DocketNumber： 257A82
Citation Numbers： 302 S.E.2d 740, 308 N.C. 446
Judges： Copeland, Exum, Frye
Filed Date： 5/31/1983
Status： Precedential
Modified Date： 10/19/2024
Guilt Phase-Craig
I.
In his first argument the defendant, Craig, contends that the trial court erred by denying his motion for a polygraph examination to be conducted by the State Bureau of Investigation at the expense of the State. The defendant maintains that by refusing his request the trial court denied him a valuable tool which could have bolstered his credibility at trial and would have aided his attorney’s preparation of his defense. The defendant has failed to demonstrate how the trial court’s denial of his motion was error.
In the first instance the defendant’s credibility was never in issue at trial because he did not testify. In addition the results of a polygraph test could not have been admitted into evidence for any purpose absent a stipulated agreement between the defendant and the State. State v. Milano, 297 N.C. 485, 256 S.E. 2d 154 (1979). Neither the record nor the briefs indicate that a stipulation was entered into concerning the admissibility of polygraph test results. Therefore the polygraph test results, even if available and helpful, would not have been admissible to bolster the defendant’s credibility. Secondly, the defendant, in requesting the polygraph test results for the purpose of preparing his defense, is asserting that he, as an indigent, is entitled to state financed expert assistance. In State v. Gray, 292 N.C. 270, 233 S.E. 2d 905
II.
During the jury selection process after the first twelve jurors were seated the trial judge made some introductory remarks including the following:
The defendant, Andrew Weddington had (sic) also come into Court and has entered a plea of guilty to a charge that on July 8, 1981, he did commit Common Law Robbery in that he did, with force, assault Seab Albert Ritch, put him in fear, and that he did then unlawfully and feloniously take and carry Mr. Ritch’s property valued at $14.00, being a man's wallet with $4.25 in currency.
The defendant Craig contends that this statement by the trial judge was an expressed opinion as to the defendant’s guilt since he had in fact pleaded not guilty to the charge of common law robbery. We find the trial court’s statement to be merely a lapsus linguae not constituting prejudicial error. State v. Poole, 305 N.C. 308, 289 S.E. 2d 335 (1982). Although the above statement was part of an introductory comment by the trial judge, it should be considered within the context of all the introductory remarks. This is the method for reviewing jury charges, State v. Poole, supra, and should be applicable to opening remarks. In reviewing the entire statement made to the prospective jurors we find that prior to this unfortunate slip of the tongue the judge told the jurors that both defendants pleaded not guilty to all charges. In addition, at the end of his opening remarks the trial judge reminded the prospective jurors that each defendant is presumed innocent as a result of his pleas of not guilty. The reference to defendant Craig’s plea of guilty was not repeated and appears from the record to be totally accidental. In fact defense counsel
III.
Defendant Craig next assigns as error the trial court’s decision to sustain the State’s challenge for cause of prospective juror Mrs. Forrester. The defendant maintains that although Mrs. Forrester unequivocally stated that she would not impose the death penalty she could not be properly challenged for cause because the prosecutor and the court led her to that conclusion. In reviewing Mrs. Forrester’s responses in their entirety, it appears that her initial response that she did not think she could vote for the death penalty would have been sufficient to sustain a challenge for cause. State v. Williams, 305 N.C. 656, 292 S.E. 2d 243 (1982), cert. denied, --- U.S. ---, 103 S.Ct. 474, 74 L.Ed. 2d 622 (1982). As noted in our recent decision of State v. Kirkley, — N.C. —, — S.E. 2d — (filed 3 May 1983), the trial judge must view the juror’s demeanor and responses in determining the degree of conviction in the prospective juror’s answers. The trial judge in this case, through an abundance of caution, wanted the juror to give a clear “yes” or “no” answer. Not once throughout her examination did Mrs. Forrester indicate that she might vote for the death sentence under any circumstance. We find no violation of the rule established by the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed. 2d 776 (1968). This assignment of error is overruled.
IV.
During the State’s case in chief, Betty Jean Howie testified to the facts and circumstances surrounding her involvement in and the defendants’ participation in the robbing of Seab Ritch and the stabbing of his wife Edith Ritch. In corroboration of Betty Howie’s testimony the State offered as evidence a statement given to Special Agent Barry M. Lea of the State Bureau of Investigation by Betty Howie on 24 August 1981, approximately six weeks after the alleged incidents. The statement was read to the jury by Mr. Lea. The defendant objected to the statement “Sonny said, ‘Let’s rob the mother ------’ ” on the grounds that it did not corroborate Betty Howie’s testimony. The trial judge sustained
V.
