State v. Crews , 296 N.C. 607 ( 1979 )

252 S.E.2d 745 (1979) 296 N.C. 607

STATE of North Carolina
v.
Lonzo M. CREWS, Jr. and Phillip Eugene Turpin.

No. 55.

Supreme Court of North Carolina.

March 16, 1979.

Jeff P. Hunt, Asheville, for defendant Crews.

Bruce Briggs, Mars Hill, for defendant Turpin.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Thomas H. Davis, Jr., Raleigh, for the State.

COPELAND, Justice.

For the reasons stated below, we find no prejudicial error in defendants' trial.

This appeal concerns two defendants who submitted separate briefs to this Court. We will deal first with those assignments of errors brought forth by both defendants. We will then discuss the arguments made by defendant Turpin alone and those made by defendant Crews alone, in that order.

Both defendants claim the trial court erred in denying their motions for change of venue or, in the alternative, for a special venire to be summoned from outside Madison County. They based their motions primarily on the pretrial publicity of the crimes that was contained in local newspapers.

Before denying the motions, the trial judge heard arguments from the defendants and the State, and he studied defendants' written motions and the accompanying newspaper articles. The judge stated in his order that he would permit "full inquiry" of each prospective juror to determine whether he or she could give defendants "a fair and impartial trial based on the evidence." If there is any indication to the contrary, "the Court will at that time hear challenge for cause."

Defendants do not contend that any juror was impaneled who was biased or prejudiced in any way. They did not include any of the jury selection proceedings in the record.

"Defendant's motion for a change of venue was addressed to the sound discretion of the trial court. Where the record discloses . . . that the presiding judge conducted a full inquiry, examined the press releases and the affidavits in support of the motion, and where the record fails to show that any juror objectionable to the defendant was permitted to sit on the panel, or that defendant had exhausted his peremptory challenges before he passed the jury, denial of the motion for change of venue was not error." State v. Harding, 291 N.C. 223, 227, 230 S.E.2d 397, 400 (1976). (Citations omitted.) See also State v. Harrill, 289 N.C. 186, 221 S.E.2d 325 (1976), death penalty vacated in 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976).

This assignment of error is overruled.

The defendants next argue that the trial court erred in denying their motions for severance. We do not agree.

Both defendants in this case were indicted and tried for the murders of Bennie Hudgins and Tommy Norton. "Ordinarily, unless it is shown that irreparable prejudice will result therefrom, consolidation for trial rather than multiple individual trials is appropriate when two or more persons are indicted for the same criminal offense(s)." State v. Jones, 280 N.C. 322, 333, 185 S.E.2d 858, 865 (1972).

The most common reason for requesting a separate trial is that one defendant has made an extrajudicial statement that would implicate and prejudice the other defendant should the State offer it into evidence at defendants' joint trial. See State v. Pearson, 269 N.C. 725, 153 S.E.2d 494 (1967). See also Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). In this situation, the State must choose between not using the statement at defendants' joint trial, deleting from the one defendant's out-of-court statement all references to the other defendant(s) or trying the defendants separately. G.S. 15A-927(c).

In this case neither defendant made an extrajudicial statement or confession that was introduced at trial, and neither defendant has shown any prejudice stemming from the joint trial. The question whether to try defendants together or separately is directed to the sound discretion of the trial court. Its ruling will not be disturbed on appeal unless the defendant can show the consolidation deprived him of a fair trial. See, e. g., State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977). This assignment of error is overruled.

For many years defendant Turpin and the Romero children have been connected with the child welfare division of the San Francisco Department of Social Services. The defendants subpoenaed Ms. Lorraine Costellano Cocke personally from the San Francisco Department of Social Services and requested access to that agency's files through a subpoena duces tecum. Ms. Cocke appeared in court with the records and documents on defendant Turpin and the Romero children; however, she was instructed by the San Francisco city attorney not to make them available to anyone unless and until the trial judge inspected them and ordered them released.

The defendants asked the trial judge to conduct an in camera inspection of the files and "to release such paper writings to the Defendant Turpin and the Defendant Crews for such purpose and such use as they may be in the defense of these two cases." The judge did examine the files, and he ordered that they not be released to either the defendants or the State. He then sealed and forwarded them to this Court for review of his ruling.

