Appeal by defendant from Thornburg, Judge. Judgment entered 7 August 1980 in Superior Court, Mecklenburg County.
Martin (Robert M.), Judge. Judges Clark and Hill concur.
Defendant has preserved ten of his fourteen assignments of error on appeal. He first assigns error to the bill of indictment alleging that it was fatally defective for failure to allege the elements of lack of consent, the age of the victim and the correct
name of the defendant. Defendant's motion in arrest of judgment was made after the verdict was entered and appears to have been based solely upon the misspelling of defendant's name in the bill of indictment. We note, however, that pursuant to G.S. 15A-1446(d)(4), failure of an indictment to state the essential elements of an alleged violation may be raised for the first time on appeal. The bill of indictment in question reads:
The Jurors For The State Upon Their Oath Present that on or about the 13 day of July, 1979, in Mecklenburg County, Ronald Tyree Fronberger (sic), did unlawfully, wilfully and feloniously confine, restrain, and remove another person, Ethell Wilson, for the purpose of facilitating the commission of the felony of murder in teh (sic) first degree, adn (sic) said Ethell Wilson was killed as a result of said kidnapping, in violation of G.S. 14-39.
G.S. 14-39, in pertinent part provides:
Kidnapping. -- (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 of:
(2) Facilitating the commission of any felony . . . .
We agree with the State that neither the slight misspelling of defendant's name nor the failure to allege the age of the victim makes the indictment defective. Our Supreme Court has held that the victim's age is not an essential element of kidnapping. The Court noted that age is merely a factor relating to the State's burden of proof in regard to consent. State v. Hunter, 299 N.C. 29, 261 S.E.2d 189 (1980). In light of a recent decision handed down by the Supreme Court, the failure to allege lack of consent of the victim is also not fatal. State v. Sturdivant, filed 3 November 1981. The Court emphasized, "By its very nature, the crime of kidnapping cannot be committed if one consents to the act in a legally valid manner." For the aforesaid reasons we find the bill of indictment to be proper in form.
Prior to trial defense counsel filed a motion in limine requesting the trial court to prohibit the State from producing evidence that the alleged kidnapped victim, Ethell Wilson, was subsequently found deceased. He alleged that the State was cognizant of the fact that defendant did not participate in the actual murder of Wilson. The trial court denied the motion and informed defense counsel, "I will just have to rule on the evidence as it comes along as to the extent to which I will let the State proceed." Defendant assigns error to the denial of this motion and argues that the subsequent admission of evidence pertaining to the murder and the decomposed condition of Wilson's body, which was found 39 days after the kidnapping, was prejudicial. We find no error in the denial of defendant's motion. "One of the essential elements of kidnapping under G.S. 14-39 is that the confinement, restraint, or removal be for the purpose of, among other alternatives, 'facilitating the commission of any felony.'" State v. Williams, 295 N.C. 655, 659, 249 S.E.2d 709, 713 (1978). In the case sub judice, the State had the burden of proving that Wilson was unlawfully confined, restrained or removed for the purpose of committing murder. To convict defendant of kidnapping, the State did not have to prove the actual commission of the murder. In his argument supporting the motion in limine, defendant merely alleged that "if any evidence relative to the subsequent murder of the victim of the kidnapping is brought out at this trial, it will do nothing other than inflame the jury." On the basis of this argument we do not feel that the trial court abused its discretion in denying defendant's motion. We further note that at trial the State presented testimony from the Mecklenburg County Medical Examiner and an investigator from his office that Wilson's decomposed and bullet-riddled body was found in the trunk of a Cadillac in Mecklenburg County on 21 August 1979. Defendant failed to object to any of this evidence and, in effect, waived any assignment of error as to the prejudicial effect of the denial of his motion in limine.
We note that defendant did object to the following question posed to a witness who was at the scene when the body was found: "And whether or not the body was decomposed(?)" We also note that the trial court sustained this objection. Defendant's allegation that this leading question by the district attorney was prejudicial is, therefore, groundless.
Defendant has abandoned Assignments of Error Nos. 3, 4 and 5.
In Assignment of Error No. 6, defendant argues that the trial court committed prejudicial error by allowing the district attorney to lead a State's witness as to the alleged date of the crime. The district attorney specifically called James Pearson's attention to the date of 13 July 1979 and asked him if he saw the victim that day and to relate what happened. The prevailing rule gives the trial judge discretionary power to determine whether or not counsel shall be permitted to ask leading questions. This power will not be disturbed on appeal absent an abuse of discretion. Furthermore certain guidelines have developed which aid trial judges in determining when counsel shall be allowed to lead his witnesses. One of these guidelines allows leading questions in order to direct attention to the subject matter at hand without suggesting answers. State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). The question at issue comes under this guideline. We finally note that no prejudicial error could have been caused by this leading question in light of defendant's later testimony that the kidnapping occurred on 13 July 1979.
Defendant also assigns error to an alleged non-responsive answer given by Pearson. During direct examination by the State, Pearson indicated that on the day of the alleged crime, Charles Norwood and Wilson drove to Pearson's house in a green Cadillac. Pearson observed that Norwood was pointing a pistol at Wilson's head. Defendant was standing in Pearson's yard at the time. Pearson testified that when he started to ...