State v. Foddrell

231 S.E.2d 618 (1977) 291 N.C. 546

STATE of North Carolina
v.
Wayne FODDRELL.

No. 129.

Supreme Court of North Carolina.

January 31, 1977.

Atty. Gen. Rufus L. Edmisten, Deputy Atty. Gen. Jean A. Benoy, and Associate Atty. Noel Lee Allen, Raleigh, for the State.

Melzer A. Morgan, Jr., Reidsville, for defendant-appellant.

SHARP, Chief Justice.

Seven of defendant's 23 assignments of error relate to the legality and constitutionality of the death sentence. For the reasons stated in State v. Davis, 290 N.C. 511, 546-549, 227 S.E.2d 97, 118-20 (1976), the sentence of death imposed upon defendant must be vacated and one of life imprisonment substituted therefor. In our further consideration of this appeal, therefore, we do not deal with a capital case. We note, however, that the record shows this case to have been tried throughout in strict compliance with our established practice in cases involving the death penalty.

When this case was called for trial defense counsel orally moved for a change of venue. In support of the motion counsel offered only his uncorroborated "submission" that twelve unbiased jurors could not be found in Caswell County; that there had "been widespread animosity about this"; that at the time of the preliminary hearing on 27 July 1973 "the feeling was high"; that the matter got "widespread notoriety in the newspaper" circulated in the locale; and that defendant's escape was also "given wide circulation." When counsel had completed his remarks the court inquired if he had "anything further" to offer in support of his motion for a change of venue. He said he did not, and the court then heard from the solicitor for the State.

After considering the arguments of both defense counsel and the solicitor for the State, Judge Lupton, in the exercise of his discretion, denied the motion to remove. In the order he recited (1) his opinion "that the defendant can receive a fair and impartial trial in Caswell County"; and (2) his intention to allow defense counsel to interrogate each prospective juror to the extent he deemed appropriate with reference to possible bias and to challenge any who appeared unable to render a fair and impartial verdict.

Defendant then "raised objection to the venire" on the ground that, in his opinion, "the court could find" that a greater preponderance of the jurors were white and "that" would deprive defendant of "a trial by a cross section of his peers in the county." In answer to the court's inquiry whether the venire had been drawn in the manner required by law, defense counsel conceded that it had been so drawn. Whereupon the court overruled defendant's objection to the venire and inquired if defendant was ready for trial. His attorney answered, "Yes, Sir."

Assignments 11 and 12 challenge respectively the court's denial of the motion for a change of venue and the "motion challenging array." These assignments are overruled. It is elementary that motions for change of venue are addressed to the sound discretion of the trial judge and, absent abuse of discretion, his ruling will not be disturbed on appeal. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976). Certainly, no abuse of discretion appears here. It is equally obvious that the remarks of defense counsel with reference to the composition of the jury panel fell far short of establishing a prima facie case of racial discrimination in the selection of the venire.

The record does not disclose the relative number of blacks and whites drawn and summoned as members of the venire. Nor does it show the population ratio of the races in the county or the ratio in which they had previously served on juries. Moreover, "[a]n accused has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury. He does have the constitutional right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded." To establish a prima facie case of systematic racial exclusion, "defendants are generally required to produce not only statistical evidence establishing that blacks were underrepresented on the jury but also evidence that the selection procedure itself was not racially neutral, or that for a substantial period in the past relatively few Negroes have served on the juries of the county notwithstanding a substantial Negro population therein, or both. (Lengthy citations omitted.)" State v. Brower, supra at 653-54, 224 S.E.2d at 558-59; State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970).

Defendant having admitted that the jury panel in this case had been drawn as required by the law, and having offered no statistical evidence tending to show systematic exclusion of blacks from jury service, the trial judge was under no obligation ex mero motu to conduct an inquiry into these matters. As this Court specifically noted in State v. Cornell, supra, 281 N.C. at 37, 187 S.E.2d at 778, "The North Carolina statutory plan for the selection and drawing of jurors is constitutional and provides a jury system completely free of discrimination to any cognizable group."

Assignments 6, 7, 8, and 9 relate to the solicitor's voir dire examination of prospective jurors with reference to their attitude toward capital punishment.

