State v. Avery

Full title: STATE OF NORTH CAROLINA v. BERNARD AVERY

Court: Supreme Court of North Carolina

Date published: Feb 1, 1980

299 N.C. 126 (N.C. 1980)

261 S.E.2d 803

Opinion

No. 34

Filed 1 February 1980

1. Constitutional Law 60; Grand Jury 3.3; Jury 7.4 — use of voter registration and tax lists — random selection by computer — no systematic exclusion of blacks — cross-section of community There was no systematic exclusion of blacks from the grand and petit juries in violation of the Equal Protection Clause of the Fourteenth Amendment where blacks constituted 24% of the population of the county, the use of voter registration and tax lists in selecting the jury pool resulted in a jury pool with 15% blacks, and a computer randomly selected every 2d 4th, 8th, 12th and 15th name from the master jury list, since there was only a 9% deviation between the percentage of blacks in the county and the percentage of blacks in the jury pool, and there was no subjective or discretionary selection of jurors by the jury commissioners. Nor did selection of the jury pool in such manner violate defendant's right to be tried by a jury drawn from a representative cross-section of the community as guaranteed by the Sixth Amendment and applied to the states through the Fourteenth Amendment.

2. Constitutional Law 63; Jury 7.11 — exclusion of jurors for capital punishment views — answers not equivocal The trial court did not err in allowing the State's challenge for cause of two prospective jurors who answered "I don't believe I would" and "I don't think so" when asked whether they could comply with the court's instructions and impose the death penalty if the evidence so required, since the phrasing of the jurors' negative responses did not equivocate their refusal to follow the law as given by the court to such an extent as to make their challenge for cause improper.

3. Constitutional Law 63; Jury 7.11 — exclusion of jurors for capital punishment views — cross-section of community Defendant was not deprived of a jury composed of a fair cross-section of the community by the exclusion of jurors who indicated that they could not impose the death penalty under any circumstances, there being no evidence that a jury qualified pursuant to the Witherspoon decision is prosecution prone or biased against Negroes and the lower economic classes.

4. Criminal Law 46.1 — instruction on flight — supporting evidence The trial court's instruction on flight in a murder prosecution was supported by evidence that defendant admitted to two witnesses that he killed a cab driver and that defendant went to New York a few days after the crime, and the fact that defendant was originally from New York and the inference could be drawn that he was returning home did not render the instruction on flight improper.

APPEAL by defendant from Snepp, J. Judgment entered 7 December 1978 in Superior Court, MECKLENBURG County.

Attorney General Edmisten by Assistant Attorney General Charles M. Hensey for the State.

Chambers, Stein, Ferguson Becton by James C. Fuller, Jr., for the defendant-appellant.

Justice EXUM dissenting.

By indictments proper in form defendant was charged with first degree murder and with robbery with a dangerous weapon. On pleas of not guilty the jury found the defendant guilty of first degree murder and of robbery with a dangerous weapon.

After the verdicts were returned the trial court ruled that the armed robbery conviction merged with the first degree murder conviction.

Thereafter the question of whether defendant should be sentenced to death or to life imprisonment was submitted to the jury. Upon the jury being unable to agree upon a sentence recommendation within a reasonable time the trial judge, pursuant to G.S. 15A-2000(b), sentenced defendant to the State's prison for a minimum and maximum term of life.

The evidence for the State tended to show the following. On the evening of September 4, 1977 the defendant and Andre Sharpe went to the home of the defendant's cousin Rick Fuller. From Fuller they obtained a .22 caliber pistol and bullets. At about 11:00 p.m. that evening the defendant and Sharpe visited the home of Ella Currance. At the Currance residence the defendant engaged in an argument where he fired three to five shells from the .22 pistol into the ceiling. Following this altercation Sharpe and defendant Avery left the Currance's home and drove in Sharpe's car towards the Charlotte airport. Near the airport the defendant got out of Sharpe's car for the purpose of stealing an automobile but for an unknown reason he did not do so.

