STATE OF NORTH CAROLINA
v. From Johnston County
Nos. 00 CRS 56845 - 48
KURT LEY, 00 CRS 56851
Defendant. 01 CRS 8383
(a) Any person who shall unlawfully confine, restrain,
or remove from one place to another, any other person
16 years of age or over without the consent of such
person, or any other person under the age of 16 years
without the consent of a parent or legal custodian of
such person, shall be guilty of kidnapping if such
confinement, restraint or removal is for the purpose
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(2) Facilitating the commission of any felony
or facilitating flight of any person following
the commission of a felony . . .
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(b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either wasnot released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree.
Regarding Ms. Ricker, defendant contends that the evidence only supports second-degree kidnapping because Ricker was not injured and was left in a safe place. We disagree. The North Carolina Supreme Court has defined releasing the victim in a safe place, within the meaning of the statute, as a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety. State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983). Defendant asserts that he did not injure Ricker or leave her in an unsafe place. However, we conclude that the evidence, viewed most favorably to the State, supports the conclusion that defendant did not consciously and willfully assure that Ricker was in a safe place.
With respect to Lee and Wright, defendant argues that forcing Lee into the house at gunpoint and calling Wright out of bed and into the living room were inherent parts of the murder and attempted murder, and thus do not support separate kidnapping convictions. The removal from one place to another, required by the kidnapping statute, must be a removal separate and apart from one which is an inherent part of the commission of another felony. State v. Irwin,304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981). Our Supreme Court has held that the element of restraint inherent in some felonies may not also constitute kidnapping, such as crimes that cannot be committed without some restraint, for example, forcible rape or armed robbery. State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). To hold otherwise would violate double jeopardy. Id. However, the Court has also made clear that two or more criminal offenses may arise from the same course of action, and a conviction for kidnapping does not violate double jeopardy where the restraint is used to facilitate the commission of another felony and the restraint is a separate and complete act, independent of the other felony. Id. at 524, 243 S.E.2d at 352. Here, the felonies were murder and attempted murder. Defendant asserts that ordering Lee back into his home at gunpoint was inherent to the murder and that calling Wright out of the bedroom and telling him to sit on the couch was inherent to the attempted murder. We disagree.
In Irwin, relied on by defendant, the Court held that the removal of the victims to the back of the store during an armed robbery was an inherent and integral part of the crime of armed robbery. Irwin, 304 N.C. at 103, 282 S.E.2d at 446. However, in Irwin, the defendant's objective was to obtain drugs and this required that someone go to the back of the store to the prescription counter and open the safe. The Court held that thiswas mere technical asportation, insufficient to support a separate kidnapping offense. Id. In contrast, in State v. Walker, the Court held that:
Asportation of a rape victim is sufficient to support
a charge of kidnapping if the defendant could have
perpetrated the offense when he first threatened the
victim . . . . Such asportation is separate and
independent of the rape . . . and is, therefore,
kidnapping . . . . [D]efendant, after threatening the
victim with physical harm and forcing her back into the
car, drove the car to a more secluded area. . . before
committing the rape. Defendant could have perpetrated
the crime when he first stopped the car.
84 N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987) (emphasis added).. See also, State v. Alston, 294 N.C. 577, 589, 243 S.E.2d 354 (1978) (ample evidence of kidnapping when defendant forced victim to walk fifty feet into the woods where he committed the felonious assault); State v. Coffer, 54 N.C. App. 78, 282 S.E.2d 492, 497 (1981) (removal of victim from her porch to nearby wooded area where defendant assaulted her sufficient to support separate kidnapping charge). Although Walker involved asportation of a greater distance than here, it is well-established that the actual distance of the removal or asportation is immaterial. See, e.g., State v. Ingland, 278 N.C. 42, 51, 178 S.E.2d 577, 583 (1971); State v. Little, 133 N.C. App. 601, 606, 515 S.E.2d 752, 756, disc. review denied, 351 N.C. 115, 540 S.E.2d 741(1999). We conclude that it was not necessary for defendant to force Lee and Ricker into the home sothat he could shoot Lee, nor was it necessary for him to call Wright out from his room and order him to sit down in order to shoot him. As in Walker, defendant could have perpetrated these crimes without kidnapping. Thus, we hold that the evidence sufficiently sustains separate convictions of kidnapping and murder and attempted murder.
