State v. Carey , 285 N.C. 497 ( 1974 )

206 S.E.2d 213 (1974) 285 N.C. 497

STATE of North Carolina
v.
Anthony Douglas CAREY.

No. 16.

Supreme Court of North Carolina.

July 1, 1974.

Robert Morgan, Atty. Gen., James F. Bullock, Deputy Atty. Gen., and Raymond W. Dew, Jr., Asst. Atty. Gen., Raleigh, for the State of North Carolina.

Gene H. Kendall, Charlotte, for defendant appellant.

HUSKINS, Justice:

The action of the trial court in overruling defendant's motion for judgment of nonsuit in the conspiracy case constitutes his first assignment of error.

"A criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme—the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way or by unlawful means. The conspiracy is the crime and not its execution." State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964), and cases cited therein; accord, 16 Am.Jur.2d, Conspiracy § 1 (1964). "As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete." State v. Knotts, 168 N.C. 173, 83 S.E. 972 (1914).

Viewed in the light most favorable to the State, the evidence shows that defendant, Peanut Mitchell, Harold Givens, Antonio Dorsey, and defendant's brother Butch Carey were together on 18 June 1973 when the robbery was planned. As they drove past the Exxon station on that date Butch Carey said: "That is the man right there we are going to get the money from. We need someone who is not scared." Peanut Mitchell suggested that defendant go with him to rob the station. Defendant rejected the suggestion because the Charlotte Police had his photograph and fingerprints on file. The same group re-assembled on 19 June 1973 and, just prior to the actual robbery attempt, defendant said: "It's a whole lot of money in there, and we can get a whole lot of money from him." During the robbery attempt defendant remained in the car with Butch Carey and Antonio Dorsey, awaiting the return of the robbers with the fruits of the crime. He was a willing participant in the scheme.

Since the gravamen of the offense of conspiracy is the agreement or union of wills for the unlawful purpose, active participation in the planned criminal activity is not required to establish guilt. "A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude toward an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime." 16 Am.Jur.2d, Conspiracy § 15 (1964).

In State v. Turner, 119 N.C. 841, 25 S.E. 810 (1896), we said that "[t]hose who aid, abet, counsel or encourage, as well as those who execute their designs, are conspirators. . . ." (emphasis added) In State v. Andrews, 216 N.C. 574, 6 S.E.2d 35 (1939), responding to a contention similar to that advanced by this defendant, we said: "The fact that the appealing defendant did not personally participate in the overt act is not material if it be established by competent evidence that he entered into an unlawful confederation for the criminal purpose alleged."

In light of these legal principles, we hold the evidence is sufficient to make out a prima facie case of conspiracy and to withstand the motion for judgment of nonsuit.

By like reasoning, defendant argues that since he did not actively participate in the armed robbery attempt he is not criminally responsible for the murder committed in that attempt. Denial of his motion to nonsuit the murder case is assigned as error.

"Those who enter into a conspiracy to violate the criminal laws thereby forfeit their independence, and jeopardize their liberty, for, by agreeing with another or others to engage in an unlawful enterprise, they thereby place their safety and freedom in the hands of each and every member of the conspiracy." State v. Gibson, 233 N.C. 691, 65 S.E.2d 508 (1951).

"The felony-murder rule applies whenever a conspiractor kills another person in the course of committing a felony, as against the contention that the killing was not part of the conspiracy. If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence, which may result in the taking of life unlawfully, every party to such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design." 1 Wharton's Criminal Law and Procedure § 251 (1957) (emphasis added). Accord, 40 Am.Jur.2d, Homicide §§ 34-35 (1968); 40 C.J.S. Homicide § 9e(1) (1944). For a more general statement of the same principle, see State v. Kelly, 243 N.C. 177, 90 S.E.2d 241 (1955); State v. Smith, 221 N.C. 400, 20 S.E.2d 360 (1942); State v. Williams, 216 N.C. 446, 5 S.E.2d 314 (1939); 16 Am.Jur.2d, Conspiracy § 14 (1964).

