State v. MacOn

170 S.E.2d 144 (1969) 6 N.C. App. 245

STATE of North Carolina
v.
Edward Grady MACON, Jr.

No. 6910SC88.

Court of Appeals of North Carolina.

October 22, 1969. Certiorari Allowed February 11, 1970.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Hatch, Little, Bunn & Jones, by E. Richard Jones, Jr., Raleigh, for defendant appellant.

FRANK M. PARKER, Judge.

Defendant assigns as error that the trial court refused to require the State to produce for examination by defendant the typewritten transcript of notes made by S. B.I. Agent Emerson during the interrogation of defendant on 16 March 1968.

By written motion dated 25 June 1968, defendant moved the court to require the State to produce for inspection by defendant the following:

1. Jewelry and clothing alleged to have been worn by Jane Ellen Smith on 31 July 1967.

2. Any pistol or other weapon alleged to have been used in the alleged crime; together with any bullet discovered in or near the remains recovered on 10 March 1968 in Holly Springs Township.

3. Vacuum sweepings or other items taken from any automobile formerly owned by the defendant.

4. Typewritten transcript of notes made by S.B.I. Agent Emerson during the interrogation of defendant on 16 March 1968.

5. Autopsy report of medical examiner and pathologist as to the remains recovered on 10 March 1968.

By order dated 28 June 1968, Bickett, J., required the State to produce the items requested in paragraphs 1, 2, 3 and 5 of the motion for inspection by defendant. With respect to the item requested in paragraph 4 of the motion, Bickett, J., ruled as follows:

"And it appearing to the court that the article enumerated as Article (of) (E)vidence Number 4 in the defendant's motion is not a transcribed and signed confession of the defendant, but rather the personal notes taken pursuant to the investigation and interrogation of the defendant by S.B.I. Agent Emerson, and it further appearing to the court that the defendant's attorney has had ample opportunity to cross examine S.B.I. Agent Emerson at the preliminary hearing; therefore, the court is of the opinion that the defendant is not entitled (to inspect the) typewritten transcript of notes made by S.B.I. Agent Emerson during the interrogation of the defendant on March 16, 1968."

Defendant relies primarily on the provisions of G.S. § 15-155.4 as giving him the right to inspect the transcribed notes of the interrogating officer. However, the statute relied upon provides that prior to the issuance of an order for inspection "* * the accused or his counsel shall have made a written request to the solicitor or other counsel for the State for such inspection, * * *." Nowhere is it shown that defendant made such a request. Also the statute relied upon relates to the inspection of "* * * any specifically identified exhibits to be used in the trial * * *." The interrogating officer's notes were not designed as exhibits to be used in the trial, nor were they offered to corroborate the officer's testimony as a prior consistent statement. It is noteworthy that on the voir dire examination of Agent Emerson, counsel for defendant made no inquiry concerning the interrogation notes nor of their contents. Additionally, it does not appear that S.B.I. Agent Emerson used the transcribed notes during his testimony, nor does it appear that they were mentioned before the jury until upon cross-examination when defense counsel questioned him about taking notes and asked if he had them with him.

We do not need to decide whether under proper circumstances a defendant is entitled to inspect the notes taken by an officer during interrogation of defendant. If we concede arguendo that the trial court committed error in its refusal to allow the inspection, defendant has failed to show any prejudice from such error. According to Judge Bickett's unchallenged finding defendant had ample opportunity to cross-examine the officer about the notes during the preliminary hearing. Defendant had ample opportunity to cross-examine the officer about the notes in the absence of the jury during the voir dire; but he must have deemed it unnecessary because he did not do so. But, primarily, defendant has failed to point out to us any way in which he was taken by surprise or otherwise prejudiced by his inability to inspect the notes before trial. Defendant must not only show error but also must show that the error complained of was prejudicial to him and affected the result adversely to him. 3 Strong, N.C. Index 2d, Criminal Law, § 167, p. 126. This assignment of error is overruled.

Defendant assigns as error that the trial court allowed Deputy Sheriff Connie Holmes and Deputy Sheriff W. L. Pritchett, who were witnesses for the State, to act as court officers during the trial. Defendant relies strongly upon Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424. In Turner, the jury was sequestered, and placed in charge of deputies who accompanied the jury to meals and to their lodgings and two of those deputies were the principal witnesses for the State. The court rightly observed that "* * * it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution." Turner v. Louisiana, supra.

However, in the present case neither Deputy Holmes nor Deputy Pritchett was a "key witness" for the prosecution. It was the testimony of S.B.I. Agent Emerson which connected defendant with the crime. Also, in the present case the jury was not sequestered nor were the two deputies placed "in charge" of the jury. It is true that both of them from time to time performed the function of courtroom deputy or bailiff, but there was no suspicious or prejudicial conduct.

Immediately after the jury was impaneled counsel for defendant lodged their objection to these two deputies acting as courtroom deputies, which objection the trial judge overruled. Later the trial judge made the following findings: "After this objection was made, no further objection or suggestion of improper contact was made during the trial, and as a result of the objection the court observed the conduct of the officers and observed no improper conduct. The jury was not sequestered and the only services of these officers in connection with the jury was in opening the door to send them out or call them in as occasion required."

Although this assignment of error is overruled we think it appropriate to reiterate here what was said in State v. Taylor, 226 N.C. 286, 37 S.E.2d 901. "The practice of putting the jury in the custody of an officer who has actively investigated the evidence or has become a witness for the State is not to be approved. While, in the absence of evidence of some fact or circumstance tending to show misconduct on the part of the officer or the jury, we hesitate to make it alone the grounds for a new trial, we do stress the need for trial judges to be extremely careful to avoid such incidents. However circumspect the officer and jurors may be when placed in such a situation, these occurrences always, as here, tend to bring the trial into disrepute and produce suspicion and criticism to which good men should not be subjected." See also, State v. Hart, 226 N.C. 200, 37 S.E.2d 487. This assignment of error is overruled.

Defendant assigns as error that his motion for nonsuit was denied. He contends there is insufficient evidence aliunde the confession to carry the case to the jury.

"The proof of every crime consists of: (1) proof that the crime charged has been committed by someone; and (2) proof that the defendant is the perpetrator of the crime. The first element is the body of the crime, or the corpus delicti; the second is the proof of defendant's connection with the crime, i.e., his guilty participation or agency therein." Wharton's Criminal Evidence (12th Ed.), Vol. 2, § 393, p. 130. In North Carolina it is required that "* * * the confession be `corroborated' by independent evidence of the corpus delicti. By this is meant, evidence that the offense charged was committed by someone, not necessarily by the defendant himself. The corroborative evidence need not be direct; it may be circumstantial, and it is sufficient (if) the circumstances are such `as will, when taken in connection with the confession, establish the prisoner's guilt in the minds of the jury beyond a reasonable doubt.'" Stansbury, N.C. Evidence 2d, § 182.

To establish a prima facie showing of the corpus delicti the prosecution need not eliminate all inferences tending to show a non-criminal cause of death. "Rather, the foundation (for the introduction of a confession) may be laid by the introduction of evidence which creates a reasonable inference that the death could have been caused by a criminal agency * * * even in the presence of an equally plausible non-criminal explanation of the event (citing cases)." State v. