State v. Matthews , 295 N.C. 265 ( 1978 )

245 S.E.2d 727 (1978)

STATE of North Carolina
v.
William MATTHEWS and Victor Foust.

No. 68.

Supreme Court of North Carolina.

July 14, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Charles M. Hensey and Archie W. Anders, Raleigh, for the State.

Bobby G. Abrams, Wilson, for defendant appellant William Earl Matthews.

Willis A. Talton, Greenville, for defendants appellants William Earl Matthews and Vernon Victor Foust.

Vernon F. Daughtridge, Wilson, for defendant appellant Vernon Victor Foust.

SHARP, Chief Justice.

For our review defendants have submitted 14 questions comprising 60 separate assignments of error based upon 182 exceptions. No purpose would be served by discussing each of these assignments. With the gravity of the charge for which defendants stand convicted constantly in mind, we have carefully scrutinized the record and the multiplicity of alleged errors. We conclude that defendants have failed to show prejudicial error requiring a new trial.

Defendants first contend that their conviction should be overturned because the trial judge refused to allow their motions for a change of venue or a special venire to be selected from a county other than Wilson. In support of these motions defendants assert only that the deceased victim, Mr. Donald E. Mayo, was a member of a large family, well known throughout Wilson County, and that the Wilson Daily Times provided daily coverage of the first trial. For these reasons defendants assert it would be difficult to impanel twelve jurors who knew nothing about the victim or the case.

The decision whether to order a change of venue or a special venire rests in the discretion of the trial judge, and his decision will not be reversed except for gross abuse, such as the denial of a constitutional right. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), death sentence vacated, 428 U.S. 908, 96 S. Ct. 3215, 49 L. Ed. 2d 1213 (1976). In this case neither abuse of discretion nor prejudice has been shown. The record recites that defense counsel provided the court with the nine issues of the Wilson Daily Times which reported the events of the first trial. These papers are not a part of the record on appeal. Their absence, however, is immaterial since defendants say in their brief, "We do not contend that the articles in said newspaper were either inflammatory or biased."

We specifically reject as devoid of merit defendants' argument that news coverage which accurately reports the circumstances of the case and previous trial can be so "innately conducive to the inciting of local prejudices" as to require a change of venue. The fact that the defendants in this case were black and the victim white is mere happenstance; it is not per se grounds for a change of venue or special venire. Defendants made no attempt at trial, or prior thereto, to show that there existed in Wilson County any prejudice which might have deprived them of a fair and impartial jury, and the record suggests no such prejudice.

Defendants' second group of assignments involve the selection of the jury. In limine, we note that as of 2 July 1976 this appeal ceased to be one in "a death case." On that date, in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944, the United States Supreme Court invalidated the death penalty provisions of N.C.G.S. 14-17 (Cum.Supp.1975), the statute under which defendants were indicted, convicted and sentenced to death. Therefore, under the authority of 1973 N.C.Sess.Laws, ch. 1201, § 7 (2d Sess., 1974), a sentence of life imprisonment was substituted in lieu of the death penalty imposed in this case. State v. Young, 291 N.C. 562, 231 S.E.2d 577 (1977).

Defendant first contends that the court erred in allowing the district attorney to challenge for cause 14 jurors, each of whom indicated that he was so opposed to capital punishment that regardless of the evidence, and even if convinced beyond a reasonable doubt that a defendant was guilty as charged, he would not return a verdict requiring the death sentence. Notwithstanding that on voir dire defendants did not request any further examination of the challenged jurors, defendants' contention now seems to be that had these jurors been further sifted by the judge he might have found them to be qualified under the rule laid down in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). This contention is totally without merit.

The decision in Witherspoon did not restrict the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to defendant's guilt. The ruling of the court was "that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty... No defendant can constitutionally be put to death at the hands of a tribunal so selected." (Emphasis added.) Id. at 522-23, 88 S. Ct. at 1777, 20 L.Ed.2d at 784-85. Since each of the 14 challenged jurors declared his inability, no matter what the evidence, to render a verdict mandating the sentence of death, the 14 challenges were properly allowed. State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976).