The defendant Craig also maintains that he was denied a fair trial when the prosecutor argued to the jury that they should compare a picture of the circular wounds on the victim’s body and the soles of the defendant’s shoes in order to reach the conclusion that the wounds were caused by the defendant’s shoes when that conclusion was not supported by expert testimony. The defendant contends that through this argument the prosecutor improperly placed before the jury incompetent and prejudicial matters based on his own beliefs not supported by the evidence. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Britt, 288 N.C. 699, 220 S.E. 2d 283 (1975). However, trial counsel is allowed wide latitude in his argument to the jury and “may argue the law and the facts in evidence and all reasonable inferences drawn from them. . . .” State v. Kirkley, — N.C. —, — S.E. 2d — (slip opinion p. 19 (1983)); State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975).
The defendant failed to object to the closing argument and therefore may now only assert that the trial judge should have corrected the argument ex mero motu. In a case where the defendant fails to object to the State’s closing argument the standard of review is one of gross impropriety. State v. Kirkley, --- N.C. ---, --- S.E. 2d --- (filed 3 May 1983, p. 19); State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979).
The defendant’s basis for this assignment of error is that one of the State’s own expert witnesses was unable to testify that
VI.
The defendant Craig next asserts that the trial court erred when it failed to instruct on what the jury should do if they found the defendant not guilty. The defendant contends that the error was highlighted by the fact that the judge gave detailed instructions to the jury on how to proceed if they found the defendant guilty. “It is well established in this jurisdiction that a charge is to be construed as a whole and isolated portions of a charge will not be held prejudicial where the charge as a whole is correct and free from objection.” State v. Poole, 305 N.C. 308, 324, 289 S.E. 2d 335, 345 (1982). A review of the judge’s charge to the jury makes it obvious that the jury was made fully aware that they could find the defendant not guilty. The judge’s instructions as a whole did not express an opinion as to the guilt or innocence of the defendant. We find no prejudice in the trial judge’s instructions and therefore overrule this assignment of error.
Guilt Phase — Anthony
VII.
Defendant Anthony contends that the trial court committed a prejudicial error by allowing State’s witness John Howie to testify about alleged statements made by the defendants when
These statements are at least implied admissions by the defendant Anthony. 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). The test for determining whether a statement made by a co-defendant can be admitted into evidence as an implied admission was clearly stated by Justice Branch (now Chief Justice) in State v. Spaulding, supra:
(I)f the statement is made in a person’s presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement were untrue and it is shown that he was in a position to hear and understand what was said and had the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission. (Citations omitted.)
288 N.C. at 406, 219 S.E. 2d at 184. It is clear from the testimony of Mr. Howie that at least one of the two defendants made the statements objected to by defendant Anthony. It is also apparent that Anthony was able to hear the statements and did not attempt to deny his involvement. In fact, Mr. Howie’s testimony indicates that the statements were made by one defendant to the other. We therefore find that the statements testified to by Mr. Howie were admissible against defendant Anthony at least as implied admissions. In addition, any error could not have been prejudicial because Mr. Bobby Howie, the driver of the car, later testified to the same conversation without objection by the defendant Anthony. As a result, any benefit from the earlier ob
Although defendant Anthony raised questions by his assignments of error numbers one, three and four, those questions are deemed abandoned because they were not discussed in his brief. State v. Wilson, 289 N.C. 531, 223 S.E. 2d 311 (1976). Rule 28(b)(5) of the Rules of Appellate Procedure states in part: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”
Guilt Phase — Anthony and Craig
VIII.
The defendants argue that they were denied a fair trial because the district attorney referred to them as “wolves” during his closing argument. Specifically the defendants object to the analogy employed by the State which compared them and their actions to a pack of wolves. The defendants failed to object to the closing argument of the prosecutor. “When a party fails to object to a closing argument we must decide whether the argument was so improper as to warrant the trial judge’s intervention ex mero motu. State v. Kirkley, — N.C. —, — S.E. 2d — (filed 3 May 1983, p. 15). The standard of review is one of “gross impropriety.” State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979).
