State v. Frazier

185 S.E.2d 652 (1972) 280 N.C. 181

STATE of North Carolina
v.
Johnnie FRAZIER.

No. 114.

Supreme Court of North Carolina.

January 14, 1972.

Atty. Gen. Robert Morgan and Special Counsel Ralph Moody, Raleigh, for the State.

Lila Bellar, Charlotte, for defendant.

LAKE, Justice.

The defendant assigns as error the denial of his plea in amnesty and asserts that if this was not error the State should have arraigned him for second degree murder only, by reason of an alleged agreement to accept a plea of guilty thereof.

Amnesty is an exercise of the sovereign power by which immunity to prosecution is granted by wiping out the offense supposed to have been committed by a group or class of persons prior to their being brought to trial. It is related to the granting of a pardon, which is the forgiveness by the sovereign of an offense, granted to an individual after his conviction thereof. 59 Am.Jur.2d, Pardon and Parole, §§ 5 and 9. Amnesty has been granted in this State by acts of the Legislature. See: State v. Blalock, 61 N.C. 242, and State v. Applewhite, 75 N.C. 229, relating to the Amnesty Acts of 1866, 1872 and 1874. See also: State v. Bowman, 145 N.C. 452, 59 S.E. 74, and State v. Love and West, 229 N.C. 99, 47 S.E.2d 712, wherein statutes provided immunity to the witness for the State with reference to a specific type of crime. Federal grants of amnesty have been proclaimed by the President on a number of occasions beginning with an amnesty proclamation by President Washington in 1795. See United States v. Burdick, 211 F. 492 (S.D.N.Y., 1914). Neither the solicitor nor the judge of the superior court has authority under the law of this State to grant amnesty.

Actions of the solicitor in the prosecution of a specific criminal case may result in a bar to further prosecution for the commission of an offense, as where the solicitor enters a nolle prosequi or his actions give rise to a proper plea of former jeopardy or, perhaps, where they are so basically unfair as to make further prosecution a denial of due process of law, or as where the State, with the approval of the trial court, accepts a plea of guilty of a lesser offense, or the solicitor announces in open court, when the defendant is brought to trial, that the State seeks only a verdict of guilty upon a lesser degree of, or a lesser offense included within, the offense charged in the indictment. None of these situations is disclosed by this record.

The basis of the defendant's contention upon this point is that he testified when called as a witness by the State at the trial of his alleged accomplice Westbrook. Prior to and throughout that testimony this defendant, Frazier, was represented by competent, experienced trial counsel, who was present in that capacity when Frazier testified. The present record makes it abundantly clear that the decision so to testify was the decision of this defendant after his conferences with his then counsel. Following those conferences, this defendant's then counsel approached the solicitor with the suggestion that this defendant testify for the State against Westbrook. Nothing whatever in this record suggests any promise or suggestion by the solicitor, or by counsel for the private prosecution of Westbrook, that the defendant would receive any benefit or reward by reason of his proposed testimony. His reason for so testifying was his belief that Westbrook intended, by his own testimony at that trial, to place the blame for the killing of Miss Underwood upon this defendant, Frazier. Nothing in the use of that testimony by the State precludes the State from now prosecuting this defendant. State v. Lyon, 81 N.C. 600; State v. Newell, 172 N.C. 933, 90 S.E. 594.

The record on this appeal discloses that, following Frazier's testimony in the trial of Westbrook, his then counsel conferred with him and advised him that "by virtue of the admissions which he had made in his testimony" it was such counsel's opinion that he, Frazier, should think seriously about entering a plea to the charges pending against him. No one was present at that conference except the defendant, his then counsel and his parents. Thereupon, the defendant's then counsel conferred with the then solicitor and the counsel for the private prosecution and ascertained that the solicitor would be willing to accept a plea of guilty to murder in the second degree by this defendant upon the murder charge and a plea of guilty to kidnapping. The defendant's then counsel so advised the defendant. Defendant's then counsel testified that at no time did the judge make any suggestion as to the type of sentence he would impose in the event of such pleas. The defendant's then counsel so informed the defendant.

Thereafter, the defendant was brought into court for arraignment on the charges against him. The first case called was the kidnapping charge. The defendant's counsel entered a plea of guilty. Upon the court's interrogation of the defendant to ascertain that this plea was entered with his consent, voluntarily and understandingly, the defendant advised the court, "I want to have a jury trial." Thereupon, the court ordered the plea of guilty stricken. The defendant's then counsel thereupon requested to be relieved of his assignment. This was done and the defendant's present counsel was appointed to represent him. Arraignment proceedings were suspended and when the defendant was thereafter arraigned upon the three charges, he entered, through his present counsel, a plea of not guilty to each. In this record there is no basis whatever for a finding that the defendant was induced by the State to testify in the trial of Westbrook, or that by placing the defendant on trial on the charge of murder in the first degree the State has violated any agreement with the defendant, or has otherwise violated his legal rights.

