State v. Montgomery

229 S.E.2d 572 (1976) 291 N.C. 91

STATE of North Carolina
v.
John Newman MONTGOMERY.

No. 46.

Supreme Court of North Carolina.

November 4, 1976.

Rufus L. Edmisten, Atty. Gen., by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

D. Blake Yokley, Winston-Salem, for defendant.

LAKE, Justice.

The defendant attacks the judgment of the Superior Court alternatively. First, he contends that he is entitled to a new trial for errors in the admission of evidence, in the instructions of the court to the jury and in the denial of certain pretrial motions. Second, he contends that, if the trial was free from error in these respects, the imposition of the sentence to death was a violation of his rights under the Constitution of the United States.

We find no merit in any of his assignments of error relating to his first contention. Since we are compelled to accept as correct, interpretations placed by the Supreme Court of the United States upon provisions of the United States Constitution and to comply with and to follow its decisions applying those provisions to the statutes of this State, and since that Court, in Woodson v. North Carolina, ___ U.S. ___, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), held that the provisions of GS 14-17, imposing the death penalty for murder in the first degree, violate the Constitution of the United States and, so, may not be given effect by the courts of North Carolina, and since the provisions of GS 14-21, imposing the death penalty for the offense of first degree rape, cannot be distinguished, in this respect, from the provisions of GS 14-17, we must hold that there is merit in the defendant's attack upon the death sentence imposed upon him.

We turn first to the assignments of error which the defendant says entitle him to a new trial.

Some two months prior to trial the defendant, through his court appointed counsel, moved that the court appoint, at State expense, a private investigator to assist his counsel. At the pretrial hearing of the motion, the defendant's counsel stated that he had interviewed his client at length and talked with members of the family. He advised the court: "[T]here is extensive investigation that needs to be done in the area of pretrial publicity. There is extensive investigation that needs to be done in other counties in the form of interviewing potential witnesses for the defendant as well as other witnesses who may appear in the case. I don't know what the strategy of the District Attorney will be at this time."

Eighteen months elapsed between the commission of the offense and the trial. The complete procedure followed in the selection of the jury is set forth in the record on appeal. Nothing therein, or elsewhere in the record, indicates the nature of any pretrial news story about the alleged offense or that the jury panel, or any member of it, was affected by any publicity given to it. The defendant did not exhaust the peremptory challenges allowed him by the law of the State. The defendant, who did not take the stand as a witness in his own behalf, sought to establish an alibi through testimony of his mother, his wife, his brother and a friend. Nothing whatever in the testimony of these witnesses, or elsewhere in the record, suggests the existence of any other person who might have testified that he or she observed the defendant at any place other than the scene of the alleged rape at or about the time when it is alleged to have occurred. The defendant, himself, was obviously the person best prepared to inform his counsel as to his whereabouts at the time in question and as to the identity of any person who might be able or willing to testify in support of his alibi. Nothing whatever in the record suggests the existence of any person who might be able or willing to testify that the alleged offense did not occur, or that it was perpetrated by someone other than the defendant. Consequently, there is nothing to indicate that the employment of an investigator would have been of any assistance whatever to counsel appointed by the court to represent the defendant in this matter.

GS 7A-450(b) provides: "Whenever a person, under the standards and procedures set out in this subchapter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation. * * *." (Emphasis added.) This statute has never been construed to extend to the employment of an investigator in the absence of a showing of a reasonable likelihood that such an investigator could discover evidence favorable to the defendant. We decline so to construe it. We do not have before us, and do not pass upon, the right of an indigent defendant to have such an investigator employed at the expense of the State upon a showing of a reasonable basis for belief that such employment would be productive of evidence favorable to him. See State v. Tatum, N.C., 229 S.E.2d 562, decided this day.

Pursuant to GS 7A-465, the office of "Public Defender" has been established in five of the 30 judicial districts of this State, Forsyth County not being included in any of these. GS 7A-468 provides: "Each public defender is entitled to the service of one investigator, to be appointed by the defender to serve at his pleasure. The Administrative Officer of the Courts shall fix the compensation of each investigator, and may authorize additional investigators, fulltime or part-time, upon a showing of need." Nothing in this statute requires or contemplates the employment or use of an investigator for the purpose of embarking upon a statewide, or worldwide, search for evidence in the absence of any indication whatever that such evidence exists anywhere. We have not been advised of any such use of his investigative staff by any Public Defender in the State.