Defendant next argues that the trial court erred in denying his motion to dismiss the burglary charge. Burglary is a common-law offense and the elements are the breaking and entering during the nighttime of a dwelling with intent to commit a felony therein. State v. Mumford, 227 N.C. 132, 133, 41 S.E.2d 201, 202 (1947). Defendant argues that there was no breaking and entering here, but rather, only a forced entering. It is undisputed that defendant ordered Lee and Ricker into Lee's home with a shotgun pointed at them. Defendant concedes that [a] breaking may be actual or constructive. A constructive breaking occurs where entrance is obtained in consequence of violence commenced or threatened by defendant. State v. Jolly, 297 N.C. 121, 128, 254 S.E.2d 1, 6 (1979) (internal citations omitted). Defendant asserts that in his case there was only evidence of a forced entering and no evidence of a forced breaking. However, in accordance with Jolly, we conclude that there was sufficient evidence that defendant committed a constructive breaking and then entered the dwelling.
Defendant also contends that the trial court erred inrefusing his requested instruction on diminished capacity. At trial, a psychologist testified that defendant suffers from biploar disorder and that this could have affected his ability to form the intent to kill. Prior to the jury charge, defendant requested a modified instruction on diminished mental capacity regarding the first-degree murder charge. Defendant argued that his diminished mental capacity affected his ability to form the specific intent to kill as well as his ability to deliberate. The judge instructed the jury pursuant to the pattern jury instruction on a lack of mental capacity, in pertinent part, as follows:
[I]f you find that the defendant lacked mental
capacity, you should consider whether this condition
affected his ability to formulate thespecific intent
which is required for conviction of first-degree
murder. In order for you to find the defendant guilty
of first-degree murder, you must find, beyond a
reasonable doubt, that he killed the deceased with
malice and in execution of an actual, specific intent
to kill, formed after premeditation and deliberation.
If as a result of lack of mental capacity the defendant
did not have the specific intent to kill the deceased,
formed after premeditation and deliberation, he is not
guilty of first-degree murder.
Defendant asserts that this instruction only addressed a lack of mental capacity to form specific intent, but did not address diminished mental capacity also affecting deliberation, and was thus deficient. We disagree.
An instruction to a jury will not be viewed in isolation, but rather must be considered in the context of the entire charge.Instructions that as a whole present the law fairly and accurately to the jury will be upheld. State v. Roache, 358 N.C. 243, 303, 595 S.E.2d 381, 419 (2004) (internal citations and quotations omitted). The trial court is not required to instruct the jury using the exact language counsel requests, but may exercise its discretion in choosing the exact words. State v. Lewis, 346 N.C. 141, 146, 484 S.E.2d 379, 381 (1997). Furthermore, in State v. Holder, the Court rejected defendant's argument . . . that intent is an element independent of premeditation or deliberation and that he was entitled to have a separate diminished capacity instruction with regard to each. 331 N.C. 462, 474, 418 S.E.2d 197, 203 (1992). Similarly, the Court has held that specific intent to kill, premeditation and deliberation are interdependent, rather than independent, elements and must be considered collectively rather than in isolation. State v. Hamilton, 338 N.C. 193, 210, 449 S.E.2d 402, 412 (1994). Accordingly, we conclude that the trial court properly instructed the jury regarding diminished capacity.
Next, defendant argues that the trial court erred in refusing to conduct an in-camera review of a juror's note stating that she had not be able to express her opinion during deliberations, and in denying his motions for a mistrial, for appropriate relief, and to re-poll the jurors. The guilt phase of defendant's trial concluded on Friday afternoon, at which time the jury was polled, and thecourt recessed for the weekend. On Monday morning, the jury reconvened for the sentencing phase and a juror gave the judge a handwritten note complaining about what she perceived to be juror misconduct, specifically, that she and others had been interrupted loudly and rudely and shut down. The judge advised counsel of this and allowed counsel to review the note and be heard. Defense counsel made a motion for a mistrial, which was denied. Counsel then requested an in-camera inquiry with the juror, which the court also denied. Counsel then asked that the jurors be re-polled, which was also denied. Defense counsel's motion for appropriate relief was also denied.
The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case. N.C. Gen. Stat. § 15A-1061 (2003). Whether to grant a motion for mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). For the reasons discussed below, we conclude that the trial court here did not abuse its discretion in denying defendant's motion fora mistrial.
