{ "id": 867667, "name": "STATE OF NORTH CAROLINA v. GEORGE A. BRUTON and WILLIE TOWNSEND", "name_abbreviation": "State v. Bruton", "decision_date": "1996-09-06", "docket_number": "No. 416A95", "first_page": "381", "last_page": "394", "citations": [ { "type": "official", "cite": "344 N.C. 381" } ], "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": "53 ALR Fed. 140", "category": "reporters:federal", "reporter": "A.L.R. Fed.", "opinion_index": -1 }, { "cite": "18 ALR4th 360", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "34 ALR3d 470", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "18 ALR4th 961", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "263 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "776-78" } ], "opinion_index": 0 }, { "cite": "299 N.C. 652", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575714 ], "year": 1980, "pin_cites": [ { "page": "654-57" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0652-01" ] }, { "cite": "367 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "322 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519607 ], "year": 1988, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0117-01" ] }, { "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. 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Ed. 2d", "weight": 2, "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", "weight": 2, "year": 1986, "pin_cites": [ { "page": "827" }, { "page": "827" } ], "opinion_index": 0 }, { "cite": "317 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779521 ], "year": 1986, "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0001-01" ] }, { "cite": "399 S.E.2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "328 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539346 ], "year": 1991, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0061-01" ] }, { "cite": "440 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "796" } ], "opinion_index": 0 }, { "cite": "335 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529092 ], "year": 1994, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0753-01" ] }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "49 L. 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Wilson, 280 N.C. 674, 678, 187 S.E.2d 22, 24 (1972)" } ], "opinion_index": 0 }, { "cite": "285 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561675 ], "year": 1974, "pin_cites": [ { "page": "46", "parenthetical": "quoting State v. Wilson, 280 N.C. 674, 678, 187 S.E.2d 22, 24 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0042-01" ] }, { "cite": "440 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "562" } ], "opinion_index": 0 }, { "cite": "335 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530965 ], "year": 1994, "pin_cites": [ { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0729-01" ] }, { "cite": "307 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "quoting N.C.G.S. \u00a7 15A-1340.4(a)(l)" } ], "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "pin_cites": [ { "parenthetical": "quoting N.C.G.S. \u00a7 15A-1340.4(a)(l)" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "449 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "338 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2521132 ], "year": 1994, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0244-01" ] }, { "cite": "356 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "351" }, { "page": "351" } ], "opinion_index": 0 }, { "cite": "319 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738387 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "667" }, { "page": "667-68" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0665-01" ] }, { "cite": "398 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "317" } ], "opinion_index": 0 }, { "cite": "327 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497579 ], "year": 1990, "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0599-01" ] }, { "cite": "446 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "336 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535497 ], "year": 1994, "pin_cites": [ { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0762-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "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": "315 U.S. 60", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374640 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "92", "parenthetical": "Frankfurter, J., dissenting" }, { "page": "710-11", "parenthetical": "Frankfurter, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/us/315/0060-01" ] }, { "cite": "435 U.S. 475", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2258 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "482" }, { "page": "433" }, { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/us/435/0475-01" ] }, { "cite": "134 L. 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GEORGE A. BRUTON and WILLIE TOWNSEND" ], "opinions": [ { "text": "PARKER, Justice.