State v. Foster ( 1977 )

239 S.E.2d 449 (1977) 293 N.C. 674

STATE of North Carolina
v.
David Bernard FOSTER.

No. 38.

Supreme Court of North Carolina.

December 15, 1977.

Rufus L. Edmisten, Atty. Gen., and Jane Rankin Thompson, Associate Atty., Raleigh, for the State.

Shelley Blum, Charlotte, for defendant appellant.

SHARP, Chief Justice.

Defendant brings forward seven assignments of error. We consider first his assignment No. 4, which is the basis for his assertion that "the major question presented by this appeal" is whether the trial judge erred in refusing to direct a verdict of not guilty as to defendant Foster after the jury had acquitted defendant Boulware. Defendant Foster stresses the fact that although the State's case against both defendants Foster and Boulware depended upon the testimony of Martin, who implicated them both in the attempted robbery, the jury acquitted Boulware and "convicted Foster on the same testimony." He argues that if the jury disbelieved Martin with reference to Boulware's participation in the crime, then logic also required them to reject his testimony as to Foster's complicity. This contention has no merit, and it is overruled.

While it is true that the State's case against both defendants rested upon Martin's testimony, it is not true that the jury was required to accept his testimony either in its entirety or not at all. Further, Boulware offered evidence tending to show that she was not a knowing accomplice to the attempted robbery.

In this State the maxim falsus in uno, falsus in omnibus is not to be used as a rule of law by which evidence is withdrawn from the jury as if the witness were incompetent. It is merely a permissive aid in weighing and sifting evidence. State v. Williams, 47 N.C. 257 (1855). See Ferrall v. Broadway, 95 N.C. 551, 557-58 (1886); Black's Law Dictionary 727 (4th Ed. 1951). More than a century ago, speaking through Justice Rodman, this Court approved the trial judge's charge that "the rule `falsum in uno, falsum in omnibus' does not prevail in this State; that the jury could believe a part, all, or none of the testimony, and that it was a question of credit, of which they were the sole Judges." State v. Brantley and Watkins, 63 N.C. 518 (1869). The substance of that portion of the charge quoted above has been a standard part, a sine qua non, of the trial judge's charge during the memory of any lawyer now alive. As Chief Justice Smith said in State v. Hardee, 83 N.C. 619, 622 (1880): "Even the clear perjury of a witness committed on the trial does not authorize the court to direct the jury to disregard the testimony, but it goes to his credit only."

Upon the evidence in this case the jury would have been fully justified in finding both Boulware and Foster guilty as charged. It is equally clear that the two differing verdicts rendered can be explained on a rational basis. We note, however, the following statement from Annot., 22 A.L.R. 3d 717, 721 (1968): "[M]ost modern courts are agreed that the verdicts as between two or more defendants tried together in a criminal case need not demonstrate rational consistency. . . .

"Of course, if the court determines that the verdicts are actually consistent notwithstanding defendant's attack upon them, affirmance will result regardless of the court's views respecting the necessity for consistency. Such a determination may be made where, considering the facts and circumstances disclosed, the verdicts can be explained on some rational basis or where the evidence adduced against the one defendant was different from or weaker than that adduced against the other." See also State v. Meshaw, 246 N.C. 205, 207, 98 S.E.2d 13, 15 (1957).

Assignments of error 1, 2, and 3 challenge the court's rulings admitting certain evidence over defendant's objection.

On direct examination Martin was permitted to testify that while he, Foster, Williams, and Boulware sat in her mother's car at the home of Joyce Pettus, Williams said "that down there is a store `we can rob for some money' . . . that he had cased it out earlier." Defense counsel objected on the ground that Williams' statement was hearsay. The objection was overruled and assignment No. 1 is based on this ruling. It is without merit.

Defendant, who admitted being in the store when the attempted robbery and murder took place, based his defense to the charge of murder on his lack of knowledge that Williams and Martin planned to rob the store and his lack of participation in the plot or its attempted execution. Thus, Williams' challenged statements were competent to prove defendant's knowledge that Boulware, Martin, and Williams planned to rob Jimmy's Supermarket. 1 Stansbury's N.C. Evidence § 83 (Brandis rev. 1973). Notwithstanding, had the admission of this testimony constituted error it would have been rendered harmless when Martin, without objection, thereafter gave substantially identical testimony both on direct and cross-examination. State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975), cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102 (1976).

Defendant's assignment No. 2 charges that the trial judge erred in permitting the jury to view the scars from the wounds which, Martin testified, Small had inflicted upon him with a butcher knife at the time he shot Small. These scars were illustrative of relevant and material testimony. Their exhibition to the jury, therefore, was not error. 1 Stansbury's N.C. Evidence § 119 (Brandis rev. 1973). See also State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970).

