State v. Kirkman , 293 N.C. 447 ( 1977 )

238 S.E.2d 456 (1977) 293 N.C. 447

STATE of North Carolina
v.
Tony Gray KIRKMAN and Ronnie Lee Hawks.

No. 13.

Supreme Court of North Carolina.

November 11, 1977.

Rufus L. Edmisten, Atty. Gen., by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

Fred Folger, Jr., and Larry Bowman, Mount Airy, for defendant Kirkman.

Bruce C. Fraser, Winston Salem, for defendant Hawks.

LAKE, Justice.

After the jury, including two alternates, had been selected and impaneled, the court recessed for the day. Before anything else was done the following day, one of the twelve jurors brought to the attention of the court the fact that she had observed a communication between a lady with whom she worked and counsel for one of the defendants and believed it possible that this lady was a relative of such defendant, of which fact the juror had not previously been aware. Upon inquiry by the court, it developed that the lady who had so communicated with the attorney was the wife of the defendant Hawks. There was no suggestion of any impropriety in the conduct of Mrs. Hawks or of any communication between her and the juror. In response to questions by the court, the juror stated that she would feel no embarrassment in serving on the jury and returning a verdict against the defendant Hawks, if the evidence so warranted, and then continuing to work with Mrs. Hawks. The District Attorney then asked the juror a few questions with reference to the extent and duration of her acquaintance with Mrs. Hawks.

The remaining jurors were then brought back into the courtroom and the court inquired if the State was ready to proceed. Thereupon, the District Attorney requested a conference with the court in the absence of the jury and the jury was again sent from the courtroom. The District Attorney then advised the court that had he known of the above circumstances he would have excused the juror. He requested leave to reopen the examination with reference to this particular juror. In its discretion, the court permitted this and called the juror back for further examination. Without further questioning, the District Attorney "in the interest of time" exercised one of his remaining three peremptory challenges, and the court, in its discretion, allowed the challenge over the objection of the defendants, seating one of the alternate jurors in place of the juror so excused. The jury was then reimpaneled. The defendants moved for a mistrial, which motion was denied. Neither defendant had exhausted his peremptory challenges and neither defendant requested permission to make any further examination of the alternate juror so seated as one of the twelve. The trial then proceeded.

In this we find no reversible error. The purpose of selecting alternate jurors is to permit a trial to proceed although one of the impaneled twelve becomes ill or otherwise unable to serve. Neither defendant suggests that any of the jurors who actually served was incompetent to do so or objectionable to such defendant. It is well established that, prior to the impaneling of the jury, it is within the discretion of the trial judge to reopen the examination of a juror, previously passed by both the State and the defendant, and to excuse such juror upon challenge, either peremptory or for cause. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); 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. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. den., 414 U.S. 850, 94 S.Ct. 143, 38 L.Ed.2d 99 (1973).

In the foregoing cases, we held that G.S. 9-21(b) providing that the State's challenge, whether peremptory or for cause, must be made before the juror is tendered to the defendant "does not deprive the trial judge of his power to closely regulate and supervise the selection of the jury to the end that both the defendant and the State may receive a fair trial before an impartial jury." State v. McKenna, supra, 289 N.C. at 679, 224 S.E.2d at 545. In all the foregoing cases, the challenge in question was allowed before the jury was impaneled. We perceive no reason for the termination of this discretion in the trial judge at the impanelment of the jury. This assignment of error is overruled.

Assignments of Error 6, 7 and 8 are based upon alleged violations of the Hearsay Rule in the admission of the State's evidence. Over objection, witnesses for the State were permitted to testify that the District Attorney and investigating police officers had told the witnesses "to tell the whole truth and nothing but the truth." Obviously, testimony that such an instruction was given to the witness who is testifying thereto is not hearsay.

Dreama Smith testified, without objection, that it was she, Easter, Betty Ramey and Clayton Gravely who were talking in the trailer prior to the first arrival of the defendant Kirkman. She saw that Gravely had a gun and he told them that he had it to protect himself. To a question by the District Attorney as to what Gravely said about money, the defendants objected. The objection was overruled and Dreama Smith answered, "He said that he had plenty of money on him and he tried to talk Betty into leaving with him." This was not hearsay. The purpose of this evidence was not to prove that Gravely did, in fact, have money on his person but was to show that the statement was made in Betty Ramey's presence.

