State v. Miller , 276 N.C. 681 ( 1970 )

174 S.E.2d 481 (1970) 276 N.C. 681

STATE of North Carolina
v.
Roger Vernon MILLER.

No. 14.

Supreme Court of North Carolina.

June 12, 1970.

Robert Morgan, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

H. E. Phillips, Kenansville, for defendant.

HIGGINS, Justice.

The defendant, through the diligent attorney appointed to represent him, brings to this Court five assignments of error which he contends warrant a new trial. Assignments of Error (C) and (D) may be dismissed without extensive discussion or citation of authority.

By Assignment (C) the defendant contends the court, in the voir dire examination, should have found the defendant was highly nervous at the time he confessed to Sheriff Revelle. Actually, the sheriff testified the defendant became nervous and excited as he described the kidnapping, the strangulation of his victim, and the disposal of her body in Stocking Head Creek. Why should he not have become disturbed and highly excited in the course of repeating and reliving the horrible acts which he had committed? Under such circumstances a feeling of excitement and nervousness neither impeaches his confession nor reflects on his ability to make it. This assignment of error is not sustained.

Assignment of Error (D) refers to the court's charge "on reasonable doubt". The charge as given by Judge Fountain, when considered contexturally, as it must be, is full, accurate, complete, and places upon the State the burden of proving beyond a reasonable doubt every essential element of the offenses charged. The charge is free from error. State v. Hall, 267 N.C. 90, 147 S.E.2d 548. Exceptive Assignment (D) is not sustained.

As his first serious challenge to the validity of the trial, the defendant contends the court, by sustaining the State's challenge of jurors for cause, violated his constitutional right to a fair and impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and by Article 1, Section 13, Constitution of North Carolina. The record before us discloses that only those veniremen were successfully challenged for cause who stated that because of their conscientious scruples against the imposition of the death penalty for crime, it would be impossible for them to render or to consider rendering any verdict of guilty of any offense for which the punishment would be death. Each juror stated "that in no event and under no circumstances could (the juror) render a verdict of guilty against any person regardless of the evidence if the punishment was death". Only after the same or similar statements did the court sustain the State's challenge for cause to any juror. In this respect, Judge Fountain applied a more exacting test than the Supreme Court of the United States intimates would be a proper basis for such challenge. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. See also State v. Spence & Williams, 274 N.C. 536, 164 S.E.2d 593; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Ruth, 276 N.C. 36, 170 S.E.2d 897; State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886. The court's rulings sustaining the challenges in the instant case were correct. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. The defendant's assignment of error based thereon is not sustained.

The defendant contends the court committed error in permitting Sheriff Revelle to relate to the jury the confession the defendant made to him while under arrest and while confined in the jail at Burgaw. Specifically, the defendant argues the court should have excluded the confession as involuntary. The contention does not find support in the record. True, the defendant was in jail charged with kidnapping and murder. However, Sheriff Revelle was not seeking to interrogate the defendant. The defendant called the sheriff for his own purpose. Even so, the sheriff gave him the necessary warnings before permitting him to make any disclosure. The defendant himself sought the interview and stated he wanted "to get it off his chest". The admissions appear to have been prompted altogether to relieve the pressure on his conscience by his sense of guilt. Nevertheless, before the sheriff even permitted the defendant to talk about the charges under which he was held, he gave the warnings. Actually the warnings do not appear to have been necessary because the prisoner was not acting under any inducement, force or compulsion, but entirely of his own free will. Judge Fountain, after full hearing, found the statements were freely, understandingly and voluntarily made and admitted them in evidence.

"As a general rule, voluntary admissions of guilt are admissible in evidence in a trial. To render them inadmissible, incriminating statements must be made under some sort of pressure." State v. Perry, 276 N.C. 339, 172 S.E.2d 541; Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374. In Hoffa, the Supreme Court of the United States said: "Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." The evidence of Sheriff Revelle was properly admitted. The exception thereto is not sustained.

