State v. McQueen

244 S.E.2d 414 (1978) 295 N.C. 96

STATE of North Carolina
v.
Roger Lee McQUEEN.

No. 92.

Supreme Court of North Carolina.

June 6, 1978.

Rufus L. Edmisten, Atty. Gen. by Donald W. Grimes, Asst. Atty. Gen., for the State.

James R. Parish and Fred J. Williams, Asst. Public Defenders, Fayetteville, for defendant.

LAKE, Justice.

The defendant's first contention is that the court committed reversible error in the overruling of his motion to dismiss the indictments for the reason that the State failed to comply with the Interstate Agreement on Detainers Act. G.S. 15A-761 et seq. Article III of this Act provides:

"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment * * * on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment * *. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

"(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden * * * having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

* * * * * *

"(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments * * * on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. * * *

"(e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby * * * The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. * * *" (Emphasis added.)

Article IV of the Act then provides a procedure whereby the appropriate officer of the jurisdiction in which the indictment is pending may obtain temporary custody of the prisoner for trial. Article V of the Act provides in paragraph (c):

"(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment * * * is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment * * * has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect."

The record before us does not show compliance by the defendant with the procedures so outlined in the above quoted provisions of this Act. There is no showing by the defendant that he gave the specified notice and request to the warden of the Missouri State Prison or that the warden of that prison forwarded to the District Attorney of Cumberland County or to the Superior Court of Cumberland County "by registered or certified mail, return receipt requested," or otherwise, the specified certificate. All that the record before us shows is that when the detainers filed came to the attention of the prison officials of Missouri, they were brought by those officials to the attention of the defendant and, the defendant, himself, wrote a letter on 10 November 1972, which, he says, he mailed to the Clerk of the Superior Court of Cumberland County.

The defendant does not contend that he mailed to the District Attorney any such request for final disposition of the indictment. The evidence for the State strongly suggests that, if such request was in fact mailed to the Clerk of the Superior Court of Cumberland County, it was never received by the Clerk or in his office. In response to an inquiry subsequently directed to the Clerk of the Superior Court by a member of the Missouri Student Legal Aid Program concerning the possible dropping of the detainer, the then District Attorney promptly replied, "This office would not in any way be interested in dropping the detainers against Roger Lee McQueen."

The record indicates no further communication whatever from the defendant, or on his behalf, until 26 March 1975, when the Records Officer of the Missouri State Penitentiary wrote to the Sheriff of Cumberland County returning the warrants which had been filed with the original request for detainer. The then District Attorney promptly replied requesting the placing of a new detainer and enclosing certified copies of the warrants which had been issued against the defendant for the offenses here involved.

When the Cumberland County authorities requested temporary custody of the defendant from Missouri in September 1975, and dispatched officers to Missouri to bring him to North Carolina for trial, the defendant blocked that effort by obtaining from a Missouri court a restraining order. The record before us indicates that this litigation in the courts of Missouri, including appellate procedures related thereto, continued until the Cumberland County authorities were finally notified in June 1977 that they could pick up the defendant for trial. This they did promptly and he was tried and convicted at the 26 September 1977 Session of the Superior Court of Cumberland County.

Thus, the record before us indicates no violation by the Cumberland County authorities of the Interstate Agreement on Detainers Act. Consequently, there was no error in the entry of the order denying the motion of the defendant to dismiss the indictments on account of such alleged violation. State v. White, 270 N.C. 78, 153 S.E.2d 774 (1967).

The defendant's next contention is that he has been denied his Sixth Amendment right to a speedy trial. The record before us shows that, at the time of the two murders in North Carolina, of which the defendant stands convicted, he was an escapee from the Missouri State Penitentiary to which he had been sentenced to imprisonment for life upon his conviction in that state for murder in the second degree. Immediately after the murders in this State, of which he stands convicted, the defendant and his companion fled from North Carolina and roamed at large throughout the United States until he was finally arrested in Pennsylvania on the charge of assault upon an officer of that state with intent to kill. The Cumberland County authorities promptly forwarded the appropriate papers for a detainer against the defendant to the Pennsylvania authorities. However, the defendant was returned to Missouri by Pennsylvania for the completion of the service of his Missouri sentence.