The contention of the defendant that the refusal of the court to appoint a private investigator to assist his counsel denies him his constitutional right to counsel in violation of the Sixth Amendment to the Constitution of the United States and his constitutional right to equal protection of the laws in violation of the Fourteenth Amendment thereto is without merit.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court of the United States said, "[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." The court, therefore, held that the right to counsel, guaranteed, as against the Federal government, by the Sixth Amendment to the United States Constitution, was extended by the Fourteenth Amendment to the states.

Clearly, an indigent charged with first degree rape, for which the statutory penalty is death (presently life imprisonment), is entitled to counsel appointed by the court and paid by the State. GS 7A-450(b) so provides. In recognition of this constitutional and statutory right, counsel was appointed for this defendant and diligently represented him at the trial and in this Court. It does not follow that, without any showing of a reasonable basis for believing that substantial benefit to the defendant would result therefrom, the State must also appoint, at its expense, a private investigator for use of such appointed counsel. Our attention has been directed to no decision of the Supreme Court of the United States so indicating and we decline so to hold. The Equal Protection Clause does not compel the waste of the public's money in Forsyth County merely because it is theoretically possible that some public defender in another judicial district may be extravagant in his use of investigators appointed to assist him, nor is this required merely because some wealthy person accused of a crime may see fit to spend his own money in extravagant and unpromising investigation.

The defendant, by his plea of not guilty, puts in issue all material elements of the State's case. However, where, as here, the defendant seeks to establish an alibi, the crucial question is that of identification of the defendant as the perpetrator of the alleged offense. In the present case, the in-court identification of the defendant as the perpetrator of the alleged rape was clear and positive by each of the three witnesses present at and shortly before the commission of the offense. Their testimony was corroborated, and the defendant's effort to establish an alibi was dealt a staggering blow, by the positive in-court identification of the defendant by Mr. Warner as the driver of the automobile parked in the close vicinity of the alleged crime at approximately the time the State contends it was committed and traced by the officers to the defendant's then place of abode. The defendant contends that each of these in-court identifications was improperly admitted in evidence. We find no merit in these contentions.

As to the identification of the defendant by the victim of the alleged rape and by her two young companions, the defendant contends that these were based upon unlawful out-of-court photographic identification. The first picture so observed by these three witnesses was the composite picture of the assailant prepared by Detective Barker in collaboration with the victim of the alleged attack. She, not the detective, selected the plastic components (eyes, hair, nose, ears, lips, etc.) which went into the basic composite picture and then, from her recollection of the appearance of her assailant, directed the detective in the drawing in of details necessary to make the final product represent her recollection of the appearance of the man who raped her. The two boys, seeing the final result, agreed that it properly portrayed the man with whom they had conversed and walked from the churchyard to a point near the place of the alleged crime. At this stage, none of these witnesses knew the defendant and nothing in the record indicates that he was then suspected by the artist or any other police officer. The purpose of this picture was not to convict the defendant but to describe the offender. It was merely a recording of the image of the offender then fresh in the minds of each of these witnesses. Clearly, there was nothing improper in this portion of the out-of-court identification, or in the admission of the photograph of the composite in evidence.

After the composite was completed, these three witnesses were shown (separately, so far as the record indicates) a picture of seven men, including the defendant, in a lineup and were also shown a smaller print of the same picture with one of the men, a deputy sheriff, deleted therefrom. Each of these three witnesses, without hesitation, picked the defendant, as shown in that photograph, as the perpetrator of the alleged rape. It is interesting to note that the defendant's objection to the use of this photograph is that, of all the men in it, he was the one who most closely resembled the composite prepared with the collaboration of the victim of the alleged assault.

The picture so exhibited by the officers to these three witnesses was not prepared after the officers had come to suspect the defendant as the alleged rapist and for the purpose of assisting these witnesses to identify him as such. This picture was taken a year before this offense occurred. It shows the defendant in a group of seven young, white men, all save one (a deputy sheriff) of approximately the same age, size, build, clothing and coloring.

