State v. Dawson , 281 N.C. 645 ( 1972 )

190 S.E.2d 196 (1972)

STATE of North Carolina
v.
Cephus Jerome DAWSON et al.

No. 36.

Supreme Court of North Carolina.

July 31, 1972.

Atty. Gen. Robert Morgan and Associate Atty. Charles A. Lloyd, Raleigh, for the State.

Edward L. Williamson, Whiteville, for defendant appellants.

BOBBITT, Chief Justice.

Defendants' assignments of error based on exceptions to the denial of their motions for severance are without merit. Defendants were jointly indicted in a single bill for the rape of Mrs. Edell Hughes on July 18, 1971. The evidence upon which the State relied for the conviction of each relates to a single transaction and involves all defendants.

The record does not disclose what reason, if any, was advanced in the trial court in support of the motions for severance. In this Court, Smith and Roseboro assert that they were prejudiced by their trial with Dawson because the State's evidence tended to show Dawson had actual sexual intercourse with Mrs. Hughes but that their guilt, if any, rested on evidence tending to show that they aided and abetted Dawson in his commission of the crime of rape.

It was proper and appropriate for the three defendants to be tried together. The court properly instructed the jury that they would return verdicts of not guilty as to Smith and Roseboro if they failed to find beyond a reasonable doubt that Dawson committed the actual completed crime of rape. Too, the court properly instructed the jury that, if they found Dawson guilty of rape, they would consider and determine separately whether Smith was guilty of rape as an aider and abettor and whether Roseboro was guilty of rape as an aider and abettor. Properly, the court gave a separate charge or mandate as to each defendant in respect of the essential findings necessary to warrant a verdict of guilty as to that defendant.

Defendants have failed to show prejudice on account of the denials of their motions for severance. No evidence of any statement made by any defendant was admitted which tended to incriminate or prejudice any other defendant.

The jury was selected in the manner described and approved in State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970), and approved in State v. McNeil, 277 N.C. 162, 176 S.E.2d 732 (1970), and in State v. Willis, 281 N.C. 558, 189 S.E.2d 190 (1972). There is no merit in defendants' assignment of error challenging this jury selection procedure.

Defendants assign as error the denial of their counsel's request that he be permitted to question the prospective jurors as to their fitness and competency to serve as jurors.

The agreed case on appeal contains the following: "After the selection of the twelve jurors had been completed for the State, the attorney for the defendants requested permission of the presiding Judge that he be permitted to ask questions of the jurors on behalf of the defendants in the selection of the jury. The Court denied the request of the attorney for the defendants and informed counsel for the defendants that said counsel will not direct their own questions to the jury. Counsel for the Defendants thereupon made a request of the presiding Judge that he be allowed to conduct personal interrogation of each of the jurors, please. The presiding Judge denied the request and required counsel for the defendants to present the questions to the presiding Judge who would conduct his own voir dire. DEFENDANTS' EXCEPTION NO. 3."

A motion by the Attorney General suggesting diminution of the record was allowed by this Court. Defendants interposed no objection. Pursuant thereto an addendum was filed which contains a full transcript of the jury selection proceedings. The transcript discloses the following:

After twelve persons were called and seated in the jury box, the presiding judge proceeded to question these prospective jurors as to whether any of them knew (1) any of the defendants, (2) defendants' counsel, (3) the solicitor, (4) Mrs. Hughes, (5) Viola Collins, (6) Larry McMillan or (7) George Dudley. Each prospective juror who gave an affirmative response was then questioned closely by the court with reference to whether his (her) relationship would affect his (her) ability to base his (her) verdict solely on the evidence. Each juror stated his (her) name, address, and place of employment. In response to the court's inquiry, the solicitor announced that the State did not wish to challenge any of the jurors but was satisfied with those then seated in the jury box.

