State v. Gaines , 283 N.C. 33 ( 1973 )

194 S.E.2d 839 (1973) 283 N.C. 33

STATE of North Carolina
v.
Gary Lee GAINES.

No. 15.

Supreme Court of North Carolina.

March 14, 1973.

Robert Morgan, Atty. Gen., Claude W. Harris, and Charles M. Hensey, Asst. Attys. Gen., for the State of North Carolina.

David M. Dansby, Jr., Greensboro, for defendant appellant.

HUSKINS, Justice:

Defendant contends the court erred in permitting the prosecuting witness to identify him as her assailant on the ground that her in-court identification was based upon a pretrial lineup so unnecessarily suggestive and conducive to mistaken identification as to be a denial of due process under the Fourteenth Amendment.

The constitutional principles relied on by defendant are well established. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), states that the "totality of circumstances" may show the use of lineup procedures "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to be a denial of due process under the Fourteenth Amendment. To like effect is Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969). The evidence in this case, however, does not support defendant's contention.

Here, the voir dire disclosed that the lineup in question was composed of six Negro males. The defendant was fifteen years old, 6 feet tall and weighed 135 pounds; Reginald Garner was nineteen years old, 6 feet tall and weighed 150 pounds; George Scales was twenty-four years old, 6 feet tall and weighed 156 pounds; Wiley Spinks was twenty years old, 6 feet 1 ½ inches tall and weighed 155 pounds; Red Coble was twenty-two years old, 6 feet 3 ½ inches tall and weighed 170 pounds, and Thomas McClooney, Jr., was eighteen years old, 5 feet 11 inches tall and weighed 160 pounds. Each subject was placed in the lineup and given a number. Upon request, each repeated these four statements in the presence of the prosecuting witness: (1) "Where do you keep your money?" (2) "Which bank?" (3) "I thought you said you didn't have any money." (4) "Are you expecting anybody?" Mrs. Jones identified defendant, holding Number Four, as the person who burglarized her home and raped her on the night of March 15, 1972. She explained her identification in these words: "After they repeated the questions, when he talked, I knew it, because I just couldn't forget that voice. There was no mistaking about it. The build and voice was all I used in making my identification. The tone of his voice and the way he spoke led me to identify his voice. He didn't speak very loud and it was just hard to understand. It was just his voice. It was exactly the same voice, and I am positive."

Based upon this showing, the trial judge concluded that ". . . the lineup was a lawful lineup which in nowise violated the defendant's constitutional rights. . . ." We agree. Although there is some disparity in age, height and weight of the lineup participants, these differences do not render the identification procedures so "unnecessarily suggestive and conducive to irreparable mistaken identification" as to constitute a denial of due process. The State is not required to produce lineup subjects who are in all respects identical to the suspect. If such were the rule, no lineup would be valid because no two men are alike. Here, the lineup subjects approximated the general physical description given by the victim; and defendant was not rendered conspicuous by police procedures. The mere fact that defendant had specific identifying characteristics not shared by the other participants does not invalidate the lineup.

Thus, the fact that defendant was the only subject in the lineup with voice characteristics peculiar to him alone in nowise tainted the procedure. Manifestly, neither his tone of voice nor manner of speech was the product of police manipulation.

The fact that defendant was the youngest and the lightest man in the lineup is likewise insufficient to taint the procedure. All participants were slender young black men approximately six feet tall and within a reasonable age range. See State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), where cases are cited illustrating the suggestive, unfair type of lineup condemned in Foster v. California, supra. It is perfectly apparent that defendant has not been the victim of rigged, suggestive lineup procedures which Stovall and Foster were designed to deter. This assignment is overruled.

On cross-examination of SBI Agent David Marshall, defendant attempted to elicit testimony tending to show that the officers had eliminated Thomas McClooney, Jr., as a suspect on erroneous information that McClooney was working at the time of the attack on the prosecutrix. Upon objection, this evidence was excluded.

The court also excluded testimony defendant sought to elicit from Jessie Mae Burke that she had seen Thomas McClooney, Jr., with a double-barreled shotgun three or four days prior to the attack on Mrs. Jones. These exclusions constitute defendant's next assignment of error.

The law of this State with respect to the admissibility of evidence tending to show the guilt of one other than the accused is rather unsettled. See Stansbury N. C. Evidence § 93 (Brandis Rev.1973); State v. Shinn, 238 N.C. 535, 78 S.E.2d 388 (1953); State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937); State v. Gee, 92 N.C. 756 (1885); State v. Baxter, 82 N.C. 602 (1880); State v. White, 68 N.C. 158 (1873). See 22A C.J.S. Criminal Law § 622 (1961) for a general discussion of the subject. We deem it unnecessary, however, to discuss this area of the law in order to decide the case before us.