Finally, the defendant argues that G.S. § 14-17 and G.S. § 15-162.1, when considered and read together, render unenforcible the death penalty for murder in North Carolina, citing as authority United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. Since the decision in Jackson, the members of this Court have not been in agreement on the question whether capital punishment is lawful in North Carolina. See opinions in State v. Spence & Williams, supra; State v. Atkinson, supra; State v. Hill, 276 N.C. 1, 170 S.E.2d 885. In this case, any difference of opinion is rendered immaterial by the repeal of G.S. 15-162.1.

During the 1969 session of the General Assembly, House Bill No. 135, repealing G.S. 15-162.1, was introduced in the House on February 13, 1969. The bill passed its third and final reading in the House on March 11, 1969, and was then sent to and received by the Senate, where it passed its third and final reading on March 21, 1969, and ordered enrolled. The final formalities incident to enrollment required the presiding officers of the Senate and the House to sign the bill and send it to the Office of the Secretary of State. The Senate Journal shows the Senate convened at 12 Noon on March 25. After the opening prayer, the reading of the Journal was dispensed with, the courtesies of the gallery were extended to a few visitors, and the Chowan College Choir sang two songs, then the enrolling clerk of the Senate reported that a number of bills, included House Bill No. 135, (an act to repeal G.S. § 15-162.1, relating to a plea of guilty in first degree murder, first degree burglary, arson, and rape) had been properly ratified, enrolled, and sent to the Secretary of State. The bill provided that it should become effective upon its ratification.

While a record of the time is not noted when each act of the Senate occurred during the legislative day, nevertheless the Journal reports the activities in the order in which they occurred. It seems certain, therefore, the report that House Bill No. 135 had been ratified, enrolled and sent to the Office of the Secretary of State was made in the Senate within a few minutes after the legislative day began at 12 Noon, March 25, 1969. The repeal of G.S. § 15-162.1 antedated the offenses charged against the defendant.

In determining the time a statute becomes effective, the rule was stated by Justice Hoke in Lloyd v. North Carolina Railroad, 151 N.C. 536, 66 S.E. 604: "The better doctrine seems to be that, while a court will hear evidence and determine the precise moment of time when a statute was enacted, whenever this becomes necessary to prevent a wrong or to assert a meritorious right, in the absence of any such evidence or means of proof the statute will be held effective from the first moment of the day of its enactment. Mr. Bishop in his work on Statutory Crimes states this to be the rule. Bishop Stat. Crimes, p. 21, sec. 28. And an examination will show this to be a correct deduction from the decisions. Louisville v. Savings Bank, 104 U.S. 469, 26 L.Ed. 775; Burgess v. Salmon, 97 U.S. 381, 24 L.Ed. 1104; Lapeyre v. United States, 84 U.S. 191, 21 L.Ed. 606; Kennedy v. Palmer, 6 Gray (Mass.) 316; Arrowsmith v. Hemering, 39 Ohio St. 573."

Five of this Court's members entertain the view that the infliction of the death penalty prior to the repeal of G.S. § 15-162.1 is not precluded by the decision in United States v. Jackson, supra. At least the repeal of G.S. § 15-162.1 would seem to remove all objection to the validity of the death sentence on account of G.S. 15-162.1. See also Parker v. State of North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, both decided by the Supreme Court of the United States on May 4, 1970.

In 1949, the General Assembly amended the capital felony statutes providing that the jury, as a part of its guilty verdict, might by recommendation fix the punishment at life imprisonment rather than death. The amendment is not an unlawful division of the powers between the court and the jury, and a verdict without the recommendation requires the infliction of the death penalty. State v. Hill, supra; State v. Atkinson, supra. In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, in Footnote 19, the Supreme Court of the United States said: "(T)he States are free to allocate functions between the judge and the jury as they see fit."

After full and careful review, we conclude that the defendant has had a trial free from error; that the judgment imposed should be and is affirmed. In the record, we find

No error.