State v. Madden ( 1977 )

232 S.E.2d 656 (1977) 292 N.C. 114

STATE of North Carolina
v.
Michael Edward MADDEN and Charles Bruce Keeten.

No. 27.

Supreme Court of North Carolina.

March 7, 1977.

Rufus L. Edmisten, Atty. Gen., by Thomas B. Wood, Asst. Atty. Gen., Raleigh, for the State.

Nelson M. Casstevens, Jr., Charlotte, for Madden.

Arthur Goodman, Jr., Charlotte, for Keeten.

LAKE, Justice.

There was no error in the denial of the motion of Madden for a separate trial. The two defendants were duly charged in separate indictments with the same crime. The State proceeded upon the theory that the murder, with which they were charged, was committed in the course of a robbery committed by them jointly. Their defenses were not antagonistic. On the contrary, each testified in support of their joint alibi. Neither, in his testimony or other evidence, attempted to incriminate the other defendant. This assignment of error is overruled. G.S. 15A-926; State v. King, 287 N.C. 645, 215 S.E.2d 540 (1975); State v. Overman, 269 N.C. 453, 466, 153 S.E.2d 44 (1967); State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962); State v. Bryant, 250 N.C. 113, 108 S.E.2d 128 (1959); State v. Combs, 200 N.C. 671, 158 S.E. 252 (1931).

The defendants are not entitled to a new trial by reason of the sustaining of the State's challenges to jurors who, on voir dire, stated that they were opposed to the death penalty and under no circumstances, regardless of the evidence introduced by the State, would they vote to convict if such conviction would result in the imposition of the death penalty. At the time the jury was being selected, the State was seeking the death penalty pursuant to the then established law of North Carolina. It is conceded by the defendants that the sustaining of the challenges to these jurors met the test established in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), and in numerous decisions of this Court. State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974). The fact that between the empaneling of the jury and the return of the verdict, the Supreme Court of the United States in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), determined that the imposition of the death penalty under the laws of North Carolina, then in effect, would violate the Fourteenth Amendment to the Constitution of the United States did not transform the sustaining of these challenges to prospective jurors into a valid basis for granting these defendants a new trial.

Prior to the inception of this case, decisions of this Court established the right of counsel for the State and counsel for the defendant charged with a capital crime to examine any prospective juror, tendered to him for voir dire, concerning the attitude of such juror toward capital punishment. State v. Bock, supra; State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974). The then unsuspected error of counsel, in so advising prospective jurors as to the punishment which would be imposed upon these defendants in event of their conviction of first degree murder, was corrected by the charge of the court, upon the court's learning of the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra.

The defendants do not contend that the jurors voted to convict under the impression that the defendants would be sentenced to death. Their contention is quite to the contrary; namely, that the jurors were improperly excused because they were unwilling to have any part in the infliction of the death penalty and would not return a verdict of guilty which would have resulted therein. Thus, they contend that the exclusion of these prospective jurors, plus the subsequent instruction that the death penalty would not be inflicted, resulted in a trial jury unlawfully predisposed to convict the defendants of a crime for which the punishment was not death, but life imprisonment.

This contention of the defendants is wholly speculative and without merit. In the first place, it is speculative as to whether any of the eight jurors, excused because of their opposition to the death penalty, would have survived other challenges by either the State or one of the defendants. Secondly, nothing in the record, or in common experience of which we may take judicial notice, indicates that any prospective juror, so excused, had any scruple against convicting a defendant upon the charge of first degree murder, when the evidence satisfied such juror of his guilt thereof beyond a reasonable doubt, had such prospective juror been told, as the trial jury in this case was told, that the penalty to be imposed upon such conviction would be imprisonment for life. We are aware of no plausible basis for the assertion that a juror, who has no conscientious objection to the imposition of the death penalty for the offense of murder committed in the perpetration of a robbery, would be more easily convinced of guilt beyond a reasonable doubt than would a juror having conscientious objection to the death penalty but no objection to a sentence to life imprisonment for such offense. This contention was met and rejected by the Supreme Court of the United States in Witherspoon v. Illinois, supra. It was also rejected by this Court in State v. Williams, 257 N.C. 77, 165 S.E.2d 481 (1969). See also: Bumper v. North Carolina, 391 U.S. 543, 545, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); People v. Rhinehard, 9 Cal. 3d 139, 107 Cal. Rptr. 34, 507 P.2d 642 (1973); Commonwealth v. McAlister, 365 Mass. 454, 313 N.E.2d 113 (1974); Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975).