The defendants also made motions for pretrial discovery of files and reports concerning mental or physical examinations conducted on Lloyd and Raymond Romero. These documents were in the custody of the Blue Ridge Community Mental Health Center in Asheville and the Madison County Department of Social Services. The trial judge also inspected these documents in camera. He allowed defendants' motions in part and denied them in part, ordering that copies of certain reports be furnished to both the defense and the State. The records were sent to this Court for our use in reviewing this matter.

The defendants claim the trial court erred in denying them access to all the requested material. We do not agree.

None of the documents and reports in question were within the prosecutor's possession, custody or control; therefore, they were not subject to discovery as a matter of right under G.S. 15A-903(d)^[1] or G.S. 15A-903(e).^[2] "Within the possession, custody, or control of the State" as used in these provisions means within the possession, custody or control of the prosecutor or those working in conjunction with him and his office. This interpretation is necessary when one considers that in this case the district attorney had neither the authority nor the power to release the requested material to the defendants and, in fact, he was also denied access to the information.

Almost all the material asked for was privileged under G.S. 8-53.3^[3] had the Romero children been given the chance to assert the privilege. It consisted primarily of reports and test results on the children by practicing psychologists. The trial judge examined the documents in detail and refused to release them to either the defendants or the State. Under the proviso in G.S. 8-53.3, the judge clearly could have compelled disclosure "if in his opinion the same is necessary to a proper administration of justice." His refusal to do so in this case was not error.

Furthermore, the defendants admit that the trial court issued them copies of some of the requested matter; however, the record does not inform this Court which material they were given. This information should have been included in the record as it was necessary for our understanding of defendants' assignment of error. See Rule 9(b)(3) of North Carolina Rules of Appellate Procedure.

Defendant Turpin argues that the guns seized from Tommy Norton's truck in Colorado should have been excluded from evidence at trial because the search of that vehicle was unconstitutional. This contention is without merit.

At defendant Turpin's request, the trial judge conducted a voir dire concerning the search in question. He found that the search was lawful and reasonable and that neither defendant had standing to object to the search. We agree with both conclusions; however, we need only discuss the standing question.

The vehicle that was searched in this case belonged to neither defendant, and in fact neither defendant was present at the time of the search. Defendant Crews was in Tennessee with his family and Debbie Romero. Defendant Turpin had fled from the vehicle after being chased by Colorado authorities; he was somewhere at large at the time. The search was conducted after Mrs. Alemany and Lloyd and Raymond Romero had been arrested and after they had told the officers there were several weapons in the truck.

The United States Supreme Court recently addressed the issue of standing to object to a search in Rakas v. Illinois, ___ U.S. ___, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). The Court again emphasized that "``wrongful' presence at the scene of a search would not enable a defendant to object to the legality of the search," and it noted that some lower courts have erroneously allowed a person in a stolen automobile to object to the search of that vehicle. Id. at ___, 99 S.Ct. at 429 n. 9, 58 L. Ed. 2d at 399-400 n. 9. The Rakas decision made it clear that a person can object to a search only if he has "a legitimate expectation of privacy in the invaded place," which means, inter alia, an expectation of privacy that society will recognize. Id. at ___, 99 S.Ct. at 430-31 n. 12, 58 L. Ed. 2d at 401 n. 12. Previous possession of a stolen vehicle cannot constitute the basis for a legitimate expectation of privacy; therefore, this assignment of error is overruled.

The defendants' trial was set for 24 October 1977. On 10 October 1977 Judge Thornburg allowed defendant Turpin's request for a pretrial psychiatric examination. On 19 October 1977 defendant Crews made a motion for a pretrial psychiatric examination; however, the only reason stated for the request was that the defendant was charged with a capital crime. The motion was denied because "the Court finds nothing in the motion that would constitute a reasonable ground for allowing the requested examination."

