STATE of North Carolina
v.
Pinkney Thomas MITCHELL, Jr., and Wallace Charles Lanford, Jr.
No. 7.
Supreme Court of North Carolina.
October 7, 1975.*335 Atty. Gen. Rufus L. Edmisten by Associate Attorney Robert W. Kaylor, Raleigh, for the State.
Robert H. Forbes, Gastonia, for Pinkney Thomas Mitchell, Jr. and Robert E. Gaines, Gastonia, for Wallace Charles Lanford, Jr., representing defendant appellants.
COPELAND, Justice.
Defendants were represented by separate counsel and filed separate appeals. Some of the assignments of error are the same and some relate only to one defendant.
Our Court has held that where there are two indictments in which both defendants are charged with the same crimes, then they may be consolidated for trial in the discretion of the court. State v. Combs, 200 N.C. 671, 674, 158 S.E. 252, 254 (1931). "The Court is expressly authorized by statute in this state to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible *336 at the trial of the others. [Citations omitted.]" Id. at 674, 158 S.E. at 254. G.S. 15-152; State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962).
Defendant Mitchell contends the consolidation was prejudicial to him because of the testimony of William Richard Stewart, the brother-in-law of defendant Lanford. A careful examination of the record indicates that Stewart testified as to substantially similar incriminating statements made by each defendant in the presence of one another. In essence, Mitchell adopted Lanford's admissions to Stewart.
Defendant Lanford contends that the consolidation was prejudicial against him because defendant Mitchell testified in his own behalf at the trial and attempted to mitigate the killing and reduce it to second-degree murder because of his use of drugs and intoxicants. Lanford contends that this especially hurt his case since he elected not to testify in his own behalf. There is absolutely nothing in the record to indicate that the trial judge in making his ruling on consolidation knew that Mitchell would take the witness stand. In any event, Mitchell had a right to testify if he wished and Lanford could cross-examine him. Moreover, it is difficult to understand how Lanford can contend that he was prejudiced by Mitchell testifying when in fact Mitchell admitted the killing and the burning of the vehicle and attempted by his testimony to exonerate Lanford in every way. It was proper and appropriate for the two defendants to be tried together and there is no merit to this assignment of error.
Defendants Lanford and Mitchell next contend that the court should have dismissed the cases against them as of nonsuit and for mistrial for the charges of first-degree murder at the close of the State's evidence and at the close of all the evidence. Lanford makes a similar contention with respect to the charge of felonious burning of personal property.
Upon a motion for nonsuit, the trial court must consider the evidence in the light most favorable to the State. The trial court is not concerned with the weight of the testimony, but only with whether the evidence, be it direct or circumstantial, supports sending the case to the jury. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). Conflicts and discrepancies in the evidence should be resolved in the State's favor. State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975); State v. McNeil, supra; State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).
In order to convict the defendant of first-degree murder, the State must satisfy the jury beyond a reasonable doubt of all the elements thereof, to wit, an unlawful killing of a human being with malice and with a specific intent to kill and committed after premeditation and deliberation.
"Of course, ordinarily, it is not possible to prove premeditation and deliberation by direct evidence. Therefore, these elements of first degree murder must be established by proof of circumstances from which they may be inferred. [Citations omitted.] Among the circumstances to be considered by the jury in determining whether a killing was with premeditation and deliberation are: want of provocation on the part of the deceased; the conduct of the defendant before and after the killing; the use of grossly excessive force; or the dealing of lethal blows after the deceased has been felled. [Citations omitted.]" State v. Buchanan, 287 N.C. 408, 420-21, 215 S.E.2d 80, 87-88 (1975); State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Hamby and State v. Chandler, 276 N.C. 674, 174 S.E.2d 385 (1970); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970); State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969); State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961).
An analysis of the facts of the case in relation to these factors reveals a want *337 of provocation by the deceaseda sixteen-year-old girl. The conduct of defendants before and after the killing supported an inference of premeditation and deliberation as well as the other elements of the crimes charged. The State's evidence permits the following reasonable inferences: defendants abducted the victim and had sexual relations with her; defendants told Stewart that they had killed the victim; defendants later departed in the victim's automobile and burned it in order to destroy any evidence; and defendants secured another vehicle in which to leave Gaston County. The use of grossly excessive force was indicated when the deceased was found tied to a tree, gagged, and stabbed numerous times in vital areas of the body. In summation, there was plenary evidence as to both defendants from which to show premeditation and deliberation as well as the other elements of the crimes involved. This assignment of error is without merit and is overruled.
Defendant Mitchell contends that the trial court committed error in the charge to the jury. Counsel for Mitchell, with commendable frankness, states that none of the exceptions, in his opinion, would entitle Mitchell to a new trial. Counsel requests the court to review the charge. This has been done and we conclude that there was no error.
Defendant Mitchell contends the court erred in permitting the witness Shellnut to change his description of the defendants on voir dire. There was no voir dire of Shellnut and he did not identify defendants. There is no merit in this argument.
Defendant Mitchell also contends that it was improper for the court to receive evidence concerning the home life of the deceased, photographs of the area in which she lived and where she was seen with the defendants, and photographs of the deceased, the automobile, and its contents.
In connection with these assignments of error, counsel for the defendant concedes that none of these individually would entitle the defendant to a new trial, but should be considered reversible error when considered as a whole.
All of this evidence, save that of the home life of the victim, was competent and relevant to establish the identification of the victim, the ownership of the Volkswagen, and the identification of the general area where the crimes had their inception. The photographic evidence was introduced with limiting instructions for the purpose of illustrating the testimony of the witnesses. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). If the evidence pertaining to the home life of the deceased was error, then it was clearly harmless beyond a reasonable doubt. State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). These assignments of error are overruled.
Defendant Mitchell also contends that admission of the testimony of the witness Stewart was prejudicial error. As stated earlier in the discussion on consolidation, there is no merit in this related contention for the reasons there stated.
A further contention of Mitchell is that the failure of Lanford to testify caused the jury to have grave doubts concerning Mitchell's defense. This argument has no merit. The record indicates that Mitchell by his own testimony admitted the killing and the burning of the Volkswagen and attempted to excuse himself of murder in the first degree because of the use of drugs and intoxicating beverages.
Defendant Mitchell contends that he did not have sufficient mental capacity to form the necessary premeditation and deliberation. In this connection, the trial court properly charged the jury on the law relative to voluntary intoxication and voluntary use of drugs. It was properly left for the jury to determine whether Mitchell's mental condition was so affected by intoxication or drugs that he was rendered incapable of forming a deliberate and premeditated purpose to kill. State v. Propst, *338 274 N.C. 62, 161 S.E.2d 560 (1968). This assignment of error is overruled.
Both defendants contend that the court erred by refusing to set the verdict aside as being against the greater weight of the evidence and refusing to declare a mistrial. These motions were addressed to the discretion of the trial court. That discretion was not abused. 3 Strong, N.C. Index 2d, Criminal Law, §§ 128, 132. As a matter of fact, we have fully considered this in the discussion on the motions for nonsuit. These assignments are without merit and are overruled.
The defendants have had a fair trial free from prejudicial error. Kathy was sent to her death in a vicious manner by these defendants. The case was ably prepared and presented by the district attorney and carefully and fairly tried by Judge Grist.
In the trial we find
No error.