State v. Squire , 292 N.C. 494 ( 1977 )

234 S.E.2d 563 (1977) 292 N.C. 494

STATE of North Carolina
v.
Frankie Jerome SQUIRE et al.

No. 3.

Supreme Court of North Carolina.

May 10, 1977.

Rufus L. Edmisten, Atty. Gen., by James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

James S. Livermon, Jr., Enfield, for defendant Squire.

Charles W. Ogletree, Columbia, for defendant Brown.

Milton E. Moore, Williamston, for defendant Seaborn.

W. Brian Howell, Raleigh, for defendants.

LAKE, Justice.

By virtue of the decision of the Supreme Court of the United States in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), the death sentence imposed upon each of these defendants must be, and is hereby, vacated and a sentence to life imprisonment substituted therefor as hereinafter provided.

There was no error in consolidating the three cases for trial. G.S. 15A-926(b)(2); State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. King, 287 N.C. 645, 215 S.E.2d 540 (1975). The three defendants were charged with and tried for a single, identical crime, the murder of Trooper Davis. The theory of the prosecution in each case was that the three defendants, jointly, and pursuant to a common plan, robbed the bank in Jamesville and, while fleeing from the scene of the robbery with its proceeds, shot and killed Trooper Davis. Nothing whatever in the record indicates the slightest prejudice to the right of any of the defendants to a fair trial by reason of the consolidation of the cases per se. We discuss below the contention that a new trial should be ordered because of the admission into evidence of testimony of an investigating officer concerning the extrajudicial statement by the defendant Squire to him.

Defendants next contend that the trial court erred in sustaining the State's challenges for cause to prospective jurors who expressed general opposition to capital punishment. This assignment of error fails for two reasons, each of which is independently sufficient. First, the record discloses that no juror was excused because of his or her expression of general opposition to capital punishment. Each juror excused, pursuant to the State's challenge in this area, stated unequivocally that he or she, by reason of opposition to capital punishment, would vote against a verdict of guilty regardless of the evidence. The sustaining of such challenge to such juror was proper under the rule established in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), and would not be basis even for vacating a death sentence, otherwise properly imposed. Second, the Supreme Court of the United States in Witherspoon v. Illinois, supra, made it clear that its decision in that case was limited to the validity of a death sentence, imposed upon a verdict of a jury from which persons generally opposed to capital punishment had been excluded, and did not invalidate a conviction and the imposition of a proper sentence upon a verdict of guilty rendered by a jury so composed. Speaking through Justice Branch, in State v. Covington, supra, 290 N.C. at p. 348, 226 S.E.2d p. 652, this Court said:

"All defendants, relying upon Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, contend that their constitutional rights were violated by the exclusion of jurors because of their views concerning capital punishment. Their contention requires little discussion in light of the holding in Woodson v. North Carolina [supra]. In Witherspoon, the Supreme Court made it clear that the decision did not invalidate the conviction of a defendant as opposed to a sentence of death. * * * We hold that defendants' constitutional rights were not violated by the exclusion of jurors because of their views concerning capital punishment."

Except with reference to the portion of the statement by the defendant Squire tending to implicate his codefendant Seaborn as the one who shot Trooper Davis, which we discuss below, there was no error in admitting, over objection, testimony of investigating officers as to extrajudicial admissions made to them by the several defendants. As to each such statement, the court, upon objection being interposed, conducted a voir dire in the absence of the jury. The defendant Squire and the defendant Brown offered no evidence at such voir dire. The defendant Seaborn did offer evidence tending to contradict the evidence offered by the State with reference to his having been properly advised of his constitutional rights, his waiver of counsel and the voluntariness of his statement.

As to the defendants Seaborn and Squire, the State offered, on voir dire, signed waivers of counsel and acknowledgments of the reading to them and understanding by them of their said constitutional rights. At the conclusion of the voir dire, the court made findings of fact to the effect that each defendant had been fully advised of his or her said rights, that defendants Seaborn and Squire had each, with full understanding of those rights, knowingly, voluntarily and understandingly waived his right to counsel and his right to remain silent and that the defendant Brown, having been so advised of her rights and understanding them, knowingly, voluntarily and understandingly waived her right to remain silent. Upon these findings, the court concluded that the statements of the several defendants were admissible in evidence. The investigating officers were thereupon permitted to testify concerning those statements in the presence of the jury.

