State v. Shrader

225 S.E.2d 522 (1976) 290 N.C. 253

STATE of North Carolina
v.
Marcus Bryan SHRADER, III.

No. 7.

Supreme Court of North Carolina.

June 17, 1976.

Rufus L. Edmisten, Atty. Gen. by Lester V. Chalmers, Jr., Asst. Atty. Gen., Raleigh, for the State.

Donald P. Brock, Trenton, for defendant.

LAKE, Justice.

The killing of another human being, whether intentional or otherwise, while the person who kills is engaged in the perpetration of a felony, which felony is inherently or foreseeably dangerous to human life, is murder at common law. State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972); State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1950); State v. Levelle, 34 S.C. 120, 13 S.E. 319 (1891); Regina v. Horsey, 3 Fost. & F. 287 (Kent Assizes, 1862); Regina v. Serne, 16 Cox Crim.Cas. 311 (1887); Harno Cases and Materials on Criminal Law and Procedure, 318 (Callaghan, 1939); 40 C.J.S. Homicide § 21 (1944). Kidnaping and robbery are such felonies. State v. Streeton, supra; State v. Jarrette, 284 N.C. 625, 651, 202 S.E.2d 721 (1974); State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1974). A killing is committed in the perpetration of a felony when an unbroken chain of events leads from such felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction. State v. Thompson, supra; 40 Am.Jur.2d, Homicide, § 73 (1968). In the present case, the evidence, both that for the State and that for the defendant, shows an unbroken chain of events leading from the kidnaping to the robbery and thence to the shooting of Mrs. Boyd. Thus, even if the defendant's testimony that he did not intend to fire the pistol is taken as true, the killing of Mrs. Boyd was murder, there being no statute of this State changing the definition of murder from that of the common law. A murder committed with premeditation and deliberation or in the perpetration of a kidnaping or in the perpetration of a robbery is murder in the first degree. G.S. 14-17. The prescribed punishment for such a murder is death by asphyxiation. G.S. 14-17.

The indictment for murder under which the defendant was charged is in the form prescribed by G.S. 15-144. It alleges that the defendant "feloniously, wilfully, and of his malice aforethought, did kill and murder Cheryl Potter Boyd contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State." Such an indictment is sufficient to support a verdict of guilty of murder in the first degree if the jury finds from the evidence, beyond a reasonable doubt, that the defendant killed the deceased with malice and after premeditation and deliberation or that he killed her in the perpetration of a robbery or of a kidnaping. The evidence is ample to support a verdict on each of these three theories. The jury was instructed completely and accurately upon each of them. The defendant assigns no error in the charge to the jury.

The defendant contends that the trial court erred in accepting his plea of guilty to the charge of kidnaping. It is the defendant's contention that, when the defendant, at the close of all the evidence, changed his plea as to the charge of kidnaping from "not guilty" to "guilty," this was tantamount to his entering a plea of guilty to first degree murder because of the above mentioned rules of law.

As Justice Sharp, now Chief Justice, said in State v. Watkins, 283 N.C. 17, 30, 194 S.E.2d 800, 809 (1973), after noting a lack of statutory authority to sustain the rule promulgated by our predecessors on this Court that an accused will not be permitted to plead guilty to a crime for which the penalty is death, "It has long since become the public policy of this State." Nevertheless, there is no merit in this contention of the defendant. Kidnaping is not a crime punishable by death. Indeed, no punishment has yet been imposed upon the defendant for the crime of kidnaping. He was sentenced to death for the crime of murder in the first degree. He did not plead guilty of that offense.

The public policy upon which the defendant relies is simply that no person shall be put to death in this State for a crime until he has been duly indicted therefor and, at a trial, conducted pursuant to law, evidence has been introduced sufficient to support a finding of every element of the offense and a duly constituted jury, properly instructed upon the law, has found from the evidence, beyond a reasonable doubt, that he has committed each element of such offense. A plea of guilty, when accepted, being the equivalent of a conviction, no evidence of guilt is required and no verdict of a jury is required as a prerequisite to the imposition of a lawful sentence. Thus, the said public policy, established by our predecessors on this Court, precludes the acceptance of a plea of guilty to a crime for which the penalty is death. This policy, however, does not preclude the State from offering evidence of a confession, voluntarily and lawfully made by the accused, nor does it preclude the accused from testifying voluntarily at his trial or the jury from considering matters to which he testified in arriving at its verdict that he is guilty of a capital crime.

In the present case, the defendant, voluntarily, contrary to the advice of his counsel, and after careful interrogation by the court in the absence of the jury, testified. He testimony corroborated the evidence introduced by the State in virtually every particular. There was no error in permitting him to do so, or in permitting the jury to consider his testimony in arriving at its verdict. The court carefully and correctly instructed the jury that the defendant's plea of guilty to the offense of kidnaping did not absolve the jury from the necessity of finding, beyond a reasonable doubt, that the offense of kidnaping had been committed, in order for the jury to reach a verdict of guilty of murder in the first degree on the theory that the murder occurred in the perpetration of the felony of kidnaping. No error is assigned with reference to instructions of the court on this or any other matter. We find no error therein.

It was not error to accept the defendant's plea of guilty of the offense of kidnaping and thus to withdraw that charge, as a separate criminal offense, from the jury's consideration, but had this been error, it would clearly be harmless in view of the defendant's own testimony describing in detail the kidnaping and the events leading in an unbroken chain therefrom to the death of Mrs. Boyd.