This case was tried prior to the decision in Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). It was, therefore, conducted on the assumption that if the jury found defendant guilty of rape the mandatory death sentence followed as of course. The trial would have been a futile and farcical gesture had the State been required to accept as a member of the traverse jury even one person who was so opposed to capital punishment that he would have refused to return a verdict of guilty even though satisfied beyond a reasonable doubt that defendant was guilty as charged. Such a person would be no more eligible to serve than one who had previously formed and expressed the opinion that the defendant was guilty of the crime for which he was being tried. It was not error for the solicitor to ask a prospective juror whether he "believed in capital punishment." State v. Rogers, 275 N.C. 411, 419, 168 S.E.2d 345, 349 (1969). Indeed, it was the solicitor's duty to ascertain whether the prospective jurors would find the facts from the evidence adduced in court and apply to these facts the law as given to them by the court.

In this case, however, no juror was excused for cause merely because he did not "believe in capital punishment." The six whom the State successfully challenged because of their attitude toward the death penalty made it quite clear that under no circumstances would they return a verdict of guilty of any crime for which the punishment was death. Applicable here is the statement by Justice Huskins in State v. Britt, 288 N.C. 699, 706, 220 S.E.2d 283, 288 (1975): "With respect to jury selection in capital cases, we have interpreted Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), to mean that veniremen may not be challenged for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction; but veniremen who are unwilling to consider all of the penalties provided by law and who are irrevocably committed, before the trial has begun, to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the trial may be challenged for cause on that ground. (Citations omitted.) In the light of these principles, we hold that the prospective jurors here in question were properly excused for cause."

We note that when the jury was finally passed each juror seated had been accepted by defendant without exhausting his peremptory challenges. Assignments Nos. 6, 7, 8, and 9 are overruled.

Defendant's Assignment No. 16 based on his Exception No. 32, has reference to the solicitor's cross-examination of defendant concerning his failure to deny that he was Mrs. Reynolds' assailant either at the scene of the crime when she identified him as the rapist or a short time thereafter at the sheriff's office when the warrant was served upon him. This cross-examination must be viewed in the light of the evidence which preceded it. When evaluated in context it cannot be held prejudicial error.

When the State rested its case the evidence tended to show that defendant had raped Mrs. Reynolds on the west side of the church behind some tall shrubbery; that three deputy sheriffs, who had come to the churchyard in response to a telephone call from an unidentified person, saw defendant back out of the shrubbery on his knees, his dungarees down and his red underpants showing; that he fled the scene holding up his pants, his belt flopping; and that the officers, who never lost sight of defendant, captured him in the east driveway just before he got to the highway. On cross-examination defendant explained his dishabille and his presence in the eastern drive (the longer route to the mill) by saying it was the more secluded route and he had the necessity of relieving himself; that after he had stopped "about 15 or 20 feet up in the driveway" he was interrupted in his purpose by the sound of two pistol shots. Not knowing from whence they came and fearing for his safety, he started running toward the light in front of the church. When he turned in response to someone's order to halt, an officer snapped handcuffs on him. Defendant testified, "I was brought back around to where Mrs. Reynolds was, that is when I seen her. That is the first time that I had seen the lady. She pointed me out and accused me of raping her." The cross-examination set out below, which defendant assigns as error, followed the foregoing statement by defendant:

"Q. You did not say anything, did you?

A. Did I say anything?

Q. You didn't say anything did you in response to that?

A. No, I didn't say nothing.

Q. Then later they served a warrant on you and gave you a copy of the warrant, didn't they, charging you with rape?

A. Right.

Q. And you didn't make any statement then did you?

A. No.

Q. And the reason why you didn't make any statement you knew that you had in the past raped Mrs. Reynolds?

Attorney Moore: Objection.

Court: Sustained.

(Exception No. 32)."

Citing United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), defendant contends that it was prejudicial error for the court "to permit the solicitor to cross-examine defendant concerning silence during police interrogation." To this contention there are several answers, each sufficient to overrule Assignment No. 16. One is that defendant neither objected to the questions at the time they were asked nor moved to strike the answers which were made. The final question, to which objection was made and sustained, was not answered. The rule is as quoted in State v. Jones, 280 N.C. 322, 339-340, 185 S.E.2d 858, 868 (1972): "It is elementary that, ``nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence, was offered.' . . An assertion in this Court by the appellant that evidence, to the introduction of which he interposed no objection, was obtained in violation of his rights under the Constitution of the United States, or under the Constitution of this State, does not prevent the operation of this rule." See State v. Lowery, 286 N.C. 698, 213 S.E.2d 255 (1975); State v. Gurley, 283 N.C. 541, 196 S.E.2d 725 (1973); 4 Strong's North Carolina Index 3d Criminal Law § 162 (1976).