Witherspoon-related errors in the selection of a jury affect only the sentence of death; they will not be held grounds for upsetting a conviction and ordering a new trial. 391 U.S. at 522, n. 21, 88 S. Ct. at 1777, 20 L.Ed.2d at 785. Accord, State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977); State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977); State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). As heretofore pointed out, this appeal involves only the validity of defendants' conviction —not the death sentence, for defendants cannot be put to death.

It appears in the record from a statement by one of defendants' counsel that the State used its challenges "to remove all blacks who were called as potential jurors" with the exception of a "police officer who happened to be born black." Since defendants complain that the court allowed "these black defendants" to be tried by a jury composed entirely of whites, presumably defendants excused the policeman. Defendants, of course, are not entitled to a new trial because all the jurors impaneled to try his case were white. A defendant is not entitled to be tried by a jury composed of a proportionate number of his own race, or even a jury on which his race is at all represented. He does, however, have the inviolable right to be tried by a fair and impartial jury, selected from a venire from which no members of any race have been systematically or arbitrarily excluded. E. g., State v. Wright, 290 N.C. 45, 224 S.E.2d 624 (1976), cert. denied, 429 U.S. 1049, 97 S. Ct. 760, 50 L. Ed. 2d 765 (1977); State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). Defendants in this case do not even suggest racial discrimination in the drawing and selection of either the jury lists or the traverse juries.

At one point during the selection of the jury, the State had challenged five jurors, impliedly indicating its acceptance of the seven remaining in the box, and the court instructed the clerk to refill the empty seats. Before this could be done, however, juror No. 1 (Mrs. Ida Sherrod, who, as defendants inform us in their brief, is black) requested permission to ask a question. Mrs. Sherrod then declared, "I'm against capital punishment. I don't believe in killing. . . . I'm against capital punishment, and I want you to understand that." Mrs. Sherrod had been examined by the district attorney and, in response to a specific question, had told him she "felt she could serve" in a capital case. Upon reexamination Mrs. Sherrod said that she would "love to sit" on such a case and stated her views on capital punishment in such a way that they did not subject her to challenge for cause. The district attorney, however, "out of an abundance of precaution," exercised one of his peremptory challenges to excuse her. Defendant contends that the court erred in allowing the district attorney to reexamine, and then excuse, a venireman after indicating that she was satisfactory to the State. Defendant relies on the authority of State v. Fuller, 114 N.C. 885, 19 S.E. 797 (1894). Fuller does indeed support defendants' position. That case, however, has been overruled by 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). McKenna held that neither the case law nor N.C.G.S. 9-21(b) "prohibits the trial court, in the exercise of its discretion before the jury is impaneled, from allowing the State to challenge peremptorily or for cause a prospective juror previously accepted by the State and tendered to the defendant." Id., 289 N.C. at 680, 224 S.E.2d at 545. See also State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973), cert. denied, 414 U.S. 850, 94 S. Ct. 143, 38 L. Ed. 2d 99 (1974).

Defendants' remaining exceptions to the selection of the jury are without merit and are overruled.

As detailed in the preliminary statement of facts, at the completion of an extensive voir dire the trial court concluded that the State's witnesses Williams and Branch should be allowed to identify defendants Matthews and Foust in court, and that witness Ellis should be permitted to identify Matthews. The court found that the in-court identifications by these witnesses were independent of their pretrial confrontation with defendants at the Greenville police station, and that the earlier face-to-face encounter "was not so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of fairness and justice." Eight of defendants' assignments of error challenge the admissibility of these in-court identifications. Defendants contend that at the time they "were subjected to a showup at the police station" they were actually under illegal arrest and had not been advised of their right to counsel. They also contend that "the totality of the circumstances" show that the witnesses' in-court identification was "tainted by the suggestive showup procedures."