\nDefendants were tried noncapitally on indictments charging them with the first-degree murder of Kurtis Legrant Mobley (\u201cvictim\u201d). The jury returned verdicts finding defendant George A. Bruton guilty of first-degree murder and defendant Willie Townsend guilty of second-degree murder. The trial court sentenced defendant Bruton to life imprisonment and defendant Townsend to twenty years\u2019 imprisonment. For the reasons discussed herein, we uphold the convictions and sentences of both defendants.\nThe evidence tended to show that shortly after midnight on 30 March 1994, the victim and Derrick York walked towards an apartment building at 2783 Piedmont Circle in Winston-Salem. The victim shouted an obscenity [f\u2014 you, bitch] at defendant Bruton\u2019s girlfriend, who was apparently sitting in or standing by an apartment window. The victim and York then walked to the back of the apartment building.\nDefendant Bruton located defendant Townsend and told Townsend that two \u201cniggers\u201d were at the back door. Defendant Bruton then went outside with a concealed nine-millimeter, semiautomatic pistol and confronted the victim. A heated argument ensued. The victim told defendant Bruton to put down his gun and fight. Defendant Bruton responded that he did not have a gun and pulled up his shirt in a manner suggesting that he was not armed.\nWhen defendant Bruton told defendant Townsend that two \u201cniggers\u201d were at the back door, defendant Townsend retrieved his nine-millimeter, semiautomatic pistol and went out the back door. Defendant Townsend stood on the back porch and watched defendant Bruton argue with the victim. After a short period of time defendant Townsend shouted an obscenity [\u201cf\u2014 that\u201d or \u201cf\u2014 that, let\u2019s do it\u201d] and began firing his gun in the direction of the victim, York, and Holly Farley. When defendant Townsend fired his weapon, defendant Bruton also began shooting. As the victim attempted to flee, defendant Bruton pointed his gun at the victim; shouted \u201cf\u2014 that, you don\u2019t f\u2014 with her\u201d; and shot the victim in the back. This shot caused the victim\u2019s death.\nAfter defendant Bruton shot the victim, Derrick York attempted to run. Defendant Bruton fired several shots in York\u2019s direction and gave chase. Defendant Bruton caught York, hit him on the head with the gun, and began kicking him. As defendant Bruton struck and kicked York, York saw defendant Townsend kicking the victim. Both defendants subsequently fled from the scene and disposed of their weapons.\nHolly Farley, the victim\u2019s girlfriend, testified that she saw defendant Townsend showing his gun to a crack cocaine addict a short time before the shooting. Farley testified that defendant Townsend \u201ccocked the gun back\u201d and told her that \u201che don\u2019t cock it back unless he was going to use it.\u201d\nDefendants\u2019 evidence suggested that the victim had a reputation for violence, that the argument started when the victim shouted an obscenity at defendant Bruton\u2019s girlfriend, and that defendants acted in self-defense. Defendant Bruton testified that he had seen the victim point a gun at his house on the day prior to the killing, that the victim had been threatening him and talking about his girlfriend all day on the day prior to the killing, and that he believed that the victim \u201cran with a gang.\u201d Defendant Bruton stated that he thought the victim had a gun and that he shot the victim because he was afraid that the victim was reaching for it. Defendant Townsend testified that the victim and York had threatened him prior to the killing and that he had been told that the victim and York were planning on \u201cjumping him.\u201d According to defendant Townsend, he fired his weapon only because York \u201cpulled out a gun.\u201d Defendant Townsend testified that he fired only one shot and that this shot went into the ground.\nAdditional facts will be presented as necessary to address specific issues.\nCOMMON ISSUE\nIn respective assignments of error, defendants contend that the trial court erred by admitting into evidence items seized at 2783 Piedmont Circle, which was defendant Bruton\u2019s temporary residence at the time of the killing. The contested items include numerous nine-millimeter, twenty-two-caliber, and forty-caliber cartridges; shotgun shells; gun boxes; and a twenty-two-caliber gun. Defendants argue that these items were irrelevant in that the State\u2019s evidence failed to link any of the items to the crime.\nEvidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). Generally, all relevant evidence is admissible. N.C.G.S. \u00a7 8C-1, Rule 402 (1992). This Court has consistently stated that \u201cin a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.\u201d State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994).\n\u201cAs a general rule weapons may be admitted in evidence \u2018where there is evidence tending to show that they were used in the commission of a crime.