State v. McCall , 286 N.C. 472 ( 1975 )

212 S.E.2d 132 (1975) 286 N.C. 472

STATE of North Carolina
v.
Lawrence McCALL.

No. 32.

Supreme Court of North Carolina.

March 12, 1975.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Richard N. League, Raleigh, for the State.

Jack H. Potts, Brevard, and Ransdell & Ransdell by William G. Ransdell, Jr., Raleigh, for defendant appellant.

COPELAND, Justice.

Defendant assigns as error the denial of his motion for judgment as in case of nonsuit. G.S. § 15-173. The question presented by this assignment is whether the evidence was sufficient to warrant the submission thereof to the jury and to support verdicts of guilty of the criminal offenses charged in the first-degree murder indictments.

The rules for testing the sufficiency of the evidence to withstand defendant's motion are well established. "Motion to nonsuit requires the trial judge to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom." State v. McNeil, 280 N.C. 159, 161-62, 185 S.E.2d 156, 157 (1971), and cases cited. See also, 2 Strong, N.C. Index 2d, Criminal Law § 104 (1967). "Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. (Citation omitted.)" State v. Goines, 273 N.C. 509, 513, 160 S.E.2d 469, 472 (1968).

"In any prosecution for a homicide the State must prove two things: (1) that the deceased died by virtue of a criminal act; and (2) that the act was committed by the defendant. (Citation omitted.)" State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971), and cases cited therein.

All the evidence in the case sub judice tends to show that Billy Derwood Hice and Ruth Looker Hice were murdered on the afternoon of 12 September 1973 by a hidden assailant who fired two .12 gauge shotgun rounds. Accordingly, the only remaining question is whether the State produced "substantial evidence" that the above acts were committed by the defendant, Lawrence McCall. State v. Davis, 246 N.C. 73, 76, 97 S.E.2d 444, 446 (1957).

As to this second question, the State's evidence is entirely circumstantial. There was no eyewitness that saw defendant fire the fatal shots. Also, the State could not identify any of the fatal shots as having been fired from the shotgun found in defendant's residence at the time of his arrest. of course, it was established that the fatal shots were fired from a .12 gauge shotgun. The defendant had a .12 gauge shotgun on the premises of Gary's trailer at approximately 3:00 p. m., 12 September 1973 and defendant had this same .12 gauge shotgun in his possession at the time of his arrest.

Specifically, the State introduced evidence that tended to show the following:

(1) Motive. On the day in question, defendant had several confrontations with the decedents apparently pertaining to access rights across the bridge. During the course of the last confrontation, and immediately prior to the firing of the fatal shots, defendant's vehicle knocked Ruth Hice to the ground as it crossed the bridge.

(2) Means. At the time of his arrest, defendant had a .12 gauge lever action Ithaca shotgun in his constructive possession. Defendant fired this weapon on the premises of Gary's trailer on the day in question. Decedents died as a result of wounds inflicted by .12 gauge shotgun pellets.

(3) Opportunity. Defendant was present at the time the crimes were committed. In fact, the testimony of both Mr. and Mrs. Owens placed defendant at the doorsteps of Gary McCall's trailer, from inside of which the first shot was fired, approximately one and one-half minutes after defendant had forced his way across the bridge.

(4) Flight. Defendant hurriedly left the scene of the crime immediately after the two fatal shots had been fired. Although defendant's vehicle passed by the Hices' bodies, both of which were lying "in the middle" of the roadway, he made no effort to stop or to summon help.

(5) Prior Inconsistent Statement. After his arrest, and during a search of his residence, defendant denied that he either owned or possessed a gun. The .12 gauge shotgun was subsequently found hidden beneath the quilts in one of defendant's bedrooms.

If the State's evidence tended to show only the above stated facts, then it might not be sufficient to withstand defendant's motion. See State v. Jones, supra, 280 N.C. at 66, 184 S.E.2d at 866 (1971). See also State v. Poole, 285 N.C. 108, 119, 203 S.E.2d 786, 793 (1974). However, in applying these well settled rules to the case sub judice, it is necessary to closely examine additional evidence introduced by the State.

In addition to the five facts listed above, the State also produced evidence that tended to show defendant was the ONLY person in Gary McCall's trailer when the shots were fired; that a shot was fired from the left window in the north end of Gary's trailer; that there was a one-inch hole in the left screen window in the north end of Gary's trailer (said hole later determined to have been made by a .12 gauge shotgun shell discharged three inches or less from the screen); that a .12 gauge "shotgun wadding" was found on the ground between Gary's trailer and the Hices' bodies; and that a .12 gauge shotgun number four spent shell, found next to the picnic table in front of Gary's trailer, had been fired from the .12 gauge shotgun found in defendant's constructive possession at the time of his arrest. (This was presumably the spent shell from the 3:00 p. m. firing.)