The law in this jurisdiction allows counsel wide latitude in arguing to the jury. Counsel may argue the law and the facts in evidence and all reasonable inferences arising therefrom but counsel may not interject facts and personal beliefs not supported by the evidence. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975). The defendants contend that the prosecutor was being abusive and interjecting his personal views and opinions when he compared them to a pack of wolves. We disagree with the defendants’ argument.
The prosecutor’s remarks were not abusive and were not an attempt to place before the jury his personal beliefs or opinions. The references to wolves and wolfpack were made to illustrate by way of analogy how concert of action leads to each of the defend
IX.
The defendants also contend that their right to a fair trial was denied when the prosecutor made reference to a witness who was not called to testify by either the State or the defendant. The prosecutor stated:
Michael Moss, the ten-year-old boy didn’t testify nor did we put him on the stand. Why? He was there the same as Mr. Carr and the same as Mr. Johnson. He’s a ten-year-old boy. The ones best able to describe it, the adult and the man that’s pushing adulthood. Four years makes a difference at that time. No, we didn’t call Michael Moss. Don’t you know if his statement was inconsistent you would have heard from him now.
The defendants maintain that the argument improperly placed before the jury facts, to-wit, Michael Moss’ testimony, not supported by the evidence and was also an improper comment on their failure to produce witnesses. Once again the defendants have failed to object to the State’s argument and therefore we look to see only if the argument was grossly improper requiring the trial judge to act ex mero motu. State v. Johnson, 298 N.C. 355, 259 S.E. 2d 752 (1979). We do not find the State’s argument to be grossly improper.
The State is allowed to draw the jury’s attention to the fact that the defendant failed to produce evidence which contradicts the State’s case. State v. Tilley, 292 N.C. 132, 232 S.E. 2d 433 (1979). “It is permissible for the prosecutor to draw the jury’s attention to the failure of the defendant to produce exculpatory
Sentencing Phase — Craig
X.
Defendant Craig contends that he was denied a fair sentencing because the prosecutor argued that Betty Jean Howie, a co-defendant who testified on behalf of the State pursuant to a plea arrangement, had no prior criminal record. The defendant maintains that the prosecutor’s reference to Betty Howie’s lack of a prior criminal record was not supported by the evidence and was therefore improper. State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975). The witness, Betty Jean Howie, was subjected to an extensive cross-examination recorded in over one hundred pages of trial transcript. The prosecutor argued that there was no evidence presented at trial which would suggest that Betty Howie had a prior criminal record. The prosecutor was merely arguing an inference which could logically arise in light of the very thorough and lengthy cross-examination conducted by the defendants. Counsel is allowed to argue all facts in evidence and all reasonable inferences which may be drawn from those facts. State v. Kirkley, — N.C. —, — S.E. 2d —, (filed 3 May 1983). We find no error in the prosecutor’s argument and therefore overrule this assignment of error.
XI.
The defendant Craig also argues that it was error for the trial judge to instruct the jury that they could find from the evidence that the murder of Edith Ritch was especially heinous, atrocious and cruel as provided for by G.S. 15A-2000(e)(9). Defendant maintains that the evidence does not support this aggravating circumstance because the victim, with a blood alcohol level of .29, was so intoxicated that she must have been practically anesthetized against the torture of the thirty-seven stab wounds inflicted
Sentencing Phase-Anthony
XII.
During his argument to the jury the prosecutor, in reference to the mitigating circumstances which were to be submitted, stated:
The first circumstance alleged by each of them is that he has no significant history of prior criminal activity. It’s incumbent on the Court to submit to you, as our law would require. Have you heard any evidence whatever on that?
The defendant Anthony argues that it was prejudicial for the prosecutor to state; “Have you heard any evidence whatever on that?”, because it was an improper comment on the existence of a statutory mitigating circumstance. At the time this statement was made the trial judge interrupted the prosecutor and called the parties to the bench. At this point the prosecutor corrected his statement and argued only the weight that such a mitigating factor should be afforded. In State v. Kirkley, — N.C. —, — S.E. 2d — (filed 3 May 1983) we stated that the weight a mitigating circumstance is assigned is entirely for the jury to decide. It follows that counsel is entitled to argue what weight circumstances should ultimately be assigned. Any error is harmless since the trial judge peremptorily instructed the jury that this mitigating circumstance existed in the case of each defendant. This assignment of error is overruled.
XIII.