\u2019 \u201d State v. Crowder, 285 N.C. 42, 46, 203 S.E.2d 38, 41-42 (1974) (quoting State v. Wilson, 280 N.C. 674, 678, 187 S.E.2d 22, 24 (1972)), death sentence vacated, 428 U.S. 903, 49 L. Ed. 2d 1207 (1976). The evidence at trial did not link any of the items seized at defendant Bruton\u2019s residence with the killing of the victim. However, the extensive inventory of nine-millimeter cartridges found at defendant Bruton\u2019s residence supported the State\u2019s theory that defendant Bruton owned a nine-millimeter weapon, used it in the killing of the victim, and disposed of it after the killing. For this reason the nine-millimeter cartridges were relevant and admissible. See State v. Levan, 326 N.C. 155, 168, 388 S.E.2d 429, 436 (1990).\nAssuming arguendo that the other items seized at defendant\u2019s residence did not have any probative value, the error in admitting these items was harmless. The items seized at defendant Bruton\u2019s residence were not needed to link either defendant to this crime. Eyewitness testimony tended to show that both defendants were present at the crime scene, that defendant Townsend fired the first shot, and that defendant Bruton shot and killed the victim. At trial defendant Townsend testified that he fired the first shot, and defendant Bruton admitted that he subsequently fired a shot at the victim. In light of the overwhelming evidence of defendants\u2019 guilt, we conclude that defendants cannot show that, had the contested items not been admitted into evidence, a different result would have been reached at trial. See N.C.G.S. \u00a7 15A-1443(a) (1988); State v. Sierra, 335 N.C. 753, 762, 440 S.E.2d 791, 796 (1994). Accordingly, this assignment of error is overruled.\nDEFENDANT BRUTON\nIn his next assignment of error, defendant Bruton contends that the trial court erred in denying his motions to dismiss the charge of first-degree murder at the close of the State\u2019s evidence and at the close of all evidence. Defendant Bruton argues that the evidence is insufficient to support a finding of premeditation and deliberation.\nBy presenting evidence defendant waived his right to appeal the denial of his motion to dismiss at the close of the State\u2019s evidence. State v. Mash, 328 N.C. 61, 66, 399 S.E.2d 307, 311 (1991). Accordingly, we review defendant\u2019s assignment of error only with respect to the trial court\u2019s ruling denying his motion to dismiss at the close of all the evidence.\nIn ruling on a motion to dismiss a first-degree murder charge, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom. State v. Jackson, 317 N.C. 1, 22, 343 S.E.2d 814, 827 (1986), judgment vacated on other grounds, 479 U.S. 1077, 94 L. Ed. 2d 133 (1987). Substantial evidence must be introduced tending to prove the essential elements of the crime charged and that defendant was the perpetrator. Id. The evidence may contain contradictions or discrepancies; these are for the jury to resolve and do not require dismissal. Id. at 22-23, 343 S.E.2d at 827.\nState v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995).\nFirst-degree murder \u201cis the unlawful killing of a human being with malice and with premeditation and deliberation.\u201d State v. Fleming, 296 N.C. 559, 562, 251 S.E.2d 430, 432 (1979). \u201cPremeditation 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.\u201d State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). \u201cDeliberation 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 c\u00e1use or legal provocation.\u201d Id. at 635, 440 S.E.2d at 836.\n\u201cPremeditation 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.\u201d State v. Brown, 315 N.C. 40, 59, 337 S.E.2d 808, 822-23 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988). Circumstances to be considered in determining whether a killing was committed with premeditation and deliberation include the following:\n(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.\nId. at 59, 337 S.E.2d at 823.\nWhen viewed in the light most favorable to the State, the evidence supported submitting first-degree murder to the jury. Armed with a loaded, semiautomatic pistol, defendant Bruton confronted the victim, began an argument; and intentionally deceived the victim by telling the victim he did not have a gun. When the victim attempted to flee, defendant Bruton pointed his gun at the victim, shouted an obscenity-laced statement, and shot the victim in the back. This evidence was sufficient to permit the jury to conclude that defendant Bruton formed an intent to kill before shooting the victim and carried out that intent in a cool state of blood. The jury was not required to believe that defendant Bruton acted out of fear of being shot or that the words or conduct of the victim aroused sufficient passion to negate deliberation. Accordingly, this assignment of error is overruled.\nDEFENDANT TOWNSEND\nBy an assignment of error, defendant Townsend contends that the trial court erred in denying his motion to dismiss at the close of all evidence. Defendant Townsend argues that there is no evidence that defendant acted together with another to commit a second-degree murder. He argues that the evidence only supported a verdict of either first-degree murder or not guilty. We disagree.\nSecond-degree murder \u201cis the unlawful killing of a human being with malice but without premeditation and deliberation.