When all of this evidence is viewed in the light most favorable to the State, including all reasonable inferences that may be drawn therefrom, we hold that it is sufficient to withstand defendant's motion for judgment as in case of nonsuit, and to permit the jury to find him guilty of first degree murder. See, e. g., State v. McNeil, supra; State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971), and cases cited therein. Defendant's assignment of error is therefore overruled.

In his next assignment of error defendant contends that the trial court committed prejudicial error in allowing into evidence defendant's invocation of his constitutional right to remain silent in the face of incriminating questions by the police and further in instructing the jury that the evidence was competent as to this defendant.

As previously noted, defendant was placed under arrest at his residence at approximately 2:30 a. m. on the morning of 13 September 1973. At trial, Deputy Sheriff Hubert Brown was permitted to testify as follows regarding an alleged statement made by the defendant at that time.

"Q. Now, after you had advised Lawrence McCall at his residence on the morning of September 13, 1973, that you had a warrant for his arrest for the killing of Mr. and Mrs. Hice, did you ask him a question at that time?

"A. Immediately after?

"Q. Yes, sir.

"Q. I asked Mr. Lawrence —

"MR. POTTS: Objection.

"COURT: Overruled.

"A. —I asked him only one other question during that morning.

"Q. What did you ask him?

"A. I asked him why he killed Mr. and Mrs. Billy Hice.

"Q. What was his reply?

"MR. POTTS: Objection.

"COURT: Overruled.

"A. He said, ``You served your warrant, you handcuffed me; that's it.' And he sat down on the couch at that time.

"COURT: Again, members of the jury, that statement which Officer Brown testified was made by Lawrence McCall to him, is not competent against Gary McCall or Lloyd McCall, but you may consider it as to Lawrence McCall." (Emphasis supplied.)

Prior to permitting Deputy Brown to give the above testimony before the jurors, the trial court conducted a voir dire examination. Following the voir dire, the court made the following conclusions of law.

"On the foregoing findings of fact, the Court concludes as a matter of law that at the time in question the defendant was entitled to the protection of the Fifth Amendment to the Constitution of the United States, and the Constitution of North Carolina, and the requirements as set forth in the decision of MIRANDA v. ARIZONA; that the officers fully complied with said Constitutions and the law with respect to MIRANDA v. ARIZONA, and that the statements made by the defendant as testified to by Brown were made freely and voluntarily, and that they are admissible into the trial of this action, as to the defendant Lawrence McCall. They are not competent as to the defendants Gary McCall and Lloyd McCall."

The correctness of the above conclusion must be tested in light of the following well settled constitutional principles.

In the landmark case of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court stated: "In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." Id. at 468 fn. 37, 86 S. Ct. at 1625. (Emphasis supplied.) Recent decisions by this Court relying upon then Section 11 (now Section 23) of Article 1 of the North Carolina Constitution and upon Miranda, supra, have held that if officers properly warn an accused of his constitutional rights, his silence may not be used against him. See, e. g., State v. Fuller, 270 N.C. 710, 155 S.E.2d 286 (1967); cf. State v. Moore, 262 N.C. 431, 437, 137 S.E.2d 812, 816 (1964).

This Court recently considered the admissibility of in-custody silence in State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974). In that case the trial court admitted, over defendant's objection and motion to strike, testimony of a police officer to the effect that defendant failed to deny an accusatory statement made in his presence. In granting the defendant a new trial, this Court, in an opinion by Chief Justice Bobbitt, held that the admission of defendant's silence in the face of the accusation was erroneous, was prejudicial, and was not harmless beyond a reasonable doubt. Specifically, the Court stated:

"The constitutional right against self-incrimination which defendant exercised by remaining silent when Elaine made accusatory statements when questioned by Barrier [the police officer] in defendant's presence is the same constitutional privilege against self-incrimination he exercised at trial when he did not testify after Elaine had testified to substantially the same effect. Adverse comments on a defendant's failure to testify at trial are impermissible under North Carolina law, Constitution of North Carolina, Article 1, Section 23, N.C.G.S. § 8-54, and under the Fifth and Fourteenth Amendments to the Constitution of the United States, Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). A fortiori, a defendant's failure to testify may not be considered an admission of the truth of testimony which tends to incriminate him. Similarly, under the circumstances disclosed by the evidence herein, defendant's silence in the rightful exercise of his privilege against self-incrimination may not be considered an admission of the truth of incriminating statements made in defendant's presence by a prospective State's witness in response to an officer's questions." Id. at 291-92, 204 S.E.2d at 852-53

