{ "id": 795969, "name": "STATE OF NORTH CAROLINA v. TERRY DION JAMES", "name_abbreviation": "State v. James", "decision_date": "1996-02-09", "docket_number": "No. 63A95", "first_page": "589", "last_page": "599", "citations": [ { "type": "official", "cite": "342 N.C. 589" } ], "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": "22 ALR3d 1228", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "18 ALR3d 1335", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "284 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559900 ], "opinion_index": -1, "case_paths": [ "/nc/284/0067-01" ] }, { "cite": "101 ALR Fed. 615", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "50 ALR4th 1081", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "364 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566165 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0520-01" ] }, { "cite": "321 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "869" }, { "page": "869" } ], "opinion_index": 0 }, { "cite": "312 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750769 ], "year": 1984, "pin_cites": [ { "page": "205-06" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0198-01" ] }, { "cite": "337 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "474" } ], "opinion_index": 0 }, { "cite": "315 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718474 ], "year": 1985, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0157-01" ] }, { "cite": "204 S.E.2d 864", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "21 N.C. App. 525", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556733 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/21/0525-01" ] }, { "cite": "213 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570851, 8570789, 8570886, 8570712, 8570747 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0724-04", "/nc/286/0724-03", "/nc/286/0724-05", "/nc/286/0724-01", "/nc/286/0724-02" ] }, { "cite": "211 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "24 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553096 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/24/0561-01" ] }, { "cite": "215 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552169 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/26/0335-01" ] }, { "cite": "256 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "42 N.C. App. 148", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552982 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/42/0148-01" ] }, { "cite": "65 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570601 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0725-01" ] }, { "cite": "199 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "918" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "129 L. Ed. 2d 883", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "439 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "532" } ], "opinion_index": 0 }, { "cite": "335 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527119 ], "year": 1994, "pin_cites": [ { "page": "327" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0301-01" ] }, { "cite": "230 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "291 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558004 ], "year": 1976, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0319-01" ] }, { "cite": "286 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "304 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570230 ], "year": 1982, "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0609-01" ] }, { "cite": "298 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "657", "parenthetical": "quoting State v. Wall, 304 N.C. 609, 613, 286 S.E.2d 68, 71 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "year": 1983, "pin_cites": [ { "page": "292", "parenthetical": "quoting State v. Wall, 304 N.C. 609, 613, 286 S.E.2d 68, 71 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "330 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "313 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721689 ], "year": 1985, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0554-01" ] }, { "cite": "386 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "559" }, { "page": "593, 386" }, { "page": "594" }, { "page": "561" } ], "opinion_index": 0 }, { "cite": "325 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491770 ], "year": 1989, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0583-01" ] }, { "cite": "434 S.E.2d 183", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "334 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532070 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "544-45" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0532-01" ] }, { "cite": "284 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559900 ], "opinion_index": 0, "case_paths": [ "/nc/284/0067-01" ] } ], "analysis": { "cardinality": 903, "char_count": 22534, "ocr_confidence": 0.732, "pagerank": { "raw": 2.3287569956856152e-07, "percentile": 0.7908379986632426 }, "sha256": "dde2c55fd8a457eb18bf6bbf2dd88a77fa3393f62ad4490748095db628f58bde", "simhash": "1:ff3cc8e275080c4a", "word_count": 3664 }, "last_updated": "2023-07-14T19:36:26.105751+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. TERRY DION JAMES" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant, Terry Dion James, was indicted for first-degree murder, two counts of discharging a firearm into occupied property, and two counts of conspiracy to discharge a firearm into occupied property. Defendant was convicted on all counts, except one count of conspiracy to discharge a firearm into occupied property. Defendant\u2019s first-degree murder conviction was based on a theory of felony murder, with discharging a firearm into occupied property being the underlying felony.