Assignment No. 3 is directed to an allegedly leading question. The record discloses that this question was both timesaving and harmless. See State v. Cox et al., 281 N.C. 275, 188 S.E.2d 356 (1972); State v. Johnson, 272 N.C. 239, 158 S.E.2d 95 (1967). In his brief defendant concedes that the rulings challenged by assignments 2 and 3 were on matters "committed to the discretion of the trial court." He suggests no abuse of discretion and there obviously was none. Both assignments are overruled.

The substance of defendant's assignment No. 5 is that the trial judge erred by allowing the district attorney to question defendant and his witness Franckewitz about their respective criminal convictions and specific acts of misconduct. This assignment is based upon an objection which the record reports as follows:

"Mr. Blum: I object to continuing along this line of questioning. (The district attorney was reading from arrest records.)

"Court: He can cross examine him."

In his brief defendant argues that to permit the district attorney to cross-examine a witness about convictions while referring to an arrest record is to permit him to insinuate that he "has a long arrest record and is not telling the truth about it." This argument, if carried to its logical conclusion, would prevent the prosecuting attorney from using any unidentified notes while cross-examining a witness. At the time the district attorney was cross-examining defendant the record contains no suggestion that the jury knew the nature of the paper the district attorney was using. Later, when examining Franckewitz, defense counsel himself identified the paper in making the following objection: "Your Honor, I object to the use of unconfirmed arrest records not reduced to conviction, as we have objected before, in use in impeachment. I believe that an arrest record has no meaning." The court's response was, "Objection overruled. He can ask if she committed the acts. Go ahead."

When the examinations were completed defendant had admitted that he had been convicted of the possession of marijuana in January 1976, of receiving stolen goods in 1975, and of resisting arrest in 1974. He had denied that he had robbed Robert Owens in 1976 and that he had ever committed larceny from the Charlottetown Mall. Franckewitz had admitted that in 1971 she had written four worthless checks in Florida and fifteen in Charlotte in 1974. She denied that she had ever been convicted of embezzlement.

A defendant who elects to testify in his own behalf knows that he is subject to impeachment by questions relating not only to his conviction of crime but also to any criminal or degrading act which tends to discredit his character and challenge his credibility. Such questions, however, must be asked in good faith. It would be highly improper for the prosecuting attorney to ask a witness an impeaching question without reasonable grounds for belief that the witness had committed the crime or degrading act about which he was inquiring. State v. Williams, 292 N.C. 391, 233 S.E.2d 507 (1977); State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sentence vacated, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278 (1976); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972); State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971). See 1 Stansbury's N.C. Evidence § 112 (Brandis rev. 1973).

Whether the cross-examination transcends propriety or is unfair is a matter resting largely in the sole discretion of the trial judge, who sees and hears the witnesses and knows the background of the case. His ruling thereon will not be disturbed without a showing of gross abuse of discretion. State v. Daye, 281 N.C. 592, 189 S.E.2d 481 (1972). This record evinces neither bad faith on the part of the district attorney nor any attempt to badger or humiliate the witness. Assignment No. 5 is overruled.

Assignment No. 6, that the court erred in overruling defendant's objection to an "argumentative question," is frivolous. The question combined two related queries and was, therefore, bad form. Nevertheless defendant understood the question perfectly. He answered it favorably to himself and the district attorney dropped the matter without further ado.

Defendant's final assignment, No. 7, relates to his sentence of life imprisonment. Upon the coming in of the verdict defense counsel requested the court to sentence defendant "as a youthful offender." Whereupon Judge Friday entered judgment which, inter alia, provided:

"The jury having found the defendant guilty of the offense of felony murder which is a violation of G.S. 14-17 and of the grade of felony;

"It is ADJUDGED that the defendant be imprisoned for the term of the remainder of your natural life in the North Carolina Department of Correction. It is ordered that the defendant be given credit on this sentence for 113 days spent in custody pending trial."

"After announcing the foregoing judgment, Judge Friday stated, "Now, as the court understands it, this life sentence will be served as a committed youthful offender; at least that is, to my knowledge."