The record further shows that the State of Arkansas had previously filed with the Missouri or the Pennsylvania authorities its own request for a detainer of the defendant, which request the Missouri authorities gave priority over the North Carolina detainer. The first communication shown by the record before us to have been received by any of the Cumberland County authorities from Missouri, concerning the North Carolina detainer lodged against this defendant, was the letter from the defendant's Inmate Legal Aid, a member of the staff of the Missouri Department of Corrections. This letter stated, "[S]ince he [the defendant] is serving a life sentence, it is highly unlikely that the State of North Carolina will ever be able to obtain him for trial."

The Cumberland County authorities continued to insist upon the maintenance of the detainers filed by them with the Missouri authorities and, as soon as they were notified by the Missouri authorities that they could pick up the defendant, they endeavored to do so but were thwarted by court action instituted by him in Missouri.

We find in this record no evidence of wilful neglect or of abandonment of the cases against this defendant by the Cumberland County authorities.

The record before us shows that the Arkansas detainer, which the Missouri authorities gave priority over the North Carolina detainer, was based upon a charge of murder in that state. Although it is not clearly so shown in the record before us, this Arkansas charge, apparently, was based upon an alleged shooting in the head of a woman named Bendell Kelley, referred to in the above statement of facts. The Arkansas detainers appear to have been dropped in 1975 or 1976, for reasons not set forth in the record before us. When so advised by the Missouri prison authorities, the record before us indicates that the Cumberland County authorities promptly sought temporary custody of the defendant for trial and were prevented from trying him earlier by litigation instituted by the defendant in the courts of Missouri.

We find no error in the denial of the defendant's motion to dismiss the indictments against him for failure to accord him a speedy trial thereon.

The right to a speedy trial upon a criminal charge, guaranteed by the Sixth Amendment to the Constitution of the United States, is made applicable to the states by the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Long before those decisions it was established as part of the fundamental law of this State. State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963). The criteria for determining whether such right has been denied are set forth by the Supreme Court of the United States in Barker v. Wingo, supra. There, the Court said:

"We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. * * The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

"A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

* * * * * *

"We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." 407 U.S. at 528, 530, 533, 92 S.Ct. at 2191.

In State v. McKoy, 294 N.C. 134, 240 S.E.2d 383 (1978), we recently applied these criteria and ordered dismissal of charges for denial of the defendant's right to a speedy trial. Speaking through Justice Huskins, we there said:

"The right of every person formally accused of crime to a speedy and impartial trial is secured by the fundamental law of this State, State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965), and guaranteed by the Sixth Amendment to the federal constitution, made applicable to the State by the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Prisoners confined for unrelated crimes are entitled to the benefits of this constitutional guaranty. State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

* * * * * *

"[T]he circumstances of each particular case must determine whether a speedy trial has been afforded or denied, and the burden is on an accused who asserts denial of a speedy trial to show that the delay was due to the neglect or wilfulness of the prosecution. State v. Johnson, supra.

* * * * * *

"Barring circumstances which justify delay, a defendant desiring a speedy trial is constitutionally entitled to it within a reasonable time. Where, as here, defendant carries the burden of proof by offering evidence which tends to show prima facie that the delay is due to the wilful neglect of the prosecution, the State should offer evidence fully explaining the reasons for the delay and sufficient to rebut the prima facie showing or risk dismissal. The record before us contains no evidence designed to explain or justify the ten-month delay from 2 June 1975 to 12 April 1976. Such indifference to the dictates of the law leaves appellate courts with few options." 294 N.C. at 140, 141, 143, 240 S.E.2d at 387, 388, 390.

In State v. Spencer, 281 N.C. 121, 124, 187 S.E.2d 779, 781 (1972), speaking through Justice Branch, we said:

"The constitutional right to a speedy trial protects an accused from extended imprisonment before trial, from public suspicion generated by an untried accusation, and from loss of witnesses and other means of proving his innocence resulting from passage of time. Whether defendant has been denied the right to a speedy trial is a matter to be determined by the trial judge in light of the circumstances of each case. The accused has the burden of showing that the delay was due to the State's wilfulness or neglect."