\nFollowing a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended and the trial judge imposed a sentence of life imprisonment for the first-degree murder conviction. The judge also imposed prison sentences of ten years for one count of discharging a firearm into occupied property and three years for conspiracy to discharge a firearm into occupied property, the sentences to run consecutively. Judgment was arrested on one count of discharging a firearm into occupied property.\nThe State\u2019s evidence at trial tended to show the following facts and circumstances:\nDuring the late night hours of Saturday, 6 March 1993, and the early morning hours of 7 March 1993, Valentine Farland was at the American Legion Post in Pender County. He had a Chinese-made SKS semiautomatic rifle with a thirty-round banana clip in his possession. Upon leaving the American Legion Post, Farland put the rifle in the trunk of a blue, four-door Hyundai automobile owned by Jerrod Watkins. Farland then left the American Legion Post and went to the Bordeaux Club (the club). Defendant, along with Jerrod Watkins, Zollie Watkins, Tyrone Batts, and Williford Farrier, traveled in Jerrod\u2019s automobile to the club.\nDefendant and the four other men were sitting outside the club in Jerrod\u2019s automobile when Cleveland James walked out of the club. Defendant told Cleveland not to go back in the club because \u201cwe\u2019re going to shoot the place up.\u201d Cleveland disregarded defendant\u2019s warning and went back into the club to tell others to leave. The people inside the club immediately began to run outside.\nAt this point, defendant instructed the driver of the automobile to \u201c[g]o down, then come back, and I\u2019ll be shooting the place [from the automobile].\u201d The driver followed these directions. Because of the people in the street, the automobile slowed down as it passed the club. Defendant rolled down the window and began firing the SKS rifle in the direction of the club. He continued shooting as the automobile proceeded down the street that ran along the front of the club and adjoining parking lot.\nH\u00e1rtense James had exited the club upon Cleveland\u2019s warning. H\u00e1rtense was in the driver\u2019s seat of his Ford Mustang automobile attempting to start his engine when he was struck by a bullet. The bullet penetrated the door of his automobile and struck him in the side, causing severe damage to his right kidney, abdominal aorta, and liver. Several individuals transported H\u00e1rtense to the hospital, where he died as a result of the gunshot wound. The State Bureau of Investigation ballistics experts confirmed that the bullet that struck and killed H\u00e1rtense was fired from the SKS semiautomatic rifle that defendant was shooting.\nIn addition to striking Hartense\u2019s automobile, several bullets struck Yolanda Webb\u2019s Pontiac Grand Am automobile, which was parked next to Hartense\u2019s automobile. The front windshield of Webb\u2019s vehicle was broken on the passenger side. There was a hole above the license plate, damage to the rear window, a broken left tail light, and a dent along the back passenger side quarter panel. Two bullets were taken from inside the vehicle. SBI experts could not ascertain with certainty whether either bullet had been fired from the rifle that defendant was shooting.\nAfter the shooting, Jerrod drove defendant to the home of defendant\u2019s sister. Defendant took the rifle with him. The police arrested him there the next morning. An officer found the rifle outside of the house. There were only three rounds left in the thirty-round banana clip.\nAt trial, defendant presented no evidence and did not testify. His motion to dismiss all the charges against him, made at the close of the State\u2019s evidence, was denied.\nDefendant makes five arguments on appeal to this Court. As his first argument, defendant contends that the trial court erred by not instructing the jury on the lesser included offense of involuntary manslaughter.\nIn State v. Yelverton, 334 N.C. 532, 434 S.E.2d 183 (1993), we said:\nInvoluntary manslaughter and second-degree murder are lesser-included offenses supported by an indictment charging murder in the first degree. E.g., State v. Thomas, 325 N.C. 583, 591, 386 S.E.2d 555, 559 (1989). A defendant is entitled to a charge on a lesser-included offense when there is some evidence in the record supporting the lesser offense. Id. at 593, 386 [S.E.2d] at 561. Conversely, \u201c[w]here the State\u2019s evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required.\u201d Id. at 594, 386 S.E.2d at 561; State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985). \u201c[W]henthe law and evidence justify the use of the felony-murder rule, then the State is not required to prove premeditation and deliberation, and neither is the Court required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it.\u201d State v. Strickland, 307 N.C. 274, 292, 298 S.E.2d 645, 657 (1983) (quoting State v. Wall, 304 N.C. 609, 613, 286 S.E.2d 68, 71 (1982)).\nYelverton, 334 N.C. at 544-45, 434 S.E.2d at 190. Thus, the question in this case is whether there was evidence adduced at trial to support a conviction of involuntary manslaughter. We hold there was not.\nInvoluntary manslaughter is \u201cthe unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.