On 24 October 1977, the day of trial, defendant Crews renewed his motion. At this time an affidavit by defendant Crews' attorney was submitted to the trial court stating that defendant Crews' mother and wife had told him that the defendant may have cancer or a brain tumor. According to the affidavit, a doctor at Fort Campbell, Kentucky had mentioned this possibility to defendant Crews' wife. The affidavit went on to state, however, that "the Defendant had no knowledge of having such a malady as cancer, or a brain tumor, and that he had never received any X-rays of the head and had never been treated for a brain tumor or cancer of the head," although defendant Crews had suffered from extreme headaches over the past four years. Moreover, two of defendant Crews' commanding officers at Fort Campbell had been contacted by the attorney. Neither of them had heard "anything at all" about defendant Crews' possible condition, and both stated that they "would have expected to have been informed" if such had been the case.

We have stated that a defendant does not have an automatic right to a pretrial psychiatric examination and that the resolution of this matter is within the trial court's discretion. State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973), cert. denied 414 U.S. 1132, 94 S. Ct. 873, 38 L. Ed. 2d 757 (1974). See also G.S. 15A-1002(b).

Defendant Crews had been in custody for over four months at the time he first requested a pretrial psychiatric examination, and no showing of any merit was made until the day of trial. He was present at his arraignment and entered a general plea of not guilty; he did not raise any question about his capacity to proceed at that time. The affidavit in support of the motion was more an indication that defendant Crews did not have cancer or a brain tumor than that he did. Under these circumstances, the trial court did not abuse its discretion in denying defendant Crews' request. This assignment of error is overruled.

In his next assignment of error defendant Crews contends the trial court erred by allowing Debbie Romero to testify as to his statement to her that he had shot Benny Hudgins. He claims that the State was required to disclose to him the substance of this statement pursuant to his request for voluntary discovery of "all oral statements made by the defendant which the State intends to offer in evidence, as provided by G.S. 15A-903(a)(2)." We do not agree.

According to the official commentary accompanying it, Article 48 of the North Carolina General Statutes, dealing with pretrial discovery, was modeled after a draft of proposed amendments to Rule 16 of the Federal Rules of Criminal Procedure. See also State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). Federal Rule 16(a)(1)(A) expressly deals with this problem by stipulating that a defendant may discover "the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent." (Emphasis added.) Although G.S. 15A-903(a)(2)^[4] does not include the language in Federal Rule 16(a)(1)(A) emphasized above, we find the intent of the Legislature was to restrict a defendant's discovery of his oral statements to those made by him to persons acting on behalf of the State.

The official commentary to G.S. 15A-903 relates that a provision requiring disclosure to a defendant of the names and addresses of witnesses to be called by the State was omitted from Article 48 because the witnesses may be subject to "harassment or intimidation." We agree with the opinion of the Attorney General that "[i]t would be illogical to assume the Act intended to require discovery of remarks of the defendant to bystander witnesses but not disclosure of the witnesses' names." 45 N.C.A.G. 60 (1975). "Where possible, the language of a statute will be interpreted so as to avoid an absurd consequence." State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 295 (1975). Furthermore, it is anomalous to think the Legislature granted a defendant indirect access to the names of the State's witnesses when it denied his right to this information directly.

We have found no case in North Carolina in which an oral statement by defendant to a third party witness was disclosed to him pursuant to G.S. 15A-903(a)(2). In fact, the interpretation urged by defendant Crews was apparently not contemplated when Chief Justice Sharp, speaking for this Court, stated that "defense counsel would be well advised to specifically request the defendant's oral statements when, as here, the client informs him he has talked to the officers." State v. Stevens, 295 N.C. 21, 37, 243 S.E.2d 771, 781 (1978). (Emphasis added.) This assignment of error is overruled.

State's Exhibit Number 11 consisted of metal fragments that had been removed from the body of Benny Hudgins. Mr. Robert Cerwin, a special agent in the ballistics section of the North Carolina State Bureau of Investigation, testified for the State. He had examined State's Exhibit Number 11 and State's Exhibit Number 15, the 30-30 rifle that had been seized from Tommy Norton's truck by law enforcement officers at Colorado, to determine whether the bullet fragments had been fired by that rifle. The witness was accepted by the court as an expert in ballistics and firearm identification. He testified that State's Exhibit Number 11 could possibly have been fired from a 30-30.

