State v. Hunter , 297 N.C. 272 ( 1979 )

254 S.E.2d 521 (1979)

STATE of North Carolina
v.
William Benjamin HUNTER, Jr., Shikhan Tony Barrios, and Ricky Lattimer.

No. 26.

Supreme Court of North Carolina.

May 17, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Thomas H. Davis, Jr., and Charles M. Hensey, Raleigh, for the State.

Ertle Knox Chavis, Pembroke, for defendant-appellant Barrios.

John Wishart Campbell, Lumberton, for defendant-appellant Lattimer.

Ertle Knox Chavis, Pembroke, and John Wishart Campbell, Lumberton, for defendant-appellant Hunter.

BRITT, Justice.

After a careful consideration of all assignments of error argued in defendants' briefs, we conclude that there is no merit in any assignment, that defendants received a fair trial and that the judgments entered are according to law. We will discuss briefly the questions raised by each defendant.

APPEAL OF DEFENDANT BARRIOS

By his sole assignment of error, defendant Barrios contends the trial court erred in permitting S.B.I. Agent Frank Johnson to testify with respect to a pretrial statement made to him by defendant Lattimer.

It appears that this evidence is challenged for the reasons that (1) the statement was not given freely and voluntarily, and (2) it implicated defendant Barrios and was prejudicial to him, in violation of the principles set forth in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

Assuming, arguendo, that defendant Barrios has standing to challenge the voluntariness of the statement, we hold that the evidence presented at the voir dire hearing fully supports the court's findings and conclusion that the statement was given freely and voluntarily. The trial judge's finding that an accused freely and voluntarily made an inculpatory statement will not be disturbed on appeal when the finding is supported by competent evidence. State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976).

While we recognize the principles set forth in Bruton, we disagree with the contention that defendant Lattimer's pretrial statement implicated defendant Barrios and that it was prejudicial to him. The testimony of Agent Johnson relating to defendant Lattimer's statement and which defendant Barrios assigns as error is as follows:

"He stated that he was going to tell me the truth, that he hadn't pulled the trigger on no one. He stated that he didn't even want to go through with the job after he got to the towel place. Mr. Lattimer further stated that he came back to Cooper's trailer in Fayetteville and that he was supposed to go in the place, but stated he changed his mind when he got there and decided not to go through with it. He stated that the reason for changing his mind was that he had a felling that something was going to happen. He further stated that the .38 belonged to him.

"Mr. Lattimer stated that both the magnum gun and the .38 were under the seat and that he—when they got to the towel place. Mr. Lattimer also told this agent that he drove part of the way back to Fayetteville."

We are unable to perceive how defendant was prejudiced by the quoted statement, hence the assignment of error is overruled.

APPEAL OF DEFENDANT HUNTER

Defendant Hunter contends first that the court erred in admitting evidence relating to his pretrial in-custody statement. This contention is based primarily, if not solely, on the assumption that the trial judge did not make findings of fact that the statement was intelligently and voluntarily made, therefore, it was inadmissible. He cites State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976).

We note that following the trial, defendant Hunter's trial counsel died and that Messrs. Campbell and Chavis were appointed to perfect the appeal. In his brief defendant states that he was unable to find anywhere in the trial record any findings by the trial judge based upon evidence presented at the voir dire. Since defendant filed his brief, we have allowed the state's motion to file an addendum to the record which includes those findings. They are fully supported by the evidence and support the court's conclusion that the statement was intelligently and voluntarily made. That being true, the findings will not be disturbed on appeal. State v. Harris, supra.

Defendant Hunter's other contention is that the district attorney in his jury argument "exceeded the bounds of propriety" to the prejudice of said defendant. We are not impressed with this contention.

The record discloses that no defendant made any objection at trial to the district attorney's jury argument. It also appears that the arguments of defense counsel were not transcribed, therefore, we are unable to consider fully the context in which the prosecutor's argument was made.

