Defendant, Cleaster Woods, was indicted for the murder of her husband, Leinster Woods, and for conspiring with Danny Lee Nichols to kill Leinster Woods. At the guilt-innocence phase of the trial Nichols, the State's chief witness, testified as follows under a plea arrangement:
Nichols and defendant were lovers. About two weeks before defendant's husband was killed, defendant talked to Nichols about a life insurance policy which would pay $104,000 upon her husband's death. Nichols stated that defendant offered him a portion of the insurance proceeds—$10,000—to find someone who would "rig up" her husband's car so that he would be blown up. When Nichols was unable to find anyone to "rig up" the car, defendant suggested Nichols find a "hit man" who would shoot her husband while he was driving. Again, she offered Nichols $10,000 in life insurance proceeds for his help. When Nichols was unable to find a "hit man," defendant proposed a third plan. She asked Nichols to do the shooting himself. Her scheme, according to Nichols, was as follows:
After Leinster Woods had fastened all the locks on the door and gone to bed, defendant would unlock all the locks on the door except one so that it would be easier for Nichols to enter the house and kill defendant's husband. Nichols stated defendant then would "grab her kid and wait five or ten minutes after we get out of sight and then holler `help, someone killed my husband.' "
In proposing this plan, defendant offered Nichols $30,000 in insurance proceeds and told Nichols' friend, Craig Davis, she would give him $5,000 if he would accompany Nichols when he carried out the plan.
Nichols and Davis went to defendant's home on Tuesday night, 25 August 1981. Nichols stated that while trying to find something with which to cut a screen, "the door slammed and the car took off." Nichols, not knowing who drove off in Leinster Woods' car, left the scene with Davis. Nichols returned to defendant's house early the next morning with Davis, waited beside the house, and shot defendant's husband when he walked out the front door to go to work. The State and defendant stipulated that Leinster Woods died on 26 August 1981 as a result of a gunshot wound through the head.
One witness testified that defendant had said that "sometimes that man [Leinster Woods] makes me so mad I could kill him." Another witness testified that on the day before Leinster Woods was shot defendant spoke about having had a fight with her husband and that Leinster Woods "was good as dead." She had remarked to one other witness that she would share the proceeds from a large insurance policy with him if he would kill her husband.
Defendant did not offer any evidence.
The jury found defendant guilty of both charges. A sentencing hearing was held and the jury found that the aggravating circumstance—that the murder was committed
Defendant presents several issues in this appeal. We will discuss each briefly in turn.
We address first defendant's contention that the evidence was not sufficient to support convictions of first-degree murder and conspiracy to commit murder, and, therefore, that the trial judge erred in submitting the case to the jury.
In determining whether the evidence is sufficient to go to the jury, the trial court is to ascertain whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the evidence is sufficient, as a matter of law, to go to the jury. State v. Earnhardt, 307 N.C. 63, ___, 296 S.E.2d 649, 651 (1982); State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980); State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The trial court is to determine whether the evidence allows a "reasonable inference" to be drawn as to the defendant's guilt. State v. Thomas, 296 N.C. 236, 244-45, 250 S.E.2d 204, 208-09 (1978).
In the case at bar, defendant was tried for first-degree murder. Although Nichols' testimony, as outlined above, indicates defendant solicited Nichols' assistance in carrying out the killing, defendant was not present when her husband was shot. Under these circumstances, a defendant is considered an accessory before the fact of murder, not a principal in the crime. The guilt and sentencing distinctions formerly made between an accessory before the fact and a principal in the felony have been abolished, however. G.S. 14-5.2 (1981). In responding to this Court's holding in State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980), which had recognized those distinctions, the General Assembly enacted G.S. 14-5.2 (1981). That statute provides: "Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony." After enacting the new statute, the legislature repealed G.S. 14-5, G.S. 14-5.1 and G.S. 14-6, the statutes which previously had applied to those charged as accessories before the fact of felony.
In this case, there was substantial evidence of each of the three elements. The State's chief witness, Danny Nichols, testified to the first element: Cleaster
We also find that the evidence of conspiracy to commit murder was sufficient to go to the jury. The essential elements of that crime are: (1) an agreement between two or more people; (2) to do an unlawful act, specifically, to murder another. See State v. Abernathy, 295 N.C. 147, 164, 244 S.E.2d 373, 384 (1978).
