State v. Cawthorne , 290 N.C. 639 ( 1976 )

227 S.E.2d 528 (1976) 290 N.C. 639

STATE of North Carolina
v.
Odell C. CAWTHORNE.

No. 5.

Supreme Court of North Carolina.

September 1, 1976.

Atty. Gen. Rufus L. Edmisten, Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Grady Mercer, Jr., Jacksonville, for defendant-appellant.

SHARP, Chief Justice.

Defendant's assignments of error numbered two through six assert that the trial judge erred (1) in overruling his motion for judgment as of nonsuit at the close of all the evidence; and (2) in making the findings of fact and conclusions of law upon which he admitted in evidence (a) defendant's confession that he shot the cab driver and (b) State's Exhibit C, the pistol which the officers retrieved from the chimney in defendant's home.

In lieu of stating his contentions in support of the foregoing assignments as required by App.R. 28(b)(3), defendant has "respectfully requested" that the Court (1) examine the evidence on voir dire to determine if it supports the judge's findings of fact and conclusions of law that "the purported confession was admissible as evidence against defendant," and (2) determine if there was sufficient evidence to withstand defendant's motion for nonsuit. The detailed preliminary statement of the evidence in this case manifests our careful examination of the record. It further reveals that any attempt by defendant to comply with App.R. 28(b)(3) would have been futile. The record contains no basis for any argument in support of assignments two through six.

The uncontradicted evidence of the State, which included defendant's full confession, establishes beyond any reasonable doubt that he shot and killed Peer in the course of an armed robbery. That defendant may not have intended to discharge the gun he was holding at the cab driver's head when he took his money is totally irrelevant. State v. Shrader, 290 N.C. 253, 225 S.E.2d 522 (1976); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972). Defendant stands convicted by his own voluntary confession. It is to his credit that he neither attempted to repudiate nor to invalidate his statement admitting the facts which establish his guilt and absolve his companion Cook of any complicity in Peer's murder. Patently, the trial court was correct in overruling the motion for nonsuit. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975).

Nor did the trial judge err in his rulings upon the admission of evidence. The State's evidence on voir dire, uncontradicted by testimony from defendant himself or any other person, fully justified the court's findings that the police officers observed all the procedural safeguards in conducting the interrogations which preceded defendant's consent to the search of his premises and his confession. Defendant's objections to the admission of his confession and the pistol, which was the fruit of the search he voluntarily authorized, were properly overruled. State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974). See State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968).

Defendant's assignment No. 1 is that the court committed prejudicial error in permitting Miss Barnard, the Yellow Cab dispatcher, to testify that after she had directed Peer to go to the Red Carpet Inn he "called in his number," told her "who he had picked up," and that he was taking his passengers to Richlands Avenue just off Highway No. 17. We interpret Miss Barnard's testimony to mean that Peer told her he had "two fares" for Richlands Avenue just off No. 17. Nothing in the record suggests that he either knew or gave the dispatcher the names of his passengers. As dispatcher for the Cab Company, Miss Barnard was interested in knowing, and recording, only the number of the cabby's passengers and the distance he would transport them so that she could determine the fare for which the driver should account. The rules of the Cab Company required Peer to give the dispatcher this information. Thus, his radio transmission to her was made in the regular course of business and during the trip involved here. The reasonable probability of its truthfulness is obvious.

Peer's challenged statement to the dispatcher was properly admitted under "the res gestae concept" and also under the exception to the hearsay rule enunciated in State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, cert. denied 414 U.S. 874, 94 S.Ct. 157, 38 L.Ed.2d 114 (1971). In Vestal a murder victim's declarations to his wife that he was going with the defendant on a business trip to Delaware, made while he was preparing to leave home, were held admissible to show his intention to leave town with the defendant. See 1 Stansbury, North Carolina Evidence § 162 (Brandis Rev.1973). It is perfectly clear, however, that the admission of the radio transmission, even had it been erroneous, could not have been prejudicial error, for Peer's taxi and body were found in a driveway off Richlands Avenue less than two-tenths of a mile from defendant's residence. Further, substantially the same testimony was elicited from another witness without objection.

Defendant's seventh assignment of error relates to the court's instructions on defendant's failure to testify. This instruction, although not in the traditional language, made it clear that defendant had the right to testify or to refrain from testifying as he saw fit, and that his failure to testify created no presumption against him. In this instruction we can perceive no prejudice to defendant. State v. Sanders, 288 N.C. 285, 218 S.E.2d 352 (1975). However, since defendant requested no such instruction, we are constrained to repeat once more that, in the absence of a request, it is better for the judge to make no reference to defendant's failure to testify. State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974); State v. Bryant, 283 N.C. 227, 195 S.E.2d 509 (1973).

Defendant's eighth assignment asserts that in reviewing certain evidence the judge misinterpreted it. We find no merit in this contention. We also note "[t]he general rule . . . is that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal." State v. Thomas, 284 N.C. 212, 218, 200 S.E.2d 3, 8 (1973).

In defendant's trial we find no error which, in our view, could have possibly influenced the verdict.

Defendant's final assignment is that the judge erred in denying his motion in arrest of the judgment imposing upon him the sentence of death. After we had heard the arguments in this case the Supreme Court of the United States, in Woodson v. North Carolina, ___ U.S. ___, 96 S.Ct. 2978, 49 L.Ed.2d ___, 44 L.W. 5267 (1976), invalidated the death penalty provision of G.S. 14-17 (Cum.Supp.1975), the statute under which defendant was convicted of first degree murder and sentenced to death. We must, therefore, vacate the sentence of death imposed upon defendant and, under the authority of N.C.Sess.Laws, ch. 1201, § 7 (Session of 1974), substitute the sentence of life imprisonment.

Accordingly, it is hereby ordered that, upon remand of this cause to the Superior Court of Onslow County, the presiding judge, without requiring the presence of defendant, shall enter a judgment of life imprisonment in lieu of the sentence of death heretofore imposed upon him for the first degree murder of which he has been convicted. Further, in accordance with this judgment, the clerk of the superior court will issue a new commitment in substitution for the commitment heretofore issued. At the same time the clerk will furnish to defendant and his attorney a copy of the judgment and commitment as revised in accordance with this opinion.

In the trial, insofar as it affects the verdict, we find

No Error.

As to the judgment imposed upon the verdict, the death sentence is vacated and, in lieu thereof, a sentence of life imprisonment is substituted.