It is well established that such findings of fact by the trial court upon the voir dire hearing, if supported by evidence, as these findings were, are conclusive on appeal. State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). It will be observed that, as to the defendant Brown, the court did not expressly find that she waived her right to counsel prior to making a statement to the interrogating officer. However, this finding is implicit in the court's conclusion that her statement to the officer was admissible following the court's finding that the officer fully advised her of her right to counsel. That finding is fully supported by the evidence on the voir dire hearing which also showed an express oral waiver by the defendant Brown of her right to counsel. There was no evidence to the contrary. That being true, it was not error for the judge to admit testimony as to the statement by the defendant Brown without making the specific finding that she had waived her right to counsel, State v. Lynch, 279 N.C. 1, 15, 181 S.E.2d 561 (1971); State v. Bishop, supra, 272 N.C. at p. 291, 158 S.E.2d 511 (1968); State v. Keith, 266 N.C. 263, 145 S.E.2d 841 (1966). There was, therefore, no error in the admission of the evidence of the statements by the several defendants to the investigating officers, except to the extend hereinafter set forth.

The defendants Squire and Brown requested the court to submit to the jury, with proper instructions, the question of their guilt as accessories before the fact and as accessories after the fact. This request was denied and in this there was no error. State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). Assuming, for the sake of argument, that the offense of being an accessory before the fact, or the offense of being an accessory after the fact, is a lesser included offense within the charge of murder, as to which see the several opinions of our predecessors on this Court in State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961), it is well established that the trial court is under a duty to instruct the jury upon, and to submit for its consideration, a lesser included offense only when there is evidence tending to show the commission of such lesser offense. State v. Phifer, supra; State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Foster, 284 N.C. 259, 277, 200 S.E.2d 782 (1973); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).

All persons present, actually or constructively, and participating in a criminal offense are principals therein, either in the first or second degree, and not accessories. State v. Phifer, supra, 290 N.C. at p. 217, 225 S.E.2d 786; State v. Overman, 284 N.C. 335, 200 S.E.2d 604 (1973); State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). "An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it." (Emphasis added.) State v. Benton, supra. "An accessory after the fact under G.S. 14-7 ``is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists such other, the felon, or in any manner aids him to escape arrest or punishment.' State v. Potter, 221 N.C. 153, 19 S.E.2d 257 (1942)." State v. Overman, supra, 284 N.C. at p. 341, 200 S.E.2d at p. 608. In the present case, all of the evidence is to the effect that the three defendants participated in the robbery of the bank in Jamesville, Squire being the driver of the get-away car parked during the robbery immediately outside the bank, and all the evidence is to the effect that the three defendants, while fleeing from the scene of the robbery, were present at the shooting of Trooper Davis.

Likewise, there was no error in the failure of the court to submit to the jury the guilt of the defendants Squire and Brown of the offense of armed robbery. The jury was properly instructed as to the elements of armed robbery as the felony underlying the alleged murder. The argument of these defendants upon this contention is to this effect: The evidence was overwhelming that these defendants had participated in the robbery of the bank; if the jury determined that the robbery was not in progress at the time Trooper Davis was killed, the jury could not convict these defendants of murder; "The jury was not, under any circumstances, going to find them not guilty"; thus, under the circumstance of this case, robbery was a lesser included offense and should have been submitted to the jury as to these defendants as an alternative to convicting them of murder; otherwise, the jury was virtually forced to find the robbery was still in progress at the time Trooper Davis was shot. The sufficient answer is that on this trial the defendants were not charged with armed robbery, but with murder.

