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North Carolina v. Calloway

Filed: June 2, 1982.

STATE OF NORTH CAROLINA
v.
MCKINNLEY JUNIOR CALLOWAY



Appeal by defendant from Lamm, J., at the 7 July 1981 Criminal Session of Wilkes Superior Court.

Branch, Chief Justice.

Branch

Defendant first assigns as error the trial judge's denial of his motion for directed verdicts made at the close of the State's evidence and at the close of all the evidence. He argues that there was not sufficient evidence of premeditation and deliberation to carry the case to the jury on the charge of first-degree murder.

When defendant elected to offer evidence after the denial of his motion to dismiss at the close of the State's evidence, he waived his motion to dismiss at the close of the State's evidence. We therefore only consider his motion to dismiss made at the close of all the evidence. G.S. 15-173; State v. Jones, 296 N.C. 75, 248 S.E.2d 858 (1978).

In considering this assignment of error, we apply the familiar rule that upon a motion for nonsuit or dismissal all the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from it. State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978); 4 Strong's N.C. Index 3d, Criminal Law ยง 106 (1976). When so considered, if there is substantial evidence to support a finding that the offense has been committed and the defendant was the perpetrator of the offense, the motion for nonsuit should be denied. State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Thomas, supra; State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 50 L. Ed. 2d 69, 97 S. Ct. 47 (1976).

Since all of the evidence in this case shows that defendant intentionally shot deceased with a deadly weapon thereby proximately causing her death, we are here only concerned with whether the evidence was sufficient to permit, but not require, a jury to find that defendant acted with premeditation and deliberation.

Premeditation may be defined as thought beforehand for some length of time no matter how short. State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981); State v. Thomas, supra; State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974).

Deliberation means an intention to kill executed by the defendant in a "cool state of blood" in furtherance of a "fixed design to gratify a feeling of revenge or, to accomplish some unlawful purpose." State v. Corn, supra; State v. Thomas, supra; State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970); State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R. 2d 1422, cert. denied, 368 U.S. 851, 7 L. Ed. 2d 49, 82 S. Ct. 85 (1961).

Premeditation and deliberation must ordinarily be proved by circumstantial evidence. Among the circumstances to be considered are: (1) want of provocation on the part of the deceased, (2) conduct and statements of the defendant before and after the killing, (3) threats made against the victim by defendant, (4) ill will or previous difficulty between the parties, and (5) evidence that the killing was done in a brutal manner. State v. Potter, 295 N.C. 126, 130-31, 244 S.E.2d 397, 401 (1978); State v. Thomas, supra; State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972).

Here the evidence, when considered in the light most favorable to the State, discloses a minimum of provocation on the part of the deceased. She was in the act of delivering a gift to defendant from their children and explained that the children could not come out to see him because of illness. After refusing to enter the automobile, she was told to go back to the house. As she turned to go to the house, she was shot in the back at close

range. Defendant came to the place where the victim lived armed with a shotgun, and after stating that he was going to kill her fired a shotgun at close range. There was substantial evidence of previous difficulty between the parties including previous separations, physical assaults on the victim by the defendant, and the threatened use of a deadly weapon upon the person of the victim by the defendant. We hold that there was plenary and substantial evidence which would permit the jury to draw reasonable inferences that defendant acted with premeditation and deliberation when he shot and killed his wife. The trial court properly denied defendant's motion to dismiss.

Defendant next contends that the trial court erred by permitting the district attorney to examine him, over his objection, concerning prior convictions.

Defendant testified in his own behalf, and on cross-examination the district attorney asked him a series of questions concerning previous convictions.

It is well settled in this jurisdiction that when a defendant testifies in a criminal case he may be cross-examined concerning convictions of prior unrelated criminal offenses. He may also be impeached by cross-examination concerning prior specific criminal acts or specific reprehensible conduct. However, such cross-examination must be based upon information, and the questions must be asked in good faith. State v. Williams, 303 N.C. 142, 277 S.E.2d 434 (1981); State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980); State v. Leonard, 300 N.C. 223, 266 S.E.2d 631, cert. denied, 449 U.S. 960, 66 L. Ed. 2d 227, 101 S. Ct. 372 (1980). It is equally well settled that a defendant may not be impeached on cross-examination by questions relative to whether he has been arrested, accused, or indicted for prior unrelated criminal offenses. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).

Whether the cross-examination transcends propriety or is unfair is a matter resting largely in the sole discretion of the trial judge, who sees and hears the witnesses and knows the background of the case. His ruling thereon will not be disturbed without a showing of gross abuse of discretion.

State v. Foster, 293 N.C. 674, 239 S.E.2d 449 (1977). Accord State v. Clark, 300 N.C. 116, 265 S.E.2d 204 (1980).

In State v. Clark, supra, this Court considered the question of whether a district attorney acted in bad faith in conducting his cross-examination. In that case, defendant contended that the district attorney had before him an F.B.I. report showing that defendant had been charged but not convicted of homicide at the time he cross-examined the defendant concerning this particular matter. In finding no error, this Court stated:

[T]he record does not support his contention that the District Attorney acted in bad faith. The FBI report was not made a part of the record, and defendant failed to request a voir dire to determine whether the District Attorney acted in good faith. We have held that when the record contains no evidence regarding whether a District Attorney acted in good faith in inquiring into a defendant's prior criminal offenses or reprehensible conduct, the court's ruling permitting the question to be asked will be presumed to be correct. State v. McLean, 294 N.C. 623, 242 S.E.2d 814 (1978). Furthermore, any possible prejudice to defendant was negated by ...


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