\u201d Fleming, 296 N.C. at 562, 251 S.E.2d at 432. Under the principle of acting in concert, a defendant\nmay be found guilty of an offense if he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.\nState v. Wilson, 322 N.C. 117, 141, 367 S.E.2d 589, 603 (1988). A jury may find a defendant guilty of second-degree murder on the basis of acting in concert. See State v. Williams, 299 N.C. 652, 654-57, 263 S.E.2d 774, 776-78 (1980).\nThe evidence is uncontested that defendant Townsend was present at the scene of the crime, and substantial evidence supported a finding that he acted in concert with defendant Bruton pursuant to a common plan or purpose to murderously assault the victim. After defendant Bruton told defendant Townsend that two \u201cniggers\u201d were at the back door, Townsend followed defendant Bruton outside and observed the argument between Bruton and the victim. Defendant Townsend subsequently shouted \u201cf\u2014 that\u201d or \u201cf\u2014 that, let\u2019s do it\u201d and fired his weapon. When defendant Townsend fired his weapon, defendant Bruton began shooting and shortly thereafter fired the shot which killed the victim. After the shooting defendant Townsend kicked the victim as he lay on the ground. This evidence was sufficient to show that defendant Townsend acted in concert with defendant Bruton pursuant to a common plan or purpose to assault the victim with murderous intent.\nDefendant Townsend argues that the evidence supported only verdicts of first-degree murder or not guilty. We note that defendant did not object to. the submission of second-degree murder at trial. The evidence at trial permitted the jury to find that either defendant acted with premeditation and deliberation, but it did not require that the jury either make this finding or find defendants not guilty. Defendant Townsend testified that he fired one shot into the ground when Derrick York \u201cpulled out a gun.\u201d Defendant Bruton testified that he shot \u201cat\u201d the victim because he was afraid the victim was going to shoot him. The shooting followed a heated argument between the victim and defendant Bruton, and the evidence suggested that the parties exchanged \u201cfighting words\u201d during this argument. The evidence supporting premeditation and deliberation was either circumstantial or contested. Substantial evidence at trial supported each and every element of the crime of second-degree murder, and the evidence permitted the jury to find that defendant Townsend committed this crime on the basis of acting in concert. Accordingly, the trial court did not err in denying defendant Townsend\u2019s motion to dismiss.\nDefendant Townsend further argues that the jury determined that he did not share a common plan to commit a second-degree murder by acquitting him of first-degree murder. He argues that the jury\u2019s determination that no plan existed as to first-degree murder is inconsistent with its finding that he acted in concert with Bruton pursuant to a common plan to commit second-degree murder. Defendant assigned error to the trial court\u2019s ruling denying his motion to dismiss on the ground that the evidence did not support each and every element of the offense charged. Defendant did not make any assignment of error relating to his contention that the jury\u2019s verdict was inconsistent. Accordingly, defendant\u2019s argument is not before this Court. N.C. R. App. P. 10(a).\nThis assignment of error is overruled.\nBy another assignment of error, defendant Townsend contends that his rights to effective assistance of counsel and due process of law were violated because both defendants were represented by the same attorney at trial. Prior to trial the trial court conducted a hearing on the possible conflict of interest. During this hearing defendants\u2019 counsel stated that no conflict of interest existed. The trial court informed both defendants that a conflict could possibly arise and that each defendant had a right to his own lawyer. The court explained that a future course of action might be to one defendant\u2019s advantage and to the other defendant\u2019s disadvantage. Both defendants assented to the joint representation. At the conclusion of the hearing, the trial court found that there was no actual conflict and that both defendants voluntarily, knowingly, and intelligently waived the right to separate counsel.\nDefendant Townsend nevertheless contends that an actual conflict of interest arose at trial and that the trial court should have declared a mistrial when the conflict became apparent. A defendant in a criminal case has a constitutional right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692 (1984); State v. Braswell, 312 N.C. 553, 561, 324 S.E.2d 241, 247 (1985). The right to effective assistance of counsel includes the \u201cright to representation that is free from conflicts of interest.\u201d Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981). In order to establish a violation of this right, \u201ca defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer\u2019s performance.\u201d Cuyler v. Sullivan, 446 U.S. 335, 348, 64 L. Ed. 2d 333, 346-47 (1980); accord State v. Walls, 342 N.C. 1, 39-40, 463 S.E.2d 738, 757 (1995), cert. denied,-U.S. -, 134 L. Ed. 2d 794 (1996).