State v. Woodson , 287 N.C. 578 ( 1975 )

215 S.E.2d 607 (1975)

STATE of North Carolina
v.
James Tyrone WOODSON and Luby Waxton.

No. 127.

Supreme Court of North Carolina.

June 26, 1975.

Rufus L. Edmisten, Atty. Gen., and James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

Edward H. McCormick, Lillington, for James Tyrone Woodson, defendant appellant.

W. A. Johnson, Lillington, for Luby Waxton, defendant appellant.

SHARP, Chief Justice.

Patently, defendants' motion to dismiss the charges against them and their contentions that because certain items of evidence were omitted from the summaries furnished them by the solicitor are without merit and require no discussion. Each defendant went upon the stand and voluntarily testified to facts which make him guilty of murder in the first degree. As counsel concede, the only significant difference in their testimony relates to who fired the shot which killed Mrs. Butler during the robbery of the E-Z Shop; and, since each admitted he was one of the four who conspired to rob the shop, legally it makes no difference whether Waxton or Tucker fired the shot.

"When a murder is ``committed in the perpetration or attempt to perpetrate any. . . robbery, burglary or other felony," G.S. § 14-17 declares it murder in the first degree. In those instances the law presumes premeditation and deliberation, and the State is not put to further proof of either. . . . Furthermore, when 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." (Citations omitted.) State v. Fox, 277 N.C. 1, 17, 175 S.E.2d 561, 571 (1970).

Had the testimony of Tucker and Carroll been incompetent, the testimony of defendants themselves would stymie their contention that its admission constituted prejudicial error. However, the testimony of their co-conspirators was competent. "A co-conspirator is an accomplice, and is always a competent witness; assuming of course he is compos mentis." State v. Goldberg, 261 N.C. 181, 202, 134 S.E.2d 334, 348 (1964). "It is obvious . . . that in practically every case where an accomplice testifies as a witness for the prosecution, he is induced to do so by a promise, or at least by a hope and expectation, of immunity or leniency for himself, and that the rule which makes an accomplice a competent witness would be of little benefit if he were made incompetent by the mere fact that he had received such a promise.

"In accordance with this view, the courts, both English and American, have held with substantial unanimity that a witness who is otherwise competent to testify is not rendered incompetent by the fact that he has a promise of immunity or lenience for himself." Annot., 120 A.L.R. 742, 751 (1938); see State v. Watson, 283 N.C. 383, 196 S.E.2d 212 (1973); annot., 24 L.R.A. (N.S.) 442-443 (1910).

As Justice Barnhill (later Chief Justice) said in State v. Roberson, 215 N.C. 784, 787, 3 S.E.2d 277, 279 (1939), "It bears against the credibility of a witness that he is an accomplice in the crime charged and testifies for the prosecution; and the pendency of an indictment against the witness indicates indirectly a similar possibility of his currying favor by testifying for the State; so, too, the existence of a promise or just expectation of pardon for his share as accomplice in the crime charged. 2 Wigmore on Evidence, 2d ed., 350." See 1 N.C. Evidence § 45 (Brandis Rev. 1973).

Judge McKinnon correctly held that Tucker and Carroll were competent witnesses and that their status as co-conspirators testifying for the State bore upon the weight and credibility of their testimony and not upon its competency.

G.S. § 14-17, as rewritten on 8 April 1974 by the enactment of N.C.Sess.Laws, ch. 1201, § 1 provides that murder in the first degree "shall be punished with death." Defendants contend, however, that capital punishment "under the laws of North Carolina [would] violate U.S.Const. Amend. VIII and Amend. XIV, § 1, and N.C.Const. art. 1, §§ 19, 27." In the last three years this Court has several times rejected these contentions. They have been thoroughly considered and further discussion would be merely repetitious. See State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975).

Albeit three members of the Court dissented as to the death penalty in each of the foregoing cases and voted to remand for the imposition of a sentence of life imprisonment, the dissents were not based upon the premise that the death sentence constituted cruel and unusual punishment or that there were any constitutional infirmities in capital punishment per se. On the contrary, the thesis of the dissents was (1) that the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), decided 29 June 1972, had invalidated the death penalty provisions of G.S. § 14-17 (and also G.S. § 14-21, G.S. § 14-52, and G.S. § 14-58), enacted in 1949; and (2) that until the statutes which made death the punishment for first-degree murder, first-degree burglary, rape, and arson were rewritten or amended by the General Assembly, this Court could not reinstate capital punishment.