It is true that the State was proceeding in the murder case on the theory of felony-murder; that is, that the murder was committed in the perpetration of the felony of robbery. It is also true that, when the State, in the trial of a charge of murder, uses evidence that the murder occurred in the perpetration of another felony so as to establish that the murder was a murder in the first degree, the underlying felony becomes a part of the murder charge to the extent of preventing a further prosecution of the defendant for, or a further sentence of the defendant for, commission of the underlying felony. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972). It does not follow, however, that upon an indictment charging murder alone, the defendant can be convicted of a separate, distinct underlying felony such as armed robbery. He may be convicted only of the offense charged in the indictment. "It is a universal rule that an indictment must allege all the elements of the offense charged. A defendant is entitled to be informed of the accusation against him and to be tried accordingly." State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). "A charge in a bill of indictment must be complete in itself, and contain all of the material allegations which constitute the offense charged." State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965). "The purpose of an indictment ``is (1) to give the defendant notice of the charge against him to the end that he may prepare his defense and to be in a position to plead former acquittal or former conviction in the event he is again brought to trial for the same offense; (2) to enable the court to know what judgment to pronounce in case of conviction.' State v. Burton, 243 N.C. 277, 90 S.E.2d 390 (1955); State v. Greer, 238 N.C. 325, 77 S.E.2d 917 (1953); State v. Dorsett and State v. Yow, 272 N.C. 227, 158 S.E.2d 15 (1967)." State v. Russell, 282 N.C. 240, 192 S.E.2d 294 (1972). Since the defendants Squire and Brown could not have been lawfully convicted, upon the present indictments, of the crime of armed robbery, it was not error to refuse to submit their guilt of that offense to the jury.

We come now to the question of the effect upon the convictions of these defendants of the admission in evidence of the testimony of the investigating officer concerning the extrajudicial statement made to him by the defendant Squire, which statement implicated the defendant Seaborn as the one who fired the fatal shot.

The admission of this statement was not error as to the declarant, Squire. As above noted, the statement was lawfully obtained and admissible insofar as the procedures followed by the interrogating officer are concerned. "A confession legally obtained is clearly competent against the defendant who made it and the best evidence of his guilt." State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968).

The statement by Squire did not refer to the defendant Brown, directly or indirectly. The defendant Brown's own statement to the officer interrogating her was to the effect that when the shot was fired, she was lying in the front seat of the car. There was no evidence to the contrary. Thus, Squire's statement that the shot was fired from the back seat of the car would not imply or indicate that the defendant Brown was the person who actually fired it. The admission of this evidence was, therefore, not prejudicial to the defendant Brown. Thus, neither the defendant Squire nor the defendant Brown would be entitled to a new trial because of the admission of the testimony of this statement by the defendant Squire.

As to the defendant Seaborn, the admission of the officer's testimony concerning this statement by the codefendant Squire was error, this being, clearly, hearsay evidence that Seaborn fired the fatal shot. Obviously, in a separate trial of Seaborn such testimony would not have been admissible over his objection. The trial judge, obviously taken by surprise by this testimony of the officer in the presence of the jury, immediately sought to rectify the error by instructing the jury to dismiss that portion of Squire's statement to the officer from its consideration of Seaborn's guilt. However, since the decision of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), it is well settled that such admonition to the jury is not sufficient to overcome the error as to the codefendant so implicated by the statement of the declaring defendant. Where, as in Bruton v. United States, supra, and as in the present case, the declarant does not, himself, take the witness stand and thus subject himself to cross-examination by his codefendant implicated by his statement to the officer, the codefendant's constitutional right to confront his accuser is violated. This violation of his constitutional right of confrontation is not erased by the admonition of the trial judge to the jury to strike the offending evidence from its consideration. Thus, speaking through Justice Sharp, now Chief Justice, we said in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968):

"The result [of Bruton v. United States, supra] is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant * * * and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation."

It does not follow, however, that the defendant Seaborn is entitled to a new trial. Like any other defendant, Seaborn was "entitled to a fair trial, but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593 (1953). In Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972), the Supreme Court of the United States expressly applied the well established doctrine of harmless error to a recognized violation of the rule declared in Bruton v. United States, supra, saying, through Mr. Justice Rehnquist:

"The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.