The defendants do not suggest that any member of the trial jury was not competent to serve. The defendants closely examined each of these jurors and expressed satisfaction with him or her, after first challenging successfully numerous other prospective jurors. The record does not indicate that either defendant exhausted the peremptory challenges allowed him by the law of this State. See: State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970); State v. Bock, supra.

As this Court, speaking through Justice Higgins, said in State v. Peele, 274 N.C. 106, 113, 161 S.E.2d 568, 573 (1968), cert. den., 393 U.S. 1042, 89 S. Ct. 669, 21 L. Ed. 2d 570:

"Each party to a trial is entitled to a fair and unbiased jury. Each may challenge for cause a juror who is prejudiced against him. A party's right is not to select a juror prejudiced in his favor, but to reject one prejudiced against him."

As the defendants concede in their briefs, this Court has, both before and after the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra, rejected the contention that a trial jury, selected as was the one that convicted these defendants, is improperly constituted, so as to entitle the defendant, convicted and sentenced to imprisonment, to a new trial. State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976); State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976); State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). This assignment of error is overruled.

The defendants next contend that they were denied a fair trial because the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra, became known after counsel for Keeten had concluded his argument to the jury and prior to the argument to the jury by counsel for Madden. Nothing in the record, brief or oral argument by counsel for Keeten suggests that he requested permission of the trial court to resume his argument to the jury after it became known that the death penalty would not be imposed in event of a verdict of guilty of murder in the first degree. The record shows that, in the absence of the jury, when the trial court determined, on the basis of information received through the news media, that the death penalty could not be constitutionally imposed in this case, he informed counsel that he would instruct the jury that, in event of a verdict of guilty, the maximum punishment would be life imprisonment and that he would permit the attorneys so to argue. Counsel for Keeten thereupon requested only an instruction that "this does not change the measure of proof or quantum of proof necessary," and "that the jury be specifically instructed that if they could not have found them guilty beyond a reasonable doubt and sentenced them to the death penalty, that they could not find them guilty by the same measure of proof to be sentenced to life imprisonment." This instruction, in a more grammatical form, was given. Counsel for Madden, interposing no objection to the proposed (and given) instructions concerning the punishment to be inflicted in event the jury returned a verdict of guilty of murder in the first degree, then proceeded with his argument to the jury.

This precise contention was rejected by the Court of Appeals of Washington in State v. Trevino, 10 Wash.App. 89, 516 P.2d 779 (1973), following the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

The decision of the Supreme Court of the United States with reference to the constitutionality of the death penalty did not alter the charge against the defendants. They remained on trial on the charge of murder perpetrated in the commission of a robbery, which is first degree murder under the law of this State. The jury was specifically instructed as to each defendant that it must return a verdict of not guilty unless the State had convinced it beyond a reasonable doubt that such defendant had committed each element of the offense charged. We reject as utterly without foundation the defendants' implied contention that, upon learning that the death penalty could not be imposed, the jury relaxed and voted to convict without considering the evidence with the care it would otherwise have given it. We must presume that the jury, mindful of its own oath and responsibility, understood, accepted and applied the court's proper instruction with reference to the State's burden of proof and the meaning of "reasonable doubt." State v. Ray, 212 N.C. 725, 194 S.E. 482 (1937). This assignment of error is overruled.

There is no merit in the contention of the defendants that the court committed error in permitting the State to introduce in evidence two photographs of the body of McGinnis, as it lay on the floor of the storage room. We have said many times that photographs, though gruesome, which fairly portray a scene observed by a witness and which can be used to illustrate his testimony may be admitted in evidence. State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971); State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967). The use of two photographs, though similar, for this purpose is not excessive. State v. Cutshall, supra. This assignment of error is overruled.