Here, defendant's questions to David Marshall were apparently designed to lay a foundation for evidence tending to show that Thomas McClooney, Jr., was not in fact at work from 11:00 p. m. until 11:30 p. m. on the night Mrs. Jones was raped. By this later evidence, defendant expected to show that the officers had eliminated McClooney as a suspect on the basis of erroneous information that McClooney was at work at that time. However, the evidence later offered by defendant failed to show that McClooney was not at work. Instead, the testimony of Grady Brannon and Otto Wilburn tends to show that Thomas McClooney, Jr., was on the job at 11:30 p. m. Mrs. Jones testified that her assailant was first seen in her home at approximately 11:00 p. m. and remained there about thirty minutes. She lived in Trinity and McClooney worked at Hendrix Batten Company in High Point. The distance from the home of Mrs. Jones to the Hendrix Batten Company plant is not shown by the record. Nevertheless, it may be inferred that if McClooney was on the job at 11:30 p. m. he could not have been present in the home of Mrs. Jones in another county at approximately the same time. Thus, the reason the officers exonerated Thomas McClooney, Jr., was wholly immaterial, and exclusion of such evidence was not error.

The fact that McClooney was seen by Jessie Mae Burke with a double-barreled shotgun walking up and down the road threatening to shoot a girl three or four days before Mrs. Jones was attacked, is totally lacking in probative value. It has no tendency to inculpate McClooney or exculpate defendant. It was wholly irrelevant in this case. Objections thereto were properly sustained and the evidence properly excluded.

Defendant's next assignment relates to various errors allegedly committed in the charge.

Defendant asserts the trial court committed prejudicial error "in charging the jury that the statement attributed to him by two witnesses [Patricia Hill and Officer Bagwell] that he had raped a woman in Trinity constituted an admission. There was no statement by the defendant that he raped the prosecutrix. There was no statement that he committed rape on March 15, 1972."

We perceive no error in the court's charge on this point. "Anything that a party to the action has said, if relevant to the issues and not subject to some specific exclusionary rule, is admissible against him as an admission." Stansbury N. C. Evidence § 167 (2d ed. 1963); State v. Woolard, 260 N.C. 133, 132 S.E.2d 364 (1963); State v. Bryson, 60 N.C. 476 (1864).

Here, Patricia Hill testified concerning defendant: "He said he was going to rape me. . . . He said that he raped somebody. . . . He said he just used a gun." Deputy Sheriff Sam Bagwell testified he heard defendant tell Patricia Hill that when he got out he would rape her and ". . . that he had raped one woman in Trinity. . . . She couldn't help herself because he had a gun on her." The relevancy of these statements or admissions, in light of the evidence that the prosecutrix was raped in Trinity by a man who used a double-barreled shotgun during the attack, is obvious. Referring to that evidence, the trial court said: "There is evidence which tends to show that the defendant had admitted the fact relating to the crime charged, or the crimes charged in this case, or to the crime of rape. If you find the defendant made that admission, then you should consider all of the circumstances under which it was made, and determine whether it was a truthful admission, and the weight you will give to it.. . . That is a matter for the jury to determine." While not couched in the wisest choice of words, the charge leaves entirely to the jury the determination of whether defendant raped a woman in Trinity and, if so, whether Mrs. Jones was the victim. This leaves no valid ground for complaint.

Even if the judge's statement be considered technically incorrect, it was not prejudicial for, in our opinion, it is highly unlikely that omission of this portion of the charge would have produced a different result in the trial. Compare State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970). Be that as it may, a charge must be construed contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct. State v. Cook, 263 N.C. 730, 140 S.E.2d 305 (1965); State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964).

The court charged the jury to scrutinize defendant's testimony carefully in light of his interest in the outcome of the case. If the jury found he was telling the truth, it was instructed to give his testimony "the same weight and effect that you would give the testimony of any disinterested witness." Defendant argues that such an instruction is tantamount to charging that defendant's testimony should not be believed.