Sometime between 4:30 and 5:00 a.m. on the morning of September 5, 1977, Sharpe and Avery returned to the home of Ella Currance. There the defendant placed a call to Checker Cab Company and the dispatcher of the cab company dispatched Robert L. Moses in answer to the call. After phoning for the cab the defendant and Sharpe left the Currance's home. Having driven approximately two blocks, Sharpe pulled off the road, parked in a man's front yard and went to sleep. Sharpe was awakened by the sound of a pistol shot and when he woke up he found the defendant was not in the car. Sharpe drove towards the sound of the shot and arrived as the defendant was pulling Robert Moses onto the ground from the driver's seat of a Checker Cab. Sharpe pulled up next to the cab and told the defendant "let's go." The defendant got into the car holding the .22 caliber pistol, a light blue jacket he had not had before and other articles of clothing.

The State's evidence further tended to show that Robert Moses was shot to death in the back of the neck and head by bullets from a .22 caliber pistol which could have been fired from the .22 caliber pistol which was in the possession of the defendant.

After leaving the cab the defendant and Sharpe went to a house on Marene Avenue in Charlotte where the defendant told Sharpe that he twice shot the driver Robert L. Moses. The defendant had a wallet containing Moses' driver's license and approximately $200 in cash.

On September 7, 1977 the defendant told John Lee Stewart, a friend of Sharpe's, that he had shot the cab driver in the head and neck. On September 7, 1977 the defendant and Sharpe left Charlotte for New York City.

BROCK, Justice.

In his first argument to this Court defendant-appellant contends that the trial court denied him his Fourteenth and Sixth Amendment rights in failing to quash an allegedly discriminatory jury venire. Defendant contends that he made a prima facie showing of constitutional violations and thus the burden shifted to the State to rebut his prima facie case. For the reasons which follow we hold the defendant did not make such a showing.

The defendant brings forward an equal protection argument as well as an argument that he was denied a jury from a fair cross-section of the community. Defendant interchangeably cites numerous United States Supreme Court opinions as supporting both these contentions. In Whitus v. Georgia, 385 U.S. 545, 550, 17 L.Ed.2d 599, 603, 87 S.Ct. 643, 646 (1967) in describing the defendant's claim of racial discrimination in violation of the Fourteenth Amendment the United States Supreme Court stated "[t]here is no question as to the constitutional principle. `[. . . [A] conviction cannot stand if it is based on a grand jury or a verdict of a petit jury from which Negroes were excluded by reason of their race.' 385 U.S. at 549, 17 L.Ed.2d at 603, 87 S.Ct. at 646.] [T]he question involved is its application to the facts disclosed in this record."

The pertinent facts relating to the racial makeup of Mecklenburg County and the county's jury selection process follow. As prescribed by G.S. 9-2 the jury commissioners of Mecklenburg County used the tax list and voter registration list in compiling a master jury list. This raw list of 160, 716 of which over 150,000 came from the voter registration list was fed into the computer of the Mecklenburg County data processing department which randomly selected every 2d 4th, 8th, 12th and 15th name. This selection produced a final list containing 53,572 names. A card was then punched by the computer for each name and these cards were alphabetized and locked in a file kept in the custody of the Mecklenburg County Register of Deeds. In his argument to this Court defendant-appellant is not questioning the validity of the selection system per se. This argument was raised earlier in State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972) and this Court found that a jury list was not discriminatory nor unlawful simply because it was drawn from the tax list of the county. It is the racial composition of the list employed of which the defendant is complaining. In 1978 the total population of Mecklenburg County was 400,000 and of this total figure 24% were blacks. Defendant contends use of the tax lists and voter registration lists in selecting the jury pool fails to adequately represent Mecklenburg County's black population. In 1978 there were 240,000 persons possibly eligible to vote in Mecklenburg County. of these 184,293 persons were actually registered to vote. This figure of 184,293 may be broken down into 156,036 white voters and 28,257 black voters. In other words, 15% of the registered voters in Mecklenburg County were blacks. The evidence presented at the voir dire on defendant's motion to quash the jury pool showed that there was no attempt to discourage blacks from voting, and that voter registration was easily available. However when presented with the opportunity 84% of the white population registered to vote while only 51% of the black population registered. The defendant offered evidence which tended to show the jury commissioners knew the percentage of black voters was lower than white voters. The defendant complains that the percentage of blacks on the tax list is even lower than the voter registration list but agrees that 15% black in the jury pool is a workable figure. Thus the statistics presented by the defendant show Mecklenburg County with a population of 24% black and a jury pool with a composition of 15% black. This creates a 9% deviation between the percentage of blacks in Mecklenburg County and the percentage of blacks in the jury pool. It is on these facts that we must determine the validity of defendant's claims of constitutional violation.