Defendants first argue that, although at the time of the showup they "were not under arrest in the sense that formal charges had been preferred against either of them," they were actually in the custody of police officers. They insist that they had been taken from their homes without a warrant and without probable cause for arrest, the effect of this police action being an unconstitutional arrest which was also illegal under N.C.Gen.Stats. 15-41(2) (1965) (Repealed by 1973 N.C.Sess.Laws, c. 1286, § 26, effective July 1, 1975). However, all the evidence tends to show that defendant William Matthews, upon learning that his cousin Ronnie Matthews was going with the police officers to the station, actually volunteered to accompany him, and that defendant Foust— after some vacillation and upon his grandmother's advice— decided to accede to the officer's request and go with them. Even so, we need not explore in any detail the question whether defendants were under arrest at the time of the showup or whether the police had probable cause to make an arrest.

Assuming, arguendo, that defendants were under illegal arrest at the time of the showup, the relevant consideration at this point is whether the arrest produced any evidence which must be suppressed as "the fruit of the poisonous tree" or "the fruit of official illegality." As the Court said in United States v. Young, 512 F.2d 321, 323 (4th Cir. 1975), cert. denied, 424 U.S. 956, 96 S. Ct. 1432, 47 L. Ed. 2d 362 (1976), "It is only when the arrest itself produces such pressure as to compel admissions or the production of contraband or the seizing of evidence that would not otherwise have been detected that the poisonous tree can be said to produce fruit. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963)."

The only fruit of the challenged "arrest" in this case was the positive identification of defendants as two of the four men who participated in the robbery of Mayo's Spur station on the night of 11 February 1975. The penalty of exclusion, therefore, does not apply; for the Constitution protects no citizen from being viewed by the police or by other citizens at the invitation of the police. United States v. Young, supra; United States v. Quarles, 387 F.2d 551 (4th Cir. 1967). See also Yancey v. State, 232 Ga. 167, 205 S.E.2d 282 (1974).

In holding that the defendant had no right to avoid being viewed, the Court in United States v. Quarles, supra, also noted an admonition by the United States Supreme Court that the power to exclude identification evidence "is one that must be sparingly exercised, for the ``function of a criminal trial is to seek out and determine the truth or falsity of the charges brought against the defendant. Proper fulfillment of this function requires that, constitutional limitations aside, all relevant, competent evidence be admissible, unless the manner in which it has been obtained ... compels the formulation of a rule excluding its introduction in a federal court." Lopez v. United States, 373 U.S. 427, 440, 83 S. Ct. 1381, 1388, 10 L. Ed. 2d 462 (1963). We feel no such compulsion here. [Defendant] had no right that he not be viewed. United States v. Wade, supra, 388 U.S. at 221, 87 S. Ct. at 1929, 18 L.Ed.2d at 1154. A lineup is not the only means of identifying a suspect; an individual not in custody, as [defendant], ``may be placed under surveillance— he may be viewed on the streets, entering or leaving his home or place of business, at places of amusement, or at any other place where he is not entitled to privacy.' "Id. at 555-56. (Emphasis added.)

In affirming defendants' conviction in United States v. Young, supra, at 323, the Court said, "We hold that an unlawful arrest does not per se make inadmissible positive identification testimony that is otherwise competent. See Vance v. State of North Carolina, 432 F.2d 984, 990 (4th Cir. 1970). Whether such testimony is admissible does not depend upon the validity of the arrest but upon whether the confrontation was ``so unnecessarily suggestive and conducive to irreparable mistaken identification that [appellants were] denied due process of law,' Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967)."

Thus, so long as the circumstances were not unnecessarily suggestive, the police officers were free to arrange a confrontation between defendants (whether under arrest or not) and witnesses Williams, Branch, and Ellis. The fact that defendants were in custody only made the confrontation easier to arrange. Therefore, the questions remaining to be answered are (1) whether defendants were denied the right to counsel at the showup, and (2) whether the procedures used were so impermissibly suggestive as to be conducive to an irreparably mistaken identification.