This judgment did not specify that defendant was committed to the custody of the Secretary of Correction for treatment and supervision under N.C.Gen.Stats., Ch. 148, Art. 3A (1975 Cum.Supp.), "Facilities and Programs for Youthful Offenders." Notwithstanding, in view of the court's statement that he understood defendant's life sentence would be served as a "committed youthful offender," defendant contends the case should be remanded to the Superior Court "for correction" in accordance with the trial judge's intention that defendant be confined only "for up to four years and must then be paroled." From this record we are unable to divine the trial judge's intention. However, his intention is rendered immaterial by our decision in State v. Niccum, 293 N.C. 276, 238 S.E.2d 141, filed October 11, 1977. In Niccum we held that neither N.C.Gen.Stats., Ch. 148, Art. 3A, §§ 148-49.1 through 148-49.9 (repealed 1 October 1977) nor its substitute, N.C.Gen. Stats., Ch. 148, Art. 3B, §§ 148-49.10 through 148-49.16 (effective 1 October 1977) was intended to apply to a youthful offender who commits a crime for which death or a life sentence is the mandatory punishment.

Judge Friday properly imposed upon defendant the mandatory sentence of life imprisonment, and in his trial we find no error.

However, there is one matter which we must consider ex mero motu. Defendant was indicted in a bill drawn under G.S. 15-144 for first-degree murder as defined by G.S. 14-17 (Cum.Supp.1975). This statute declares, inter alia, that any murder "which shall be committed in the perpetration or attempt to perpetrate any . . . robbery . . . shall be deemed murder in the first degree." Evidence for the State tended to show that defendant intentionally and voluntarily participated with three other persons in an unsuccessful attempt to rob Jimmy's Supermarket; that in the attempt one of his co-conspirators shot Mr. Small, who died approximately two weeks later from the wounds then inflicted. This evidence, which the jury found to be true, established defendant's guilt of murder in the first degree. State v. Peplinski, 290 N.C. 236, 225 S.E.2d 568, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975), rev'd on other grounds, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). However, in response to the written issue submitted by the trial judge the jury returned a verdict of "guilty of felony murder."

The term "felony murder" is an abbreviation for a homicide committed in the commission of or attempt to commit a felony such as specified in G.S. 14-17. Any felony "which is inherently dangerous to human life, or foreseeably dangerous to human life due to the circumstances of its commission, is within the purview of G.S. 14-17." State v. Williams, 284 N.C. 67, 72, 199 S.E.2d 409, 412 (1973). "Felony murder" is a term well understood, and frequently used, by both bench and bar. By statute in this State, however, murder is either murder in the first degree or murder in the second degree, and the punishment specified for murder is for each degree respectively. Notwithstanding, since "felony murder" is not a statutory term, its use in an issue submitted to the jury is ill-advised and we expressly disapprove its usage. It is a misnomer which will, of course, be reflected in the verdict whenever it is so used.

In State v. Lee, 292 N.C. 617, 626, 234 S.E.2d 574, 579 (1977), the trial judge, in his charge, submitted to the jury the issue of defendant's guilt of "first-degree murder when a deadly weapon is used." In disapproving this instruction, which we held to be prejudicial error, Justice Branch, writing for the Court, said: "This instruction creates a new offense without benefit of statute or court decision."

In this case, however, the ambiguity in the issue and verdict is cured by the charge, to which no exception is taken. "A verdict, apparently ambiguous, `may be given significance and correctly interpreted by reference to the allegations, the facts in evidence, and the instructions of the court'.. . . `The verdict should be taken in connection with the charge of his Honor and the evidence in the case.'" (Citations omitted.) State v. Tilley, 272 N.C. 408, 416, 158 S.E.2d 573, 578 (1967).

After telling the jury that defendants were indicted under G.S. 14-17 and reading the statute to them, Judge Friday explained that "under this statute, any killing of a human being by a person committing or attempting to commit armed robbery is first-degree murder without anything further being shown." Thereafter he several times charged the jury in words substantially as follows: If you find from the evidence beyond a reasonable doubt that on 17 August 1976 defendants Boulware and Foster accompanied Martin and Williams to Jimmy's Supermarket for the avowed purpose of robbing that store; that while they were there, aiding and abetting each other in attempting to perpetrate the robbery, one of them shot the attendant Small; and that subsequently Small died in consequence of the shooting, those facts "would make them all equally guilty and make them guilty of murder in the first degree." In his final mandate the judge again instructed the jury that if they found the facts postulated in the preceding sentence "from the evidence and beyond a reasonable doubt" they "would return a verdict of murder, that is, guilty as to the first issue submitted to you, guilty of felony murder."

Construing the verdict, "guilty of felony murder," with reference to the charge we have no doubt that it can only be interpreted as a verdict of guilty of murder in the first degree. For that reason, albeit we condemn the use of the term "felony murder" in an issue and verdict, we find no prejudicial error in the trial and affirm this verdict. In doing so, however, we strongly recommend to the trial judges that in instructing the jury as to permissible verdicts they abstain from innovations.

No Error.