\nPermitting a single attorney to represent two or more codefendants in the same trial is not a per se violation of the right to effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482, 55 L. Ed. 2d 426, 433 (1978). Accordingly, the mere possibility of conflict inherent in counsel\u2019s joint representation of defendants is not sufficient to impugn defendant Townsend\u2019s \u25a0 criminal conviction. See Cuyler, 446 U.S. at 350, 64 L. Ed. 2d at 348; Walls, 342 N.C. at 40, 463 S.E.2d at 758.\nDefendant Townsend argues that his counsel failed to impeach testimony by defendant Bruton which was unfavorable to Townsend. The record shows that defendant Bruton testified on cross-examination that defendant Townsend yelled \u201cf\u2014 that, let\u2019s do it\u201d before firing his weapon. Defendant Townsend subsequently denied using the exact words attributed to him by Bruton. Defendant Townsend contends that defendant Bruton\u2019s testimony tended to support the State\u2019s theory that Townsend was involved in a plan to shoot the victim or that his statement was a signal to Bruton to begin shooting. Townsend argues that counsel declined to impeach defendant Bruton because he did not want to challenge Bruton\u2019s credibility.\nWe conclude that defendant Townsend has not shown that counsel\u2019s failure to challenge defendant Bruton\u2019s testimony actually impaired Townsend\u2019s defense. Defendant Bruton testified that defendant Townsend\u2019s statement was not a signal to begin shooting. In his testimony defendant Townsend denied only using the exact words attributed to him by defendant Bruton. He admitted making some remarks, admitted firing his weapon after doing so, and did not specifically deny shouting an obscenity. The State presented eyewitness testimony that defendant Townsend shouted an obscenity before firing his weapon; hence, questioning either defendant further about the discrepancy in their testimony may have only highlighted Townsend\u2019s role in shooting the victim.\nThe essence of both defendants\u2019 testimony was that the victim provoked the confrontation and that they acted in self-defense. Defense counsel\u2019s cross-examination of witnesses, presentation of defendants\u2019 evidence, and jury argument supported this testimony. The United States Supreme Court has recognized that \u201c \u2018[a] common defense often gives strength against a common attack.\u2019 \u201d Holloway, 435 at 482-83, 55 L. Ed. 2d at 433 (quoting Glasser v. United States, 315 U.S. 60, 92, 86 L. Ed. 680, 710-11 (1942) (Frankfurter, J., dissenting)). We conclude that defendant Townsend has failed to show that an actual conflict of interest adversely affected his lawyer\u2019s performance. This assignment of error is overruled.\nBy his next assignment of error, defendant Townsend contends that the trial court erred by refusing to instruct the jury on involuntary manslaughter. A trial judge must instruct the jury as to a lesser-included offense when there is evidence from which the jury could find that the defendant committed that offense. State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152, 153 (1976), overruled on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). \u201cInvoluntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury.\u201d State v. Powell, 336 N.C. 762, 767, 446 S.E.2d 26, 29 (1994). We have also defined involuntary manslaughter as \u201cthe unintentional killing of a human being without malice proximately caused by (1) an unlawful act [neither] amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.\u201d Id.\nDefendant argues that his conduct in discharging his weapon amounted to culpable negligence. Even if defendant Townsend committed a culpably negligent act by discharging his weapon, the jury could not have found Townsend guilty of involuntary manslaughter because this act did not result in the victim\u2019s death. As defendant Townsend acknowledges in his brief, the evidence at trial was undisputed that defendant Bruton intentionally fired the shot which killed the victim. Defendant Townsend\u2019s act in discharging his weapon did not proximately cause the victim\u2019s death. Accordingly, we conclude that the trial court correctly declined to instruct the jury on involuntary manslaughter. This assignment of error is overruled.\nDefendant Townsend next assigns error to the finding of the aggravating factor that \u201cdefendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(l)(g) (1988) (repealed effective 1 October 1994; reenacted as N.C.G.S. \u00a7 15A-1340.16(d)(8) effective 1 October 1994). Defendant argues that the evidence was insufficient to support a finding that he knowingly created a great risk of death to more than one person and that evidence essential to prove this factor was necessary to prove an essential element of second-degree murder on the basis of acting in concert.\nTo find the aggravating factor at issue here, \u201cthe sentencing judge must focus on two considerations: (1) whether the weapon in its normal use is hazardous to the lives of more than one person; and (2) whether a great risk of death was knowingly created.