After the State had accepted the original twelve, the court asked defendants' counsel if he wished "the Court to ask any additional questions." Defendants' counsel stated that he "would like permission to ask questions on behalf of the defendants [himself], if the Court would permit it." To this request, the presiding judge replied that he would be happy to ask any questions defendants' counsel wanted him to ask, but that under the procedure they were using counsel "will not direct their own questions to the jury." Thereafter, the judge did ask all questions he was requested to ask by defendants' counsel, including questions addressed to particular prospective jurors as well as to those addressed to all. At the conclusion of this further questioning by the court, defendants' counsel challenged peremptorily four of the prospective jurors and accepted eight of them. The State accepted all the four prospective jurors called to replace the four challenged peremptorily by defendants. This procedure continued until the twelve who were sworn and empaneled had been accepted by the State and by defendants.

The transcript contains no entry of an objection or exception by defendants' counsel to the jury selection procedure.

Prior to final acceptance, the State had used only one of the twenty-seven peremptory challenges to which it was entitled under G.S. § 9-21(b), and defendants had used only eight of the forty-two peremptory challenges to which they were entitled under G.S. § 9-21(a).

G.S. § 9-15(a) provides: "The court, or any party to an action, civil or criminal, shall be allowed, in selecting the jury, to make inquiry as to the fitness and competency of any person to serve as a juror, without having such inquiry treated as a challenge of such person, and it shall not be considered by the court that any person is challenged as a juror until the party shall formally state that such person is so challenged."

In State v. Allred, 275 N.C. 554, 558-559, 169 S.E.2d 833, 835 (1969), we quoted with approval the following from State v. Brooks, 57 Mont. 480, 486, 188 P. 942, 943 (1920), viz.: "The voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: First, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently the peremptory challenges allowed by law."

Although G.S. § 9-15(a) assures a defendant of the right to have due inquiry made as to the competency and fitness of any person to serve as a juror, the actual questioning of prospective jurors to elicit the pertinent information may be conducted either by the court or by counsel for the State and counsel for the defendant. The trial judge, in his discretion, may decide which course to pursue in a particular case. If the court, when it conducts the questioning, declines to ask a question requested by the defendant's counsel, an exception may be noted so that an appellate court can consider the propriety, pertinence and substance of such question. The procedure followed in the present case avoided repetitive questioning without precluding or restricting any inquiry suggested and requested by defendants' counsel. The procedure followed was not violative of G.S. § 9-15(a) or otherwise objectionable, and defendants have failed to show any prejudice on account thereof. Hence, the assignment based on what appears in the record as "DEFENDANTS' EXCEPTION NO. 3" is without merit.

Each defendant assigns as error the denial of his motion for judgment as in case of nonsuit. In testing its sufficiency, the evidence must be considered in the light most favorable to the State. Contradictions and discrepancies, even in the State's evidence, are matters for the jury and do not warrant nonsuit. State v. Murphy, 280 N.C. 1, 7, 184 S.E.2d 845, 849 (1971), and cases cited.

Although the State's evidence strongly suggests that Mrs. Hughes, while walking along Pine Log Road, was grabbed, struck, and taken from the road, and that defendants or one or more of them were involved in these events, there was no evidence sufficient to identify any of defendants until the testimony of Viola Collins and Larry McMillan was introduced, indicating that they observed the three defendants in the area behind the Sherwood Drive-In. The State's case against defendants rests upon what happened there, not upon whether defendants or any of them were involved in taking her to that location.

There was plenary evidence that Dawson raped Mrs. Hughes and is guilty as principal in the first degree. The guilt of Smith and Roseboro turns on the application of the legal principles quoted in the following paragraph.

"All who are present at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty. [Citations.] An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime. [Citations.] To render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator of the crime or by his conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary. [Citation.]" State v. Ham, 238 N.C. 94, 97, 76 S.E.2d 346, 348 (1953). Decisions in accord are cited in State v. Aycoth, 272 N.C. 48, 51, 157 S.E.2d 655, 657 (1967).

There was evidence tending to show that Smith and Roseboro were standing by while Dawson was raping Mrs. Hughes; that they were undertaking to protect Dawson from interference; that each of them obstructed the attempts of Viola Collins and of Larry McMillan to rescue Mrs. Hughes from Dawson; and that the three defendants, together, fled from the scene while Viola Collins was trying to telephone the police. Our preliminary statement sets forth the evidence in detail. When considered in the light most favorable to the State, it was sufficient to support the conviction of Smith and of Roseboro of the crime of rape as principals in the second degree.