* * * * * *

"Having concluded that petitioner's [the complaining defendant's own] confession was considered by the jury, we must determine on the basis of ``our own reading of the record and on what seems to us to have been the probable impact * * * on the minds of an average jury,' * * * whether Snell's [the declaring codefendant's] admissions were sufficiently prejudicial to petitioner as to require reversal. * * * Thus, unless admitted evidence contributed to the conviction, reversal is not required. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705, 710, 24 A.L. R.3d 1065 (1967). In this case, we conclude that the ``minds of an average jury' would not have found the State's case significantly less persuasive had the testimony as to Snell's admission been excluded. The admission into evidence of these statements, therefore, was at most harmless error."

In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), The Supreme Court of the United States, speaking through Mr. Justice Black, said:

"We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. * * We decline to adopt any such rule. * * We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the federal constitution, be deemed harmless, not requiring the automatic reversal of the conviction.

* * * * * *

"We, therefore, do no more than adhere to the meaning of our Fahy Case [Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963)] when we hold, as we now do, that before a federal constitutional error can be held harmless, the Court must be able to declare a belief that it was harmless beyond a reasonable doubt."

This doctrine of harmless error is likewise firmly established in the law of this State. State v. McCotter, 288 N.C. 227, 217 S.E.2d 525 (1975); State v. Watson, 281 N.C. 221, 188 S.E.2d 289 (1972), cert. den., 409 U.S. 1043, 93 S. Ct. 537, 34 L. Ed. 2d 493; State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972), cert. den., 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112. In the latter case, we said, through Justice Huskins:

"We have consistently held that the admission of evidence which is technically incompetent will be treated as harmless unless it is made to appear that defendant was prejudiced thereby and that a different result likely would have ensued had the evidence been excluded."

The defendant Seaborn's own statement to the officer interrogating him following his arrest, evidence as to which was properly admitted by the trial court as above shown, was that he was in the back seat of the car when Trooper Davis approached, that he reached for the shotgun lying on the floor of the car and, as he raised up, the gun discharged and inflicted the fatal wound. Seaborn's statement to the officer was that he did not intend to kill Trooper Davis, the firing of the gun being accidental. The admitted testimony as to the statement of the defendant Squire is not inconsistent with this assertion by Seaborn.

The evidence is overwhelming, including the statements of each of the three defendants, that all three of the defendants participated actively in the robbery of the bank in Jamesville, Squire being the driver of the car used to transport Seaborn and Brown to the bank for the purpose of the robbery and of escape. The uncontradicted evidence is: The robbery was completed at 10:05 a. m.; at 10:18 a. m., Trooper Davis lay mortally wounded on the street, 10.3 miles distant from the bank, following a shotgun blast from the car in which the three defendants were making their escape; the shotgun used in the bank robbery fired the exploded shell found in the breach end of the barrel thereof following the killing of Trooper Davis and the arrest of the defendants in the soybean field; following the shooting of Trooper Davis, the three defendants drove the car to a point in a creek bottom where they abandoned it, after removing the license plate therefrom, and then fled on foot with the proceeds of the bank robbery to the point where they were arrested, hiding under a growing crop of soybeans; beside them was a woman's pocketbook containing the proceeds of the bank robbery and the pistol used by the defendant Brown in the robbery; shallowly buried within a few feet from where they were hiding were the barrel and the stock of the shotgun. In the face of this uncontradicted evidence, it would be preposterous to suggest that the jury would not have convicted Seaborn but for the statement by his codefendant Squire tending to put Seaborn in the back seat of the car and to show that the actual shot came from that portion of the car. The error in admitting the incompetent testimony of Squire must, therefore, be deemed harmless beyond a reasonable doubt.

It is true that the court submitted to the jury as to the defendant Seaborn both felony-murder and first degree murder by premeditation and deliberation. However, a finding of the guilt of Squire and Brown was limited in the court's instruction to the possibility of guilt of felony-murder. The verdict of the jury, finding all three guilty of first degree murder, shows clearly that the jury found the killing of Trooper Davis occurred while the defendants were engaged in the perpetration of the felony of bank robbery.