On 8 April 1974 the General Assembly rewrote G.S. § 14-17 and G.S. § 14-21 to provide the death sentence for first-degree murder and first-degree rape. At the same time it rewrote G.S. § 14-52 and G.S. § 14-58 to provide life imprisonment for burglary in the first degree and arson. As to first-degree murders and first-degree rapes committed after 8 April 1974, by its rewrite of G.S. § 14-17 and G.S. § 14-21, the General Assembly eliminated the grounds upon which three members of the Court had dissented to the imposition of the death sentence for such crimes committed prior to that date. The felony-murder for which Waxton and Woodson have been convicted was committed on 3 June 1974-56 days after the legislature redeclared the public policy of this State with reference to capital punishment. Until changed by the General Assembly, or invalidated by the Supreme Court of the United States, that policy must stand.

Counsel for defendants, although aware of the Waddell and Jarrette decisions, as well as the subsequent ones based on them, have understandably felt constrained to repeat the constitutional challenge to the death penalty.

Defendants next contend that since Waxton, Woodson, Carroll, and Tucker, the four conspirators, are equally guilty of first-degree murder it would be "fundamentally unfair" to permit two of them to plead guilty to offenses less than capital in exchange for their testimony against the others. Defendant Waxton, who tendered at the close of the evidence the same plea which Tucker tendered prior to the trial, contends that the solicitor's refusal to accept his plea was an arbitrary exercise of power which denied him due process and the equal protection of the laws. Defendant Woodson, who tendered no plea and contended throughout that he was not guilty, argues that "due process and equal protection" require that he receive no greater punishment than his accomplices could have been given under their pleas.

"From the earliest times, it has been found necessary, for the detection and punishment of crime, for the state to resort to the criminals themselves for testimony with which to convict their confederates in crime. While such a course offers a premium to treachery, and sometimes permits the more guilty to escape, it tends to prevent and break up combinations, by making criminals suspicious of each other, and it often leads to the punishment of guilty persons who would otherwise escape. Therefore, on the ground of public policy, it has been uniformly held that a state may contract with a criminal for his exemption from prosecution if he shall honestly and fairly make a full disclosure of the crime, whether the party testified against is convicted or not. (Citations omitted.)" Ingram v. Prescott, 111 Fla. 320, 321-322, 149 So. 369 (1933); Henderson v. State, 135 Fla. 548, 185 So. 625, 120 A.L.R. 742 (1938). For the history of the "ancient modes of practice" when accomplices "turned State's evidence," see United States v. Ford, 99 U.S. 594, 25 L. Ed. 399 (1879); 1 Wharton's Criminal Law and Procedure § 165 (1957); 22 C.J.S. Criminal Law § 46(1) (1961); 8 R.C.L., Criminal Law § 101 (1915); Notes: 18 Am. & Eng.Ann.Cas. 747 (1911); 24 L.R. A.(N.S.) 439 et seq. (1910).

In many states the prosecuting attorney has no authority without the court's consent, to make a binding agreement with one charged with a crime that if he will testify against others, he himself shall be exempt from criminal liability or be allowed to plead guilty to a lesser offense. "In states in which a prosecuting attorney may enter a nolle prosequi without the consent of the court, he may grant a witness immunity from prosecution by contract without approval of the court." 21 Am.Jur.2d, Criminal Law § 153, see also §§ 514-518 (1965); 24 L.R.A.(N.S.) 442-443 (1910); 18 Am. & Eng.Ann.Cas. 748-749 (1911); annot., 85 A.L.R. 1177 (1933). The courts treat such promises as pledges of the public faith and, when made by the public prosecutor, the court will see that the public faith which has been pledged by him is kept. Camron v. State, 32 Tex. Crim. 180, 22 S.W. 682, 40 Am. St. Rep. 763 (1893); see State v. Hingle, 242 La. 844, 139 So. 2d 205 (1962); State v. Ward, 112 W.Va. 552, 165 S.E. 803, 85 A.L.R. 1175 (1932); State v. Graham, 12 Vroom 15, 32 Am.Rep. 174 (N.J.1879); United States v. Lee, Case No. 15,588, 26 F. Cas. 910 (1846); United States v. Woody, 2 F.2d 262 (D.Mont.1924); United States v. Brokaw, 60 F. Supp. 100 (S.D.Ill.1945); annot., 43 A.L.R. 3d 281 et seq. (1972).

In North Carolina "[t]he Solicitor is a constitutional officer authorized and empowered to represent the State." His announcement prior to the trial that the State would not seek a verdict of guilty of first-degree murder but would ask for a verdict of second-degree murder or manslaughter is tantamount to taking a nolle prosequi or an acquittal on the charge of first-degree murder. State v. Miller, 272 N.C. 243, 245, 158 S.E.2d 47, 49 (1967); State v. Rogers, 273 N.C. 330, 159 S.E.2d 900 (1968).