The question of defendants' right to counsel at the time of the showup is quickly resolved. Defendants mistakenly assume that they were entitled to have counsel present as soon as they were taken into custody as suspects. This is not the case. The right to counsel attaches upon the initiation of formal prosecution. Prosecution does not begin until a formal charge has been levied against a suspect by a judicial officer, whether by a finding of probable cause, or by arraignment, indictment, information or preliminary hearing. Custodial arrest of a mere suspect does not constitute the initiation of "adversary judicial proceedings" and is not sufficient to draw the State and the prisoner into such an antagonistic relationship as to require the assistance of counsel from that moment forward. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977); State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205 (1976); 1 Stansbury's N.C.Evidence § 57 (Brandis rev. 1973). See also State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970); N.C.G.S. 7A-451(b)(2) (Cum.Supp.1977). Thus, our remaining inquiry into the identification procedures must focus upon the reliability of the pretrial confrontation.

Regardless of the presence of counsel, or whether formal judicial proceedings against the defendant have begun, the due process clause forbids an out-of-court confrontation which is so unnecessarily "suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968); State v. Sweezy, supra; State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968). See Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Thus, if a pretrial confrontation and identification fails the test of due process, an in-court identification will be excluded in both state and federal courts unless the prosecution can show at a voir dire hearing that the witness's in-court identification is independent of and untainted by the suggestive out-of-court confrontation. State v. Colson, 274 N.C. 295, 306, 163 S.E.2d 376, 383-84 (1968), cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780 (1969); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); 1 Stansbury's N.C.Evidence § 57 (Brandis rev. 1973).

As we pointed out in State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), the use of a showup where other methods of identification are feasible has been widely condemned. The procedure in this case, like all showups, may have been inherently suggestive for the witnesses would likely assume that the police had brought them to view persons whom they suspected might be the guilty parties. Further, Williams and Ellis knew that the officers had located the green Cadillac in which four black males came to the Spur station earlier in the evening, and that through this car, the police had traced the persons they were to view. Only Branch knew nothing about the Cadillac until after he had made his identification. However, as we have already noted, even if the out-of-court confrontation was impermissibly suggestive it will not render inadmissible the in-court identification provided it is first determined on voir dire that the in-court identification is of independent origin. State v. Henderson, supra.

In this case, all three witnesses saw the defendants at the Greenville police station within a few hours of the crime. Of the three, Williams was exposed to the most suggestion. He had seen the green Cadillac with pink trim in the back window when its four occupants had asked directions at Mayo's Spur station, and he again saw the car at the police station when he entered for the showup. It was also Williams, however, who had the best opportunity to observe the defendants. He observed them for several minutes at close quarters on two different occasions in a well-lighted room. On the second occasion he was no casual observer; the man he identified as Matthews came toward him, pulled a gun from his shirt, leaned against him, and pushed him into a corner so that he could not move. It was that same man whom Williams saw aim a gun across the counter at Mayo and whom he heard direct one of the other robbers to shoot Mayo. It was also Matthews who ordered Williams to open the cash register and to whom he handed his wallet.

Although four men participated in the robbery, they entered in pairs at different times. It is noteworthy that Williams was able to identify only the two who entered first, Matthews and Foust. He identified them at the showup and he never thereafter expressed any doubt that they were two of the four culprits. Albeit Williams was sometimes an inarticulate witness— troubled by the rapid-fire questions and the objections of counsel, as well as the recollections of the nerve shattering events of 11 February 1975— he stood by his identification of defendants Matthews and Foust. Moreover, he consistently refused to identify Ronnie and Lawrence Matthews because he could not be positive they had taken part in the robbery.

Witness Branch, who also identified the defendants as two of the men he saw in the Spur station, likewise observed them for several minutes while they were in a well-lighted room. In addition, he had seen Matthews' face caught in the full glare of the headlights of his car and had noted a scar on his face. Like Williams, however, he was unable to identify the other men who entered the station.