In the instant case, defendant's conduct does not technically fall within the "admission by silence" rule because he voluntarily made an affirmative statement, to wit, "You served your warrant, you handcuffed me; that's it." It cannot be said that this affirmative response, although somewhat equivocal, represented a desire not to communicate any reaction whatsoever to Deputy Brown's incriminatory assertion. However, since such a response could be considered by the jury as evidence of motive for failure to expressly deny the accusation, it is arguable that this situation is equivalent to the simple silence present in State v. Castor, supra. See McCormick, Evidence, 353-56, § 161 (2d ed. 1972). Whatever the merits of this argument might be, our decision is not based on this analogy. It is common knowledge that people from different regions have different ways of expressing themselves. Under the facts of this particular case, we believe that the language used by this defendant, although not as articulate or exact as one would desire, nevertheless, can only be construed to mean: "You have advised me of my right to remain silent and that is exactly what I intend to do." Accordingly, since we interpret this response to represent a desire NOT to communicate incriminating information, defendant's claim of privilege made in response to a police accusation during custodial interrogation was not admissible into evidence under authority of Miranda v. Arizona, supra, and State v. Castor, supra. Furthermore, under these circumstances, we cannot say that the admission of this evidence was harmless beyond a reasonable doubt. State v. Castor, supra, 285 N.C. at 292-93, 204 S.E.2d at 853, and cases cited.

The above error alone is grounds for the award of a new trial. However, this error is compounded by the following jury argument made by the private prosecutor:

"If a man was ever called upon in this world to deny something, he was called upon when they said, ``You are charged with murder in the first degree of the Hices.' He didn't say a word. Didn't say a word. He hasn't denied it up to this minute, according to what I've heard from the evidence."

When the above argument was made, defendant objected and the court said simply, "Objection sustained." Other than the following quoted portion of the court's charge, there is nothing in the record to indicate that the court made any attempt to cure the prejudicial effect of this comment.

"In this case, the burden of proof is upon the State of North Carolina from the beginning to the end. The defendants, nor either of them, have any burden at all in any of these cases; the defendants, nor either of them, have any duty to produce any evidence, or testimony, or witnesses. They do not have the burden of disproving the charges of the State."

In making the above quoted jury argument, the private prosecutor committed two fundamental errors. (1) He commented directly and clearly upon the defendant's failure to deny Deputy Brown's accusatory question. (2) He called attention to defendant's failure to testify in his own behalf at the trial.

As to the first point, since State v. Castor, supra, prohibits the admission of defendant's silence in the face of accusatory statements, and further, since Miranda v. Arizona, supra, prohibits the admission of a claim of privilege made in the face of police accusations during custodial interrogation, it logically follows that prosecutorial comment on these matters is likewise prohibited.

As to the second point, G.S. § 8-54 provides: "In the trial of all indictments, complaints, or other proceedings against persons charged with the commission of crimes, offenses or misdemeanors, the person so charged is, at his own request, but not otherwise, a competent witness, and his failure to make such request shall not create any presumption against him." (Emphasis supplied.) The effect of this statute has been interpreted by this Court to prohibit the solicitor from making any reference to or comment on defendant's failure to testify. See, e. g., State v. Roberts, 243 N.C. 619, 621, 91 S.E.2d 589, 591 (1956); State v. McLamb, 235 N.C. 251, 257-58, 69 S.E.2d 537, 541 (1952); State v. Buchanan, 216 N.C. 709, 6 S.E.2d 521 (1940); State v. Spivey, 198 N.C. 655, 658-59, 153 S.E. 255, 257 (1930). See also State v. Jones, 19 N.C.App. 395, 198 S.E.2d 744 (1973). Cf. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (held unconstitutional a State statute allowing comment on defendant's failure to testify). See also State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975); State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975).

If the solicitor improperly comments on defendant's failure to testify, this Court has held the error may be cured by a withdrawal of the remark or by a statement from the court that it was improper, followed by an instruction to the jury not to consider the failure of the accused to offer himself as a witness. State v. Lindsay, 278 N.C. 293, 295, 179 S.E.2d 364, 365 (1971) and cases cited; State v. Clayton, 272 N.C. 377, 385, 158 S.E.2d 557, 562-63 (1968). In the instant case, we note that no proper curative instruction was given when the private prosecutor made these impermissible jury arguments. When the argument was objected to, the court simply said, "Objection sustained." The State contends that this error was "cured" by the court's charge to the jury that, "The defendants, nor either of them, have any burden at all in any of these cases; the defendants, nor either of them, have any duty to produce any evidence, or testimony, or witnesses." Under no circumstances can this instruction of the able trial judge be held curative. Additionally, we note the instruction was itself an incomplete statement of the pertinent rule of law. See State v. Baxter, 285 N.C. 735, 738-39, 208 S.E.2d 696, 698-99 (1974) (failed to include statement that failure to testify "shall not create any presumption against" defendant). Under these facts, the court had a duty to give the jury proper instructions. State v. Miller, 271 N.C. 646, 659, 157 S.E.2d 335, 346 (1967); State v. Smith, 279 N.C. 163, 166, 181 S.E.2d 458, 460 (1971) and cases cited therein. Failure to do so constituted prejudicial error and was not harmless beyond a reasonable doubt. See Anderson v. Nelson, 390 U.S. 523, 88 S. Ct. 1133, 20 L. Ed. 2d 81 (1968); Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963).

Accordingly, for error in admitting the challenged testimony and for failure to properly instruct the jury with reference to the comments made by the private prosecution, the cause is remanded to the Transylvania County Superior Court for a

New trial.