As pointed out in State v. Lyon, 81 N.C. 600, 603 (1879), the shortest and best mode of carrying out a promise of immunity is for the solicitor to exercise the right vested in him "when, in his judgment, the case calls for it, to enter a nolle prosequi and allow the prisoner's discharge, which practically accomplishes the same ends as [a] pardon." The solicitor had full authority to make the agreement which he made with Tucker and Carroll, and we hold that it violated neither the Fourteenth Amendment rights of defendants Waxton and Woodson nor their rights under N.C. Const., art. 1 §§ 19, 27.

As Mr. Justice White said in delivering the opinion of the Court in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), "[W]e cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State. . . ." Id. at 753, 90 S. Ct. at 1471, 25 L.Ed.2d at 759. In Lisenba v. California, 314 U.S. 219, 227, 62 S. Ct. 280, 285, 86 L. Ed. 166, 175 (1941), Mr. Justice Roberts noted that "the practice of taking into consideration, in sentencing an accomplice, his aid to the state in turning state's evidence can be no denial of due process to a convicted confederate."

In Newman v. United States, 127 U.S. App.D.C. 263, 382 F.2d 479 (1967) the sole question presented was whether it was a denial of the appellant's constitutional rights for the United States Attorney to accept a guilty plea tendered by appellant's co-defendant for a lesser offense under the indictment, while refusing to accept the same plea from the appellant. Both were indicted for housebreaking and petty larceny. The co-defendant was allowed to plead guilty to the misdemeanors of petty larceny and attempted housebreaking; the appellant was tried and convicted of the crimes charged. He contended that the United States Attorney's conduct had denied him due process and equal protection in that both "were equally guilty . . . and to permit one party an avenue of escape with relatively minor punishment while refusing the same procedure to Appellant violates the standard of fairness demanded by the law by the Constitution. . . ." Id. at 480.

In rejecting the appellant's contentions Burger, Circuit Judge (now Chief Justice of the United States Supreme Court), pointed out that the United States Attorney is charged with the faithful execution of the laws and prosecution of offenses against the United States, and, as such, he must have broad discretion. "To say that the United States Attorney must literally treat every offense and every offender alike is to delegate him an impossible task; of course, this concept would negate discretion. Myriad factors can enter into the prosecutor's decision. Two persons may have committed what is precisely the same legal offense but the prosecutor is not compelled by law, duty or tradition to treat them the same as to charges. On the contrary, he is expected to exercise discretion and common sense to the end that if, for example, one is a young first offender and the other older, with a criminal record, or one played a lesser and the other a dominant role, one the instigator and the other a follower, the prosecutor can and should take such factors into account; no court has any jurisdiction to inquire into or review his decision." Id. at 481-482.

"Mere selectivity in prosecution creates no constitutional problems. Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). To invoke the defense [denial of equal protection under the Fourteenth Amendment] one must prove that the selection was deliberately based on an unjustifiable standard, such as race, religion, or other arbitrary classification." United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972). See Comment, The Right to Nondiscriminatory Enforcement of State Penal Laws, 61 Col.L.Rev. 1103, 1119-1120 (1961).

In this case we perceive no possible constitutional infirmity in the solicitor's selection, no abuse of discretion, and no arbitrary classification. All four of the defendants are black and their religious views are undisclosed. The evidence that Waxton planned and directed the robbery and that he fired the shots which killed Mrs. Butler and wounded Mr. Stancil is overwhelming. No extenuating circumstances gave the solicitor any incentive to accept the plea he tendered at the close of the State's evidence.

Woodson at no time tendered to the State a plea of any kind. Throughout the trial he contended that he was innocent because he had acted under duress from Waxton. It is not surprising that the jury rejected this defense in view of his testimony that on the night of the robbery he knew what he was doing; that he got into the car of his own free will after having known all day that "there was going to be a robbery"; that he had not seen Waxton during the day and "he could have gone anywhere if he had desired to do so"; that his staying in the car with the rifle outside the E-Z Shop and Carroll's driving the car "was just as much a part of the plan as was Waxton's and Tucker's going into the store." See 21 Am. Jur.2d, Criminal Law § 100 (1965).

We note, however, the learned and painstaking trial judge fully instructed the jury on coercion as an excuse for crime and gave Woodson the full benefit of his contention that he went with the group to rob the E-Z Shop under compulsion from Waxton. The jury were instructed that if Woodson went along and did what he did only because of a well-founded fear of immediate death or great bodily harm at the hands of Waxton he would not be guilty of any crime.