The challenged instruction has been approved in many decisions of this Court, including State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970); State v. Turner, 253 N.C. 37, 116 S.E.2d 194 (1960); State v. Worrell, 232 N.C. 493, 61 S.E.2d 254 (1950); State v. Parsons, 231 N.C. 599, 58 S.E.2d 114 (1950); State v. Hightower, 226 N.C. 62, 36 S.E.2d 649 (1946); State v. Redfern, 223 N.C. 561, 27 S.E.2d 441 (1943); State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606 (1943).

Defendant further argues that the trial court "devoted almost the entire charge to recapitulation of the evidence of the State, together with the contentions, of the State," in violation of G.S. § 1-180. An examination of the charge reveals no basis for this broadside attack. The evidence offered by defendant as well as by the State, together with the contentions, is recapitulated with reasonable accuracy. The law requires no more. Furthermore, it is a general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). All assignments to the charge are overruled.

Defendant assigns as error denial of his motion to sequester the witnesses. Sequestration of witnesses is discretionary with the trial judge—not a matter of right. Stansbury N. C. Evidence § 20 (Brandis Rev.1973). Denial of a motion to sequester is not reviewable unless an abuse of discretion is shown. State v. Barrow, supra (276 N.C. 381, 172 S.E.2d 512); State v. Clayton, 272 N.C. 377, 158 S.E.2d 557 (1968). Here, no abuse of discretion appears.

Defendant moved in arrest of judgment and, in support of the motion, sought to prove that all persons between eighteen and twenty-one years of age had been systematically excluded from the grand jury which returned the bill of indictment in this case. Denial of the motion is asserted as error.

Defendant has misconceived his remedy. A motion in arrest of judgment is proper when, and only when, some fatal error or defect appears on the face of the record proper. State v. McClain, 282 N.C. 357, 193 S.E.2d 108 (1972); State v. Higgins, 266 N.C. 589, 146 S.E.2d 681 (1966). "The record proper in any action includes only those essential proceedings which are made of record by the law itself, and as such are self-preserving. [Citations omitted] The evidence in a case is no part of the record proper. [Citation omitted] In consequence, defects which appear only by the aid of evidence cannot be the subject of a motion in arrest of judgment." State v. Gaston, 236 N.E. 499, 73 S.E.2d 311 (1952). The record proper in criminal cases ordinarily consists of (1) the organization of the court, (2) the charge, i. e., the information, warrant or indictment, (3) the arraignment and plea, (4) the verdict, and (5) the judgment. State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669 (1971). Thus, defendant's motion in arrest of judgment was properly denied. If he wished to object to the composition of the grand jury, his remedy was by timely motion to quash the bill of indictment. See State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970); State v. Rorie, 258 N.C. 162, 128 S.E.2d 229 (1962). This assignment has no merit.

Defendant contends the trial court erred in denying his pretrial motion for discovery of "any and all evidence in the possession of or known to the State of North Carolina favorable to or tending to favor the defendant." Defendant does not rely on G.S. § 15-155.4, and wisely so, since that statute does not contemplate anything resembling the demand embraced in his motion. See State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972); State v. Macon, 276 N.C. 466, 173 S.E.2d 286 (1970). Instead, he relies on the following language from Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963):

"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

The standards enunciated in Brady by which the solicitor's conduct in this case is to be measured require us to determine whether there was (a) suppression by the prosecution after a request by the defense (b) of material evidence (c) favorable to the defense. Obviously, under Brady a refusal to grant a pretrial motion for discovery is not reversible error unless the movant shows that evidence favorable to him was suppressed. In order to do so, he must certainly show what that evidence was. Defendant has made no such showing here. The solicitor stated he had no evidence favorable to the defendant and nothing in this record contradicts him. "We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972); State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972). Defendant's motion was properly denied.

Remaining assignments of error relate to denial of motion for nonsuit and motion for mistrial. There is no merit in either motion.

When the evidence is considered in the light most favorable to the State, it is sufficient to carry the case to the jury and to support the verdict and judgment. State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971); State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968).

The motion for mistrial was based upon a conversation between a juror and one of the State's witnesses. The record reveals that all the juror said to the witness was: "Are you still here?" Nothing about the case was discussed. The juror did not even know that the person to whom he spoke was a witness in the case when he spoke to him. Thus nothing improper was said or done and there was no occasion for the trial judge to order a mistrial. Ordinarily, a mistrial or new trial is not required ". . . if there is nothing to show that the communication between the jury and the witness was improper or that the party complaining was prejudiced thereby." State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968). The discretionary ruling of the court denying the motion for a mistrial was proper on the facts.

Defendant having failed to show prejudicial error, the verdicts and judgments in the trial court must be upheld.

No error.