the admissibility of pre-trial identifications, the court first must determine whether the identification procedures were \u201cunnecessarily suggestive.\u201d Id. at 45, 274 S.E.2d at 194. If the identification procedures were unnecessarily suggestive, the court then considers whether they \u201chave created a likelihood of irreparable misidentification.\u201d Id. (citing Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 410 (1972)). This depends upon whether \u201cunder the totality of circumstances surrounding the crime itself \u2018the identification possesses sufficient aspects of reliability.\u2019 \u201d Id. at 45, 274 S.E.2d at 195 (quoting Manson v. Brathwaite, 432 U.S. 98, 106, 53 L. Ed. 2d 140, 149 (1977)). The totality of the circumstances test is a balancing test and includes the following factors:\n1) The opportunity of the witness to view the criminal at the time of the crime;\n2) the witness\u2019 degree of attention;\n3) the accuracy of the witness\u2019 prior description;\n4) the level of certainty demonstrated at the confrontation; and\n5) the time between the crime and the confrontation.\n.... Against these factors must be weighed the corrupting effect of the suggestive procedure itself.\nState v. Pigott, 320 N.C. 96, 99-100, 357 S.E.2d 631, 634 (1987) (citing Manson v. Brathwaite, 432 U.S. at 114, 53 L. Ed. 2d at 154).\nHere, approximately two to two-and-a-half hours after the attack employees Stokes, Maske, and Baskins identified defendant as the man they had seen earlier. During these identifications defendant was sitting alone or with uniformed personnel in the security office at the hospital. Before Stokes and Maske viewed defendant, investigating officers told the witnesses defendant was a suspect. Baskins went to the security room on his own initiative after being told \u201cthey had somebody up there.\u201d Baskins looked at defendant for about five minutes before identifying him as the man he had seen outside the hospital gate.\nThe identification procedures the officers chose, coupled with their statements to two of the three witnesses that \u201cthey had a suspect,\u201d were unduly suggestive. See State v. Oliver, 302 N.C. at 45, 274 S.E.2d at 194 (identification procedure unduly suggestive where officers told witness he \u201ccould see that man again\u201d and let him view the defendant as the defendant stood alone in a room). Nevertheless, under the totality of the circumstances each witness\u2019s identification was sufficiently reliable to be admissible.\nMaske saw defendant in the corridor outside the sewing room for about three to four seconds after her suspicions were aroused by the empty sewing room and the unfamiliar voice coming from the bathroom. Her description matched that of other witnesses, and she was unequivocal in her identification. The showup identification occurred about forty-five minutes after she observed defendant.\nStokes observed defendant for two or three minutes from a distance of two feet in the well-lit basement hallway; he and defendant spoke briefly. He saw defendant two hours later in the security room. Stokes then described what defendant looked like and what defendant had been wearing when he saw him earlier in the hallway. His description was consistent with Maske\u2019s, even though defendant was clothed differently by this time. Stokes was certain in his identification.\nBaskins observed defendant from distances ranging from sixty-five to twenty yards over the course of ten to fifteen minutes. Because (1) Baskins did not usually see people in that area of the hospital at that early hour, (2) defendant stopped running when he saw that Baskins was watching him, and (3) Baskins noticed that defendant was looking at him, Baskins paid attention to defendant. Baskins\u2019 description included clothing, the bag defendant carried, and his approximate height and weight. Before identifying defendant, Baskins looked at him for about five minutes \u201cto be sure.\u201d Approximately two-and-a-half hours passed between the initial encounter and the identification in the security room.\nConsidering the totality of these circumstances, we conclude that the corrupting effect of the suggestive identification procedure was insufficient to tip the scales against defendant. None of the witnesses conferred with one another prior to viewing defendant. The witnesses had substantial opportunities to view defendant; the descriptions were substantially similar and were accurate; the witnesses indicated a higher than average degree of attention; identifications were certain; and the identifications followed within three hours of the initial sightings. Thus, the trial court did not err in admitting the out-of-court identifications.