In the present case, a bit more than five years elapsed between the alleged offenses and the trial of the defendant therefor. Nothing else appearing, this would be an unreasonable delay. However, nothing in the record indicates that this was a purposeful delay by the State, in order to prejudice or harass the defendant. For the first two months the defendant was an armed fugitive, moving secretly from state to state throughout the country. While it is true that for approximately five years preceding his trial on these charges he was kept in prison, that imprisonment had no relation to the present charges and was in the prison of another state pursuant to his prior conviction in the courts of that state. Thus, no action which the authorities of Cumberland County could have taken with reference to the present matter could have terminated that imprisonment. It is not the type of pretrial imprisonment to which the decisions on the subject of speedy trial refer. In view of the detainers filed against him by the State of Arkansas, we find nothing in the record which indicates that the detainers filed by the Cumberland County authorities, in connection with the present charges, adversely affected his rights or privileges as an inmate of the Missouri State Penitentiary. Since he was so confined, and his confinement in Missouri would have continued irrespective of any action which the Cumberland County authorities might have taken to bring him to trial it cannot be found that his right to employment, or his social standing in the community, was adversely affected by the delay in bringing him to trial on these charges.

The only possible prejudice to the defendant by reason of the delay in the prosecution of these cases, appearing upon this record, would be a loss of witnesses favorable to his defense of alibi. An analysis of the record shows no such prejudice. The defendant, himself, testified that he left the Norris house at about 11:30 a. m. on the day the two murders occurred. The evidence for the State was that the murders occurred after 3:30 p. m., at which time the State's witness, James Edward Pleasant, testified that he was at the Norris house attempting to sell an automobile to Wilma Norris and she and two other women were then in the house.

The defendant's testimony, designed to establish his alibi, was that he, observing the arrest of his wife on the streets of Bennettsville, South Carolina, immediately telephoned Barbara Kiser and, as a result of that conversation, he drove to Laurinburg to wait for her, arriving at approximately 2:15 p. m. Laurinburg is but 42 miles from Fayetteville, near which the Norris house was located. Thus, by his own testimony, the defendant, after his interview with Dr. Strauss in Bennettsville, had ample time to reach the Norris house near Fayetteville before the murders were committed therein. The distance from Fayetteville to Bennettsville is 74 miles. The defendant's testimony is clearly to the effect that he tarried only briefly in the office of Dr. Strauss in Bennettsville and, immediately thereafter, fled from that city. It would be an easy matter for him to have traveled from Fayetteville to Bennettsville and return between 11:30 a. m. and the time the two women were murdered in the Norris house.

The defendant testified that, en route to Bennettsville, he picked up two hitchhikers near Laurinburg and let them out on the outskirts of Bennettsville. One of these hitchhikers was "Roger," it not appearing what his least name or his address, or his hitchhiking destination, was. The Cumberland County authorities did not know the whereabouts of the defendant for at least two months after the killings were discovered. Had he been placed on trial immediately after his arrest, which, of course, was impossible, it is utterly unrealistic to suppose that he could have then located this alleged hitchhiker. Thus the delay in bringing him to trial has not deprived him of this witness.

According to the defendant's testimony, it was his wife, not the defendant himself, who was the patient of Dr. Strauss on 23 June 1972. Conceivably, Dr. Strauss might have remembered for a reasonable time, or even have made some record of his conversation with the defendant in the doctor's office. Dr. Strauss was not called as a witness at the defendant's trial. In oral argument in this Court, we were informed that Dr. Strauss is now deceased. Nothing in the record so indicates. Assuming, as we do, that Dr. Strauss died prior to the trial of the defendant on these charges and after the Cumberland County authorities learned of the defendant's whereabouts, the defendant has not been prejudiced by the unavailability of Dr. Strauss as a witness to corroborate his alleged alibi. The reason for this conclusion is that the record clearly shows, through the testimony of police officers of the City of Bennettsville, that the defendant's wife was not arrested on 23 June, the date of the murders in question, but about noon on 22 June and she remained in jail until 24 June when she received the $1,000 telegraphed to her by the defendant and Barbara Kiser and used this to post bond and obtain her release. Thus, the defendant could not have visited Dr. Strauss' office immediately after his wife's departure therefrom on the afternoon the murders here involved were committed. Consequently, the defendant has shown no prejudice whatever to his ability to call witnesses in his defense by virtue of the delay in the trial of these charges.