We turn first to defendant's Fourteenth Amendment right to be free from racial discrimination. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879) held that Negroes were an identifiable class, and as noted earlier if the defendant was convicted by a jury from which Negroes were systematically excluded on account of their race then his conviction cannot stand. Whitus v. Georgia, supra; State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). The defendant however is not entitled to a jury of any particular composition, nor is there any requirement that the jury actually chosen must mirror the community and reflect various and distinctive population groups. Fay v. New York, 332 U.S. 261, 91 L.Ed. 2043, 67 S.Ct. 1613 (1947); Apodaca v. Oregon, 406 U.S. 404, 32 L.Ed.2d 184, 92 S.Ct. 1628 (1972). At the outset it must be noted that:

". . . [T]he fact that a particular jury or a series of juries does not statistically reflect the racial composition of the community does not in itself make out an invidious discrimination forbidden by the [equal protection] Clause. `A purpose to discriminate must be present which may be proven by systematic exclusion of eligible jurymen of the proscribed race, or by unequal application of the law to such an extent as to show intentional discrimination.' (Citations omitted.) Washington v. Davis, 426 U.S. 229, 239, 48 L.Ed.2d 597, 607, 96 S.Ct. 2040, 2047 (1976). See also Swain v. Alabama, 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824 (1965); Duren v. Missouri, 439 U.S. 357, 364, 58 L.Ed.2d 579, 589, 99 S.Ct. 664, 668, n. 26 (1979); Castaneda v. Partida, 430 U.S. 482, 509-10, 51 L.Ed.2d 498, 520, 97 S.Ct. 1272, 1288 (1977) (Powell, J. dissenting)."

The evidence offered by the defendant in this case fails to show a discriminatory purpose on the part of the Mecklenburg County jury commission. In fact, the voir dire testimony tended to show exactly the opposite. Charles Williams, a jury commissioner, stated that the commission gave more weight to the voter list for it presented a fairer cross-section of the community. Presentation of this evidence which showed an attempt by the jury commission not to discriminate along with a showing that the jury commissioners followed the guidelines of G.S. 9-2 does not make a prima facie showing of purposeful systematic exclusion in violation of the Fourteenth Amendment.

Defendant relies on cases where the United States Supreme Court found an identifiable group was the subject of systematic exclusion. All of these cases are distinguishable from the case at bar; first, due to a much greater statistical deviation between the total population of the identifiable group and its membership in the jury venire, and secondly, because in cases relied on by the defendant, the jury selection system was one of personal preference or subjective selection on the part of the commissioners, and therefore subject to much greater abuse.

The case of Castaneda v. Partida, supra, concerns systematic exclusion of Mexican Americans in Hidalgo County, Texas. Hidalgo County contained a Mexican American population totaling 79.1%, yet the percentage of Mexican American grand jurors was only 39%, creating a 40% disparity between actual population and jury service. In selecting its juries the Hidalgo County jury commission utilized what was known as "the key man" system. This selection process allowed the jury commissioners to select individuals whom they personally felt were moral and forthright, and would make good jurors. As Mr. Justice Marshall pointed out in his concurring opinion, the selection system was entirely discretionary with Spanish surnamed persons being easily identifiable and thus excludable. By showing such a large numerical disparity of 40% and a totally subjective selection procedure, the defendant made out a prima facie case for selective exclusion requiring the State to rebut the showing.