\nDefendant also contends the trial court erred in allowing portions of the prosecutor\u2019s argument. The relevant portions are:\n[PROSECUTOR]: . . . [T]he premeditation and deliberation . . . can come over any period of time, no matter how short. And, members of the jury, deliberation can also be inferred from the acts, from the use of excessive force, from brutal circumstances, and from the manner and means.\nStrangulation does not occur the State would contend to you by accident. You don\u2019t accident[al]ly strangle somebody. You might be able to accident[al]ly shoot somebody or accidentally run them over with a car.\n[Defense Counsel]: Objection to accident not\u2014\nThe COURT: Overruled. Go ahead.\n[PROSECUTOR]: But manual strangulation takes an effort, takes a deliberate act, takes a premeditated act. It takes an act of thinking it out and doing it.\nMembers of the jury, the State contends to you from the circumstances in this case you can find that premeditation and find that deliberation from the acts, and it\u2019s obvious from the acts here that this defendant was the aggressor.\nDefendant argues that the prosecutor\u2019s statements impermissibly eliminated the State\u2019s burden to prove the elements of premeditation and deliberation by implying that the mere fact of death by strangulation supplied such proof. Because strangulation is not among the methods of killing expressly established by N.C.G.S. \u00a7 14-17 as murder in the first degree, the State must prove premeditation and deliberation. See State v. Phillips, 328 N.C. 1, 21, 399 S.E.2d 293, 303 (1991) (\u201cNeither premeditation and deliberation nor intent to kill are elements of murder in the first degree when the homicide is perpetrated by [means enumerated in the statute, including] torture.\u201d); State v. Johnson, 317 N.C. 193, 203, 344 S.E.2d 775, 781 (1986) (premeditation and deliberation \u201cis not an element of . . . first-degree murder\u201d when the murder is perpetrated by a means enumerated in the statute). \u201cWhen the State relies on a theory of premeditation and deliberation for first-degree murder, it must prove as necessary elements of the crime that defendant premeditated and deliberated before killing the victim.\u201d State v. Davis, 325 N.C. 607, 628, 386 S.E.2d 418, 429 (1989), cert. denied, --- U.S. ---, 110 L. Ed. 2d 268 (1990).\nHowever, because \u201cpremeditation and deliberation are processes of the mind, they are not ordinarily subject to direct proof but generally must be proved if at all by circumstantial evidence.\u201d State v. Huffstetler, 312 N.C. 92, 109, 322 S.E.2d 110, 121 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). The brutal manner of the killing and the nature of the victim\u2019s wounds are circumstances from which the jury can infer premeditation and deliberation. State v. Jackson, 317 N.C. 1, 23, 343 S.E.2d 814, 827 (1986), vacated on other grounds, 479 U.S. 1077, 94 L. Ed. 2d 133 (1987). The jury may infer premeditation and deliberation from the circumstances of a killing, including that death was by strangulation. State v. Davis, 325 N.C. at 629, 386 S.E.2d at 429-30 (evidence that defendant assaulted and strangled victim sufficient, to withstand motion to dismiss); State v. Wilson, 322 N.C. 117, 138-39, 367 S.E.2d 589, 601-02 (1988) (evidence that defendant tied and choked victim sufficient to withstand motion to dismiss); State v. Vereen, 312 N.C. 499, 515, 324 S.E.2d 250, 260, cert. denied, 471 U.S. 1094, 85 L. Ed. 2d 526 (1985) (evidence of a brutal attack, sexual assault, and strangulation sufficient to support a finding of premeditation and deliberation); State v. Strickland, 307 N.C. 274, 295, 298 S.E.2d 645, 658 (1983) (sufficient evidence of premeditation and deliberation where victim was bound and died of strangulation).\nBecause the prosecutor was arguing that the jury could infer premeditation and deliberation from the circumstances and manner in which defendant killed the victim, the argument was not an incorrect statement of law, and the trial court did not err in overruling defendant\u2019s objection. Further, the trial court instructed:\n[NJeither premeditation nor deliberation are usually subsceptible [sic] of direct proof. They may be proved by proof of circumstances from which they may be inferred, such as the brutal or vicious circumstances of the killing, and the manner in which or the means by which the killing was done.\n... [I]f you find from the evidence and beyond a reasonable doubt that on or about the alleged date, the defendant intentionally manually strangled Gladys Byrum and that this proximately caused her death and that the defendant intended to kill Gladys Byrum and that he acted with malice, after premeditation and with deliberation, it would be your duty to return a verdict of guilty of first degree murder on the basis of malice, premeditation and deliberation.