Defendant Anthony also maintains that he was prejudiced by the trial judge’s instructions to the jury concerning the weighing of aggravating and mitigating circumstances. We find that the instructions in this case were clear, concise, and consistent with those instructions upheld by this Court in State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203 (1982), cert. denied, --- U.S. ---, 103 S.Ct. 474, 74 L.Ed. 2d 622 (1982) and State v. Williams, 305 N.C. 656, 292 S.E. 2d 243 (1982), cert. denied, --- U.S. ---, 103 S.Ct. 474, 74 L.Ed. 2d 622 (1982). We also note that defendant Anthony failed
Sentencing Phase — Craig and Anthony
XIV.
The defendants argue that the trial court erred when it denied their motions to have the fact that they requested to take a polygraph test submitted to the jury as a mitigating circumstance. The mere fact that a defendant desires to take a polygraph test is not, standing alone, evidence of a mitigating circumstance. We have defined mitigating circumstances as:
(A) fact or group of facts which do not constitute any justification or excuse for killing or reduce it to a lesser degree of the crime of first degree murder, but which may be considered as extenuating, or reducing the moral culpability of the killing or making it less deserving of the extreme punishment than other first-degree murders.
State v. Irwin, 304 N.C. 93, 104, 282 S.E. 2d 439, 446-47 (1981). The defendants contend that their own desire to take a polygraph test was some evidence from which the jury could have found as a mitigating factor their willingness to cooperate with the police. We disagree. There is no evidence that the State even suggested that the defendants take a polygraph test. A defendant’s personal desire to submit to a polygraph examination, absent a police request, does not indicate a willingness to cooperate with the police. The record indicates that the request to take the polygraph test was solely self-serving. Such a request has no relevance to the question before the jury at the sentencing stage of this trial. We note that our recent decision in State v. Grier, — N.C. —, 300 S.E. 2d 351 (1983) makes polygraph test results incompetent for all purposes at trial. We therefore overrule this assignment of error.
XV.
The defendants also assert that the trial court erred by allowing the prosecutor to refer to them as “human animals” and members of a “wolfpack” during his closing argument at the
In State v. Smith, 279 N.C. 163, 181 S.E. 2d 458 (1971), this Court held that it was error for a prosecutor to characterize the defendant as “lower than the bone belly of a cur dog.” 279 N.C. at 165, 181 S.E. 2d at 459. In Smith, however, the prosecutor made numerous remarks totally unsupported by the evidence. Some of the remarks in Smith concerned what the prosecutor thought about the defendant’s character, that he didn’t believe a word the defendant said and that he knew when a case called for the death penalty. The types of arguments proscribed by the law of this State and found as error in State v. Smith, supra, are those which place before the jury the personal beliefs or knowledge of counsel which are not supported by evidence presented at trial. State v. Kirkley, — N.C. —, — S.E. 2d — (filed 3 May 1983); State v. Britt, 288 N.C. 699, 220 S.E. 2d 283 (1975).
During his argument to the jury at the sentencing phase of the trial the prosecutor made the following statements:
The course of conduct wherein Edith Ritch was killed was part of a course of conduct wherein the defendants acting as a wolfpack, a group of human animals, descended first on Seab Ritch, beat him mercilessly, continued to Edith Ritch, and there added only the knife to what they had done to Seab Ritch.
* * *
The extreme, overwhelming heinous brutality of this act echoes through the facts. The defendants, by their premeditated, cold-blooded, wolfpack acts, called for their own punishment, their own penalty.
In each instance where the prosecutor referred to the defendants as animals, he did so for a legitimate purpose supported by the evidence. In the first above cited statement the prosecutor was arguing how the evidence supported the aggravating factor that the murder was part of a course of conduct which included the
XVI.
Pursuant to G.S. 15A-2000(d)(2) we have reviewed the record in this case in order to determine (1) whether the record supports all the aggravating circumstances upon which the jury based its sentence of death, (2) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor and (3) whether the death penalty is an excessive or disproportionate punishment in light of similar cases, considering both the defendants and the crimes. As a result of our review of the record, the transcript and the briefs in this case, we find that each aggravating circumstance found by the jury is supported by the record. We also find that the death sentence imposed against each defendant is not the product of any passion, prejudice or other arbitrary factor which would require us to overturn the sentences.
In State v. Williams, — N.C. —, 301 S.E. 2d 335 (1983), we held, speaking through Justice Mitchell, that for purposes of proportionality review the case before the Court must be compared with “all cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court. . . .” — N.C.
In all phases of the trial below as to each defendant and as to each crime for which they were convicted we find no error.
No error.