Witness Ellis had the least opportunity to observe the man he identified, defendant Matthews. Nevertheless, Ellis testified that when Matthews ran across the road in front of his car they were at such close quarters that Ellis would have hit Matthews had he not applied his brakes. Under similar circumstances the Supreme Court of the United States has held that reliable identification is possible. In Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), the witness was assaulted around 11:30 p. m. by three black men as he was changing his tire by the side of the road. As the car approached the scene, the three men fled across the road and were illuminated by the oncoming car's headlights. The witness in Coleman was able to give only a "vague" description to police before confronting defendants in a police lineup. Nonetheless, the Supreme Court held that there was no error in the trial court's findings that the in-court identification of the defendants by the witness was independent in origin from the pretrial confrontation.

Here, the trial court concluded that the in-court identification of both defendants by the witnesses Williams and Branch, and of defendant Matthews by the witness Ellis, was "independent in origin and not tainted by any illegal pretrial identification procedure." The court also concluded that the out-of-court identification procedure was not so suggestive as to give rise to a very substantial likelihood of misidentification. In our view, substantial evidence in the record supports these holdings, and we therefore uphold them on appeal. E. g., State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971).

Defendants' assignments of error 26 and 27 assert that the trial judge erred in refusing defendants' motions for a transcript of the testimony of certain State's witnesses at the first trial. They contend these transcripts were needed to demonstrate discrepancies in the witnesses' testimony. The first trial ended in a mistrial on 20 July 1975, thirty days before the commencement of the second trial, which we now review. The facts with reference to these motions are set out below.

This case was called for trial and the selection of the jury begun on Monday, 18 August 1975. The jury was impaneled on Friday, August 22nd, and the verdict was returned on Thursday, August 28th. On the morning of August 22nd, Judge Tillery began the voir dire examination of State's witnesses Williams, Branch, and Ellis to determine the admissibility of their identification of defendants. After these witnesses had testified, defense counsel addressed the court as follows: "We would like to request that a transcript of the voir dire testimony of Mr. Bill Branch which was taken at the last trial be transcribed and admitted into evidence on this voir dire for the Court's consideration, and we do that because his testimony here today is in conflict with what he said at the last trial." Judge Tillery denied this motion. Whereupon defendants called as a witness Mrs. Margaret Deanhardt, the official court reporter for Wilson County who had reported defendants' first trial.

Mrs. Deanhardt, who had with her in court her notes and records of the first trial, testified that she "took down verbatim" what Bill Branch had said on voir dire at the first trial. At that time "he said he picked out all four of them. He stated he identified all four blacks in the Greenville police station as being the four that were at the Spur station ... on the night this occurred." Finally, Mrs. Deanhardt testified that the witness Branch never made any in-court identification of anyone other than defendants Matthews and Foust; nor at the first trial did he mention having seen a green Cadillac in Wilson.

At the conclusion of Mrs. Deanhardt's testimony, which ended the voir dire, Judge Tillery dictated his findings of fact and conclusions of law. He then inquired of counsel if there were "any other pre-jury matters." At that time defendants renewed their motion "that they be furnished a transcript of the testimony of the State's witnesses Linwood Williams, Bill Branch, and Donald Ellis from the last trial of this action;" whereupon, the district attorney made "the same motion as to all 25 of [defendants'] witnesses at the last trial." The trial judge denied both motions, and we affirm his rulings.

At every retrial a transcript of the former trial would undoubtedly be a convenience and at least of some assistance to all parties. That does not mean, however, that either an indigent or a wealthy defendant has an unqualified right to a transcript or to demand it at any stage of trial. As pointed out in Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971), the crucial test in any case is whether the requested transcript is "needed for an effective defense or appeal," a rule first enunciated in Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956). See State v. McAllister, 287 N.C. 178, 214 S.E.2d 75 (1975). See also McGarry v. Fogliani, 370 F.2d 42 (9th Cir. 1966); United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964). In Britt, the Supreme Court identified two factors relevant to the determination of need: "(1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript." 404 U.S. at 227, 92 S.Ct. at 434, 30 L. Ed. 2d at 403-04.

