State v. King , 287 N.C. 645 ( 1975 )

215 S.E.2d 540 (1975)

STATE of North Carolina
v.
Thomas Lee KING and Joseph Lee King.

No. 8.

Supreme Court of North Carolina.

June 26, 1975.

Atty. Gen. Rufus L. Edmisten, Asst. Atty. Gen. Thomas B. Wood and Associate Atty. Archie W. Anders, Raleigh, for the State.

Frank Patton Cooke, Gastonia, for Thomas Lee King, defendant-appellant.

Robert H. Forbes, Gastonia, for Joseph King, defendant-appellant.

MOORE, Justice.

Joseph King moved for a separate trial and assigns as error the denial of his motion. These defendants were charged in separate bills of indictment with identical crimes. The offenses charged are of the same class, relate to the same crimes and are so connected in time and place that most of the evidence at the trial on one of the indictments would be competent and admissible at the trial on the others. Each defendant relied on an alibi as a defense and their defenses were not antagonistic. Under such circumstances, the trial judge was authorized by G.S. § 15-152 (repealed by Sess.Laws 1973, c. 1286, s. 26, effective July 1, 1975) in his discretion to order their consolidation for trial. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965); State v. Morrow, 262 N.C. 592, 138 S.E.2d 245 (1964).

No statement made by either defendant was admitted which tended to incriminate or prejudice the other defendant. Hence, the rule as set out in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), as applied in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968), does not apply.

Defendant further contends, however, that the action of Judge Hasty in consolidating the cases for trial was void because it overruled a prior order entered by Judge Grist, and that one superior court judge cannot overrule an order entered by another superior court judge. It should first be noted that the order of Judge Grist to which defendant refers was entered at a hearing held for the purpose of setting bond. This hearing was held on 13 June 1974 and after hearing a number of witnesses, Judge Grist entered an order denying the motion for allowance of bond for each defendant. He then added that the cases were held for further consideration, and

"That the State has indicated that [it] will probably not proceed in both cases at the same term and counsel for the defendant, Joe King, Mr. Robert H. Forbes, has indicated he would likewise move that the matters not be consolidated for trial.

"It further appearing to the Court that the cases were calendared for trial during the week of June 10, 1974, and that the defendants were ready for trial and that it became necessary that the State move for a continuance because of the absence of private prosecution, Mr. Grady B. Stott, and the Court having considered the motion for a bond as a further motion for a speedy trial;

"THE COURT ORDERS that the State be required to elect as to which case it desires to try and that said case be placed on the calendar for trial in Gaston County on July 15, 1974." (Emphasis added.)

At the hearing before Judge Grist on 13 June 1974, no motion for a severance was pending. Such motion was not made until 9 July 1974. Judge Grist never considered this motion, and his order of 13 June only referred to future probabilities. Therefore, Judge Hasty did not overrule Judge Grist. This contention is without merit.

The cases were properly consolidated for trial and the foregoing assignment of error is overruled.

Defendants next contend that the trial court erred in allowing the State to introduce evidence against defendants regarding extraction of blood and hair samples from them and the comparison of blood from defendants and Missouri Davis with exhibits introduced into evidence by the State. Defendants contend that there was no factual basis for allowing these blood samples to be drawn and hair samples taken. There is no merit in this contention.

When the State moved to require defendants to submit to the extraction of blood samples and to furnish hair samples, Judge Snepp, after hearing evidence and arguments of counsel, made findings of fact fully supported by the evidence as follows:

"(1) On 16 February 1974, the dead body of Leo Davis was found by police at his home in Gaston County. It was also discovered that his wife had sustained multiple head wounds.

"(2) Mrs. Davis advised the investigating officers that two subjects assaulted her and her husband in their home; that one wore a head covering of some type; that one used a hammer as a weapon; that in a struggle with one of the persons she hit him with the hammer.

"(3) Investigating officers found a toboggan-style cap in the Davis home with hair inside it. Mrs. Davis has advised investigating officers that the cap was not her property or her husband's.

"(4) Investigating officers found a claw-type hammer lying under a truck one-half block from the Davis home. There appeared to be dried blood on the hammer.

"(5) Mrs. Davis, who is still in the hospital as a result of her injuries, has made a photographic identification of the defendants as the persons who assaulted her and her husband.

"(6) On 19 February 1974, investigating officers under authority of a search warrant searched the home of the defendant, Joseph King, and seized clothing which appeared to be bloodstained. Apparent bloodstains were also found on the woodwork in the home.