\u201d State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), quoted in State v. Rose, 335 N.C. 301, 327, 439 S.E.2d 518, 532, cert. denied, - U.S. -, 129 L. Ed. 2d 883 (1994). Culpable negligence is defined as an act or omission evidencing a disregard for human rights and safety. State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 918 (1978). Defendant argues that the evidence shows that he did not know that the automobiles were occupied at the time he shot into the parking lot and that he did not intend to shoot into the automobiles but into the club. He further argues that the jury could infer from this evidence that the victim\u2019s death was caused by defendant\u2019s culpably negligent actions.\nHowever, the evidence is clear that defendant acted with malice and therefore could not have been found guilty of manslaughter, which requires the absence of malice. Defendant fired a semiautomatic weapon into the club and its adjoining parking lot. Unrefuted testimony at trial showed that he planned to fire a rifle into the club and even warned another person not to reenter the club because he intended to \u201cshoot [it] up.\u201d Defendant then momentarily left the area in front of the club. When defendant returned to do the shooting, there were people exiting the club. The driver of the automobile had to slow down to keep from hitting these people. From the foregoing evidence, no rational fact finder could find defendant was not aware that the bullets would likely enter automobiles parked in the parking lot and that people might be in some of the automobiles. The uncontradicted evidence establishes that defendant fired the weapon into the club, an area he knew was occupied. We therefore conclude that, because all the evidence clearly shows malice, there was no evidence to support an instruction for involuntary manslaughter. Accordingly, we reject defendant\u2019s first argument.\nIn his second argument, defendant contends the trial court erred by refusing to instruct the jury that, in order for defendant to be found guilty of discharging a firearm into occupied property, it must find that defendant knew the automobile was occupied or had reasonable grounds to believe the automobile was occupied. The court, instead, used the pattern jury instructions which informed the jury that it could find defendant guilty \u201cif the members of the jury found that defendant knew that the automobile was occupied or had reasonable grounds to believe that the automobile might be occupied.\u201d (Emphasis added.)\nWe note first that the applicable statute does not contain an express knowledge requirement with reference to the building or vehicle being occupied. Instead, the statute provides that any person who \u201cwillfully or wantonly discharges or attempts to discharge ... [a] firearm into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a... felony.\u201d N.C.G.S. \u00a7 14-34.1 (1993) (emphasis added). Nevertheless, in State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973), this Court interpreted the statute so as to add a knowledge requirement, as follows:\nWe hold that a person is guilty of the felony created by G.S. 14-34.1 if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons.\nId. at 73, 199 S.E.2d at 412. This interpretation of the statute has been followed in a series of cases decided by this Court and our Court of Appeals. See, e.g., State v. Wheeler, 321 N.C. 725, 65 S.E.2d 609 (1988); State v. Zigler, 42 N.C. App. 148, 256 S.E.2d 479 (1979); State v. Furr, 26 N.C. App. 335, 215 S.E.2d 840 (1975); State v. Gunn, 24 N.C. App. 561, 211 S.E.2d 508, cert. denied, 286 N.C. 724, 213 S.E.2d 724 (1975); State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864 (1974). Although none of these cases emphasize the use of the word \u201cmight,\u201d we believe our interpretation of the statute in Williams was correct, and we now reaffirm that interpretation. The trial judge properly instructed the jury in accordance with this Court\u2019s interpretation of the statute. Accordingly, we reject defendant\u2019s second argument.\nDefendant, in his third argument, contends that the State\u2019s evidence was insufficient to persuade a rational fact finder that he intended to shoot into the vehicles. Therefore, defendant argues, the evidence was insufficient to support verdicts of discharging a firearm into occupied property, felony murder, and conspiracy to discharge a firearm into occupied property.\nUnder N.C.G.S. \u00a7 14-34.1 a person who \u201cwillfully or wantonly discharges or attempts to discharge ... [a] firearm into any . . . vehicle . . . while it is occupied is guilty of a . . . felony.\u201d N.C.G.S. \u00a7 14-34.1. Defendant argues that the State\u2019s evidence does not show that he intended to shoot into the vehicles but only illustrates that he intended to shoot into the club. We disagree.\n\u201cWhile intent is a state of mind sometimes difficult to prove, the mind of an alleged offender may be read from his acts, conduct, and inferences fairly deducible from all of the circumstances.\u201d State v. Wilson, 315 N.C. 157, 163, 337 S.E.2d 470, 474 (1985). Intent to shoot into the vehicles can be inferred from the fact that defendant fired a semiautomatic weapon into an area where he knew automobiles were parked. The jury could reasonably find from the State\u2019s evidence that defendant intended to shoot into the vehicles when he shot into the parking lot adjoining the club.