State v. Willis , 281 N.C. 558 ( 1972 )

189 S.E.2d 190 (1972) 281 N.C. 558

STATE of North Carolina
v.
Lewis Pierson WILLIS.

No. 48.

Supreme Court of North Carolina.

June 16, 1972.

Robert Morgan, Atty. Gen., by Christine A. Witcover, Associate Atty., Raleigh, and James F. Bullock, Deputy Atty. Gen., for the State.

Wheatly & Mason, by C. R. Wheatly, Jr., Beaufort, for defendant appellant.

HIGGINS, Justice.

The State's evidence in this case shows a planned gangster type murder in which three of the four involved testified for the State against the fourth who did the actual killing. The alert trial lawyer, who represented the defendant at the trial and argued the case here, entered 264 exceptions. However, the only assignments of error discussed in the brief are here quoted in full:

"1. Did the Court commit error in permitting the solicitor to question the jury on his voir dire examination?

a) To such an extent that he created the impression that the sole issue for the jury was punishment rather than guilt or innocence?

b) By describing a case to be considered as being ``bad', ``horrible'?

"2. Did the Court commit error on the evidentiary rulings in:

a) Permitting testimony as to the identity of an automobile tire track without proper connecting evidence?

b) Permitting the solicitor to elicit testimony by the constant use of leading questions?

c) The use of a photograph and other evidence which served no evidentiary purpose and was used solely to inflame the passions of the jury against the defendant?"

The statement in the brief as to the questions involved may be treated as the abandonment of all others. "Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, page 810. State v. Clayton, 251 N.C. 261, 111 S.E.2d 299.

After the arraignment, the court announced the jury selection would proceed in the manner approved in the case of State v. McNeil, supra; State v. Perry, 277 N.C. 174, 176 S.E.2d 729. However, the solicitor addressed his questions to each juror individually. The following is typical:

"Q . . . I'll ask you if you should be chosen to sit on the jury in a murder case—not this case, but a homicide case —I ask you if you could listen to the evidence that comes from the mouths of the witnesses on the witness stand, and the Judge's charge, and then retire to the jury room and the twelve jurors should consider the evidence and find from the evidence and beyond a reasonable doubt that the defendant is guilty, I'll ask you, sir, if then you could consider voting to bring in a verdict that would require the Judge to sentence the defendant to the death penalty?

Objection—Overruled.

"A No, sir.

"Q . . . I'll ask you: Can you imagine a case in which the circumstances are so bad, not this case, and the jury, after having heard the evidence, goes into the jury room and then they find from the evidence and beyond a reasonable doubt that the defendant is guilty, I'll ask you could you then consider voting to bring in a verdict that would require the judge to sentence the defendant to the gas chamber?"

The solicitor's usual questions ended with that which preceded the answer, "No, sir." However, in a few instances the second question (in substance) was added. The solicitor's examination of the jurors covers ninety-six pages of the record. All questions by defense counsel are omitted. Except in a few instances, the jurors' answers to the questions are also omitted. The solicitor's questions indicate his purpose was to find a jury which was not opposed to capital punishment. Nothing objectionable on the question of guilt or innocence is alleged or discovered. Notwithstanding the solicitor's effort to obtain a jury which would vote for capital punishment, the jury by unanimous agreement fixed the punishment at life imprisonment.

The defendant does not assign as error the selection of any particular juror. The parties stipulated the State exhausted its eight peremptory challenges. The defendant exhausted only thirteen of its fourteen peremptories. The solicitor's questions were intended to determine whether the prospective jurors were qualified in the light of the rules discussed in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776; State v. Doss, 279 N.C. 413, 183 S.E.2d 671; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Spence, 274 N.C. 536, 164 S.E.2d 593.

We have reviewed the evidence which the court admitted over objection. The review fails to disclose prejudicial error. The defendant's plea of not guilty required the State to prove all material elements of the offense charged, including the identity of the victim. The identification card found on the body was the first step in the identification procedure. The sister of the victim, by the use of a duly authenticated photograph of the body, completed the identification. State v. Doss, supra; State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745; State v. Atkinson, supra; State v. Porth, 269 N.C. 329, 153 S.E.2d 10.

The use of casts made of automobile tracks at the place in the highway where the body was found was competent to identify the tracks as having been made by Richardson's automobile. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572; State v. Palmer, 230 N.C. 205, 52 S.E.2d 908. The discrepancies as to the dates on which the comparisons were made had bearing on the weight and not on the competency of the evidence. Actually, the State's witness Richardson testified without equivocation that he and the defendant transported the body from the store to Merrill's Boulevard. The tire tracks at the scene corroborated Richardson's testimony.

The claim of error based on the solicitor's leading questions is not well founded. The few leading questions which the court permitted were intended as time saving or as an indication whether further inquiry should be pursued. Leading questions, especially in a long trial, may be time saving and the judge should be trusted to sustain objection if the question and answer appear in anywise prejudicial. Leading questions may be left to the sound discretion of the presiding judge and are not reviewable absent a showing of prejudice. State v. Doss, supra; State v. Clanton, 278 N.C. 502, 180 S.E.2d 5; State v. Johnson, 272 N.C. 239, 158 S.E.2d 95; State v. Pearson, 258 N.C. 188, 128 S.E.2d 251.

The evidence of guilt was overwhelming. The direct evidence was buttressed all along the line by proof of strongly corroborating circumstances.

This Court has reviewed all assignments of error which counsel has discussed in the brief and in the argument. Nothing appears which could have influenced the jury to the prejudice of the defendant. Hence, in the trial, verdict, and judgment, we find

No error.