A voir dire was then conducted, and the trial court ruled that "as to any further testimony concerning the bullet fragments previously identified as State's Exhibit 11, any further testimony by this witness, the motion to suppress is allowed, the evidence remains in as previously admitted; however, and the Court does not alter its ruling in that respect." The following exchange on direct examination then took place before the jury:

"Q. Mr. Cerwin, were the jacketing in the State's Exhibit 11 sufficiently large and intact to make a fair comparison with State's Exhibit 15?

OBJECTION.

OVERRULED.

A. (The witness did not respond).

Q. Mr. Cerwin, 15 is the 30-30.

A. Yes, sir did I make a comparison with State's Exhibit—

Q. Was it sufficiently large jacketing, State's Exhibit 11, for you to make a fair comparison to determine whether or not it was fired by State's Exhibit 15?

A. Yes, I did, sir.

OBJECTION and MOTION TO STRIKE.

DENIED.

Q. Was it sufficiently intact and large enough for you to form an opinion as to whether State's Exhibit 15 discharged State's Exhibit 11?

OBJECTION.

OVERRULED.

A. Oh no sir not for a positive comparison, sir, due to the deformity on State's Exhibit 11, sir."

On cross-examination of this same witness, Mr. Cerwin reiterated that he "could not make a positive comparison between Exhibit 11 and Exhibit 15, due to the deformity of the jacket."

Defendant Crews argues the trial court erred in allowing the State to examine the witness further on the comparison between the two exhibits.

The record does not set forth the voir dire proceeding on this matter; therefore, we cannot determine what material the trial judge was excluding by its order. The ruling did specify, however, that the evidence on this question that had already been admitted was to remain in evidence. The testimony further elicited from Mr. Cerwin merely clarified his former statement that State's Exhibit Number 11 "is a deformed copper jacket bullet, it possibly could be from a 30-30." In fact, it appears that Mr. Cerwin's later testimony was beneficial to defendant Crews because the witness then made it perfectly clear that a positive comparison could not be made. This assignment of error is overruled.

Defendant Crews testified at trial. During cross-examination, and over his objection, the State asked whether there was a warrant out against him for car larceny when he left Kentucky. Defendant Crews claims the trial court erred in overruling his objection to this question.

In State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), this Court held that "for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial." Id. at 672, 185 S.E.2d at 180. (Emphasis in original.) The trial judge should have sustained defendant Crews' objection; however, we find that this error does not constitute a sufficient basis for a new trial. Defendant Crews responded that he knew of no such warrant, and no further inquiry was made by the State. In light of the overwhelming evidence of defendants' guilt, this error was inconsequential. See State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972).

We have examined all other assignments of error defendants brought forward to this Court and find them to be without merit.

For the foregoing reasons, we find that defendants had a trial free from prejudicial error.

NO ERROR.

BROCK, J., took no part in the consideration or decision of this case.

NOTES

[1] G.S. 15A-903(d) Documents and Tangible Objects.—Upon motion of the defendant, the court must order the solicitor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or where obtained from or belong to the defendant.

[2] G.S. 15A-903(e) Reports of Examinations and Tests.—Upon motion of a defendant, the court must order the prosecutor to provide a copy of or to permit the defendant to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecutor. In addition, upon motion of a defendant, the court must order the prosecutor to permit the defendant to inspect, examine, and test, subject to appropriate safeguards, any physical evidence, or a sample of it, available to the prosecutor if the State intends to offer the evidence, or tests or experiments made in connection with the evidence, as an exhibit or evidence in the case.

[3] G.S. 8-53.3 Communications between psychologist and client.—No person, duly authorized as a practicing psychologist or psychological examiner, nor any of his employees or associates, shall be required to disclose any information which he may have acquired in rendering professional psychological services, and which information was necessary to enable him to render professional psychological services: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.

[4] G.S. 15A-903. Disclosure of evidence by the State—information subject to disclosure.—(a) Statement of Defendant.—Upon motion of a defendant, the court must order the prosecutor:

* * * * * *

(2) To divulge, in written or recorded form, the substance of any oral statement made by the defendant which the State intends to offer in evidence at the trial.