\nDefendant also argues there is no evidence he shot into the automobiles knowing they were occupied. However, the State presented evidence that defendant knew people were exiting the club and present in the parking lot when he fired the SKS rifle. From this evidence, the jury could find that, although defendant may not have been sure that the vehicles in the parking lot were occupied, he clearly had reasonable grounds to believe that the automobiles might be occupied by one or more persons. That is all the statute requires. We conclude there was sufficient evidence to find defendant guilty of discharging a firearm into occupied property, conspiracy to discharge a firearm into occupied property, and first-degree murder under a felony murder theory.\nIn his fourth argument, defendant contends the trial judge committed plain error when instructing the jury on defendant\u2019s right not to testify. During preliminary jury instructions, the trial judge stated that\n[t]he defendant in a criminal case, upon entering a plea of not guilty, may rest on the weaknesses in the state\u2019s case and require the state to carry its burden to the utmost, and that is beyond a reasonable doubt.\nA defendant charged with a criminal offense does not have to take the stand, does not have to present any evidence, and the fact that a defendant may choose to do that can\u2019t be used against the defendant. It is a constitutional right that each of us enjoy as citizens of this country not to be required to take the stand-in a criminal proceeding and to require the state to carry its burden beyond a reasonable doubt. It may also be a trial tactic that the defendant not present evidence, for if the defendant makes that decision not to present evidence, not to take the stand, the defendant would get the final argument or closing to the jury.\n(Emphasis added.) According to defendant, these preliminary instructions reduced defendant\u2019s constitutional right not to testify to a mere trial tactic.\nArticle I, Section 23 of the North Carolina Constitution states that a defendant in a criminal prosecution cannot \u201cbe compelled to give self-incriminating evidence.\u201d N.C. Const, art. I, \u00a7 23. Similarly, North Carolina General Statutes section 8-54 provides that no person charged with the commission of a crime shall be compelled to testify or \u201canswer any question tending to criminate himself.\u201d N.C.G.S. \u00a7 8-54 (1986). We have interpreted this statute as prohibiting the prosecution, the defense, or the trial judge from commenting upon the defendant\u2019s failure to testify. See, e.g., State v. Randolph, 312 N.C. 198, 205-06, 321 S.E.2d 864, 869 (1984). \u201c[T]he purpose behind the rule prohibiting comment on the failure to testify is that extended reference by the court or counsel concerning this would nullify the policy that the failure to testify should not create a presumption against the defendant.\u201d Id. at 206, 321 S.E.2d at 869.\nWe conclude that while the court\u2019s reference to trial tactics was unnecessary, it was not a comment on defendant\u2019s failure to testify. The judge properly informed the jury that the defendant\u2019s failure to testify was not to be used against him. His additional explanation regarding the tactical advantage of a defendant not presenting evidence neither negated that instruction nor created an inference that defendant\u2019s failure to testify was an indication of his guilt. In addition, we note, as admitted by defendant in his brief, that the trial court, at the conclusion of the trial, instructed the jury that defendant\u2019s decision not to testify created no presumption against him and that his silence was not to influence the jury\u2019s decision.\nIn his fifth argument, defendant contends the trial court erred in not finding defendant\u2019s IQ of seventy-three a mitigating factor when it increased the presumptive sentences for defendant\u2019s convictions for conspiracy to discharge a firearm into occupied property and discharging a firearm into occupied property. Defendant argues that, since the State stipulated to defendant\u2019s limited intelligence and the jury found defendant\u2019s IQ to be a mitigating circumstance, the trial judge\u2019s failure to also use defendant\u2019s limited intelligence as a mitigating factor is error.\nTo establish that the trial judge erred in failing to find a statutory mitigating factor, the evidence must show conclusively the existence of the statutory mitigating factor and that no other reasonable inference could be drawn from the evidence. State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988). The trial judge could have found that defendant\u2019s IQ did not reduce his culpability for these noncapital offenses. Defendant fired a semiautomatic rifle into a populated nightclub and its adjoining parking lot. Defendant knew it was dangerous because he warned Cleveland not to reenter the club because he was going to \u201cshoot . . . up\u201d the club. There was no evidence that defendant\u2019s IQ affected his ability to perceive the probable consequences of his actions. The evidence does not show conclusively that defendant\u2019s IQ reduced his culpability and that no other reasonable inference could be drawn from the evidence. Accordingly, defendant\u2019s fifth argument is rejected.\nFor the foregoing reasons, we conclude that defendant received a fair trial, free of prejudicial error.\nNO ERROR.