Finally, we note that Waxton and Woodson were adults, aged 24 and 23 respectively; Tucker and Carroll were still in their teens, aged 18 and 19 respectively. Carroll was obviously impressed by Waxton, his older brother who, after an absence of eight years, had returned from New Jersey with a knowledge of karate and much other information he was no doubt willing to impart to a younger brother willing to learn. We find no evidence that the solicitor's selection was deliberately based on an unjustifiable standard.

We have considered the entire record in this case, as well as each defendant's assignments of error, with care commensurate with the gravity of the sentences from which defendants appeal, and in the trial below we find

No Error.

EXUM, Justice (concurring):

This is the first case, since my joining the Court, in which we have considered the application of the death sentence pursuant to Chapter 1201, 1973 Session Laws, ratified April 8, 1974, codified as G.S. § 14-17, which makes first degree murder committed after April 8, 1974, punishable by death. All capital cases heretofore considered in which I have participated involved crimes committed before April 8, 1974. Death sentences in these cases have been affirmed by a majority of the Court on the authority of State v. Waddell, 282 N.C. 431, 194 S.E.2d 18 (1973). I have dissented in each of these cases from that portion of the opinions sustaining the death sentence not on the ground that such a sentence was violative of the Cruel and Unusual Punishment Clauses of the Constitutions of the United States and North Carolina, but on the ground that only the Legislature and not this Court had authority to reinstate the death penalty in North Carolina after our State's statutory scheme for imposing it had been invalidated by Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). See my dissent in State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).

By enactment of Chapter 1201, 1973 Session Laws, effective on April 8, 1974, the North Carolina General Assembly did reinstate the death penalty for the crime of first degree murder and the newly created crime of first degree rape. Consequently, for me, the question of the constitutionality of imposing a sentence of death for conviction of first degree murder duly authorized by legislative enactment is for the first time squarely presented.

It is not an easy question for I am personally opposed to capital punishment. Maintaining it, even for murder, is not in my view wise public policy. I do not believe, however, that its infliction upon one convicted of premeditated murder or murder committed in the course of another felony which itself is inherently dangerous to human life, such as we have here, contravenes the Constitution of the United States or North Carolina.

My belief that capital punishment is unwise as a matter of public policy is based primarily on the proposition that government, if it functions properly, should seek to set an example, to teach the people whom it serves. People ought be able to look to the basic underlying policies of government and see there what is inherently right and proper. I agree with Mr. Justice Brandeis who once wrote: "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 564, 575, 72 L. Ed. 944, 959 (1928). The cold, calculated, premeditated taking of human life is an act the brutality and violence of which is not diminished because it is sponsored by the state. We rightly abhor the kind of human being who commits such an act. That the state should respond in kind is, to me, equally abhorrent. The argument that we somehow exalt human life by executing those wretches who murder and rape falls of its own weight. Calculated killings by individuals without doubt cheapen the God-given right to live. So, however, do calculated executions at the hands of the state. Executions are bad examples; they teach, not respect for life, but that some lives are not worth maintaining. It is a short step in the minds of many from execution at the hands of the state to murder and other violence at the hands of people. As Mr. Justice Stewart wrote in his concurring opinion in Furman, 408 U.S. at 306, 92 S. Ct. at 2760, 33 L.Ed.2d at 388:

"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." (Emphasis supplied.)

Neither do I believe that capital punishment, even when regularly utilized, deters generally the commission of capital crimes. Practically all of the statistical data available on the subject has been collected and much of it thoroughly analyzed in Bowers, Executions in America (D. C. Heath and Company, 1974) (hereinafter, Bowers). The author concludes:

"To assess the deterrent effects of capital punishment, investigators have conducted studies of various descriptions—examining and comparing nations and jurisdictions within nations for the effects of abolition and other changes in the status of the death penalty, for the effects of fluctuations in and the cessation of executions, and for the impact of the death sentence and the execution in specific cases. Not one of these studies has turned up evidence that the death penalty is superior as a deterrent to punishments used as alternatives. The data presented in Chapters 5 and 6 specifically restrict claims for the deterrent power of the death penalty by showing that the experimental abolition of capital punishment, the nationwide moratorium on executions, and the move from mandatory to discretionary capital punishment, did not encourage or contribute to a rise in criminal homicide.