It follows that the defendant has, in no way, been prejudiced in the trial of this matter by reason of the delay of such trial and his constitutional right to a speedy trial has not been violated.

We turn next to the defendant's contention that it was error to admit the testimony of Barbara Kiser for the reason that it was the result of her hypnosis prior to trial. In this contention, we find no merit. The circumstance that this witness was hypnotized prior to trial would bear upon the credibility of her testimony concerning the occurrences at the Norris house at the time the two women were killed, but would not render her testimony incompetent. As above shown, the jury was fully advised that the witness had been so hypnotized. Her credibility, as a result of this circumstance, and of other matters bearing thereon, was for the jury. 1 Stansbury, North Carolina Evidence, § 8 (Brandis Rev. 1973); Strong, N.C. Index 3d, Trial, § 18 (1978). Since the charge of the court is not included in the record before us and there is no exception thereto by the defendant, it is presumed that the court correctly instructed the jury on this matter.

It is to be observed that nothing in the record indicates that this witness was under hypnosis at the time of her testimony in court; it is also to be observed that we do not have before us any question as to the admissibility of any pretrial statement by this witness while under hypnosis. We express herein no opinion as to the admissibility of such a statement.

The witness testified that, following the events in question, she endeavored to blot them from her memory and her recollection of them became uncertain but, thereafter, prior to the trial, she was hypnotized, at her request, and, as a result, as of the time of her testimony, she clearly remembered what she had seen and heard at the time of the events to which her testimony relates. According to her testimony, her memory of these events was refreshed by the hypnotic procedure which she underwent some time prior to the trial. The fact that the memory of a witness concerning events, distant in time, has been refreshed, prior to trial, as by the reading of documents or by conversation with another, does not render the witness incompetent to testify concerning his or her present recollection. The credibility of such testimony, in view of prior uncertainty on the part of the witness, is a matter for the jury's consideration. So it is when the witness has, in the meantime, undergone some psychiatric or other medical treatment by which memory is said to have been refreshed or restored. So it is when the intervening experience has been hypnosis.

In the present case, the defendant did not seek to cross-examine Barbara Kiser concerning the hypnosis procedure or to call the hypnotist, who appears to have been available, for examination concerning the procedures used by him, so as to determine the reliability of the refreshed recollection. We need not consider whether the immunity from prosecution granted to this witness had more to do with refreshing her recollection than did the hypnosis. The defendant does not attack either the admissibility or the credibility of her testimony on that account.

The record discloses that, prior to trial, the defendant's counsel had access to a tape recording of the entire hypnosis procedure. The silence of the record concerning this procedure permits the inference that nothing thereon indicated the planting by the hypnotist into the mind of the witness of any suggestion as to what occurred in the Norris house at the time the two women were murdered, or as to what the testimony of the witness at the trial would be.

The testimony of the witness was, "I remember now that I saw those two women being shot by Roger McQueen." (Emphasis added.) Evidently, the jury believed this testimony. Corroborating circumstances developed through the testimony of other witnesses include the obvious falsity of the defendant's purported alibi testimony, the testimony of the young boys working in the nearby potato field, the defendant's possession immediately after the murders of jewelry and weapons taken from the scene, his attempt only an hour or two thereafter to sell the jewelry and his motive for robbery in order to post bond for his wife.

In Kline v. Ford Motor Co., Inc., 523 F.2d 1067, 1069-1070 (9th Cir., 1975), in holding testimony following hypnosis to be competent, the Court said:

"She [the witness] was present and personally saw and heard the occurrences at the time of the accident. She was testifying about her present recollection of events that she had witnessed. That her present memory depends upon refreshment claimed to have been induced under hypnosis goes to the credibility of her testimony not to her competence as a witness. Although the device, by which recollection was refreshed is unusual, in legal effect her situation is not different from that of a witness who claims that his recollection of an event that he could not earlier remember was revived when he thereafter read a particular document."

In Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509 (9th Cir., 1974), the Court said:

"We cannot accept Fairchild's argument that Wyller's testimony was rendered inherently untrustworthy by his having undergone hypnosis. Wyller testified from his present recollection, refreshed by the treatments. His credibility and the weight to be given such testimony were for the jury to determine. Fairchild was entitled to, and did, challenge the reliability of both the remembered facts and the hypnosis procedure itself by extensive and thorough cross-examination of Wyller and the hypnotist."

In State v. Jorgensen, 8 Or.App. 1, 9, 492 P.2d 312, 315 (1971), the Court said:

"Since both of these witnesses gave their testimony concerning the issues of the case in open court and were subjected to prolonged and rigorous cross-examination by defendant's counsel before the jury, we do not believe that the fact they had been subjected to certain psychiatric and medical examinations and procedures prior to testifying, which were fully exposed in the evidence, would be a basis for disallowing their testimony."

To the same effect is Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968). In this respect, we perceive no basis for a different rule in criminal actions from that which prevails in civil suits.

The defendant relies upon our decision in State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961), to the effect that it is error to admit in evidence in a criminal action the results of lie detector tests. See also, Annot., 23 A.L.R.2d 1306 (1952), "Physiological or Psychological Truth and Deception Tests." That is an entirely different question from the one with which we are here confronted. There, the purpose of the proposed evidence was to invade the province of the jury with evidence designed to show the credibility or lack of credibility of other testimony. This Court concluded that the accuracy of the results attained by the use of such scientific device had not been sufficiently established to justify its use for that purpose. Here, we are concerned with the admissibility of testimony which the witness says is her present recollection of events which she saw and heard, the credibility of her testimony being left for the jury's appraisal.

The defendant also relies upon cases such as State v. Pierce, 263 S.C. 23, 207 S.E.2d 414 (1974), and Greenfield v. Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974), which hold that testimony of a hypnotist as to what his subject stated while in a hypnotic trance is incompetent to prove the truth or falsity of such statement. These cases are, obviously, distinguishable from the question confronting us. Here, the testimony in question is not concerning extra-judicial statements made by a person under hypnosis. We are here concerned with the testimony of the witness as to what the witness presently remembers about events which the witness saw and heard.

In State v. Peacock, 236 N.C. 137, 139, 72 S.E.2d 612, 615 (1952), this Court, approving the use of memoranda previously prepared by the witness for the purpose of refreshing his recollection while on the witness stand, quoted with approval Jewett v. United States, 15 F.2d 955 (9th Cir., 1926), as follows:

"It is quite immaterial by what means the memory is quickened; it may be a song, or a face, or a newspaper item, or a writing of some character. It is sufficient that by some mental operation, however mysterious, the memory is stimulated to recall the event, for when so set in motion it functions quite independently of the actuating cause."

We, therefore, find no error in the ruling of the trial court permitting Barbara Kiser to testify concerning matters observed and heard by her at the time of the murders by reason of the fact that, in the meanwhile, she had been subjected to hypnosis.

There is, likewise, no merit in the defendant's contention that it was error to deny his motion for the sequestration of witnesses at the trial, this being a matter in the discretion of the trial court, and there being no indication of abuse of discretion in the present instance. State v. Felton, 283 N.C. 368, 196 S.E.2d 239 (1973); State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972); State v. Yoes and Hale v. State, 271 N.C. 616, 641, 157 S.E.2d 386 (1967); 1 Stansbury, North Carolina Evidence, § 20 (Brandis Rev. 1973).

There is also no merit in the defendant's contention that there was error in the admission of pictures of the bodies of the deceased women. It is well established that pictures which aid the witness in illustrating his testimony, though gruesome, are admissible in evidence for the purpose of so aiding the witness. State v. Dollar, 292 N.C. 344, 355, 233 S.E.2d 521 (1977); State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976); State v. Atkinson, 275 N.C. 288, 311, 167 S.E.2d 241 (1969), reversed as to death sentence only, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859 (1971); State v. Gardner, 228 N.C. 567, 46 S.E.2d 824 (1948); 1 Stansbury, North Carolina Evidence, § 34 (Brandis Rev. 1973). The record does not indicate excessive use of photographs in the present case. This is, largely, a matter in the discretion of the trial judge. State v. Dollar, supra.