Due process of law does not require that all participants in a lineup or in a photograph, viewed by the victim of or witness to a crime, be identical in appearance, for that would, obviously, be impossible. All that is required is that the lineup or photograph be fair and that the officers conducting the investigation do nothing to induce the witness to select one participant or subject rather than another. This record contains no indication of any such inducement by the officer who exhibited this photograph to these witnesses.

Prior to trial, the defendant moved to suppress any in-court identification of the defendant based on these photographs. The court conducted a voir dire at which the defendant offered no evidence. The witnesses for the State upon the voir dire were the girl and her two young, male companions who testified as above summarized. The defendant offered no evidence on the voir dire. There was no evidence whatever of any suggestive procedure or of anything else creating a substantial likelihood of misidentification. Under these circumstances, there was no error in admitting the photograph of the lineup in evidence. State v. Shutt, 279 N.C. 689, 698, 185 S.E.2d 206 (1971).

At the conclusion of the voir dire, the court found, as to each of these three witnesses, that her or his in-court identification of the defendant was not tainted by any improper out-of-court procedure or suggestion and that no improper out-of-court identification procedure was involved. The court also expressly found, as to each of the two young boys, that his in-court identification of the defendant was based upon his having seen the defendant on 6 July 1974, the date of the alleged offense. While there was no such express finding with reference to the girl's in-court identification of the defendant, the findings and order of the court clearly and necessarily implied a like finding as to her. Accordingly, the court denied the motion to suppress the in-court identification testimony of each of these witnesses. Such findings of fact made by the trial judge are conclusive if supported by competent evidence in the record. State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966).

The evidence overwhelmingly supports each of these findings and, indeed, there is no evidence to the contrary. The testimony on the voir dire clearly shows that each of these witnesses was in the presence of the defendant shortly after noon on a clear, sunlit day, was in close proximity to him, walked and talked with him for a substantial period of time, and had ample opportunity to observe his appearance. Each testified that her or his identification of the defendant in court was based upon what she or he observed on the date of the offense.

Nothing whatever indicates that the lineup picture of the defendant was unlawfully obtained or that, at the time it was taken, this defendant was accused of any crime or that he did not voluntarily participate in the lineup. Where nothing upon a photograph taken from police files suggests the selection of the defendant as the perpetrator of the offense presently under investigation, the exhibition of such photograph to a witness for purpose of identification of the defendant as the perpetrator of the offense presently under investigation is not, per se, a violation of the defendant's constitutional rights, notwithstanding absence of evidence showing the circumstances under which the photograph was obtained by the police. State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970).

There was, therefore, no error in admitting the in-court identification testimony of the girl and her two young companions.

Mr. Warner positively identified the defendant in the courtroom as the man whom he saw park the automobile, subsequently identified as belonging to the defendant's father, at the store operated by Mr. Warner's son at about the time of the occurrence here in question. It was not until after he had done so that the defendant objected, moved to strike his testimony and requested a voir dire. The court overruled the objection and denied the request for the voir dire, saying the objection was too late. In this there was no error. Stansbury, North Carolina Evidence (Brandis Rev.) § 27.

On cross-examination Mr. Warner testified that the day before he was called to the witness stand, he saw the above mentioned lineup photograph and recognized the defendant therein and he knew the defendant was under arrest, charged with the offense for which he was then being tried, but said, "The fact that I knew that did not make it easier for me to point the finger at him and say he's the man I saw get in that car that day."

The defendant's contention that the court erred in permitting Detective Barker to testify concerning his "conversation" with the victim of the alleged rape in the course of constructing the composite picture of her assailant is without merit. Primarily, the officer testified as to what he told the girl and what he asked her in the construction of this composite picture. In one or two instances the witness told of the girl's objection to a specific feature of the composite picture then in course of construction and of her suggestion for its correction, which suggestion the witness followed. The purpose of the testimony was to show the procedure followed in the construction of the composite. It was substantially in corroboration of the girl's own testimony and the judge limited it to that purpose. There was no error in the admission of this evidence.