The following statement from State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970), is in agreement with the general rule and is most appropriate here: "[W]hen a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree." Accord, State v. Bell, 205 N.C. 225, 171 S.E. 50 (1933).

Application of the foregoing principles to the evidence in this case leads inexorably to the conclusion that defendant's motion for judgment of nonsuit in the murder case was properly denied. The evidence makes a case for the jury. Defendant's first assignment of error is overruled.

Defendant contends the trial court erred in allowing James Calvin Mitchell, alleged co-conspirator, to testify to defendant's involvement in the conspiracy. Defendant argues that the State is required to establish the existence of the conspiracy by independent proof before evidence of the conspiracy from a co-conspirator can be introduced.

The principles defendant urges us to apply in this case were stated in State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969), as follows:

"The general rule is that when evidence of a prima facie case of conspiracy has been introduced, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; 16 Am.Jur.2d, Conspiracy, §§ 35, 36, 37, 38, pp. 146, 147 (citing authorities). Consideration of the acts or declarations of one as evidence against the co-conspirators should be conditioned upon a finding: (1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended. State v. Dale, 218 N.C. 625, 12 S.E.2d 556; State v. Lea, 203 N.C. 13, 164 S.E. 737; 11 Am.Jur. 571. Of course a different rule applies to acts and declarations made before the conspiracy was formed or after it terminated. Prior or subsequent acts or declarations are admissible only against him who committed the acts or made the declarations."

Defendant seeks to apply a sound principle of law to an ineligible state of facts. Of course, the existence of a conspiracy must be established by evidence aliunde for the acts and declarations of one conspirator, in furtherance of the common design, to be competent against the others. State v. Benson, 234 N.C. 263, 66 S.E.2d 893 (1951); State v. Blanton, 227 N.C. 517, 42 S.E.2d 663 (1947); 2 Strong's N.C. Index 2d, Conspiracy § 5 (1967). This rule, however, affords this defendant no solace because this case does not involve the use of acts and declarations of one conspirator against another. Rather, it involves the sworn testimony of one conspirator against another.

It is seldom that the State can show the existence of a conspiracy by direct proof, but when the testimony of a co-conspirator is available it is competent to establish the conspiracy. State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322 (1950). A co-conspirator is an accomplice and is always a competent witness. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964); 16 Am.Jur.2d, Conspiracy § 41 (1964). It has been held in many cases that the unsupported testimony of a co-conspirator is sufficient to sustain a verdict, although the jury should receive and act upon such testimony with caution. State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969), cert. denied, 398 U.S. 959, 90 S.Ct. 2175, 26 L.Ed.2d 545 (1970). See State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954); State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951).

Under applicable principles of law James Calvin Mitchell was a competent witness to testify to the conspiracy. Defendant's second assignment of error is overruled.

Prior to arraignment the trial judge instructed the solicitor and defense counsel that the fact that this was a capital case or that the death penalty might be imposed should not be mentioned in the presence of the jury. Defendant objected to this instruction and now assigns it as error. He contends that denial of his right to question prospective jurors concerning their views on capital punishment or to inform them of the punishment prescribed by law upon a verdict of guilty of first degree murder was prejudicial and requires a new trial.

The basic concept in jury selection is that each party to a trial has the right to present his cause to an unbiased and impartial jury. State v. Spence, 274 N.C. 536, 164 S.E.2d 593 (1968); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968). "A defendant on trial has the right to reject any juror for cause or within the limits of his peremptory challenges before the panel is completed." State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967).

"Peremptory challenges are challenges which may be made or omitted according to the judgment, will, or caprice of the party entitled thereto, without assigning any reason therefor, or without being required to assign a reason therefor." 50 C. J.S. Juries § 280a (1947). Accord, State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969); Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292 (1951); 47 Am.Jur.2d, Jury § 233 (1969). G.S. § 9-21(a) confers upon each defendant in a capital case the right to challenge fourteen jurors "peremptorily without cause."