It is well settled in this State that in the presentation of its case in chief the State may not offer evidence of the defendant's past criminal activities, unrelated to the offense for which he is on trial, if the only bearing of such evidence upon the issue before the jury is that it discloses his bad character and tendency to commit such offenses as that with which he is presently charged. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Nevertheless, there was no error in the admission of the testimony of Barbara Kiser concerning statements by the defendant at the Norris house immediately prior to and at the time of the events with which he is charged, those statements being to the effect that he was an escapee from the Missouri State Prison where he was serving a life sentence for murder, that he was a killer and had killed several people on different occasions. This testimony was relevant to the charge of armed robbery and, therefore, to the charge of murder in the perpetration of such robbery. It was part of the res gestae and established the setting in which the other events at the Norris house, narrated by Barbara Kiser, occurred. It clearly tended to show that the defendant took from the possession of Wilma Norris and Linda Lingle articles of value by putting them in fear of their lives, an element of the offense of armed robbery and of the offense of murder committed in the perpetration of such robbery. It was also relevant to establish the mental state of the defendant and his intent to kill. Thus, the admission of this evidence falls within exceptions to the general rule set forth in the McClain case itself.

In State v. Stegmann, 286 N.C. 638, 652, 213 S.E.2d 262, 272 (1975), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3203, 49 L.Ed.2d 1205 (1976), speaking through Justice Huskins, we quoted with approval the following statement in Stansbury, North Carolina Evidence, § 91 (Brandis Rev. 1973):

"Evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime."

Other testimony by this witness concerning an offense committed by the defendant while the defendant and the witness were traveling together in Nevada, following the alleged murders, and a statement made by the defendant to her during their travels to the effect that he had killed several people was stricken by the court upon motion of the defendant. The jury was instructed not to consider such testimony. It is presumed that the jury complied with such instruction by the court. State v. Moore, 276 N.C. 142, 149, 171 S.E.2d 453 (1970).

Upon cross-examination of the defendant who had taken the stand in his own behalf, the District Attorney asked a series of questions concerning the defendant's actions with reference to Mrs. Bendell Kelley. The first question was, "Do you recall at that time a woman by the name of Bendell Kelley telling you about the problems she —?" Defendant's counsel objected "to this line of questioning." The objection was overruled. Obviously, that specific question was merely introductory. It was neither completed nor answered. There then followed fourteen questions with reference to the defendant's actions concerning Mrs. Kelley, each of which began, "Do you remember." No specific objections were interposed to these further questions. In each instance, the defendant answered, "No, sir." The ultimate question in this series was, "Do you remember * * * shooting her in the head?" Again, the answer was, "No, sir." The State, being bound by the answer of the defendant, offered no evidence of such shooting. There is nothing, however in the record to indicate that the question was not asked in good faith. On the contrary, the record with reference to the above mentioned pretrial motions shows that a detainer for the defendant was filed by the State of Arkansas for murder. The questions so propounded by the District Attorney to the defendant relate to the State of Arkansas.

It is clearly permissible for the State, in cross-examining a defendant charged with crime, to ask him about his own past criminal actions whether or not he has been convicted thereof. State v. Gainey, 280 N.C. 366, 373, 185 S.E.2d 874 (1972). There being no showing that the questions directed to the defendant in this connection were asked in bad faith there was no error in overruling the defendant's objection "to this line of questions."

There was, likewise, no error in denying the motion of the defendant to recall the jury to the courtroom after it had begun its deliberations and to reopen the case in order to permit the defendant to introduce in evidence certain letters said to have been written by Barbara Kiser to the defendant, while they were temporarily apart, between the events at the Norris house and the defendant's arrest in Pennsylvania. The purpose of such evidence, according to the defendant, was to show that Barbara Kiser was not afraid of him. As the defendant's counsel concedes in his brief, this is a matter in the discretion of the trial court. State v. Shutt, 279 N.C. 689, 695, 185 S.E.2d 206 (1971), cert. den., 406 U.S. 928, 92 S.Ct. 1805, 32 L.Ed.2d 130 (1972); 4 Strong, N.C. Index 3d, Criminal Law, § 97 (1976). There was no abuse of discretion in the ruling of the court in the present instance.

Each other assignment of error by the defendant has been carefully considered and we find no merit therein. It would serve no useful purpose to discuss these in detail.

NO ERROR.