The defendant next contends that the court erred in denying his motion to quash the indictment for murder on the grounds that G.S. § 14-17 is unconstitutional in that: (1) It permits the jury to return a verdict of guilty of murder in the first degree without more, or to return a verdict of guilty of murder in the first degree with a recommendation that the punishment shall be imprisonment for life, no standards or guide lines being provided for the guidance of the jury in this determination; (2) the statute provides for the determination of guilt and punishment by a single verdict trial; and (3) the death penalty constitutes cruel and unusual punishment. All of these contentions were considered and rejected by this Court in State v. Westbrook, 279 N.C. 18, 29, 181 S.E.2d 572. See also: McGautha v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711; Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630, 641.

The defendant next contends that there was prejudicial error in the consolidation for trial of the three charges against him. In this there was no error.

G.S. § 15-152 authorizes the consolidation of two or more indictments where the charges are for "two or more acts or transactions connected together." In State v. Old, 272 N.C. 42, 157 S.E.2d 651, this Court found no error in the consolidation for trial of a charge of murder and two charges of assault with a deadly weapon upon different individuals, saying, "Ordinarily, and unless as here, the evidence showing guilt of a minor offense fits into the proof on the capital charge, the minor offenses should not be included." In the present case, the State contends that the murder of Miss Underwood, the kidnapping of Mrs. Collins and the robbery of Mrs. Collins were all parts of a continuing program of action by the defendant and Westbrook, covering a period of approximately three hours. Under such circumstance, evidence of the whole affair is pertinent to the several charges and there is no error in consolidating them for trial. State v. Arsad, 269 N.C. 184, 152 S.E.2d 99; State v. Turner, 268 N.C. 225, 150 S.E.2d 406; State v. Morrow, 262 N.C. 592, 138 S.E.2d 245; State v. White, 256 N.C. 244, 123 S.E.2d 483; State v. Brown, 250 N.C. 209, 108 S.E.2d 233.

The defendant next contends that there was error in allowing challenges for cause by the State to prospective jurors who, on voir dire, stated that they were opposed to capital punishment. Each prospective juror, so excused, not only stated that he was opposed to capital punishment, but further, in response to questions by counsel for the private prosecution and in response to inquiries by the court, stated that, regardless of the evidence, he or she would not consider returning a verdict upon which the judge would have to impose a death sentence. The sustaining of the challenges to these jurors did not violate the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776. State v. Westbrook, supra.

The record does not show that at each recess the court instructed the jury not to discuss the case among themselves or to let anyone talk to them about it. The defendant assigns this omission as error. The record indicates that the jury was kept together under the supervision of the sheriff throughout the trial. There is no suggestion of any improper conduct by any juror or of any effort by any other person to communicate with a juror. While it is the better practice for the court, at a recess of a trial, to instruct the jury that during such recess they are not to discuss the case among themselves or with any other person, no prejudicial error is shown in this case by the silence of the record upon this point. Nothing in the record indicates that the defendant requested the court so to instruct the jury at any time.

Following the selection and impaneling of the jury, the defendant, for the first time, advised the court that he wanted a psychiatric examination and treatment before the trial began. In presenting this request to the court, his counsel stated:

"Mr. Frazier insists upon having a psychiatric or mental examination prior to the beginning of this trial. He insists that he needs psychiatric attention. I told Frazier that we have attempted and the court has attempted and I have requested several times that he be examined by a psychiatrist and effort has been made toward this end. However, they have been unsuccessful up to the present time."

She then requested the defendant to state his desire to the court, which he did, setting forth no ground for such request. After ascertaining the location of the mental health clinic, the court requested a conference of attorneys. The record shows such a conference was conducted in the judge's chambers, but does not show what conclusion was reached, except that the trial proceeded immediately.

Nothing else in the record suggests any contention by the defendant that he was not guilty by reason of insanity or that he was unable, by reason of insanity, to go to trial. It is quite apparent that the demand for psychiatric examination was for the sole purpose of delay. We find no merit in this assignment of error. In State v. Propst, 274 N.C. 62, 68, 161 S.E.2d 560, this Court, speaking through Justice Bobbitt, now Chief Justice, said:

"Ordinarily, it is for the court, in its discretion, to determine whether the circumstances brought to its attention are sufficient to call for a formal inquiry to determine whether defendant has sufficient mental capacity to plead to the indictment and conduct a rational defense."