The two other cases principally relied on by the defendant in advancing his Fourteenth Amendment claim are Whitus v. Georgia, supra, and Turner v. Fouche, 396 U.S. 346, 24 L.Ed.2d 567, 90 S.Ct. 532 (1970). Turner was a class action brought by a Negro school child and her father. The case arose in Taliaferro County, Georgia which has a population composed 60% of Negroes. The statistics from Taliaferro County showed that while Negroes composed 60% of the general population, they composed only 37% of the list from which the grand jury was drawn. This created a disparity in the jury pool of 23%. Coupled with this high percentage of disparity was the totally subjective method in which jurors were selected. Potential jurors were placed into the jury pool "whenever a jury commissioner thought a voter . . . qualified as a potentially good juror." 396 U.S. at 350, 24 L.Ed.2d at 573, 90 S.Ct. at 535. No name was selected for the jury pool unless personally known to one of the jury commissioners as "upright or intelligent." In Turner the United States Supreme Court noted a background of racial discrimination, and based upon this background, statistical evidence of a 23% disparity between total population and percentage in the jury pool, and a selection system grossly susceptible to abuse, the court found that the defendant had made a prima facie showing of systematic exclusion. In the case at bar the defendant presents no evidence comparable to that presented to the United States Supreme Court in Turner.

In Whitus v. Georgia, supra, the same jury selection procedure was employed with selection being based on the jury commissioner's subjective determination that the potential juror was "upright and intelligent." Georgia law prescribed that the names of prospective jurors were to be chosen from the books of the county's tax receiver. Prior to 1965 the tax returns for whites were kept on white paper while the tax returns for Negroes were recorded on yellow paper. The statistics presented by the defendant showed that 27.1% of the taxpayers were Negroes while only 9.1% of the grand jury members were Negroes and 7.8% of the petit jury venire were Negroes. This created an 18% and 19.3% disparity in the jury pool. Again, as in Turner, there is a jury selection process which is grossly subjective and statistics which support a conclusion that the system was being abused by systematic exclusion of an identifiable group.

In the cases relied on by defendant disparity between the identifiable group's total population and the percentage of that group in the jury pool varied from a low of 18% to a high of 40%. In Mecklenburg County defendant's figures showed the disparity at 9%. The systems used for jury selection in Texas (Castaneda) and in Georgia (Whitus and Turner) are also much more susceptible to abuse than the statutory scheme complied with by the Mecklenburg County jury commission. The legislative intent of G.S. 9-2 is to provide a system for objective selection of veniremen, and the defendant presented no evidence that this objective statutory scheme was subjectively applied in violation of the Fourteenth Amendment. The key to establishing a prima facie case of systematic exclusion is a statistical showing of under representation plus a system of selection which allows the jury commission to exclude prospective jurors on account of race. The defendant's evidence in this case has shown neither.

Swain v. Alabama, supra, is very pertinent to the case at bar. In 1964 Alabama law required that all male citizens over the age of 21 be placed on the jury roll. In Talladega County. Alabama, 26% of the male population over 21 years of age was Negro, and yet Negroes made up only 10-15% of the grand and petit juries. As in the earlier discussed cases the jury commission utilized a very subjective test for determining a prospective juror. The commission was to select only intelligent men esteemed for good character and sound judgment. Here however the United States Supreme Court found that purposeful discrimination based on race alone was not satisfactorily proved by showing an identifiable group in the community was underrepresented by 10%. The Court in discussing the jury selection procedure noted that ". . . an imperfect system [of selection] is not equivalent to purposeful discrimination based on race." 380 U.S. at 209, 13 L.Ed.2d at 766, 85 S.Ct. at 830. Such is the case in Mecklenburg County. While the selection process may not provide a full pro rata representation of whites and blacks, the defendant's evidence does not show that the jury commission purposefully and systematically excluded blacks from the jury pool.

We now turn to defendant's contention that the selection of the Mecklenburg County jury venire violated his right to be tried by a jury drawn from a representative cross-section of the community as guaranteed by the Sixth Amendment and applied to the States through the Fourteenth. In Taylor v. Louisiana, 419 U.S. 522, 528, 42 L.Ed.2d 690, 697, 95 S.Ct. 692, 697 (1975) the United States Supreme Court held that the selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. Taylor was concerned with the systematic exclusion of women from the jury pool where 53% of the persons eligible for jury service were female, but the actual jury pool was only 10% female. The court found this 43% disparity denied the defendant a jury drawn from a representative cross-section of the community. Duren v. Missouri, supra, was also concerned with systematic exclusion of women from the jury pool denying the defendant his Sixth Amendment right to a fair cross-section of the community. Here the population was composed 54% of women and yet the jury venire was only 15% female. In Duren the court held that to establish a prima facie violation of the fair cross-section requirement the defendant must show: (1) that the group alleged to be excluded is a distinctive group; (2) that the representation of the group within the venire is not fair and reasonable with respect to the number of such persons in the community; (3) that the under representation is due to systematic exclusion in the jury selection process.