In State v. Allred, supra, we quoted with approval the following passage from State v. Brooks, 57 Mont. 480, 188 P. 942 (1920): "The voir dire examination of jurors is a right secured to the defendant by the statutes and has a definite double purpose: First, to ascertain whether there exist grounds for challenge for cause; and, second, to enable counsel to exercise intelligently the peremptory challenges allowed by law." The quoted passage vividly reveals the crucial relationship between voir dire examination of prospective jurors and challenges, both peremptory and for cause. The right to make inquiry as to the fitness and competency of any person to serve as a juror is vouchsafed by G.S. § 9-15(a) which provides: "The court, and any party to an action, or his counsel of record shall be allowed, in selecting the jury, to make direct oral inquiry of any prospective juror as to the fitness and competency of any person to serve as a juror, without having such inquiry treated as a challenge of such person, and it shall not be considered by the court that any person is challenged as a juror until the party shall formally state that such person is so challenged." The extent of the inquiries, of course, is subject to the control and supervision of the trial judge. State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973); State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972).

Since decision of the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), we have held in many capital cases that solicitors may ask prospective jurors whether they have moral or religious scruples against capital punishment; if so, whether they are willing to consider all of the penalties provided by law, or are irrevocably committed to vote against a verdict carrying the death penalty regardless of the facts and circumstances that might be revealed by the evidence. See State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974); State v. Honeycutt, 285 N.C. 174, 203 S.E. 2d 844 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970).

This right of inquiry concerning a prospective juror's competency and fitness to serve may, of course, be exercised by or on behalf of the defendant as well as the State. "In order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment." State v. Crowder, supra.

Applying the foregoing principles, we hold it was error for the trial judge to deny the solicitor and defense counsel the right to examine prospective jurors concerning their moral or religious scruples, beliefs, and attitudes toward capital punishment. Both the State and the defendant were thus deprived of the right to exercise intelligently their peremptory challenges and their challenges for cause. This assignment is sustained and requires a new trial.

Defendant contends it was error for the trial judge to preclude mention of the death penalty during the cross-examination of Peanut Mitchell.

The record discloses that defendant was permitted to cross-examine Mitchell with respect to his plea bargaining and the fact that he was originally charged with first degree murder. Mitchell testified on cross-examination in regard to this matter as follows: "I have not been sentenced for murder in the Sloop robbery murder. I don't know when I will be sentenced. I was originally charged with murder and have entered a plea of guilty of murder in the second degree, which is a different charge from that with which I was first charged."

"Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right, which the trial judge can neither abrogate nor abridge to the prejudice of the cross-examining party." State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954).

"While latitude is allowed in showing the bias, hostility, corruption, prejudice and interest or misconduct of the witness with respect to the case or other facts tending to prove that his testimony is unworthy of credit, 3 Jones on Evidence, 1538, the question as to the extent to which the cross-examination may extend is to be determined with a view to the discretion of the trial judge. Nevertheless, if the latter has excluded testimony which would clearly show bias, interest, the promise, or the hope of reward on the part of the witness, it is error and may be ground for a new trial. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; 3 Jones on Evidence, 1538. The discretionary power of the trial Judge is to confine the cross-examination within reasonable limits. It does not include the authority to exclude altogether questions, and the answers thereto, which directly challenge the disinterestedness or credibility of the witness" testimony." State v. Roberson, 215 N.C. 784, 3 S.E.2d 277 (1939).

The pressures which induced Peanut Mitchell to plead guilty to second degree murder and to testify for the State against a co-conspiractor are material and have a substantial bearing upon the credibility to be given his testimony, and are permissible subjects for cross-examination. It is logical to assume that one very important factor which may have influenced Mitchell's decision to cooperate with the State was the possibility that had he been tried for first degree murder, he might have been convicted and sentenced to death. Because the question of Mitchell's credibility and bias is of such vast importance in this case, we hold it was error for the scope of cross-examination to be limited so as to exclude all mention of the death penalty.

We deem it unnecessary to discuss other assignments of error relating to recall of a witness and to instructions given by the court, in response to a juror's question, alleged by defendant to contradict instructions initially given. These are matters not likely to arise on retrial.

For error committed with respect to selection of the jury defendant is entitled to a new trial and it is so ordered.

New trial.