G.S. 14-17 declares that a murder committed in the perpetration of any robbery shall be deemed murder in the first degree. In State v. Thompson, supra, speaking through Chief Justice Bobbitt, this Court said:

"An interrelationship between the felony and the homicide is prerequisite to the application of a felony-murder doctrine. * * * A killing is committed in the perpetration or attempted perpetration of a felony within the purview of a felony-murder statute ``when there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is linked to or part of the series of incidents, forming one continuous transaction.' 40 Am.Jur.2d, Homicide § 73."

As Justice Sharp, now Chief Justice, said in State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970):

"[W]hen a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree."

To the same effect is State v. Covington, supra. Necessarily, where all of the defendants not only conspire to perpetrate a robbery, but all actually participate actively in its perpetration, and in the course thereof a killing occurs, all participants are guilty of murder in the first degree. State v. Phifer, supra.

For the purposes of this rule, the underlying felony is not deemed terminated prior to the killing merely because the participants have then proceeded far enough with their activities to permit their conviction of the underlying felony.

In the annotation entitled "Felony Murder Rule-Termination Of Felony," 58 A.L. R.3d 851, it is said:

"The vast majority of cases within the scope of this annotation support the view that escape is ordinarily within the res gestae of the felony and that a killing committed during escape or flight is ordinarily within the felony-murder rule."

The Supreme Court of California so held in People v. Salas, 7 Cal. 3d 812, 103 Cal. Rptr. 431, 500 P.2d 7, 58 A.L.R. 3d 832 (1972), cert. den., 410 U.S. 939, 93 S. Ct. 1401, 35 L. Ed. 2d 605, saying:

"In the present case * * * the homicide was committed before defendant had reached a place of safety while he ``was in hot flight with the stolen property and in the belief that the officer was about to arrest him for the robbery.' Deputy O'Neal commenced to follow defendant's vehicle within three minutes of the time defendant left the bar [the scene of the robbery] and the killing [of the officer] occurred within six or seven minutes of that time. Thus the robbery was still in the escape stage, as conceded by the defendant at trial."

In the present case, less than thirteen minutes elapsed between the departure of the defendant robbers from the bank and the fatal shooting of Trooper Davis at a point 10.3 miles from the bank. The money stolen from the bank was in the car with the defendants. They still had with them the weapons used in the robbery. According to the defendants' own statements, one was hiding, crouched down in the back seat, another hiding, crouched down in the front seat. Pursuant to the alarm, police officers in various vehicles were converging upon the area. The defendant Squire, the driver of the get-away car, had observed three such vehicles, with flashing lights, meeting him as the officers drove toward the robbed bank. It is apparent that the defendants believed, though seemingly erroneously, that Trooper Davis had stopped them because he suspected they were the robbers. After the shooting, they fled with the money and the weapons, attempted to conceal their vehicle and then lay hiding in a bean field until flushed by the pursuing officers. Obviously, the defendants had not reached what they regarded as a place of temporary safety from pursuing officers when the shooting of Trooper Davis occurred. Thus, the robbery was still in progress and the shooting occurred in the perpetration of it and was first degree murder.

By virtue of the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra, we must, and do, vacate the sentence of death imposed upon each of the defendants and, under the authority of Session Laws of 1973, Chapter 1201, § 7, substitute a sentence to life imprisonment as to each such defendant. Accordingly, this cause is remanded to the Superior Court of Martin County, with direction that the Presiding Judge, without requiring the presence of the defendants, or any of them, shall enter, as to each defendant, a judgment sentencing such defendant to life imprisonment in lieu of the sentence of death heretofore imposed upon him or upon her for the first degree murder of which the defendants have been convicted. Further, in accordance with this judgment, the Clerk of the Superior Court will issue, as to each defendant, a new commitment in substitution for the commitment heretofore issued. At the same time, the Clerk will furnish to each defendant and to his or her attorney a copy of the judgment and commitment as revised in accordance with this opinion.

NO ERROR AS TO THE VERDICT.

DEATH SENTENCE VACATED AND REMANDED FOR IMPOSITION OF SENTENCE TO LIFE IMPRISONMENT AS TO EACH DEFENDANT.