"(7) Donald Robinson, a cab driver for Yellow Cab Company, has informed investigating officers that early in the morning after this occurrence the defendant, Tommy King, was a passenger in his cab and that the said defendant had apparent bloodstains on his clothing.

"(8) Blood samples from Mr. and Mrs. Davis have been obtained and sent to the State Bureau of Investigation for analysis.

"(9) Samples of stains on the hammer and clothing have been sent to the State Bureau of Investigation for analysis, and the bureau has advised investigating officers that the stains are blood.

"(10) The defendant, Joseph King, has stated to investigating officers that he received some cuts at his home which resulted in the bloodstains to his clothing.

"(11) The defendants both appear to be healthy males, and there is no evidence that either suffers from any illness, disease, or physical disability which would make a reasonable withdrawal of blood deleterious to his health.

"(12) That it is reasonably necessary for the State to secure hair samples and bloodstain samples from the defendants and that they will be of material aid in determining whether the defendants committed the offenses charged."

Based on these findings, Judge Snepp properly ordered that blood and hair samples be taken.

Defendants' counsel concede that their constitutional rights were not violated by the involuntary withdrawal of blood and taking of hair samples, citing State v. Cash, 219 N.C. 818, 15 S.E.2d 277 (1941), and 21 Am.Jur.2d, Criminal Law § 364 (1965).

Defendants further contend, however, that defendants' counsel had a right to be present when the blood samples were taken, but were not. For that reason they argue that the court erred in denying their motion to suppress all evidence having to do with their furnishing blood samples and the comparison of these samples with stains found on items of clothing and other objects at or around the scene of the crime and with the blood of the victims.

As a foundation for denying this motion, Judge Hasty found, in summary:

(1) That counsel for the defendants were specifically allowed, if they so desired, to be present when blood was extracted from their clients and a copy of said Order was served on counsel on 28 February 1974;

(2) That counsel was not present during the taking of these samples on 28 February 1974;

(3) That counsel at their request were furnished samples of the tests conducted at the hospital;

(4) That while counsel addressed complaints to their absence at the hospital during the taking of the defendants' blood, they conceded that their serious objection was to their being compelled to furnish blood and the introduction of evidence based thereon;

(5) That counsel were repeatedly told that they could have all blood tests results when received and were or would be furnished same; and most importantly

(6) That the court indicated, should it be the request of defense counsel, that it would order the blood withdrawing procedure disregarded, and another one staged in their presence. No such request was made. (Emphasis added.)

Thus, counsel for defendants, by their failure to appear when the samples were taken and to request further blood tests, effectively waived their right to complain on appeal. Even without such waiver their argument here would be unavailing, for as we said in State v. Wright, 274 N.C. 84, 90-91, 161 S.E.2d 581, 587 (1968):

"The authorities hold, however, that handwriting samples, blood samples, fingerprints, clothing, hair, voice demonstrations, even the body itself, are identifying physical characteristics and outside the protection of the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908; Gilbert v. California [388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967)]; United States v. Wade [388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)]; State v. Gaskill, 256 N.C. 652, 124 S.E.2d 873; Annotation: Accused's Right to Counsel under the Federal Constitution, 18 L. Ed. 2d 1420. Such pretrial police investigating procedures are not of such a nature as to constitute ``critical' stages at which the accused is entitled to the assistance of counsel guaranteed by the Sixth Amendment and made obligatory upon the states by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799; Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977; Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923. . ."

This assignment is overruled.

Defendants next contend that the trial judge erred in finding Bryan Stimball (in the field of blood typing), W. G. Layton, Jr. (in the field of fingerprint identification and comparison), Laura Ward (in the field of forensic serology), Dr. Eugene Rutland, Jr. (in the field of pathology), and Steve Jones (in the field of fingerprinting) to be experts in their respective fields and that, in announcing his findings in the presence of the jury, the judge expressed an opinion regarding the credibility of these witnesses contrary to G.S. § 1-180.

Defendants further contend that the trial judge erred by reemphasizing these findings in his charge to the jury by stating that "an experienced fingerprint analyst of the North Carolina Bureau of Investigation and his supervisor" testified in behalf of the State. These contentions are without merit. Our cases have consistently held:

"Whether the witness has the requisite skill to qualify him as an expert is chiefly a question of fact, the determination of which is ordinarily within the exclusive province of the trial judge. . . .

"A finding by the trial judge that the witness possesses the requisite skill will not be reversed on appeal unless there is no evidence to support it. . . ." 1 Stansbury's N.C. Evidence § 133 (Brandis Rev.1973), and cases therein cited.

The evidence with respect to the qualifications of each witness fully supports the findings and it is quite obvious that the rulings finding these witnesses to be experts in their respective fields could not have been understood by the jury as anything other than rulings upon the qualifications of the witnesses to testify as to their opinions. ". . . It has never been the general practice in the courts of this State for the trial judge to excuse the jury from the courtroom when ruling upon the qualification of a witness to testify as an expert.. . ." State v. Frazier, 280 N.C. 181, 197, 185 S.E.2d 652, 663 (1972).

The statement in the charge to which defendants now object was made by the trial judge in recapitulating the State's evidence and was amply supported by the testimony concerning the training and experience of these two witnesses. If defendant at the time deemed this statement to be inaccurate, he should have called the error to the trial judge's attention then and there in order to give him opportunity to correct it. His failure to do so waived whatever error, if any, there might have been. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321 (1965); State v. Cornelius, 265 N.C. 452, 144 S.E.2d 203 (1965); Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829 (1948); Manufacturing Co. v. R. R., 222 N.C. 330, 23 S.E.2d 32 (1942). This assignment is overruled.

Defendants assign as error the action of the trial court in admitting into evidence the hammer found by officers some distance from the scene of the crime and at a later time, and in permitting the testimony by witnesses with relation thereto. The hammer was found 385 feet from the den area of the Davis home lying under a dump truck at approximately 1:15 p. m. on 17 February 1974. Defendants contend that it was so remote from the commission of the crime both by distance and time that it was inadmissible.

Mrs. Davis testified that the hammer introduced into evidence was similar to the one with which Joe King hit her. Blood found on the hammer was group "O" as was the blood of Mrs. Davis.

Any object which has a relevant connection with the case is admissible in evidence and weapons may be admitted when there is evidence tending to show that they were used in the commission of the crime. 1 Stansbury's N.C. Evidence § 118 (Brandis Rev.1973); State v. Patterson, 284 N.C. 190, 200 S.E.2d 16 (1973); State v. Muse, 280 N.C. 31, 185 S.E.2d 214 (1971); State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968). The testimony of Mrs. Davis that the hammer was similar to the one used to hit her was sufficient identification for the purpose of introducing it into evidence. State v. Bass, supra; State v. Patterson, supra; State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Macklin, 210 N.C. 496, 187 S.E. 785 (1936).

The lapse of time occurring between the crime on 16 February and the discovery of the hammer nearby on 17 February was not a significantly long period. This lapse of time and the distance from the scene of the crime to where it was found would not render the evidence incompetent but would only affect its probative force. 22A C.J.S. Criminal Law § 712 (1961); State v. Brown, 280 N.C. 588, 187 S.E.2d 85 (1972); State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938); State v. Macklin, supra. See State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975). This assignment is overruled.

Defendants next contend that the trial court erred in several instances in failing, upon general objection, to instruct the jury that certain evidence was to be considered against only one of the defendants and that such evidence was incompetent as to the other. Defendant Thomas King contends that it was error to fail to instruct that evidence of the officers' discovery and Mrs. Davis's identification of the coat found on the couch at Joseph King's residence could not be considered against Thomas King; that such an instruction should have been given regarding the court's findings that the search of Joseph King's residence was valid; and that such an instruction should have been given regarding evidence of the taking and analysis of the blood of Joseph King. Defendant Joseph King contends that the same instruction as to him should have been given regarding the State's evidence of blood tests of Thomas King and regarding evidence of comparison of fingerprints lifted from the small metal box with fingerprints of Thomas King. In support of their contentions, defendants cite State v. Franklin, 248 N.C. 695, 104 S.E.2d 837 (1958). Defendants' reliance is misplaced.

Franklin involved a trial for forgery and uttering where, as here, cases of two defendants were consolidated for trial. There the State offered testimony of police officers that defendant Keith told them that defendant Jack Franklin gave him the fraudulent check and told him to get it cashed, and that Franklin wrote the check in Keith's house. We granted a new trial, holding that the statement of Keith to officers was hearsay as to Franklin, and that the trial judge should have given, upon defendant's general objection, restrictive instructions. In the present cases, none of the evidence of the State offered against one defendant directly implicates the other in the crimes charged, and no statement made by either defendant was introduced. Hence, Franklin does not apply.

It is clear that the introduction of an out-of-court statement of one codefendant directly implicating the other entitles the other, upon even a general objection, to a restrictive instruction. State v. Franklin, supra. And, if the codefendant who made the statement implicating the other does not testify and is thus not available for cross-examination, a restrictive instruction is not sufficiently palliative and the complaining codefendant is entitled to a new trial. Bruton v. United States, supra; State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968). We are here presented with a different situation in which no statement of either codefendant implicating the other was admitted in evidence. Here, on several occasions when defendants specifically objected and requested restrictive instructions, the trial judge, in an abundance of caution, gave such instructions. We cannot discern how the trial judge could on other occasions, upon general objections, understand that he was being asked to give restrictive instructions, especially when such evidence in no way implicated the objecting defendant. This assignment is overruled.