The second answer to defendant's contention is that in this case there was no police interrogation of defendant at any time. The situation in which Mrs. Reynolds identified defendant as her attacker was not set up after the event by the police in an effort to entrap defendant into making admissions or statements which could be used against him. When the officers captured defendant running away from the scene of the crime only moments after its commission, it was natural and inevitable that they should walk him back to the spot on the other side of the church where they had left the victim for a confrontation.

The moment Mrs. Reynolds saw defendant, and—so far as the record discloses— without any questions having been asked, she said, "Yes, that's him." Defendant's silence in the face of Mrs. Reynolds' accusation and identification at the scene of the crime was entirely inconsistent with the story he told on the witness stand. When Mrs. Reynolds identified him he had not been given the Miranda warning; there had been no time for that. He was lawfully in custody, but he had not been charged with any crime. The evidence was competent to impeach his testimony at the trial and it was offered for no other purpose. Compare State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974) where the defendant did not testify and, over his objection, the State offered evidence that after his arrest he had failed to deny incriminating statements made by a codefendant whom the officers interrogated in his presence.

The case of United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), cited by defendant in support of his position, is distinguishable from this case on its facts. In Hale, following his arrest for robbery, the defendant was taken to the police station, given the Miranda warning, and then questioned about the source of the money found on his person. The defendant made no response to the questions. Hale testified at his trial. Over his objection, on cross-examination, the prosecutor caused him to admit he had not given the police the exculpatory information to which he had just testified.

In holding that the defendant's motion for a mistrial should have been granted, the Supreme Court said that the Government had failed "to establish a threshold inconsistency between silence at the police station and later exculpatory testimony at trial," and the defendant's silence, while lacking significant probative value, held "significant potential for prejudice." Having just received the Miranda warning the defendant "was particularly aware of his right to remain silent." Thus his failure to offer an explanation during the custodial interrogation could "as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication." The Supreme Court based its decision on the ground that the probative value of the defendant's silence was outweighed by its prejudicial impact and so the Court did not reach the question whether the prosecutor's cross-examination infringed the defendant's constitutional right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 975 (1966).

We hold that the evidence of defendant's silence in the presence of Mrs. Reynolds' accusations at the scene of the crime was properly admitted in evidence for the purpose of impeaching defendant. Had defendant exercised his right not to testify, evidence of his silence at the time of the confrontation and accusation would not have been competent for it would then have been offered as affirmative or substantive evidence tending to establish guilt of the crime charged. See Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971); Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954); State v. Huntley, 284 N.C. 148, 200 S.E.2d 21 (1973); State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972). However since defendant did take the stand the evidence was admissible to impeach his testimony.

Defendant's admission on cross-examination that he made no statement at the time the warrant was served on him at the sheriff's office, however, would have been incompetent whether he took the stand or not, had the defendant made timely objection to the question which elicited it. See State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975). At the time the warrant was served upon him, Deputy Sheriff Carter had fully advised defendant of his constitutional rights as defined in Miranda, and when the officers asked him if he would sign a waiver of rights "he chose not to sign it." Under these circumstances the rationale of United States v. Hale, supra, was applicable. However, defendant did not object to this evidence.

Even had defendant objected, this evidence of his silence could not be held to have prejudiced his case in view of his silence at the time he confronted Mrs. Reynolds and all the other circumstances attending his arrest. Lack of prejudice is the final answer to defendant's contention that evidence of his silence at the sheriff's office entitles him to a new trial. When evidence is erroneously admitted, the test of prejudice is "whether, in the setting of this case, we can declare a belief that the erroneously admitted evidence was harmless beyond a reasonable doubt, that is, that there is no reasonable possibility the admission thereof might have contributed to the conviction." State v. Castor, 285 N.C. 286, 292, 204 S.E.2d 848, 853 (1974).