The defendant next contends that the court expressed an opinion as to the credibility of certain witnesses for the State by ruling, in the presence of the jury, that each was an expert in the field of his testimony. It is elementary that it is error for the trial judge to indicate to the jury in any manner his opinion as to the credibility of a witness, or as to the weight to be given his testimony. G.S. § 1-180; State v. Simpson, 233 N.C. 438, 64 S.E.2d 568; State v. Woolard, 227 N.C. 645, 44 S.E.2d 29; State v. Auston, 223 N.C. 203, 25 S.E.2d 613. After the State's witness Ensley testified concerning his training and experience in the lifting of fingerprints, the court ruled: "Upon the evidence offered, the Court will find that he is an expert in the field of lifting fingerprints, and entitled to give his opinion evidence in that field." A similar ruling was made by the court with reference to the State's witness Stubbs, held to be an expert in the field of fingerprint comparisons. 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. It is quite obvious that the rulings here challenged by the defendant could not have been understood by the jury as anything other than rulings upon the qualification of the witness to testify as to his opinion.

This case is distinguishable from Galloway v. Lawrence, 266 N.C. 245, 145 S.E.2d 861. That was a suit against a surgeon for damages due to malpractice. The defendant, himself, was called to the stand as a witness in his own behalf and tendered as an expert witness. The court, in the presence of the jury, said, "Let the record show that the Court finds as a fact that Dr. Lawrence is a medical expert to wit: an expert physician in surgery." Since the point at issue in that case dealt with the defendant's skill and expertness in surgery, we held that the court's finding, as stated, should not have been made in the presence of the jury. In the present case, on the contrary, the court's ruling could not have been interpreted by the jury as anything other than a holding that the witness was qualified to testify concerning his expert opinion in his field. There is no merit in this assignment of error.

At the beginning of the third day of the trial, in the absence of the jury, the defendant's court appointed counsel advised the court that the defendant, himself, desired to address the court. Thereupon, the defendant announced to the court that he was not satisfied with his attorney. The court advised the defendant that he had the right to conduct his own case without counsel, if he so desired, but, having appointed counsel for him, the court would not appoint another. The court further stated that in its opinion the defendant's attorney was doing an excellent job for him under the circumstances. At the court's suggestion, the defendant conferred further with his counsel and the trial proceeded with the same counsel continuing to represent the defendant. In this, there was no error. The defendant, an indigent, was entitled to have the court appoint competent counsel to represent him at his trial. State v. Simpson, 243 N.C. 436, 90 S.E.2d 708. He was not entitled to have the court appoint counsel of his own choosing or to have the court change his counsel in the middle of the trial.

The defendant next contends that the court erred in the admission of incompetent evidence. This assignment of error is based upon numerous exceptions. We have examined all of these and find in none of them basis for the granting of a new trial. It was not error to admit in evidence photographs of the body of Miss Underwood as it lay where found, the court carefully instructing the jury that such photograph was allowed in evidence for the sole purpose of illustrating the testimony of the witnesses and not as substantive evidence. The photographs were properly authenticated as correct portrayals of conditions observed by and related by the witnesses who used the photographs to illustrate their testimony. As we said in State v. Atkinson, 275 N.C. 288, 311, 167 S.E.2d 241, "The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence" when so authenticated. Accord: State v. Westbrook, 279 N.E. p. 32, 181 S.E.2d 572, supra; State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104; State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; Stansbury, North Carolina Evidence, 2d Ed. § 34.

The defendant asserts in his brief, "The Court should not have allowed the State to cross-examine its own witnesses, and the ruling of the Court in allowing continued leading questions amounts to an abuse of discretion." We have examined each of the eleven exceptions on which this assignment of error is based and find no merit therein. The allowance of leading questions is within the discretion of the trial judge. McKay v. Bullard, 219 N.C. 589, 594, 14 S.E.2d 657; State v. Buck, 191 N.C. 528, 132 S.E. 151.

There was no error in the admission of evidence to the effect that fingerprints of Westbrook, as well as those of this defendant, were found in the Collins automobile. The defendant's statement, previously introduced in evidence, showed that he and Westbrook were together throughout the entire day on which Mrs. Collins was kidnapped and her automobile taken by her two assailants. The evidence introduced at the pre-trial hearing, upon the defendant's motion to suppress evidence of in-custody statements made by him, is ample to support the court's findings of fact that, prior to interrogation, the defendant was given and understood the full warning required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, that he voluntarily and understandingly made statements without any promise, threat, reward or hope of reward and that, after being advised of his rights, he waived in writing his right to counsel at such interrogation and his right to remain silent. Consequently, these findings of fact are binding upon this Court. State v. Barber, 278 N.C. 268, 179 S.E.2d 404; State v. Wright, 275 N.C. 242, 166 S.E.2d 681; State v. Gray, 268 N.C. 69, 150 S.E.2d 1. Upon these findings, there was no violation of any right of the defendant under the Constitution of the United States in the admission into evidence of the said statements, or in the denial of the motion to suppress the same. There is no basis for distinction in this respect between the written statement of the defendant and his oral statements to which Officer Clark was permitted to testify.

