On appeal by defendant as a matter of right from the judgment of Fountain, Judge, entered at the 27 April 1981 Criminal Session of Halifax Superior Court, imposing the sentence of death upon the conviction of first degree murder. Defendant's motion to bypass the Court of Appeals for review of his additional convictions of second degree rape and common law robbery was allowed on 7 October 1981.
Copeland, Justice. Justice Carlton did not participate in the consideration or decision of this case. Justice Exum dissenting as to sentence.
Defendant contends that various errors require either a new trial upon all of the charges or a new sentencing hearing. We disagree and affirm defendant's convictions and the sentences of death and imprisonment imposed upon him for the brutal murder, rape and robbery of Whelette Collins.
Prior to trial, defendant filed written motions requesting individual voir dire and sequestration of the jurors during voir dire
and sequestration of the jury and the State's witnesses during the trial pursuant to G.S. 15A-1214(j), 1225, 1236(b). Judge Fountain denied these motions on the day of trial. In his brief, defendant concedes that these matters were addressed to the sound discretion of the presiding judge and that this record fails to disclose prejudicial error or an abuse of discretion in the judge's rulings.*fn2 We agree. See, e.g., State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980); State v. Johnson (I), 298 N.C. 355, 259 S.E.2d 752 (1979); State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137 (1980).
Defendant nonetheless complains that the judge should have permitted oral argument by counsel before he ruled upon the motions. This complaint is neither well-founded nor timely. There is nothing in the record which suggests that Judge Fountain, either by word or deed, intended to prevent defense counsel from speaking in support of the written motions. To the contrary, the record generally shows that counsel did not have anything to say beyond that which was already fully stated in the motions themselves and elected not to utilize his opportunity to be heard.*fn3 If, however, as defendant now contends, vigorous oral argument upon these matters was truly desired, it would have been quite simple and most prudent to have informed the trial court of it by means of an express request to be heard. Defendant, however, stood silently by and did not object to the manner in which the court conducted its proceedings upon the discretionary motions. In these circumstances, defendant has waived whatever objection he may have had, and his belated complaint may not be "heard" on appeal. In any event, we seriously doubt that a mere refusal by the trial court to receive supportive oral argument would, in and of itself, demonstrate substantive, reversible error in the
denials of discretionary motions under G.S. 15A-1214, 1225, 1236.*fn4 The assignment of error is overruled.
Defendant was indicted for armed robbery. Upon his motion, however, the trial court reduced this charge to common law robbery at the conclusion of the State's evidence. Defendant assigns error to the trial court's subsequent failure to set aside the jury's verdict of guilty of the lesser offense upon the ground that the State's evidence was also insufficient to show his commission of that crime.
Common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear. State v. Moore, 279 N.C. 455, 183 S.E.2d 546 (1971); State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595 (1964). Defendant maintains that, although there was evidence to support an inference that he unlawfully took $7.00 and a ring belonging to Whelette Collins, there was absolutely no evidence to support a conclusion that he stole these items from her while she was alive through the use of force or fear. The record plainly refutes this contention.
All of the State's evidence, both direct and circumstantial, must be viewed in the light most favorable to the State with every reasonable intendment being made in its favor. See State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981); State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124 (1978). The pertinent evidence in this respect has been set forth in the lengthy recital of the evidence at the beginning of this opinion, and easy reference can be made thereto. It suffices to say here that the State's evidence was certainly substantial enough to convince a rational trier of fact that defendant, who had gone to the college intending to steal money from students, took money from Whelette Collins as he threatened her with what appeared to be a deadly weapon, soon after he kidnapped her and her two companions, at the nearby spot where he
transferred the girls to his own car. This was long before he finally raped and killed her at the distant, deserted rock quarry. That being so, the instant case is clearly distinguishable from State v. Powell, 299 N.C. 95, 102, 261 S.E.2d 114, 119 (1980), where our Court held that a charge of armed robbery should have been dismissed because the evidence only indicated that the defendant had committed larceny by taking certain objects "as an afterthought once the victim had died." In contrast, the evidence before us now tends to show that defendant robbed the victim of what little money she had while she was with her companions and still very much alive and afraid. Consequently, we uphold defendant's conviction of common law robbery.
