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State v. Gaines4/11/1997
you would give to them.
Defendant contends that, although his statement may have been inculpatory, it did not amount to a confession.
This Court has defined a confession as "an acknowledgement in express words by the accused in a criminal case of his guilt of the crime charged or of some essential part of it." State v. Fox, 277 N.C. 1, 25, 175 S.E.2d 561, 576 (1970). Defendant gave two statements to Boothe, the facts of which include the following. On 21 November 1991 defendant was with Gaines and Coleman and went to the Red Roof Inn to visit Anthony Williams. Gaines was driving. The group ascertained Williams' room number and started to locate the room. The victim asked the men where they were going, and when they responded, the victim told them they could not all go to the room. Gaines and the victim began to argue, and the victim grabbed Gaines by the collar, picked him up off the ground, and told him to leave. The victim also told defendant to leave. The three men left the motel and went to the residence of Sandra Carrington. Defendant went into Carrington's residence and retrieved a shotgun which he had previously left at Carrington's apartment. The three men then drove back to a parking lot near the motel and got out of the automobile. Gaines walked to the motel, and defendant and Coleman stood by the automobile. Defendant heard a gunshot, and Gaines came running back to the automobile. The men quickly drove away from the motel and went back to defendant's house. Defendant took the shotgun and put it under his house.
Defendant was found guilty of first-degree murder not as the perpetrator of the shooting, but rather, on the theory that he encouraged, aided, and assisted Gaines in the perpetration of the shooting. Accordingly, any confession by him would necessarily relate to those acts by which he so encouraged Gaines. Defendant's statement amounts to a confession to acts which constitute his guilt of aiding and abetting or of acting in concert with Gaines.
Finally, defendant contends that the instruction amounted to an improper expression of opinion on the evidence in violation of N.C.G.S. §§ 15A-1222 and -1232. This issue was previously decided against defendant's position in State v. Cannon, 341 N.C. 79, 459 S.E.2d 238 (1995). This assignment of error is overruled.
Defendant also contends he is entitled to a new trial because the jury found him guilty of first-degree murder but "inconsistently" found on the Issues and Recommendation as to Punishment form that he did not have the specific intent to kill the victim.
In Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), the United States Supreme Court held that before the death penalty may be imposed on a defendant who is found guilty of first-degree murder under the felony-murder rule on the ground that he was an aider and abettor to the underlying felony, the sentencer must first find that the defendant killed, attempted to kill, intended to kill, or contemplated that life would be taken. Id. at 801, 73 L. Ed. 2d at 1154.
The Enmund rule does not apply to a defendant who has been found guilty of first-degree murder based on premeditation and deliberation. Because defendant was convicted of first-degree murder based on premeditation and deliberation, and not based on the felony-murder rule, Issue One-A is inapplicable. The issue on the form asked the jury whether it found that defendant "himself intended to kill the victim." The jury answered "no" to this question but was not asked to indicate whether it believed defendant intended for the victim to be killed or contemplated that life would be taken. In the guilt-innocence phase, the jury found
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