There was no error in the denial of the defendant's motion to strike the testimony of Dr. Lide, the pathologist who examined the Pap smear taken by Dr. Walker from the victim of the attack. Dr. Walker had previously testified that he, himself, took the smear in the hospital emergency room and personally carried it to the pathology laboratory of the hospital and wrote the request slip for its examination by that department. Dr. Lide, the pathologist, testified that he, himself, examined a Pap smear identified as that taken from the girl. He did not remember, and Dr. Walker apparently did not, whether the smear was actually handed to him by Dr. Walker or possibly passed through the hands of one other person. The possibility that within the Pathology Department of this hospital this smear could have been interchanged with another taken from a different patient is too remote to require the trial judge to grant the motion to strike the testimony of Dr. Lide. It would go only to the weight to be given the testimony by the jury.

There was no error in admitting in evidence the testimony of Police Officers Stimpson and Clopton indicating flight by the defendant some three or four days after the offense was committed, nor in the instruction by the court to the jury with reference to flight as a circumstance which the jury might consider as showing consciousness of guilt. Flight from the scene of a crime does not create a presumption of guilt but it is a circumstance which the jury may consider in determining whether the totality of the circumstances shows a consciousness of guilt on the part of the defendant. State v. Lampkins, 283 N.C. 520, 196 S.E.2d 697 (1973); Stansbury, North Carolina Evidence (Brandis Rev.) § 178. The court so instructed the jury.

After the defendant had introduced the testimony of his brother and that of his friend, Joseph Michael Cook, to the effect that the defendant was in their company at another place, so near the time of the alleged offense for which he was on trial that it would not have been possible for the defendant to have committed the crime, the State, over objection, called Police Officer Clopton as a rebuttal witness. He was permitted to testify to statements made by these witnesses to him, shortly after the offense is alleged to have been committed, to the effect that, on the date of the alleged offense, the defendant was not in their presence from 12 o'clock, noon, until more than two hours thereafter (the time within which the State's evidence shows the offense was committed).

Obviously, this evidence, being hearsay, was not competent for any purpose except to impeach the credibility of these witnesses for the defendant. State v. Cope, 240 N.C. 244, 81 S.E.2d 773 (1954); Stansbury, North Carolina Evidence (Brandis Rev.) § 46. Had the defendant, in apt time, so requested, the court should have instructed the jury that it might consider this testimony of Officer Clopton for that purpose only. State v. Norkett, 269 N.C. 679, 153 S.E.2d 362 (1967); Stansbury, op. cit., § 79. However, no such request is shown by the record. Consequently, the overruling of the defendant's general objection without such limiting instruction was not error. State v. Goodson, 273 N.C. 128, 159 S.E.2d 310 (1968).

The remaining assignments by reason of which the defendant contends he should be granted a new trial have also been carefully considered. None of them has merit and no useful purpose would be served by discussing any of them in detail. Consequently, we find in the record no error which would justify the ordering of a new trial. The defendant has had a fair trial, free from prejudicial error. The jury did not believe his evidence designed to establish an alibi and did believe the evidence of the witnesses for the State. Their verdict will not be disturbed.

By reason of the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra, the judgment of the Superior Court sentencing the defendant to death upon this verdict must be, and is hereby, vacated and, by authority of the provisions of 1973 Session Laws, Ch. 1201, § 7 (1974 Session), a sentence of life imprisonment must be, and is, substituted in this case.

This case is remanded to the Superior Court of Forsyth County with directions (1) that the presiding judge, without requiring the presence of the defendant, enter a judgment imposing a sentence of life imprisonment for the first degree rape of which the defendant has been convicted; and (2) that in accordance with this judgment, the Clerk of the Superior Court issue a commitment in substitution for the commitment heretofore issued. It is further ordered that the Clerk furnish to the defendant and to his attorney a copy of the judgment and commitment as revised pursuant to this opinion.

The record on appeal includes 68 pages devoted exclusively to the selection of the jury to which no assignment of error discussed in the brief of the appellant relates. The inclusion of this material in the record on appeal caused an utterly useless expense which the State should not be required to bear on behalf of this indigent defendant. Pursuant to Rule 9(b)(5) of the Rules of Appellate Procedure, 287 N.C. 671, 693, the cost of mimeographing these 68 pages of the record on appeal is hereby taxed against the attorney for the defendant.

NO ERROR IN THE VERDICT.

DEATH SENTENCE VACATED.