Dreama Smith then continued to testify, without objection, that upon the arrival of Kirkman at the trailer he and Betty Ramey went into another room and had a conversation, immediately following which he and Betty Ramey left the trailer. Over objection, Dreama Smith was then permitted to testify that she heard Betty Ramey tell Kirkman, in this conversation, "about what money Clayton [Gravely] had on him." Subsequently, when called as a witness, Betty Ramey denied making such a statement to Kirkman, but she further testified that she, Betty Ramey, saw "several hundred dollar bills in his [Gravely's] billfold." While Dreama Smith was still testifying, the court recessed for the day. At the start of the next day's session, the court instructed the jury that he was reversing his ruling of the previous day, was allowing the objections of the two defendants to the testimony of Dreama Smith concerning what she had heard Betty Ramey say to the defendant Kirkman about what money Gravely had on him and was directing the jury not to consider such testimony by Dreama Smith. The defendant contends that it was impossible for the court by this instruction to remedy its alleged error in initially admitting the evidence and therefore, a new trial should be granted.

The fallacy of this contention is that the error of the court was not in admitting the evidence but in instructing the jury to disregard it, which error was, of course, not prejudicial to the defendants. This testimony of Dreama Smith as to the statement she heard Betty Ramey make to the defendant Kirkman, whatever may have been the source of Betty Ramey's information, was not hearsay evidence. The purpose of Dreama Smith's testimony on this point was not to prove the correctness of the statement of Betty Ramey to Kirkman as to what money Gravely had on his person. The purpose of the evidence was simply to establish that the statement was, in fact, made to Kirkman, thus planting in his mind the belief that Gravely had money on his person and thus providing a motive for the killing of Gravely.

The evidence of the State is that, immediately following this conversation in the back bedroom of the trailer between Betty Ramey and Kirkman, the two of them left the trailer, Kirkman returning in approximately 20 minutes with Hawks, and the shooting of Gravely occurring in two or three minutes after the two men entered the trailer and before anything occurred other than simple salutations.

The Hearsay Rule does not preclude a witness from testifying as to a statement made by another person when the purpose of the evidence is not to show the truth of such statement but merely to show that the statement was, in fact, made. State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); State v. Griffis, 25 N.C. 504 (1843); Stansbury, North Carolina Evidence (Brandis Rev., 1973), § 141.

These assignments of error are overruled.

David Beal, an agent of the State Bureau of Investigation, testified that he interviewed Easter and Dreama Smith, jointly, on two occasions and observed and listened to a third interview with these witnesses conducted by other officers. Over objection, he was permitted to testify as to statements made by them. Repeatedly, throughout his testimony, the judge instructed the jury that this testimony was not substantive evidence but was admitted solely for the purpose of corroborating Easter and Dreama Smith, if the jury found that it did so corroborate them. Beal testified that in their first statement Easter and Dreama Smith told him they were both in the bedroom of the trailer at the time Gravely was killed and so did not actually witness the shooting, but on the second interview, Easter told him that he (Easter) had not told the truth in the first statement, that he was present in the trailer and actually witnessed the killing of Gravely and that Hawks had pulled out a pistol and shot Gravely, Kirkman being present in the trailer at the time. Beal testified that Dreama Smith told him she was actually in the bedroom at the time the killing occurred and did not witness it.

The defendant Kirkman objected to the testimony by Beal concerning the first statement made to him by Easter, for the reason that this did not corroborate Easter's own testimony. Easter's own testimony with reference to this matter was that he first talked to Agent Beal and Captain Scott of the Surry County Sheriff's Department and told them nothing but that eventually he told them what had happened, his failure to tell them what he knew about the matter at the first interview being due to his being scared. Thus, the testimony of Agent Beal corroborates the testimony of Easter to the effect that the latter made inconsistent statements to the officers at the different interviews. Furthermore, while the first statement of Easter to the officers did not corroborate his testimony as to his own whereabouts at the time of the shooting, we fail to see how this first statement, that he was not then present in the living room when the shooting occurred, could possibly have been prejudicial to the defendant Kirkman. In other respects, the testimony of Agent Beal concerning statements made to him by Easter and Dreama Smith does tend to corroborate their testimony at the trial.

Both defendants moved to strike the testimony of Agent Beal concerning their joint statement to him, for the further reason that Agent Beal was not able to state specifically which statements, made at the interview, were made by Easter and which were made by Dreama Smith. The testimony of Agent Beal makes it clear that Easter and Dreama Smith were interviewed by him at the same time. There is no suggestion in his testimony that any statement made by either of them was contradicted by the other. At the trial, both Easter and Dreama Smith testified that she was in the bedroom at the time of the shooting and did not see it.