\u201d State v. Rose, 327 N.C. 599, 605, 398 S.E.2d 314, 317 (1990); accord State v. Carver, 319 N.C. 665, 667, 356 S.E.2d 349, 351 (1987). The evidence in this case tended to show that defendant Townsend fired a nine-millimeter, semiautomatic pistol. A semiautomatic pistol is normally used to fire several bullets in rapid succession and in its normal use is hazardous to the lives of more than one person. See Carver, 319 N.C. at 667-68, 356 S.E.2d at 351. The State\u2019s evidence suggested that defendant Townsend intentionally fired more than one shot in the direction of the victim, Holly Farley, and Derrick York. Accordingly, the evidence permitted the trial court to find that defendant knowingly created a great risk of death to more than one person by means of a weapon which would normally be hazardous to the lives of more than one person.\nDefendant Townsend also argues that the evidence used to prove this factor was necessary to prove second-degree murder on the basis of acting in concert. \u201cEvidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.\u201d N.C.G.S. \u00a7 15A-1340.4(a)(l); State v. Wilson, 338 N.C. 244, 257, 449 S.E.2d 391, 399 (1994). Defendant Townsend argues that the evidence that he fired a semiautomatic pistol was necessary to prove that he acted in concert with defendant Bruton. We disagree.\nThis Court has recognized that the statutory factors in N.C.G.S. \u00a7 15A-1340.4(a)(l) \u201ccontemplate a duplication in proof without violating the proscription that \u2018evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation.\u2019 \u201d State v. Thompson, 309 N.C. 421, 422 n.l, 307 S.E.2d 156, 158 n.l (1983) (quoting N.C.G.S. \u00a7 15A-1340.4(a)(l)). Discrete evidence in this case supported both acting in concert and the aggravating factor. In meeting its burden of proof with respect to second-degree murder on the basis of acting in concert, the State was not required to establish that defendant Townsend knowingly created a great risk of death to more than one person or that he did so by using a weapon which in its normal use is hazardous to the lives of more than one person. We conclude, therefore, that the trial court did not err in finding the aggravating factor. This assignment of error is overruled.\nFor the foregoing reasons defendants received a fair trial free from prejudicial error.\nNO ERROR.", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by Norma S. Harrell, Special Deputy Attorney General, for the State.", "Lisa S. Costner for defendant-appellant Bruton.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant Townsend." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE A. BRUTON and WILLIE TOWNSEND\nNo. 416A95\n(Filed 6 September 1996)\n1. Evidence and Witnesses \u00a7 1482 (NCI4th)\u2014 first-degree mnrder \u2014 ammunition found in defendant\u2019s home \u2014 probative value lacking for some \u2014 overwhelming weight of evidence \u2014 no error\nThe trial court did not err in a noncapital first-degree murder prosecution by admitting into evidence items seized from defendant Bruton\u2019s residence, including numerous nine-millimeter, twenty-two-caliber, and forty-caliber cartridges, shotgun shells, gun boxes, and a twenty-two-caliber gun. The evidence at trial did not link any of the items seized at defendant Bruton\u2019s residence with the killing of the victim; however, the extensive inventory of nine-millimeter cartridges found at defendant Bruton\u2019s residence supported the State\u2019s theory that defendant Bruton owned a nine-millimeter weapon, used it in the killing of the victim, and disposed of it after the killing. Assuming that the other items did not have any probative value, admitting the items was harmless in light of the overwhelming evidence of defendant\u2019s guilt.\nAm Jur 2d, Homicide \u00a7 414.\n2. Homicide \u00a7 256 (NCI4th)\u2014 noncapital first-degree murder \u2014 premeditation and deliberation \u2014 denial of motion to dismiss\nThe trial court did not err in a noncapital first-degree murder prosecution by denying defendant Bruton\u2019s motion to dismiss the charge at the close of all the evidence; defendant waived his right to appeal the denial of his motion to dismiss at the close of the State\u2019s evidence by presenting evidence. Defendant Bruton confronted the victim armed with a loaded, semiautomatic pistol, began an argument, intentionally deceived the victim by telling the victim he did not have a gun, pointed his gun at the victim when the victim attempted to flee, shouted an obscenity-laced statement, and shot the victim in the back.\nAm Jur 2d, Homicide \u00a7 425.\nModern status of the rules requiring malice \u201caforethought,\u201d \u201cdeliberation,\u201d or \u201cpremeditation,\u201d as elements of murder in the first degree. 18 ALR4th 961.