N.C. Gen. Stat. § 15A-1238 grants a defendant the right to have the jury polled before the jury has dispersed. Whether the jury has dispersed is a question of law, which we review de novo. See State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991); State v. Martin, 315 N.C. 667, 340 S.E.2d 326 (1986); State v. Ballew, 113 N.C. App. 674, 440 S.E.2d 565 (1994), aff'd 339 N.C. 733, 453 S.E.2d 865 (1995). In State v. Black, the North Carolina Supreme Court held that when the court gave the jury a thirty-minute break, during which the jury was free to leave the courthouse, that the jury had been dispersed within the meaning of N.C. Gen. Stat. § 15A-1238. 328 N.C. at 198, 400 S.E.2d at 402-03. Thus, the Court held that defendant's motion to poll the jury after it was reconvened came too late, that the defendant waived the right to poll the jury. Id. The Court explained:
The purpose of polling the jury is to ensure that the
jurors unanimously agree with and consent to the
verdict at the time it is rendered. If the jury is
unanimous at the time the verdict is returned, the fact
that some of them change their minds at any time
thereafter is of no consequence; the verdict rendered
remains valid and must be upheld. The rationale behind
requiring that any polling of the jury be before
dispersal is to ensure that nothing extraneous to the
jury's deliberations can cause any of the jurors to
change their minds. Once a juror leaves the courtroom
after the verdict is returned and goes into the
streets, despite her best efforts to shield herself,
she still can be affected by improper outside
influences. . . . In other words, once the jury isdispersed after rendering its verdict and later called
back, it is not the same jury that rendered the
Id. (emphasis added, internal citations and quotations omitted).
Similarly, in State v. Martin, the Court held that the defendant's request for a repolling of the jury during the sentencing phase of the trial when the foreperson said she changed her mind, was correctly denied, as this was an attempt to impeach the verdict of the jury after it had been rendered. 315 N.C. at 685, 340 S.E.2d at 336. As the jury here concluded the guilt phase on Friday and was polled then, and defendant's request for re-polling came on Monday morning after the jury recessed for the weekend, we conclude that the jury had already been dispersed and thus the trial court properly denied this request. Accordingly, this assignment of error is overruled.
Defendant also requested an in-camera review of the juror's note pursuant to N.C. Gen. Stat. § 15A-1240 (2003). N.C. Gen. Stat. § 15A-1240 addresses impeachment of the verdict, in pertinent part, as follows:
(a) Upon an inquiry into the validity of a verdict, no
evidence may be received to show the effect of any
statement, conduct, event, or condition upon the mind
of a juror or concerning the mental processes by which
the verdict was determined.
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(c) After the jury has dispersed, the testimony of ajuror may be received to impeach the verdict of the jury on which he served, subject to the limitations in subsection (a), only when it concerns:
(1) Matters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witnesses against him; or
(2) Bribery, intimidation, or attempted bribery or intimidation of a juror.
G. S. 15A-1240 allows the trial judge to admit testimony for the purpose of impeaching the verdict of a jury . . . . The determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal. State v. Gilbert, 47 N.C. App. 316, 319, 267 S.E.2d 378, 379 (1980) (internal citation omitted). The circumstances must be such as not merely to put suspicion on the verdict . . . but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge. State v. Bailey, 307 N.C. 110, 112, 296 S.E.2d 287, 288 (1982) (internal citation and quotations omitted). Here, the juror's note alleged that she and others were interrupted loudly and rudely and shut down, but did not allege any of the grounds for impeachment under N.C. Gen. Stat. § 15A-1240. We conclude that the trial court did not err in refusing to conduct further inquiry into this matter. As defendant's motion for a mistrial and for appropriate relief were based on the preceding arguments and we find these to be without merit, we also conclude that the trial court did not err in denying defendant's motions for mistrial and for appropriate relief.
Defendant's final arguments rest on this Court accepting his earlier argument that he was improperly convicted of first-degree murder. The judge instructed the jury that defendant could be found guilty on either a theory of first-degree murder or of felony murder. Defendant contends that if he was improperly convicted of first-degree murder, then he could only have been validly convicted under felony murder and that the trial court thus erred in sentencing him on both the murder and the underlying felonies of kidnapping and burglary. Because we overruled defendant's arguments regarding the sufficiency of the evidence for the first-degree murder conviction, we overrule these arguments as well.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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