"The failure of the death penalty to display any unique deterrent effect has been attributed to the fact that it had come to be imposed almost exclusively for irrational actions and that even for such conduct it was unlikely to be imposed. Murder and rape are typically committed in rage, drunkenness, and/or stupefying passion. The offender acts in madness or out of hatred, because of insult or betrayal, without expecting to be caught, or not caring if he is. While the objective likelihood of being put to death for his crime is quite low, it is doubtful that the capital offender is subjectively aware of his chances of escaping execution. Thus, even under the mandatory death penalty, which presumably contributes to the impression that offenders are certain to be executed if caught, potential offenders appear equally oblivious to such impending doom." Id. at 193-94.

Bowers has carefully compared homicide rates for an equal period of time before and after 1967 (the year of the last execution in the United States) in death penalty and contiguous abolition states. These comparisons make a convincing case that neither utilization of capital punishment mandatorily or in a discretionary way nor its de jure nor de facto abolition has had any appreciable effect on the rate of commission of capital crimes. See also Furman v. Georgia, supra at 348-54, 92 S. Ct. 2726, 33 L.Ed.2d at 412-415 (Mr. Justice Marshall concurring).

It must be conceded that the raw data available has shortcomings which reduce its probative value. "One is that there are no accurate figures for capital murders; there are only figures on homicides and they, of course, include non-capital killings." Id. at 349-50, 92 S. Ct. at 2783, 33 L.Ed.2d at 412-13 (Mr. Justice Marshall concurring). The main shortcoming of the statistical arguments is:

"``Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged.' This is the nub of the problem . . . ." Id. at 347, 92 S. Ct. at 2781, 33 L.Ed.2d at 411 (Mr. Justice Marshall concurring).

Deterrence, however, is not the only purpose of sanctions against criminal activity. Retribution has long been recognized by many as another valid purpose. Chief Justice Burger pointed out in his dissent in Furman, "The Court has consistently assumed that retribution is a legitimate dimension of the punishment of crimes." 408 U.S. at 394, 92 S.Ct. at 2806, 33 L. Ed. 2d at 439. I, personally, do not believe that retribution has any legitimate place in our criminal justice system. My view is that the goals of sanctions against criminal conduct should be general deterrence to others, special deterrence to the offender himself, restitution to the victim, and rehabilitation of the offender. Punishment in the sense of retribution, vengeance, or retaliation is always in the long run self-defeating.

"But the punitive attitude persists. And just so long as the spirit of vengeance has the slightest vestige of respectability, so long as it pervades the public mind and infuses its evil upon the statute books of the law, we will make no headway toward the control of crime. We cannot assess the most appropriate and effective penalty so long as we seek to inflict retaliatory pain." Menninger, The Crime of Punishment 218 (The Viking Press 1968).

Many disagree. "[R]esponsible legal thinkers of widely varying persuasions have debated the sociological and philosophical aspects of the retribution question for generations, neither side being able to convince the other." Furman v. Georgia, supra at 394-95, 92 S.Ct. at 2806, 33 L. Ed. 2d at 439 (Chief Justice Burger dissenting). While the extent of retribution available is certainly limited by the Cruel and Unusual Punishment Clauses in our state and federal constitutions, in the case now under consideration exaction of the death penalty in a purely retributive sense, while offensive to me personally, does not contravene these constitutional prohibitions.

The point is that as a judge I cannot substitute my personal will for that of the Legislature merely because I disagree with its chosen policy. The utility of capital punishment as a sanction against first degree murder in our scheme of criminal justice is one upon which reasonable, learned, humane, and conscientious persons differ. These differences are nowhere better documented than in the nine separate opinions filed by the Chief Justice and Associate Justices of the United States Supreme Court in Furman and the various authorities relied on in each of the opinions. Whether the effects of capital punishment in a murder case are, indeed, brutalizing or salutary, whether the data available tending to negate the deterrent effect of capital punishment really outweighs arguments in its favor resting on "logical hypotheses devoid of evidentiary support, but persuasive nonetheless," Furman v. Georgia, supra at 347, 92 S. Ct. at 2781, 33 L.Ed.2d at 411 (Mr. Justice Marshall concurring), and whether in a murder case it should be permitted for purposes of pure retribution are questions upon which honest persons conscientiously and deeply differ. This aspect of the question strongly militates in favor of judicial deference to the legislative will in the case now before us.

I fervently hope that someday North Carolina will join her ten sister states who have legislatively totally abolished capital punishment and some forty-five civilized countries throughout the world who likewise have abolished it (except, in some instances, in time of martial law and "for certain extraordinary civil offenses"). Bowers at 6, 178. The Constitutions of the United States and North Carolina in my view do not require her to do so in cases such as this one.