Captain Scott testified that he was present with Agent Beal when Easter and Dreama Smith made a statement concerning the killing of Gravely. The court twice instructed the jury, during the testimony of Captain Scott, that his testimony was admitted solely to corroborate the testimony of Dreama Smith or Jackie Easter and that it was for the jury to determine whether it did so corroborate those witnesses, his testimony not being substantive evidence. Captain Scott then testified that Easter's statement was that Easter was in the mobile home on the day that Gravely was shot, that Dreama Smith was in the bedroom asleep, that Kirkman and Hawks came into the trailer, that Kirkman walked over to the divider between the kitchen and the living room leaned up against the post and looked over toward Hawks who was standing near the doorway and "made a nodding motion." Easter's own testimony did not mention a "nodding motion" made by Kirkman. Thus, to this extent Captain Scott's testimony concerning Easter's statement in his presence did not corroborate Easter's own testimony. This, however, was an immaterial detail in the light of the entire statement to Captain Scott by Easter which otherwise fully corroborated Easter's testimony concerning the circumstances of the shooting and the disposition of the body. In view of Easter's testimony, so corroborated by the testimony of Captain Scott, that after Hawks shot Gravely three times, Kirkman directed Hawks to shoot Gravely again since he was still moving, the above mentioned discrepancy is of no consequence and the court's failure to instruct the jury to disregard Captain Scott's testimony concerning the making of a "nodding motion" was harmless error.

State v. Bagley, 229 N.C. 723, 51 S.E.2d 298 (1949), relied upon by the defendants is distinguishable in that in the Bagley case a prior statement of the witness to the investigating officer substantially and prejudicially expanded her testimony concerning what she had seen and heard at the time of the shooting there in question.

In State v. Patterson, 288 N.C. 553, 572, 220 S.E.2d 600, 614 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed.2d 1211 (1976), speaking through Justice Moore, this Court said: "If the previous statements offered in corroboration are generally consistent with the witness' testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury." In State v. Caddell, supra, 287 N.C. at 278, 215 S.E.2d at 356, we said, "To be admissible for corroborative purposes it is not necessary that the prior statement of a witness be in the exact words of her testimony at the trial, it being sufficient that the two are consistent." See also: State v. Britt, 291 N.C. 528, 231 S.E.2d 644 (1977); State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976); State v. Tinsley, 283 N.C. 564, 196 S.E.2d 746 (1973); State v. Westbrook, 279 N.C. 18, 35, 181 S.E.2d 572 (1971), death sentence vacated on other grounds, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed.2d. 761 (1972).

We find no merit in this assignment of error.

During the cross-examination of Dreama Smith by Kirkman's counsel, the witness was testifying concerning the first time she decided that she was "safe and far enough away to tell an officer anything about" this matter. In the course of that portion of her testimony, and apparently not in response to a question by defendant's counsel, she said: "I don't remember the dates that I went to Mr. Scott's office in Wentworth and made the statement to him. It was about a week after I took a lie detector test." Counsel at that time did not request any instruction or ruling with reference to this statement concerning such test.

Subsequently, when Betty Ramey was testifying she stated that she had been questioned by two Virginia officers with reference to the burning of her trailer and stated that these officers asked her if she would take "a lie detector test." Upon objection by counsel for both defendants, the court struck that statement and told the jury not to consider it.

Thereafter, Detective Andrews of the Virginia State Police testified that he had an interview with Betty Ramey concerning the death of Gravely, which at that time he believed to have been a homicide committed in the State of Virginia, and that, at the conclusion of the interview, he asked Betty Ramey if she would accompany him to Wytheville, Virginia, and take a polygraph test. Counsel for Kirkman objected and the court overruled the objection, saying to counsel: "No, don't go any further. It has been brought out, don't go any further about that, however the objection is overruled." The record does not show whether Betty Ramey did, in fact, take such test.

The defendants now assign these three occurrences as error. It will be observed that, as to the first instance, there was no objection, motion to strike or request for an instruction to the jury; as to the second instance, the court promptly instructed the jury not to consider the statement; and as to the third instance, there was no testimony that Betty Ramey consented to take a polygraph test or that such a test was ever given her. In no instance was there any testimony as to the result of any polygraph test or as to the particular statement of the witness to which any such test related.