We find no error in the rulings of the trial court concerning the admission of testimony of Kathy Woods concerning the statements by Payne to her the morning after the alleged robbery and murder with reference to the details thereof and the participation of the two defendants therein, this evidence being admitted for the purpose of corroborating Payne who had previously testified.

When Kathy Woods first began to testify as to what Payne told her, counsel for Keeten objected "to this whole line." This general objection was properly overruled since such testimony as was then in question would have been admissible for corroboration of Payne.

Thereupon, in response to the question, "What did Jack Payne tell you about the events of the 30th of December, 1974, at the Kwik-Pik on Idlewild Road?" the witness responded that Payne told her that Keeten and Madden "had been watching the Kwik-Pik on Idlewild Road for approximately a week" to learn about the closing procedures at the store. The court, on its own motion, interrupted, sustained the objection and ordered that testimony stricken, telling the jury not to consider it at any point in its deliberations. Thereupon, counsel for both defendants moved for a mistrial, which was denied.

The court then, in the absence of the jury, instructed the witness to confine her testimony in response to the question to "any statement that was made about what occurred at the Kwik-Pik only." She was instructed not to talk about "stake-outs and so forth" and to start "from where they pulled up to the Kwik-Pik." The jury was then returned to the courtroom and the District Attorney repeated the question. Objection by counsel for each defendant was overruled. The jury was instructed, "This evidence is offered and admitted for the sole purpose of corroborating or strengthening the testimony of the witness, William Jackson Payne, Jr., if you find that it does or tends to do so. It may not be considered by you for any other purpose."

The witness then proceeded to testify as to the statement made to her by Payne the morning after the alleged robbery when she related that Payne had said that Madden, in walking over to the beer case in the store, "was really trying to look in behind the cooler to see if anybody was in the back room." Counsel for each defendant moved to strike that portion of the answer and this motion was allowed. Again, the court instructed the jury not to consider this statement "at any point in their deliberation." Again, motions for mistrial were denied.

The witness then proceeded to testify as to what Payne had told her concerning the details of the robbery. In the course of doing so, she said Payne told her that, as he walked back into the storage room, he heard Keeten ask McGinnis how much money he had in his wallet and McGinnis say in response, "None," following which Keeten bent down to get the wallet and found therein $60.00 and asked McGinnis why McGinnis had lied. The witness then said (still purporting to paraphrase Payne's statement to her), "and he got kinda mad and when the McGinnis boy told him —" At that point, counsel for each defendant objected "to that," and the court replied, "Sustained, Members of the Jury."

The defendants then moved to strike the entire testimony of Kathy Woods and renewed their motions for mistrial. These motions were denied and the direct testimony of the witness ended. The attorney for each defendant then cross-examined her, attacking her moral character for the obvious purpose of discrediting her as a witness.

Assuming that the final objection to the testimony of Kathy Woods related, not merely to what she was about to say when interrupted but to her testimony concerning Payne's statement about the taking by Keeten of the wallet and the amount of money found therein, we find no basis for a new trial in any of the rulings of the court concerning the testimony of this witness. In each instance, when the testimony of Kathy Woods added details not contained in the previous testimony of Payne, the trial court sustained the objection. Although in the last instance the court did not specifically instruct the jury not to consider the statement, his ruling, "Sustained, Members of the Jury," could hardly have been misunderstood by the jurors in view of his virtually contemporaneous express instructions that prior statements by Kathy Woods were not to be considered by them in their deliberations.

As stated by Justice Sharp, now Chief Justice, in State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963):

"If a prior statement of a witness, offered in corroboration of his testimony at the trial, contains additional evidence going beyond his testimony, the State is not entitled to introduce this `new' evidence under a claim of corroboration * * * However, 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."

The case of State v. Warren, 289 N.C. 551, 223 S.E.2d 317 (1976), relied upon by the defendants, is distinguishable. There, the supposedly corroborating testimony went beyond the previous testimony of the witness to be corroborated and was admitted in evidence, there having been no objection or motion to strike. Here, on the contrary, the alleged "new" evidence was not admitted. For the same reason, State v. Fowler, 270 N.C. 468, 155 S.E.2d 83 (1967), is also distinguishable from the present case. Furthermore, in the Fowler case, the objectionable testimony was not simply new, but actually contradicted the testimony it was offered to corroborate.