As in the case sub judice, Britt involved the retrial of a murder prosecution in eastern North Carolina only a month after the first trial had ended in a hung jury. In the interim the indigent defendant Britt had moved the court that the State be required to furnish him a free transcript of the first trial. The trial court denied the motion and the Supreme Court allowed certiorari to determine whether the rule of Griffin v. Illinois, supra, "applied in this context." The Court concluded that the rule did apply but that it had not been violated in Britt's case because, under the circumstances, "adequate alternatives to a transcript" were available. These circumstances included the fact that the second trial took place within a month of the first trial; that the second trial was before the same judge and with the same counsel; and that the same court reporter was present at both trials and could, at any time, have read back his notes of the mistrial to counsel.

Two factual differences are noted between Britt's case and this one: (1) Judge Tillery, who presided at the retrial, did not conduct the first trial. In our view, the fact that the same judge did not preside at both trials has no significance in this case. (2) On voir dire defendants Matthews and Foust called the court reporter as a witness and examined her with reference to the testimony which State's witness Branch gave at the first trial. Albeit they did not see fit to call her again, the reporter was, of course, continuously present in court with her notes of the first trial, and defendants could have questioned her at any time, privately or before the judge or jury, with reference to the former testimony of any other witness as well.

We believe that the circumstances of the instant case disclose the availability of adequate alternatives to a transcript— alternatives more than equal to those in Britt —and that defendants here suffered no prejudice from the lack of a transcript. The record reveals that neither the district attorney nor counsel for the defense had a transcript of the former trial. The scales were not tipped in favor of the State on this count. We also note that defendants' request for the transcript came on the fifth day of the trial. At that time four days had been spent in selecting a jury and more than 400 persons— the original panel of prospective jurors and three special venires— had been summoned to court.

We hold that Judge Tillery did not abuse his discretion in denying defendants' motions. Assignments 26 and 27 are overruled.

The remainder of defendants' numerous assignments of error are without merit and do not warrant discussion. Suffice it to say, they concern matters within the discretionary control of the trial judge. Such rulings will not be reversed except for abuse of discretion. E. g., State v. McKenna, 289 N.C. 668, 224 S.E.2d 537 (1976) (motion to set aside verdict, arguments of counsel); State v. Waddell, 289 N.C. 19, 220 S.E.2d 293 (1975) (competency of jurors); State v. Summers, 284 N.C. 361, 200 S.E.2d 808 (1973) (scope of allowable cross-examination). See also State v. Rhodes, 290 N.C. 16, 224 S.E.2d 631 (1976) (matters not governed by rule or statute are left to the discretion of the trial judge); 12 Strong's N.C.Index 3d, Trials § 5. We have carefully examined each of the trial judge's challenged actions and can find no abuse. Having done so, we are constrained to remind counsel that the most effective appellate advocacy is not to be achieved by bringing forward multitudinous assignments of error based on indiscriminate exceptions; it is achieved only by careful selection of those exceptions relating to matters which, it might be reasonably argued, amounted to denial of a substantial right or constituted error which affected the verdict. See 1 Strong's N.C.Index 3d, Appeal and Error § 47.

Defendants' assignment No. 60 relates to the sentence of death which, as we have heretofore noted, was invalidated by Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). Accordingly, following the decision of State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976), we remand this case to the Superior Court of Wilson County with directions (1) that the presiding judge, without requiring the presence of defendants, enter as to each defendant a judgment imposing life imprisonment for the first degree murder of which he has been convicted; and (2) that in accordance with these judgments the clerk of Superior Court of Wilson County issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to each defendant and his attorneys a copy of their judgment and commitment as revised in accordance with this opinion.

As to the verdicts— No Error;

As to the judgments— Error and Remanded.