\nThis was a correct statement of the law. This assignment of error is overruled.\nDefendant finally contends the trial court erred in refusing to give his requested instruction that \u201cwith effect to first degree rape, serious personal injury be serious personal injury short of death.\u201d Defendant made his request orally after the jury retired. Requests for special instructions \u201cshould be submitted in writing to the trial judge at or before the jury instruction conference.\u201d Rule 21, General Rules of Practice for the Superior and District Courts. \u201cA party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict. . . .\u201d N.C.R. App. P. 10(b)(2). Failure to request or object to instructions before the jury retires waives any objection to the instructions. State v. Horner, 310 N.C. 274, 283, 311 S.E.2d 281, 287 (1984); see also State v. Hewitt, 295 N.C. 640, 247 S.E.2d 886 (1978). This assignment of error is overruled.\nNo error.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Ralf F. Haskell, Special Deputy Attorney General, for the State.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANNY FURMAN RICHARDSON\nNo. 345A90\n(Filed 3 April 1991)\n1. Criminal Law \u00a7 35 (NCI3d) \u2014 rape, robbery, and murder\u2014 evidence of prior assault \u2014 offered to show guilt of another\u2014 not admissible\nThe trial court did not err in a prosecution for robbery, rape and murder by excluding evidence that someone other than the victim had been attacked two months earlier in the hospital basement, where this attack occurred, by a black male attired similarly to the suspect in this case. The crimes were not similar because the earlier victim was not raped, there was no evidence that her attacker was attempting to rape her, the attacker\u2019s identity was not known, and there was no evidence that the man who grabbed the earlier victim also committed the offense against the victim here. N.C.G.S. \u00a7 8C-1, Rule 401.\nAm Jur 2d, Evidence \u00a7 441.\n2. Criminal Law \u00a7 66.11 (NCI3d)\u2014 out-of-court identification\u2014 procedure suggestive \u2014 no prejudice\nThe trial court did not err in a prosecution for robbery, rape and murder by admitting out-of-court identifications by witnesses where the identification procedures the officers chose, coupled with their statements to two of the three witnesses that they had a suspect, were unduly suggestive, but the corrupting effect of the suggestive identification procedure was insufficient to tip the scales against defendant. None of the witnesses conferred with one another prior to viewing defendant, the witnesses had substantial opportunities to view defendant, the descriptions were substantially similar and were accurate, the witnesses indicated a higher than average degree of attention, the identifications were certain, and the identifications followed within three hours of the initial sightings.\nAm Jur 2d, Evidence \u00a7\u00a7 371, 371.4, 371.5, 372.\nAdmissibility of evidence of showup identification as affected by allegedly suggestive showup procedures. 39 ALR3d 791.\n3. Homicide \u00a7 18.1 (NCI3d)\u2014 premeditation and deliberation\u2014 inference from strangulation \u2014 no error\nThe trial court did not err by allowing the prosecutor to argue that the jury could infer premeditation and deliberation from the strangulation of the victim. The jury may infer premeditation and deliberation from the circumstances of a killing, including strangulation.\nAm Jur 2d, Homicide \u00a7\u00a7 276, 439; Trial \u00a7 260.\n4. Criminal Law \u00a7 685 (NCI4th) \u2014 request for special instructions not in writing \u2014 not timely\nThe trial court did not err in a rape prosecution by refusing to give defendant\u2019s requested instruction on serious personal injury where defendant made his request orally after the jury retired. Requests for special instructions should be submitted in writing at or before the jury instruction conference.\nAm Jur 2d, Trial \u00a7\u00a7 580, 582, 583.\nAPPEAL of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment upon a jury verdict finding him guilty of first-degree murder entered by Helms, J., at the 30 October 1989 session of Superior Court, UNION County. On 7 August 1990 this Court allowed defendant\u2019s motion to bypass the Court of Appeals as to judgments of life imprisonment entered upon his conviction of first-degree rape and ten years imprisonment entered upon his conviction of common law robbery. Heard in the Supreme Court 11 February 1991.\nLacy H. Thornburg, Attorney General, by Ralf F. Haskell, Special Deputy Attorney General, for the State.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Mark D. Montgomery, Assistant Appellate Defender, for defendant appellant." }, "file_name": "0505-01", "first_page_order": 539, "last_page_order": 549 }