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Clarence DelForge III, Assistant Attorney General, for the State.", "Nora Henry Hargrove for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY DION JAMES\nNo. 63A95\n(Filed 9 February 1996)\n1. Homicide \u00a7 573 (NCI4th)\u2014 firing into club and parking lot \u2014 malice\u2014no instruction on involuntary manslaughter\nThere was no error in a first-degree murder trial which arose from defendant firing an assault rifle into a club building and parking lot where the court did not instruct the jury on the lesser included offense of involuntary manslaughter. Although defendant contended that the evidence showed that he did not know that the automobiles were occupied at the time he fired and that he did not intend to shoot into the parking lot, the evidence showed that defendant fired a semiautomatic weapon into the club and its adjoining parking lot; unrefuted testimony showed that he planned to fire a rifle into the club and warned another person not to reenter the club because defendant intended to \u201cshoot it up\u201d; and, after momentarily leaving the area in front of the club, the driver of the automobile in which defendant was riding had to slow down to avoid hitting people exiting the club. The uncontradicted evidence establishes that defendant fired into an area he knew was occupied and all of the evidence clearly shows malice.\nAm Jur 2d, Homicide \u00a7\u00a7 530, 531.\nLesser-related state offense instructions: modern status. 50 ALR4th 1081.\nPropriety of lesser-included-offense charge to jury in federal homicide prosecution. 101 ALR Fed. 615.\n2. Assault and Battery \u00a7 82 (NCI4th)\u2014 discharging a firearm into occupied property \u2014 instructions\u2014knowledge of occupation\nThe trial court did not err in a prosecution for discharging a firearm into occupied property by using the pattern jury .instruction, which informed the jury that it could find defendant guilty if defendant knew or had reasonable grounds to believe that the automobile might be occupied. The interpretation of State v. Williams, 284 N.C. 67, is reaffirmed. N.C.G.S. \u00a7 14-34.1.\nAm Jur 2d, Assault and Battery \u00a7 53; Weapons and Firearms \u00a7 29.\n3. Assault and Battery \u00a7 81 (NCI4th); Homicide \u00a7 280 (NCI4th)\u2014 firing into parking lot \u2014 discharging a firearm into occupied property \u2014 felony murder \u2014 evidence sufficient\nThere was sufficient evidence to find defendant guilty of discharging a firearm into occupied property, conspiracy to discharge a firearm into occupied property, and first-degree murder under a felony murder theory where intent to shoot into vehicles can be inferred from the fact that defendant fired a semiautomatic weapon into an area where he knew automobiles were parked and the State presented evidence that defendant knew people were exiting the club and present in the parking lot when he fired the rifle, from which the jury could infer that defendant clearly had reasonable grounds to believe that the automobiles might be occupied by one or more persons.\nAm Jur 2d, Assault and Battery \u00a7\u00a7 48-53; Homicide \u00a7 442; Weapons and Firearms \u00a7 29.\n4. Criminal Law \u00a7 810 (NC14th)\u2014 right not to testify\u2014 instructions \u2014 not testifying as trial tactic\nThe trial court did not err in a prosecution for discharging a firearm into occupied property and felony murder by instructing the jury that a defendant does not have to take the stand or present evidence, that the defendant\u2019s choice not to do so cannot be used against the defendant, that it is a constitutional right not to be required to take the stand, and that it may also be a trial tactic. While the reference to trial tactics was unnecessary, it was not a comment on defendant\u2019s failure to testify, the judge properly informed the jury that defendant\u2019s failure to testify was not to be used against him, and, at the conclusion of the trial, the court instructed the jury that defendant\u2019s decision not to testify created no presumption against him and that his silence was not to influence the jury\u2019s decision.\nAm Jur 2d, Criminal Law \u00a7\u00a7 705, 940.\nPropriety under Griffin v. California and prejudicial effect of unrequested instruction that no inferences against accused should be drawn from his failure to testify. 18 ALR3d 1335.\n5. Criminal Law \u00a7 1233 (NCI4th)\u2014 Fair Sentencing Act \u2014 IQ of 73 \u2014 not found as mitigating factor\nThe trial court did not err when sentencing defendant for discharging a firearm into occupied property and conspiracy to discharge a firearm into occupied property by not finding defendant\u2019s IQ of 73 a mitigating factor even though the State stipulated to defendant\u2019s limited intelligence and the jury found defendant\u2019s IQ to be a mitigating circumstance. To establish that the trial judge erred in failing to find a statutory mitigating factor, the evidence must show conclusively the existence of the statutory mitigating factor and that no other reasonable inference could be drawn from the evidence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nComment Note. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Llewellyn, J., at the 8 August 1994 Criminal Session of Superior Court, Pender County, upon a jury verdict of guilty of first-degree murder. Defendant\u2019s motion to bypass the Court of Appeals as to additional judgments was allowed on 17 April 1995. Heard in the Supreme Court 11 December 1995.\nMichael F. Easley, Attorney General, by Clarence DelForge III, Assistant Attorney General, for the State.\nNora Henry Hargrove for defendant-appellant." }, "file_name": "0589-01", "first_page_order": 621, "last_page_order": 631 }