\n3. Homicide \u00a7 285 (NCI4th)\u2014 second-degree murder \u2014 sufficiency of evidence\nThe evidence in a noncapital first-degree murder prosecution was sufficient to support defendant Townsand\u2019s conviction of second-degree murder where the evidence is uncontested that defendant Townsend was present at the scene of the crime and substantial evidence supported a finding that he acted in concert with defendant Bruton pursuant to a common plan or purpose to murderously assault the victim. The evidence at trial permitted the jury to find that either defendant acted with premeditation and deliberation, but did not require that the jury either make that finding or find defendants not guilty.\nAm Jur 2d, Homicide \u00a7 425.\n4. Appeal and Error \u00a7 341 (NCI4th)\u2014 first-degree murder\u2014 jury verdict \u2014 no assignment of error\nA defendant\u2019s argument concerning inconsistency in a jury verdict in a noncapital first-degree murder prosecution was not before the Supreme Court where defendant assigned error to the trial court\u2019s denial of his motion to dismiss on the ground of insufficient evidence, but did not make any assignment of error relating to his contention that the jury\u2019s verdict was inconsistent.\nAm Jur 2d, Appellate Review \u00a7\u00a7 615, 616; Trial \u00a7\u00a7 424-429.\n5. Constitutional Law \u00a7 293 (NCI4th)\u2014 first-degree murder\u2014 counsel representing both defendants \u2014 discrepancy in testimony \u2014 no denial of effective assistance of counsel\nThe rights of defendant Townsend to effective assistance of counsel and due process of law were not violated because both defendants were represented by the same attorney at a noncapital first-degree murder trial. Although defendant Townsend contends that an actual conflict of interest arose when his counsel failed to impeach testimony by defendant Bruton which was unfavorable to Townsend, Townsend did not show that counsel\u2019s failure to challenge defendant Bruton\u2019s testimony actually impaired Townsend\u2019s defense because questioning either defendant further about the discrepancy in their testimony may have only highlighted Townsend\u2019s role in shooting the victim.\nAm Jur 2d, Criminal Law \u00a7\u00a7 754-757.\nCircumstances giving rise to conflict of interest between or among criminal codefendants precluding representation by same counsel. 34 ALR3d 470.\nCircumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel \u2014 state cases. 18 ALR4th 360.\nCircumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel \u2014 federal cases. 53 ALR Fed. 140.\n6. Homicide \u00a7 357 (NCI4th)\u2014 first-degree murder \u2014 refusal to instruct on involuntary manslaughter\nThere was no error in the noncapital first-degree murder prosecution of two defendants where defendant Townsend contended that the trial court erred by refusing to instruct on involuntary manslaughter. The jury could not have found him guilty of involuntary manslaughter even if he committed a culpably negligent act by discharging his weapon because the evidence at trial was undisputed that defendant Bruton intentionally fired the shot which killed the victim. Defendant Townsend\u2019s discharge of his weapon did not proximately cause the victim\u2019s death.\nAm Jur 2d, Homicide \u00a7 531.\n7. Criminal Law \u00a7 1150 (NCI4th)\u2014 second-degree murder\u2014 aggravating factor \u2014 use of weapon normally hazardous to more than one person \u2014 nine-millimeter semiautomatic pistol \u2014 not element of offense\nThe trial court did not err in a noncapital first-degree murder prosecution in which defendant Townsend was convicted of second-degree murder by finding as to defendant Townsend the aggravating factor that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person, and the evidence essential to prove this factor was not necessary to prove an essential element of second-degree murder on the basis of acting in concert. The evidence showed that defendant Townsend fired more than one shot from a nine-millimeter, semiautomatic pistol, which in its normal use is hazardous to the lives of more than one person, in the direction of the victim and another person. In meeting its burden of proof with respect to second-degree murder based on acting in concert, the State was not required to establish that defendant Townsend knowingly created a great risk of death to more than one person or that he did so by using a weapon which in its normal use is hazardous to the lives of more than one person. N.C.G.S. \u00a7 15A-1340.4(a)(l)(g).\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nComment. \u2014 Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.\nAppeal as of right by defendant Bruton pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of life imprisonment entered by Freeman, J., at the 4 April 1995 Criminal Session of Superior Court, Forsyth County, upon a jury verdict finding defendant Bruton guilty of first-degree murder. Defendant Townsend\u2019s motion to bypass the Court of Appeals as to his conviction for second-degree murder was allowed by this Court 2 October 1995. Heard in the Supreme Court 8 April 1996.\nMichael F. Easley, Attorney General, by Norma S. Harrell, Special Deputy Attorney General, for the State.\nLisa S. Costner for defendant-appellant Bruton.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant Townsend." }, "file_name": "0381-01", "first_page_order": 413, "last_page_order": 426 }