Furthermore, the testimony of Payne did show that prior to his joining the two defendants in the robbery, the two defendants had formulated plans for the robbery and told him of them. Payne's testimony further disclosed that Keeten took a wallet from McGinnis, the wallet being subsequently found in a ditch not far from the Kwik-Pik store. Payne testified that Keeten asked McGinnis if he had any money and McGinnis replied that he did not, but Keeten "took his wallet out."

To be admissible as corroborative evidence, testimony of a prior statement by the witness sought to be corroborated does not have to be precisely identical to such prior testimony of that witness. Slight variations between the testimony of such witness and the prior statement by him offered to corroborate it do not render the latter evidence incompetent. The testimony offered to corroborate is competent if it does so substantially. State v. Westbrook, supra; State v. Norris, 264 N.C. 470, 141 S.E.2d 869 (1965); State v. Brooks, supra; State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960); State v. Walker, 226 N.C. 458, 38 S.E.2d 531 (1946). We find no such variance between the testimony of Payne and the testimony of Kathy Woods, admitted into evidence, as would make the latter testimony incompetent. This assignment of error is overruled.

Officer C. A. Hearne of the Mecklenburg County Police Department, called as a witness for the defendant Keeten, testified that he investigated the robbery and murder here in question and, in the course of his investigation, interviewed certain Negro suspects named Bobby Lee Wall and Gerald Edward Jones, among others. When asked if they had confessed to this robbery and murder, the court sustained the State's objections. In the trial court the defendant Madden argued:

"Your Honor, I think his answer to the question would be admissible for the purposes of not proving the truth of the matter asserted therein, and I do not tender it to prove the truth of the matter asserted therein. I tender it to show that on frequent occasions during the investigation of this crime, that many people, for whatever reason they may have had, have admitted being involved in it or have admitted the murder of Eddie McGinnis, and not to prove that someone else did it but to prove that there are people who, for whatever reason they may have, would confess to a police officer something that is totally and completely unfounded as far as this officer is concerned." (Emphasis added.)

Officer Hearne was then permitted to state for the record, in the absence of the jury, that he did talk with Gerald Edward Jones at the State Prison in Raleigh, where Jones was, and apparently still is, incarcerated. In that interview Jones gave Officer Hearne a written statement to the effect that he and two companions, Walter Harris and Norman Anthony, held up the Kwik-Pik store on the night in question and, in the course of the holdup, the clerk of the store was shot and was put in the back of the store. A week later Officer Hearne again interviewed Jones in the offices of the State Bureau of Investigation in Raleigh and Jones gave Officer Hearne another written statement on which he said that he, Harris and Anthony, on the night in question, held up another store and then, while riding around looking for a second store to rob, came to the Kwik-Pik store on Idlewild Road and there, soon after entering the store parking lot, saw two other Negro men inside the store, these being identified as Billy Huntley and Otho Lowe, and, while so parked in the parking lot of the store, they observed these men scuffling with the clerk, who "got on the floor" and observed the men pull the clerk to the back of the store, whereupon Jones heard "at least two shots" and saw Lowe run out of the front door "trying to cover up a short shotgun," following which Jones and his companions departed. Clearly, the second statement contradicted the first and was neither a confession by Jones nor a statement against his interest.

Officer Hearne, in the course of his investigation, also obtained from Donald Taylor and Bobby Wall written statements tending to implicate Billy Huntley in the robbery and murder in question. Another officer, also investigating the matter, interviewed Earl Brown and obtained a statement from him implicating Huntley and Lowe in the robbery and murder. These statements were neither confessions nor statements against the interest of the declarant.

None of these men was called as a witness by the defendants or subpoenaed by them and it was not shown that any of them was not available to subpoena.

