State v. Morrow

230 S.E.2d 568 (1976) 31 N.C. App. 654

STATE of North Carolina
v.
Leonard Earl MORROW.

No. 7629SC544.

Court of Appeals of North Carolina.

December 15, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Nonnie F. Midgette, Raleigh, for the State.

Hollis M. Owens, Jr., and J. H. Burwell, Jr., Rutherfordton, for defendant-appellant.

PARKER, Judge.

Defendant first assigns error to the court's overruling his objections to testimony by deputy sheriff L. W. Nichols as to statements made by the defendant prior to his arrest concerning the disappearance of his wife. On 6 October 1976, being in apt time pursuant to G.S. 15A-902, defendant's court appointed counsel served a written discovery request on the district attorney, asking, among other things, that he divulge and furnish the substance of any oral statement made by the defendant which the State intended to offer in evidence at the trial. On 11 October 1975 the district attorney responded in writing and agreed to submit the evidence requested. On 8 March 1976, the day before defendant's trial, the district attorney notified defense counsel in writing that defendant had made certain statements, that on the first request for discovery the State had not anticipated using these since all were self-serving, but that upon reflection the State intended to offer these statements to show that they were inconsistent. At the trial, defendant's counsel objected when the district attorney, on direct examination of deputy sheriff Nichols, asked about the statements made by defendant when he first came to the sheriff's office to report that his wife was missing. Before ruling on the objection, the court conducted a voir dire examination. At the conclusion of this examination, the court ruled the evidence admissible. In this ruling, we find no error.

At the outset we observe that the record fully supports, and defendant does not challenge, the court's determination made at the conclusion of the voir dire hearing that the defendant's statements were voluntarily made at the instance of the defendant himself when he was not in custody or under arrest. Defendant challenges the court's ruling solely on the ground that the district attorney failed to comply with the provisions of G.S., Chap. 15A, Article 48, entitled "Discovery in the Superior Court." We do not agree with the defendant's contention. G.S. 15A-907 provides:

"If a party, subject to compliance with an order issued pursuant to this Article, discovers prior to or during trial additional evidence or decides to use additional evidence, and the evidence is or may be subject to discovery or inspection under this Article, he must promptly notify the attorney for the other party of the existence of the additional evidence." (Emphasis added.)

Here, the district attorney did promptly notify the attorneys for the defendant as soon as he decided to use the evidence concerning defendant's statements. No suggestion of bad faith on the part of the State appears in the record in this case. The district attorney, in the same written notification, granted permission to the attorneys for the defendant to interview the State witnesses who would testify concerning the statements made by the defendant. This was done on the day before defendant's trial commenced. In view of the brevity and simplicity of the testimony concerning defendant's statements, the notification given allowed defendant's attorneys ample time to investigate the matter. They did not move for a continuance or otherwise indicate that they needed additional time. Even if there had been a failure to comply with G.S., Ch. 15A, Article 48, and we find none, the trial court, although empowered to do so by G.S. 15A-910(a)(3), was not required to prohibit the introduction of the evidence. Which of the several remedies available under that statute should be applied in a particular case is a matter within the trial court's sound discretion, not reviewable on appeal in the absence of a showing of an abuse of discretion. See State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975). No abuse of discretion has been here shown. Defendant's first assignment of error is overruled.

Defendant next assigns error to the denial of his motions for nonsuit. We find no error in this regard. The State's evidence showed that defendant did not report that his wife was missing until after her daughter insisted he do so, that even then he expressed a total lack of concern as to her whereabouts, that to explain his delay in reporting and his lack of concern he showed the officers a note written by his wife six weeks earlier which he professed to have found only on the morning after she disappeared, that defendant's automobile was similar to the car seen late at night parked beside the mountain road where a man was seen holding up a "slumped-over" woman dressed in a gown, that his wife's body was found covered by a gown at a point approximately 15 feet from where the car was parked, that her death was caused by strangulation, that defendant claimed to have been at home asleep from 10:45 p. m. on the night the car was seen on the mountain, and that a neighbor saw defendant return home alone in his car at approximately 1:15 a. m. that same night. Viewing this evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference to be drawn therefrom, we find it sufficient to support a jury finding that defendant strangled his wife and left her body on the side of the mountain. We find the evidence amply sufficient to take the case to the jury. Defendant's motions for dismissal as of nonsuit were properly denied.

We also find no merit in defendant's contention that he was entitled to dismissal because the indictment charged that the killing occurred in Rutherford County but the proof indicated it occurred in McDowell County. The evidence would equally support a jury finding that the killing occurred in Rutherford County. Moreover, the question of venue was not properly raised by defendant's motion to dismiss made at the close of the evidence. G.S. 15A-135, which became effective 1 September 1975, provides:

"G.S. 15A-135. Allegation of venue conclusive in absence of timely motion.—Allegations of venue in any criminal pleading become conclusive in the absence of a timely motion to dismiss for improper venue under G.S. 15A-952. . . ."

Under G.S. 15A-952 a motion to dismiss for improper venue must be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared. If arraignment is held at the session for which trial is calendared, the motion must be filed on or before five o'clock p. m. on the Wednesday prior to the session when trial of the case begins. No such timely motion was made in the present case, and the allegations of venue in the indictment became conclusive by virtue of G.S. 15A-135. The same result would have occurred under prior statutes in the absence of a timely plea in abatement. State v. Dozier, 277 N.C. 615, 178 S.E.2d 412 (1971); State v. Outerbridge, 82 N.C. 617 (1880); State v. Puryear, 30 N.C.App. 719, 228 S.E.2d 536 (1976).

In his final assignment of error the defendant contends the court erred in failing to instruct the jury that in order to find the defendant guilty they must find the killing occurred in Rutherford County. No such instruction was required. As above noted, the allegation of venue contained in the indictment became conclusive.

In defendant's trial and in the judgment appealed from we find

No error.

BROCK, C. J., and HEDRICK, J., concur.