After the argument of the appeal in this Court by his counsel, the defendant in propria persona filed a further brief, apparently without the knowledge of his counsel, whose brief in his behalf was filed in due time. Ordinarily, the communication so received by this Court from a litigant represented by counsel will not be considered by the Court. Due to the fact that this is an appeal from the imposition of a sentence of death, we have considered the supplemental brief so filed by the defendant for the sole purpose of giving him the full benefit of any matter raised and discussed therein.

In this supplemental brief, the defendant contends that the court erred in admitting in evidence the statement made by him to the investigating officers while he was in custody, notwithstanding his written waiver of his right to counsel at such interrogation, for the reason that G.S. § 7A-457, prior to the 1971 amendment thereof, provided that an indigent defendant, charged with a capital offense, could not waive his right to counsel at such in-custody interrogation. He cites State v. Lynch, 279 N.C. 1, 181 S.E.2d 561.

Assuming, without deciding, that it was error to admit in evidence, over objection, the in-custody statement, such error was harmless and does not entitle the defendant to a new trial, for the reason that the defendant, while represented by counsel, testified to the same facts at the trial of Westbrook. The complete transcript of this defendant's testimony at the trial of Westbrook was made a part of the record on this appeal by the defendant. It was presented to and examined by the court at the pre-trial hearing upon the defendant's plea of amnesty and motion to suppress. Had the court sustained the objection to the introduction of the in-custody statement, the State could have introduced the transcript of this defendant's testimony at the Westbrook trial, when his then counsel was present. It fully corroborates the testimony of Officer Clark at this defendant's trial to the effect that he heard the defendant's testimony at the Westbrook trial and there were no substantial deviations between the statements given at the in-custody interrogation and such sworn testimony at the trial of Westbrook. The use of the one rather than the other of these accounts by the defendant of his and his companion's actions could not have affected the verdict of the jury.

The defendant's contention that the argument of counsel for the private prosecution was improper has no merit. State v. Westbrook, supra, 279 N.C. pp. 37-41, 181 S.E.2d 572. The reference in the argument to the defendant as a thief and a robber is supported by the defendant's own statement admitted in evidence. We find no statement in the argument of counsel for the private prosecution, set forth in full in the record, which is not supported by the evidence. Consequently, the argument did not go beyond permissible limits.

The defendant next contends that his motion for judgment of nonsuit should have been allowed with reference to the charge of murder. The basis of this contention is that the bill of indictment for murder does not allege that it was committed in the perpetration of a robbery. The indictment is sufficient in form to allege murder and support a conviction of murder in the first degree. G.S. § 15-144; State v. Haynes, 276 N.C. 150, 171 S.E.2d 435. G.S. § 14-17 provides that a murder committed in the perpetration of a robbery or other felony shall be deemed murder in the first degree. It is not required that the indictment allege that the murder was so committed in order that it be sufficient to support a verdict of murder in the first degree. State v. Haynes, supra. In State v. Mays, 225 N.C. 486, 489, 35 S.E.2d 494, this Court, speaking through Justice Barnhill, later Chief Justice, said:

"The bill of indictment charges the capital felony of murder in the language prescribed by statute. G.S. § 15-144. It contains every averment necessary to be made. State v. Arnold, 107 N.C. 861, 11 S.E. 990; State v. Southern R. R., 125 N.C. 666, 34 S.E. 527. Proof that the murder was committed in the perpetration of a felony constitutes no variance between allegata and probata. State v. Fogleman, 204 N.C. 401, 168 S.E. 536. If the defendant desired more definite information he had the right to request a bill of particulars, in the absence of which he has no cause to complain."

The evidence, including the statement to the investigating officers by the defendant, makes it abundantly clear that the defendant and Westbrook were collaborating in the robbery of Miss Underwood through the stealing of her automobile, and in the course of that felony she was brutally murdered and her body callously dragged to and dumped in the woods. The undisputed evidence is that the bullet removed from the front of the defendant's left thigh was fired from the same weapon as the four bullets recovered from the body of Miss Underwood, the fifth bullet fired into her, as she was held by the defendant, having passed through her body.

We find no merit in any of the defendant's exceptions to the charge of the court. There was no evidence to show the commission of common law robbery in the robbery of Mrs. Collins. The defendant's own statement, admitted in evidence, is to the effect that Westbrook "put a gun on" Mrs. Collins and that, upon their arrival at the South-Park Shopping Center, immediately after leaving Mrs. Collins bound and blindfolded in the woods, Westbrook had a gun with which he shot Miss Underwood. Where there is no evidence of a lesser offense included in the offense charged in the indictment, it is not error for the court to fail to charge the jury with reference to the lesser included offense. State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545.

We have carefully considered each of the defendant's assignments of error and find no merit in any of them.

No error.