Speaking through Justice Branch in State v. Montgomery, 291 N.C. 235, 243-244, 229 S.E.2d 904, 909 (1976), this Court said:

"It is well settled in this jurisdiction that the results of a polygraph test are inadmissible into evidence and that the parties may not be allowed to introduce such results directly or by indirection. (Citations omitted.) However, every reference to a polygraph test does not necessarily result in prejudicial error. State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (1971)." (Emphasis added.)

There is no merit in this assignment of error.

The defendants assign as error the denial of their motion for dismissal or nonsuit. It is elementary that upon such a motion the evidence of the State is deemed to be true and discrepancies and contradictions therein are resolved in favor of the State. Each defendant testified that he did not know Gravely. The testimony of Easter was that he (Easter) was an eyewitness to the shooting of Gravely, that almost immediately upon their entry into the room and without any conversation, except normal salutations, Hawks shot Gravely three times and then, at the direction of Kirkman, shot him again, that Hawks then removed from Gravely's pocket his wallet, pistol and keys. The testimony of Betty Ramey is that Gravely had in his wallet, a short time earlier, several hundred dollar bills. The testimony of Dreama Smith is to the effect that when Kirkman first came to the trailer he and Betty Ramey had a private conversation, immediately following which both left the trailer. The testimony of Easter is that in about 20 minutes Kirkman and Hawks returned and the shooting then occurred within two or three minutes. This evidence is ample to support a verdict that the defendants acting in concert, shot and killed Gravely in the perpetration of the felony of robbery and did actually rob him.

The defendants contend that the motion for dismissal should have been allowed because there is a fatal variance between the indictment on the charge of armed robbery and the proof. The indictment of each defendant on the charge of armed robbery is in proper form and states that such defendant, with the use of a .38 caliber pistol whereby the life of Clayton G. Gravely was endangered and threatened, did take, steal and carry away "approximately $400.00 in United States currency from the person of Clayton G. Gravely." (Emphasis added.) The defendants' contention is that the only evidence as to what, if anything, was taken from Gravely is the testimony of Easter to the effect that Hawks "reached in his pocket and got his wallet and gun and his keys." This overlooks the testimony of Betty Ramey to the effect that Gravely had in his wallet several hundred dollar bills. Obviously, there is no material variance between the allegation and the proof. It is not necessary that the State prove the taking of the exact amount of money alleged in the indictment. See, State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971). Furthermore, judgment was arrested on the charge of armed robbery. The defendants do not contend that there was any variance between the indictments charging murder and the evidence offered by the State.

By Chapter 1201, Session Laws of 1973, Section 1, effective 8 April 1974, nearly two years prior to the killing of Gravely, the General Assembly rewrote G.S. 14-17 to provide that the punishment for murder in the first degree (defined to include a murder committed in the perpetration of or in an attempt to perpetrate any robbery) shall be death, but, by Section 7 of that Act, provided:

"In the event it is determined by the North Carolina Supreme Court or the United States Supreme Court that a sentence of death may not be constitutionally imposed for any capital offense for which the death penalty is provided by this Act, the punishment for the offense shall be life imprisonment."

The United States Supreme Court having so determined in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), Section 7 of this Act became operative. Thus, the sentence to imprisonment for life was properly imposed. State v. Warren, 292 N.C. 235, 232 S.E.2d 419 (1977). See also: State v. May, 292 N.C. 644, 235 S.E.2d 178 (1977); State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977); State v. Squire, 292 N.C. 494, 234 S.E.2d 563 (1977); State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1977). We find no merit in the defendants' contention that to construe the 1973 Act as making life imprisonment the proper sentence for a first degree murder committed prior to the decision in Woodson v. North Carolina, supra, would violate the ex post facto clause of the State and Federal Constitutions. Constitution of the United States, Article I, § 10; Constitution of North Carolina, Article I, § 16. This assignment of error is overruled.

The defendants have made a number of other assignments of error. We have carefully examined each of these and find no merit in any of them. No useful purpose would be served by a detailed discussion of these other assignments. They are overruled.

The defendants have had a fair trial in accordance with the law of this State. The direct conflict between their own testimony to the effect that neither of them was in the trailer of Betty Ramey at the time Clayton Gravely was shot and killed and the testimony of Easter that he was an eyewitness to the shooting and that the defendants perpetrated it merely raised a question for the jury, which resolved it adversely to the contentions of the defendants.

NO ERROR.