Abundant evidence of both elements of conspiracy to commit murder are found throughout the record. One example will suffice. On direct examination Nichols testified to the effect that he agreed with defendant that for $10,000 in insurance proceeds he would find a "hit man" to kill defendant's husband.
The trial court properly allowed the jury to consider defendant's guilt of both crimes.
Defendant also contends that the trial court erred in failing to instruct the jury on the defense of abandonment of the criminal enterprise. Under Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, 303 N.C. 713, 716-17 (1981) (amending 287 N.C. 669, 699 (1975)), defendant may not assign this omission as error. The rule states that "[n]o party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection...." The rule is applicable to all cases tried on or after 1 October 1981. Defendant's trial began on 30 November 1981. She is barred, therefore, from claiming this omission as error. Even if we were to assume that Rule 10(b)(2) did not apply, a close examination of the record does not disclose any evidence that defendant abandoned the enterprise.
Defendant claims that her convictions are based on invalid indictments because G.S. 15A-626 (1978), the statute "placing restrictions on any independent powers the grand jury may possess," Official Commentary to G.S. 15A-626 (1978), is unconstitutional. In State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (1980), this Court reiterated the well-established rule in this jurisdiction that "the constitutionality of a statute will not be reviewed in the appellate court unless it was raised and passed upon in the proceedings below ...." Id. at 428, 269 S.E.2d at 577; City of Durham v. Manson, 285 N.C. 741, 743, 208 S.E.2d 662, 664 (1974). This is in accord with decisions of the United States Supreme Court. Irvine v. California, 347 U.S. 128, 129-30, 74 S.Ct. 381, 382, 98 L.Ed. 561, 567 (1954); Edelman v. California, 344 U.S. 357, 358-59, 73 S.Ct. 293, 294-95, 97 L.Ed. 387, 390-91 (1953). Defendant raises this issue for the first time on appeal. Because she failed to ask the trial court to pass upon this question, we must decline to do so now.
Defendant also claims that the murder indictment was insufficient in a constitutional
Defendant contends the trial court's denial of her motion to sequester the witnesses was reversible error. We disagree. The rule in this State is that a motion to sequester witnesses is addressed to the discretion of the trial court, and the court's denial of the motion will not be disturbed in the absence of a showing of abuse. E.g., State v. Tatum, 291 N.C. 73, 85, 229 S.E.2d 562, 569 (1976); State v. Davis, 290 N.C. 511, 534, 227 S.E.2d 97, 111 (1976). Defendant's sole reason for the request was "because of the seriousness and gravity of the case." Defendant made absolutely no showing that the trial court abused its discretion and we perceive none. The trial court's ruling on the motion is without error.
Defendant contends that the trial court's limiting of defendant's cross-examination of the State's chief witness, Danny Nichols, was reversible error. The long-standing rule in this jurisdiction is that the scope of cross-examination is largely within the discretion of the trial judge, and his rulings thereon will not be held in error in the absence of a showing that the verdict was improperly influenced by the limited scope of the cross-examination. E.g., State v. McPherson, 276 N.C. 482, 487, 172 S.E.2d 50, 54 (1970); State v. Edwards, 228 N.C. 153, 154, 44 S.E.2d 725, 726 (1947). Defendant makes absolutely no showing that the verdict was improperly influenced by any of the trial court's curtailments of her cross-examination of Nichols. Indeed, the record indicates that such a showing would have been impossible. For example, defendant claims she was prejudiced when not allowed to continue a line of questioning in which defense counsel asked Nichols if he had seen or talked with any member of defendant's family since his own arrest. Nichols stated that he had seen defendant's son once. The exchange between Nichols and defense counsel went as follows:
As shown, the line of questioning itself was irrelevant, and the question to which the State objected was irrelevant to the line of questioning. Indeed, Nichols answered the question anyway. We fail to see how defendant was harmed. Suffice it to say that the other exceptions made on this ground are as meritless. We find no error here.