Defendant argues that the trial judge did not fully state his "numerous" contentions concerning the charges against him and unfairly gave greater stress to the contentions of the State in his final instructions to the jury. The argument is without merit.
To start with, defendant waived any objection to the manner or length of the judge's statements of the contentions of either side by failing to make an appropriate challenge at trial before the jury retired. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968). However, even if defendant had properly preserved such an exception for our review, we would not find prejudicial error upon this record.
This is not a case in which the trial court utterly failed to state any of the defendant's contentions after reciting those of the State. See, e.g., State v. Hewett, 295 N.C. 640, 247 S.E.2d 886 (1978). Rather, Judge Fountain generally referred to defendant's contentions throughout his charge to the jury, as follows:
He contends . . . from the evidence offered, that you should not be satisfied from that evidence and beyond a reasonable doubt that he is guilty of anything or that, if you find him guilty of anything, that you should find him guilty of only the least aggravating offense with which he is charged. But, actually, he contends, members of the jury, by his plea of not guilty, that he is innocent; that the State has failed to prove his guilt and that, under all the circumstances, you should acquit him of all charges.
As to that, the defendant contends that there is no evidence sufficient to justify you finding that he took any money from her or that, if he did, it resulted from violence or putting her in fear. . . . He contends that it didn't happen and that he did not put her in fear. Record at 63, 66 and 68.
It is true that defendant's contentions, as stated by the trial court, supra, seem sparse or brief in comparison to those presented in the State's behalf. However, the requirement that equal stress must be given to the contentions of both sides does not mean that the respective statements thereof must also be of corresponding lengths, consuming similar amounts of time. State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962); State v. Sparrow, 244 N.C. 81, 92 S.E.2d 448 (1956). In the case at bar, defendant did not offer independent evidence at the guilt phase, he only elicited minor evidence upon cross-examination which tended to detract from, and not substantively negate, the weight of the State's circumstantial evidence, and he did not specifically request further elaboration by the trial court upon any point of contention in the case. Under these circumstances, the record as a whole convinces us that Judge Fountain adequately and fairly summarized defendant's essential contentions. See State v. Spicer, 299 N.C. 309, 261 S.E.2d 893 (1980); see also State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980).
In the course of its instructions upon the premeditation and deliberation elements of first degree murder, the trial court told the jury that there was no evidence of "any just cause or legal provocation to kill" in the case. Defendant believes that the trial
court thereby violated G.S. 15A-1222 which prohibits the expression of an opinion upon any question of fact to be decided by the jury. We hold that the isolated comment was not erroneous or prejudicial.
First, we do not believe that Judge Fountain's reference to the complete absence of certain evidence constituted an impermissible opinion upon a controverted fact. Rather, the contested statement was merely a legal recognition, correctly made upon the record, that the State's evidence had not disclosed the presence of just cause or adequate provocation to excuse the killing and that the defendant had not fulfilled his burden of going forward with or producing any such evidence either. Cf. State v. Boone, 299 N.C. 681, 263 S.E.2d 758 (1980); State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978); State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975), rev'd on other grounds, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 307 (1976). Two analogous decisions of this Court are instructive and implicitly supportive of the conclusion we reach here: State v. Byrd, 121 N.C. 684, 28 S.E. 353 (1897), and State v. Capps, 134 N.C. 622, 46 S.E. 730 (1904). In Byrd, the Court held that in the absence of "any evidence, even a scintilla, tending to show self-defense. . . . it was proper for the court to instruct the jury that there was no such evidence." 121 N.C. at 685, 28 S.E. at 353. In Capps, the Court also stated that "whether there is any evidence . . . to rebut the implied malice [in a killing] is a question of law." 134 N.C. at 628, 46 S.E. at 732. In a similar vein, we are also persuaded that it is not error for the trial court simply to inform the jury as to whether or not specific evidence relevant to justification or mitigation has been introduced in a homicide prosecution. This is determined as a matter of law, not of fact. Such an instruction does not therefore invade or interfere with the exclusive province of the jury to decide and weigh the facts presented, and, in reality, it amounts to little more than a "summary" of the pertinent evidence upon a particular aspect of the case.
Secondly, there is no indication that Judge Fountain's statement wrongfully or absolutely withdrew from the jury's consideration any circumstances which might have tended to negate premeditation, deliberation or malice in the charged killing, or that it improperly removed from the State the ...