Ordinarily, an impropriety in counsel's jury argument should be brought to the attention of the trial court before the case is submitted to the jury in order that the impropriety might be corrected. State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968), cert. denied, 393 U.S. 1042, 89 S. Ct. 669, 21 L. Ed. 2d 590 (1969). This rule does not apply however when the impropriety is so gross that it cannot be corrected. State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967).

We have held many times that wide latitude is allowed counsel in his argument to the jury, including the use of illustrations and anecdotes; and counsel is entitled to argue the law and the facts in evidence together with all reasonable inferences to be drawn therefrom. 4 Strong's N.C. Index 3d, Criminal Law § 102.1. The control of the argument of the district attorney and counsel must be left largely to the discretion of the trial judge and his rulings thereon will not be disturbed in the absence of gross abuse of discretion. Ibid § 102.2.

With the aforestated principles in mind, we have carefully reviewed the district attorney's jury argument, with particular reference to the portions designated by defendant, and conclude that the district attorney did not exceed the bounds of propriety in this case.

APPEAL OF DEFENDANT LATTIMER

Defendant Lattimer contends first that the trial court erred in admitting evidence of his in-custody statement for the reason that it was not freely and voluntarily given. This contention has no merit. Before admitting evidence of the statement, the court conducted a voir dire hearing at which evidence for the state and defendant was presented. Following the hearing the court made findings of fact and concluded that before making the statement defendant Lattimer knowingly and intelligently waived counsel and that he made the statement freely and voluntarily. The court's findings are fully supported by the evidence, therefore, will not be disturbed on appeal. State v. Harris, supra.

Defendant Lattimer contends next that the trial court erred in admitting into evidence the in-custody statement of defendant Hunter which tended to incriminate Lattimer and cites Bruton v. United States, supra. There is no merit in this contention. Lattimer did not object to the introduction of Hunter's statement. "It is well settled that with the exception of evidence precluded by statute in furtherance of public policy [which exception does not apply to this case], the failure to object to the introduction of the evidence is a waiver of the right to do so, and its admission, even if incompetent, is not a proper basis for appeal." 4 Strong's N.C. Index 3d, Criminal Law § 162, p. 825. See also: Rule 10, Rules of Appellate Procedure, 287 N.C. 671, 698.

Finally, defendant Lattimer contends the court erred in denying his motion to dismiss the charges against him because of lack of evidence. We disagree with this contention.

In the light most favorable to the state, the evidence against Lattimer tended to show: He was with defendants Barrios and Hunter in their barracks at Fort Bragg from noon until around 5:00 p. m. on the day in question. Thereafter, he rode with them in Hunter's car to Lumberton (approximately 45 miles), carrying his .38 pistol with him. While Barrios and Hunter entered the store, attempted the robbery with Hunter using Lattimer's gun, and Barrios shot West, Lattimer stayed with the car which was parked on the shoulder of a road some 300 feet from the store. When Barrios and Hunter returned to the car after committing the offenses, they entered the car and all three sped away together with Lattimer driving part of the way back to Fayetteville. After arriving in Fayetteville, the three of them went to a trailer house on Apache Street where they spent the remainder of the night and were together there the next morning.

On a motion by a defendant to dismiss the charges for lack of evidence, the evidence will be viewed in a light most favorable to the state; and the state is entitled to every reasonable inference arising therefrom; contradictions and discrepancies, even in the state's evidence, are for the jury to resolve and do not warrant dismissal. 4 Strong's N.C. Index 3d, Criminal Law § 104 and cases therein cited. The evidence was sufficient to support a finding by the jury that Lattimer was acting in concert with Barrios and Hunter when they attempted to rob the towel store; that he stayed with the getaway car and that he participated with his codefendants in fleeing from the scene of the crime. The evidence was also sufficient to support a finding by the jury that Lattimer and his codefendants conspired to rob the towel store; and that the murder of West was committed by Barrios in the attempted perpetration of the crime, thereby making each and all of the defendants guilty of murder in the first degree. 6 Strong's N.C. Index 3d, Homicide § 2.

In defendants' trial and the judgments entered, we find

No error.