In applying the Duren test to the case sub judice, the defendant satisfies the first requirement for Negroes are an identifiable class. See Strauder v. West Virginia, supra. We do not think the defendant has established a prima facie case with respect to requirements two and three of the Duren test. In both Taylor and Duren the disparity between the female population in the community and the women in the jury pool exceeded 35%. Here the disparity totaled only 9%. In Taylor the court noted that the fair cross-section requirement must have much leeway in its application, and in Duren the court noted a gross discrepancy between the percentage of women in the jury venire and the percentage of women in the community. It does not appear that the defendant here has presented evidence showing any type of discrepancy comparable to the cases on which he relies. Even if we were to accept his statistical figures as showing an unfair cross-section, we fail to see evidence of systematic exclusion on the part of the Mecklenburg County jury commission.

We therefore hold that the defendant did not present sufficient evidence to establish a prima facie case of systematic exclusion based on race in violation of the Equal Protection Clause of the Fourteenth Amendment. We also hold that the defendant was tried by a jury composed of a fair cross-section of the community in compliance with the Sixth Amendment as applied to the States through the Fourteenth.

Defendant next contends that the trial court erred in excusing jurors Curbeam and Averette for cause based on their responses to the court's questions concerning the death penalty. In its initial comments to these prospective jurors the court provided each with a cursory explanation of the trial procedures. After preliminary voir dire the court asked Mrs. Curbeam the following:

"COURT: . . . Now, do you have any religious or personal convictions about the death penalty?

Mrs. CURBEAM: I'm really not sure about my feelings about the death penalty.

COURT: Let me ask you this. Do you have such convictions about the death penalty that even though the State satisfied you beyond a reasonable doubt that the defendant was guilty of first degree murder, you would not follow the law as explained to you by the court and consider imposing the death penalty, no matter what circumstances might appear from the evidence that you would just not even consider it?

Mrs. CURBEAM: I really, really don't know. Must I say yes or no right now?

COURT: Yes ma'am, I'm afraid I have to have an answer as to your feelings on this. I'm not asking you would you do it, but would you listen to the law and consider the evidence and consider whether the death penalty should or should not be imposed? You wouldn't automatically say `Under no circumstances would I consider the death penalty'? That's what I'm asking you.

Mrs. CURBEAM: I don't believe I would. I don't believe I would consider the death penalty.

COURT: You do not?

Mrs. CURBEAM: I do not think I would."

Questioning of juror Averette proceeded as follows:

"COURT: What I'm asking you is, despite your feeling about the death penalty as a practice could you follow the law, and if you did make all the findings and were convinced of it, impose the death penalty?

Mr. AVERETTE: I'm not sure that I could. No, sir.

COURT: Well, would you say that your feeling about the death penalty is that in no event, no matter what the circumstances of the offense were, and no matter how strongly you felt the aggravating circumstances might overcome the mitigating circumstances, you still wouldn't impose the death penalty?

Mr. AVERETTE: I don't think so."

Following these questions the State moved to have these jurors removed for cause and the motion was allowed. Jurors Curbeam and Averette under questioning by the court responded that under no circumstances and regardless of the evidence they still would not impose the death penalty. Exclusion of prospective Jurors when they express unequivocal opposition to imposition of the death penalty is proper. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974).

Defendant contends that the responses of jurors Curbeam and Averette to questions concerning imposition of the death penalty were equivocal and thus under the standards laid down in Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, rehearing denied, 393 U.S. 898 (1968) their exclusion was improper. We do not agree.

In Witherspoon the United States Supreme Court held that veniremen may not be excluded from a jury based on general objections to the death penalty or based on expressed conscientious or religious scruples against infliction of the death penalty. See also State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975), second appeal, 291 N.C. 37, 229 S.E.2d 163 (1976).