Defendant contends that the prosecutor's statements made in his closing argument during the guilt phase of the trial constituted prejudicial error. Where, immediately upon a defendant's objection to an improper remark made by the prosecutor in his closing argument, the trial court instructs the jury to disregard the offending statement, the impropriety is cured. E.g., State v. Sanders, 303 N.C. 608, 617-18, 281 S.E.2d 7, 12-13, cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981); State v. Martin,
In this case the State made the following improper arguments to the jury: "... I think you should also know that you should convict that woman of first degree murder and conspiracy and should she be sentenced to a sentence of life imprisonment, she won't spend the rest of her life in a_______" The prosecutor also stated: "You know, when is the last time anybody went to the gas chamber in this state? Twenty years. People in this state don't believe you go to the gas chamber on murder and maybe you don't." Defense counsel objected to each argument. In both instances the trial court sustained defense counsel's objections and immediately instructed the jury to disregard the improper portion of the State's closing argument. Thus, the improprieties were cured and possible prejudice to defendant was avoided with each instruction to disregard the improper statement.
This Court docketed defendant's appeal on 27 April 1982. Since that time, defendant has filed in this Court three motions for appropriate relief. We dispose of them here. G.S. 15A-1418 (1978). Since the motions were made more than ten days after entry of judgment, grounds for relief are limited to those listed in G.S. 15A-1415 (Cum.Supp.1981).
In her first motion for appropriate relief, filed 21 May 1982, defendant claims that her murder conviction was obtained in violation of her rights under the fourteenth amendment to the United States Constitution because the State's principal witness, Danny Nichols, has recanted the testimony which helped convict defendant. This claim is unfounded. The affidavit submitted to support this claim, a copy of Nichols' petition for relief, shows that Nichols was not recanting his testimony; he was merely claiming (1) that his guilty plea was coerced because he was confronted with the possibility that he might be tried for first-degree murder and perhaps sentenced to death upon conviction; and (2) that he was denied effective assistance of counsel because his lawyer did not get him a better sentence. Nichols' claims do not amount to a recantation of his testimony at trial. Defendant's claim is, therefore, without merit.
Defendant's second motion, filed 25 June 1982, attacks the validity of her murder conviction, claiming that her lawyer was not provided with information about various concessions the prosecutor made to Danny Nichols in exchange for his testimony. G.S. 15A-1054 (1978). The record does not support this claim. The trial transcript shows defense counsel was informed at some time before trial of the charge reduction arrangements made with Nichols. Indeed, defense counsel stated before trial he knew of Nichols' plea of guilty to second-degree murder. If defendant did not receive the information in written form within a reasonable time before trial, her only remedy under G.S. 15A-1054(c) was to move for a recess, not suppression of the testimony. State v. Lester, 294 N.C. 220, 228-29, 240 S.E.2d 391, 398-99 (1978).
Defendant also submits with this second motion several letters Nichols wrote to defendant which we find not relevant to the case at all.
Defendant's last motion, filed 19 October 1982, repeats the claims made in the first two motions and adds the contention that based on our decision in State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980), she cannot be convicted of first-degree murder under G.S. 14-5.1 because she was only an accessory before the fact. This contention is meritless because defendant was tried after the effective date of G.S. 14-5.2, the statute which replaced G.S. 14-5, G.S. 14-5.1 and G.S. 14-6, and abolished the guilt and punishment distinction, recognized in Small, between an accessory before the fact to a
In reviewing the record, we note that defendant received a ten-year prison sentence for conspiracy to commit murder. Although conspiracy to commit a felony is itself a felony, State v. Abernethy, 220 N.C. 226, 231-32, 17 S.E.2d 25, 28 (1941), it is not assigned by statute to any particular felony class. Therefore, under G.S. 14-1.1(b) (1981), it is a Class J felony. As such, the maximum sentence which can be imposed is three years' imprisonment, not ten. Therefore, we remand the conspiracy conviction to the superior court for resentencing.
The order committing defendant to ten years in prison for conspiracy to commit murder is
The case is
REMANDED FOR RESENTENCING ON CONSPIRACY CHARGE.
In the trial of this defendant on both charges we find