The state's witness Hines identified the defendant in court as the man he saw in Mrs. Boyd's automobile with her as they passed him while he was stopped waiting to make a left turn at an intersection only minutes before her death. In the absence of the jury, the court conducted a voir dire and found the in-court identification of the defendant by this witness was not tainted by any extraneous or unlawful or impermissible suggestion by anyone, or by photographs exhibited to him by the police, to whom this witness gave an accurate description of the defendant prior to his seeing such photographs. The evidence on the voir dire supports the findings of the judge and there was no error in admitting the in-court identification of the defendant by this witness. The defendant virtually so concedes in his brief in view of our decision in State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1976). Even if there had been error in the admission of this evidence, it pales into insignificance and is clearly harmless in view of the defendant's own testimony describing the kidnaping of Mrs. Boyd, the robbery of the bank and his compelling her to drive from the bank to the place where she was shot. There is no merit in this assignment of error.

On cross-examination of the defendant's stepdaughter, the defendant's counsel attempted to discredit her testimony by showing she had been promised that, in exchange for her testimony, she, herself, would be charged only with aiding and abetting in the kidnaping of Mrs. Boyd. She testified in the course of such cross-examination, "I am not worried about being charged with two other kidnapings and two other murders." She acknowledged that a note exhibited to her by the cross-examining counsel revealed her involvement in the kidnap-murder of two other girls. On redirect examination by the district attorney, she testified that she had made a statement to the officers on the day she was arrested concerning "the other two murders and kidnapings" and directed the officers to places where evidence of those crimes might be found. Her statement concerning these other murders and kidnapings was introduced in evidence. It was to the effect that, in her company, two weeks prior to the kidnaping and killing of Mrs. Boyd, the defendant had kidnaped and murdered two other girls, these crimes being described in substantial detail. The defendant assigns the admission of this evidence on redirect examination as error.

It is, of course, true that, nothing else appearing, the State cannot, through its own witnesses, offer evidence tending to show the defendant has committed another distinct, independent, separate offense having no relation to the crime charged, except its tendency to show his disposition to commit a crime of the nature of the one for which he is on trial. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975); State v. Patterson, 284 N.C. 190, 200 S.E.2d 16 (1973); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). However, the nature of the defendant's cross-examination of this witness for the purpose of impeaching her credibility was such as to suggest to the jury that the witness, independent of the defendant, had been involved in other kidnapings and murders. On redirect examination, for the purpose of rebutting this impeaching evidence, the State was entitled to show that the defendant was the kidnaper and murderer on the other occasion. State v. Patterson, supra.

Furthermore, the record does not show any objection to this evidence on the redirect examination of the stepdaughter. The failure to object to the introduction of the evidence is a waiver of the defendant's right to do so, and the admission of such evidence, even if incompetent, is not ground for a new trial. State v. Hedrick, 289 N.C. 232, 221 S.E.2d 350 (1976); State v. Gurley, 283 N.C. 541, 196 S.E.2d 725 (1973); State v. Howell, 239 N.C. 78, 79 S.E.2d 235 (1953).

The defendant next contends that "the trial court erred in allowing the testimony of Debra Brown" (the stepdaughter of the defendant). The basis of this contention is that she testified on cross-examination by the defendant that she had been promised, in exchange for her testimony as a witness for the State, that she, herself, would be charged only with the offense of aiding and abetting in the kidnaping of Mrs. Boyd and would not be prosecuted for her murder. The record discloses no motion to suppress the testimony of this witness and no motion to strike her testimony, or any objection on the ground of her competence as a witness. Furthermore, this assignment of error has no merit for the reason that the witness was competent. The defendant virtually so concedes in his brief in the light of our decision in State v. Woodson, 287 N.C. 578, 215 S.E.2d 607 (1975), which clearly so holds.

The defendant further contends that the trial court erred in "allowing the jury access to TV and other news sources." The record shows that when recessing for the night, the court instructed the jury not to discuss the case with anyone, not even among themselves, and directed them: "Please don't listen to anything about it. If there be anything on the radio or on the local TV about it, just cut it off until you think that part of it would be over. Don't read anything about it in the newspapers. In all due respect to whomever may write the newspaper or the TV or radio people, you have heard everything that has happened here. They can't tell you anything that you don't know from what has developed in this evidence. So just keep your mind free and open about the case until you have heard all of the evidence, the arguments of counsel, and the charge of the court." In this we see no error. The defendant concedes in his brief that he is unaware of any misconduct on the part of any juror or any disregard of the instructions of the trial court. In the absence of any indication to the contrary, the jurors are presumed to have complied with the instructions of the court. State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972); State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970). The record discloses no objection by the defendant to this instruction or any request for further instruction or action by the court in this respect.

The defendant, acknowledging that we have repeatedly ruled to the contrary, contends that it was error to sentence the defendant to death for the reason that such sentence constitutes cruel and unusual punishment. Further discussion of this contention would be needlessly repetitious of our former decisions. See: State v. Bush, 289 N.C. 159, 221 S.E.2d 333 (1976); State v. Woodson, supra; State v. Jarrette, supra; State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).

Finally, the defendant in his brief requests us to consider all assignments of error made in his statement of the case on appeal, whether brought forward in the brief or not. We have done so and have also carefully considered the entire record. We find no merit in any assignments of error and no error in the record which would entitle the defendant to a new trial. The record, in its entirety, discloses a carefully planned and coldly executed murder of a young woman, unknown to the defendant, seized and used as a shield or hostage in the bank robbery and, when she was no longer useful to the defendant for that purpose, murdered in cold blood in order to eliminate a witness who could identify him as the robber. The defendant has had a fair trial free from any substantial error.

NO ERROR.