In the evidentiary setting of this case we can and do declare the belief that there is no reasonable possibility that defendant's admissions of silence contributed to his conviction. Defendant was not a stranger to Mrs. Reynolds. He worked where she did, and almost every night he put the yarn on the machine she operated. Her identification of defendant was positive. Here there is no reasonable possibility of a mistaken identification. The officers saw a man wearing blue dungaree trousers and red underpants backing out of the shrubbery to which Mrs. Reynolds' screams had led them. The officers saw this man, who was not wearing a shirt, run away. He was holding up his unbuttoned pants; his unfastened belt was flopping. They gave chase and, without ever losing sight of him, the officers caught him moments later at the edge of the churchyard. The man they caught was the defendant. They immediately returned him to the scene, where Mrs. Reynolds had remained with another officer. As soon as she saw defendant she said, "Yes, it's him." Later that night, defendant asked the officers who took him to jail in Roxboro to retrieve his shirt for him. He said he had left it, along with an empty beer can and an empty pack of cigarettes, behind the oak tree by the path on the west side of the church. This debris is inconsistent with his story that he ran from his home to the church, holding only his shirt and arriving only moments before his arrest. The officers found the shirt and the other two articles where defendant had said they were. Had the officers "caught defendant in the act" the evidence could hardly have been more conclusive of his guilt. Evidence of his silence at the scene or at the sheriff's office added nothing to the State's case, and it indicated nothing but defendant's recognition at the time of the futility of a denial. Assignment No. 16 is overruled.

Defendant's Assignment No. 19 concerns the failure of the court ex mero motu "to conduct a voir dire before permitting Deputy Carter to testify to the statements defendant made to him about his shirt."

On direct examination defendant testified, "I had told one of the officers where my shirt was, I don't know which one it was, but when they grabbed me I told one of them to let me get my shirt. . . . I told them to go behind the church and get my shirt." After this testimony Deputy Carter was recalled and testified as follows:

"The defendant asked me to get his shirt. At the time that he asked me to pick up his shirt for him, we were on our way to Roxboro to carry him to jail to maximum security. We were not trying to question him."

When the solicitor asked Carter how defendant's request "came about," over defendant's objection, he gave the following answer: "We were riding along and Wayne said, ``I left my shirt at the oak tree,' and he said, ``there is also an empty pack of cigarettes there and also an empty beer can that I left there.' . . . and there is where we found it. . . ."

Carter's testimony was interrupted by a further objection from defendant. The court overruled this objection and instructed the jury that the statements which Carter said defendant made to him were received into evidence for the sole purpose of impeaching his testimony, if it did impeach him, and were to be considered for no other purpose.

Assignment No. 19 is overruled for lack of merit. All the evidence tends to show that it was defendant himself who broached the subject of the shirt by requesting the officers to retrieve it for him. He makes no contention that his statements were involuntary or the result of police interrogation. Indeed, he testified without equivocation that on the way to Roxboro, "These officers didn't undertake to question me any." Under these circumstances a voir dire could have produced no further evidence. Most important, however, the defendant's statements did not amount to a confession. Thus, the trial judge was not required to conduct a voir dire before ruling on the admissibility of the evidence, which was clearly competent for the purpose of impeachment. State v. Shaw, 284 N.C. 366, 200 S.C.2d 585 (1973).

Assignment No. 22, the court's failure to submit to the jury the issues of defendant's guilt of assault with intent to commit rape and assault on a female, is also devoid of any merit. Why this assignment was made or brought forward, we do not understand. In his brief defendant concedes that "submission of such issues to the jury in this case would have been error in favor of the defendant." Mrs. Reynolds testified positively that after defendant had choked her and threatened to kill her, he penetrated her forcibly and against her will. Defendant denied that he was the man who assaulted Mrs. Reynolds. His alibi was that he was on the east side of the church at the time Mrs. Reynolds was assaulted on the west side.

The trial court is required to charge the jury upon the issue of a defendant's guilt of lesser degrees of the crime charged in the indictment only when there is some evidence to sustain a verdict of defendant's guilt of such lesser degrees. There was no such evidence here. State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972).

After carefully considering each of defendant's remaining assignments of error we find them to be wholly without merit. The record reveals no error in defendant's conviction of the crime with which he was charged. As noted in the beginning, however, the sentence of death cannot be upheld. Accordingly, it is hereby vacated, and this case is remanded to the Superior Court of Caswell County with the following directions: (1) The presiding judge, without requiring the presence of defendant, shall enter a judgment imposing life imprisonment for the rape of which he has been convicted; and (2) in accordance with these judgments the clerk of the superior court shall issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to defendant and his attorney a copy of the judgment and commitment as revised in accordance with this opinion.

No error in the verdict.

Death sentence vacated; life sentence substituted.