Defendants assign as error the conditional exclusion of two black girls from the courtroom, contending the incident was prejudicial to defendants.

The record shows that immediately after Viola Collins testified that she saw Dawson "on top of Mrs. Hughes," the following occurred: "AT THIS point, the proceedings were interrupted by conduct in the Courtroom. The presiding Judge stopped the cross-examination and called two black girls who were sitting in the Courtroom. One in a green dress and the one next to her and told them to get up and get out of the Courtroom and when you decide to behave yourselves, you may come back. That either one or both of the girls laughed and the Judge said wait just a minute, what do you think is so funny. Whereupon the girl in the green dress said, ``I don't know.' Thereupon the Court called the girls up to the area between counsel table and the bench and asked them what is so funny. The girl in the green dress answered, ``Nothing.' The Court told her not to lean against the bench and instructed both girls to get out of the Courtroom and told them that when they decided to behave themselves, they could come back."

In view of the disruptive and unseemly conduct of the two girls, the requirement that they leave the courtroom until they decided to behave themselves was necessary if the trial was to continue under circumstances of judicial decorum and fairness to all concerned. Assuming the girls left the courtroom, it does not appear whether they or either or them returned and behaved themselves. We find no prejudicial error in the manner in which the presiding judge dealt with the inexcusable conduct of the two girls.

Each defendant assigns as error the court's failure to charge the jury "on a lesser crime" and to submit guilt of "a lesser offense" as a permissible verdict.

The State's evidence tended to show that Dawson was guilty of rape as principal in the first degree. There was no evidence from which the jury could find that Dawson committed any included offense of lesser degree. Smith and Roseboro, if guilty at all, were guilty as principals in the second degree of the crime committed by Dawson. There was no evidence that Smith or Roseboro was guilty as a principal in the second degree of any crime except that of rape. Since there was no evidence from which the jury could find that any defendant committed an included crime of lesser degree, defendants' assignments of error are without merit. For decisions supporting this conclusion, see the majority and dissenting opinions in State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972).

Defendants' other assignments of error have been fully considered. None discloses prejudicial error or requires discussion.

The evidence discloses that Viola Collins and Larry McMillan acted with courage and compassion when they came to Mrs. Hughes's rescue and prevented the further exploitation and sexual abuse of this helpless woman. Their conduct deserves appreciation and commendation. Apparently, there were others who "passed by on the other side."

Each defendant has failed to show prejudicial error. Therefore, the verdicts and judgments will not be disturbed.

No error.

LAKE, Justice (concurring in result).

I concur in the result reached by the majority opinion and in all parts of that opinion except the approval of the trial court's denial of the request by counsel for the defendant that he, himself, be permitted to address questions to prospective jurors individually. In my opinion, this was error but, since the defendant did not exhaust his peremptory challenges, no prejudice to the defendant has been shown in this case.

As the majority opinion states, G.S. § 9-15(a) provides: "The court, or any party to an action, civil or criminal, shall be allowed, in selecting the jury, to make inquiry as to the fitness and competency of any person to serve as juror * * *." (Emphasis added.) In State v. Allred, 275 N.C. 554, 558, 169 S.E.2d 833, 835, this Court said:

"In selecting the jury, the court, or any party to an action, civil or criminal, has the right to make inquiry as to the fitness and competency of any person to serve as a juror. G.S. § 9-15(a). ``The voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: First, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently the peremptory challenges allowed by law.' State v. Brooks, 57 Mont. 480, 188 P. 942."

Unquestionably, the trial judge has wide discretion in the conduct of the interrogation of prospective jurors so as to avoid needless repetition and waste of time. The requirement, however, that counsel relay through the court all questions to prospective jurors does not have the virtue of saving time except insofar as it may discourage inquiry by making it a tedious and laborious process. The statute seems to contemplate that a party may propound his own questions directly to the jury, assuming the propriety of the question. Such has been the prevailing, if not the universally accepted, practice under the statute in the courts of this State. I see no virtue and some danger in departing from it.