The trial judge instructed the jury: "By law, any killing of a human being by a person committing or attempting to commit robbery with a dangerous weapon . . . is first degree murder, punishable by death."

Defendants assign as error the failure of the trial judge to define the word "attempted." In State v. Godwin, 267 N.C. 216, 147 S.E.2d 890 (1966), we said:

". . . It is not to be assumed that the jurors were ignorant and the words, ``annoy, molest and harass,' are in such general usage and so well understood by the average person that it would have been a waste of time to define them. Had the defendant thought their definition of sufficient importance to request it, it is quite likely that the court would have defined them but the failure to make such request waives any possible error. State v. Caudle, 208 N.C. 249, 180 S.E. 91; State v. Holland, 216 N.C. 610, 6 S.E.2d 217."

And, in State v. McNeely, 244 N.C. 737, 94 S.E.2d 853 (1956), we said:

". . . While the judge did not define in detail what is meant by ``an attempt to commit robbery,' the language used is accordant with ordinary meaning of the word attempt, and is clearly understandable. State v. Jones, 227 N.C. 402, 42 S.E.2d 465. . . ."

Under this same assignment defendants contend that the trial judge erred in his instruction to the jury regarding the evidence by failing to state all the evidence favorable to the defendant. G.S. § 1-180 requires the trial judge to apply the law to the various factual situations presented by the evidence. State v. Keziah, 269 N.C. 681, 153 S.E.2d 365 (1967). The judge is not required to recapitulate all the evidence. He is only required to state the evidence necessary to explain the application of the law thereto. The general rule is that objections to the charge in stating the contentions of the parties or in recapitulating the evidence must be called to the court's attention in apt time to afford opportunity for correction. State v. Henderson, supra; State v. Noell, supra. A party desiring further elaboration on a subordinate feature of a case must aptly tender request for further instructions. State v. Noell, supra; State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965).

In the present cases, to make sure that the jury understood that he was not summarizing all the evidence, the trial judge stated:

"Members of the Jury, I did not attempt to recapitulate or summarize all of the evidence in the cases. I only reviewed, as I recalled, what certain of the evidence offered by the State and the defendants tends to show. You will note I use this phrase, ``tends to show'. I did this because what, if anything, the evidence does show, is for you as the jury to determine. I only referred to such of the evidence as I deemed necessary to explain and apply the law in the cases. All of the evidence is before you and you are not to understand that I am emphasizing any part of the evidence over and against any other part of the evidence. All of the evidence is important and it is your duty to remember it all, consider it all and weigh it all in arriving at your verdicts in these cases. Therefore, if your recollection of what the evidence was differs from that of the District Attorney or counsel for the State and counsel for the defendants or even the Court says it was, you will rely and be governed entirely and solely upon your own recollection of what the evidence was in these cases."

An examination of the charge discloses that the judge complied with the statutory requirement of G.S. § 1-180. This assignment of error is overruled.

An examination of the entire record discloses that defendants received a full and fair trial, free from prejudicial error.

No error.

SHARP, Chief Justice (dissenting as to the death penalty):

The murder for which defendant was convicted occurred on 16 February 1974, a date between 18 January 1973, the day of the decision in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, and 8 April 1974, the day on which the General Assembly rewrote G.S. § 14-21 by the enactment of Chapter 1201 of the Session Laws of 1973. For the reasons stated by Chief Justice Bobbitt in his dissenting opinion in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747 (1974) —an opinion in which Justice Higgins and I joined—, I dissent as to the death sentence imposed upon defendant by the court below and vote to remand for the imposition of a sentence of life imprisonment. See also the dissenting opinion of Chief Justice Bobbitt, and my concurrence therein, in State v. Waddell, supra, 282 N.C. at 453 and 476, 194 S.E.2d at 30 and 47.

Justice COPELAND dissents as to death sentence and votes to remand for imposition of a sentence of life imprisonment for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 437, 212 S.E.2d 113, 122 (1975).

Justice EXUM dissents from that portion of the majority opinion which affirms the death sentence and votes to remand this case in order that a sentence of life imprisonment can be imposed for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 439, 212 S.E.2d 113, 121 (1975), other than those relating to the effect of Section 8 of Chapter 1201 of the 1973 Session Laws.