It is clear that jurors Averette and Curbeam expressed more than general objections to the imposition of the death penalty. Each affirmatively stated that he could not impose the death penalty regardless of the evidence presented. On this record the fact that their negative responses were phrased "I don't believe I would" and "I don't think so" does not equivocate their refusal to follow the law as given by the judge to such an extent as to make their challenge for cause improper. See State v. Noell, 284 N.C. 670, 685-86, 202 S.E.2d 750, 760-61 (1974).

In his third argument to this Court defendant contends that the trial court denied him his rights guaranteed under the Sixth and Fourteenth Amendments by granting the prosecution's challenges for cause of jurors who indicated an inability to comply with the judge's instructions as to the law and impose the death penalty if the evidence so required. Since we have previously determined that the jurors were properly excluded based on the criteria established by the United States Supreme Court in Witherspoon, supra, we must now determine if the jury as selected improperly excluded an identifiable group within the community. Such an exclusion would deprive the defendant of a jury composed of a fair cross-section of the community in violation of the Sixth Amendment as applied to the States through the Fourteenth Amendment.

The defendant contends that those with scruples against the death penalty are "a distinct, opinion shaped group" and their exclusion produces a prosecution prone jury skewed against Negroes and the lower economic classes. This argument was rejected by the United States Supreme Court in Witherspoon where that court held "we simply cannot conclude either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction." 391 U.S. at 517, 518, 20 L.Ed.2d at 782, 88 S.Ct. at 1774, 1775. See also Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed.2d 797, 88 S.Ct. 1788 (1968).

In a number of recent decisions this Court has also expressly rejected the defendant's contention that a jury qualified pursuant to Witherspoon is non-representative and prosecution prone. State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976); State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); State v. Honeycutt, supra; State v. Spaulding, 298 N.C. 149, 257 S.E.2d 391 (1979); State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979).

In Lockett v. Ohio, 438 U.S. 586, 57 L.Ed.2d 973, 98 S.Ct. 2954 (1978) four jurors were excluded from the jury panel based on their opposition to capital punishment. The defendant claimed this exclusion violated his Sixth Amendment right as guaranteed by Taylor v. Louisiana, supra. Eight Justices concurred in holding: "Nothing in Taylor, however, suggests that the right to a representative jury includes the right to be tried by jurors who have explicitly indicated an inability to follow the law and instructions of the trial judge." 438 U.S. at 596, 597, 57 L.Ed.2d at 984 98 S.Ct. at 2961.

No evidence has been presented in this case which convinces us that the prior decisions of this Court are incorrect. We therefore adhere to these decisions.

The defendant's final contention is that there was insufficient evidence for the trial court to charge the jury on flight as a reason for the defendant's return to New York three days after the slaying of Robert Langston Moses. In State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977), this Court held that ". . . [s]o long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for the defendant's conduct does not render the instruction improper." (Emphasis ours.) See also State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697 (1973).

The testimony of Andre Sharpe and John Lee Stewart provide sufficient evidence to support a charge on flight. Stewart testified that the defendant told him he had killed the cab driver and shortly after that Stewart discovered that the defendant had left with Andre Sharpe for New York. Sharpe testified he was with the defendant on the night of September 4 when the deceased was murdered and that the defendant admitted to him that he had killed the deceased. Sharpe also heard the defendant tell John Lee Stewart that he had committed the murder. Sharpe then testified that later in the week around September 7 he went to New York with the defendant.

It is true that the defendant was originally from New York and the inference could be drawn that he was returning home. Simply because such an inference can be drawn does not make the instruction as to flight erroneous. State v. Irick supra. There was competent evidence to support the charge of flight, and based on such evidence the trial court correctly instructed the Jury.

From the evidence before the court this defendant committed a planned, deliberate and vicious killing of an innocent human being merely for the purpose of robbery to satisfy his personal desire for a little money. He is fortunate that the jury was unable to agree on the death penalty.

After careful examination of the entire record, and each of the defendant's assignments of error, we hold the defendant received a fair trial free from prejudicial error. Therefore the trial, verdict and judgment will be upheld.

No error.