Obviously, all such statements made to the witness Hearne by these individuals constituted hearsay. The defendants contend that they are, nevertheless, admissible as declarations against interest. The precise question was passed upon by this Court in State v. English, 201 N.C. 295, 159 S.E. 318 (1931), in which the Court held, "The voluntary confession of a third party, made to officers of the law, that he killed the deceased, detailing the circumstances," was not competent evidence in behalf of the defendant charged with the murder. In that case, this court reviewed and rejected authorities to the contrary now relied upon by the defendants. Furthermore, a prerequisite to the admission of hearsay on the ground that the statement constitutes a declaration against interest is that "the declarant must be dead or, for some other reason, unavailable as a witness." Stansbury, North Carolina Evidence (Brandis Rev.), § 147. It is not here shown that the maker of any of the statements in question was not available as a witness.

Furthermore, of all the statements in question, only the first one made by Gerald Jones implicated the declarant in the robbery and murder here in question, and it is directly in conflict with his second statement to Officer Hearne. Both statements by Jones are in direct conflict with the testimony of Mrs. Russell, the customer who identified Payne, in court, as the man who blocked her entrance into the store, and with Payne's own testimony that he did so while the holdup was in progress. While this conflict would not, of itself, make the statements by Jones incompetent, it renders it almost inconceivable that the jury would have believed the statement of Jones, even if it had been admitted into evidence. This assignment of error is overruled.

The defendants next contend that it was error to permit the State to introduce the evidence of Ronald Eugene Bailey to rebut the testimony of Keeten. Keeten had testified on cross-examination by the State that, as of 30 December 1974, he had been unemployed for almost 30 days, that in November he had received from Payne $200.00 which was part of the proceeds of another theft by Payne, and with the $200.00 he had paid rent, purchased groceries and "some stuff for Christmas," thus spending all of that money. He further testified that he did not have any of that money after Christmas Day and did not receive any money for Christmas from his mother or anybody else, nor did he receive any money from Jack Payne. Prior to January 1, he did some odd jobs for which he received less than $100.00. He purchased a 1955 Chevrolet automobile for $200.00, paying for it "with cash money in bills," this being "several days before" the transfer of the title to him on 1 January 1975.

In rebuttal, the State introduced the testimony of Ronald Eugene Bailey, the seller of the car, who testified that he sold it to Keeten for $250.00 and Keeten paid him on 1 January 1975, the payment being made as follows: "Five dollars worth of quarters, approximately between 50 and 75 one dollar bills, a few fives, tens, a couple of twenties, and a fifty."

This was not a contradiction of Keeten upon a collateral matter for the purpose of impeaching his credibility as a witness. It was evidence that corroborated Payne's testimony that Keeten participated in and shared the proceeds of the robbery in question. In State v. Long, 280 N.C. 633, 640, 187 S.E.2d 47, 51 (1972), speaking through Justice Huskins, we said, "The proper test for determining what is material and what is collateral is whether the evidence offered in contradiction would be admissible if tendered for some purpose other than mere contradiction; or in the case of prior inconsistent statements, whether evidence of the facts stated would be so admissible."

Clearly, evidence showing that the defendant, on the day after the alleged robbery and murder, purchased and paid for an automobile with coins and bills, such as would be likely to have been in the cash register of the robbed store, he having admitted that he was unemployed and had no funds as recently as a week before and had received in the meantime less than $100.00, would be competent to show circumstances indicating his guilt of the crime with which he is charged. We find no merit in this assignment of error and it is overruled.

The final assignment of error argued by the defendants in their brief is the denial of their motion to dismiss as a nonsuit. This assignment is clearly without merit and is overruled. While, as the trial court instructed the jury, the testimony of an accomplice is to be considered with great care by the jury, its credibility is for the jury and, if it is believed by them and found by them sufficient to establish the guilt of the accused beyond a reasonable doubt, it will support a conviction. State v. McNair, 272 N.C. 130, 157 S.E.2d 660 (1967). It is also well established that, upon a motion for judgment of nonsuit, the evidence by the State is to be deemed true and is to be considered in the light most favorable to the State. State v. McKenna, 289 N.C. 668, 683, 224 S.E.2d 537 (1976); State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971); State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969).

The defendants have expressly abandoned in their brief their assignment of error relating to the charge of the court concerning the law as to accomplices. In this they were well advised. We have carefully examined this and other portions of the charge and find no error therein.

NO ERROR.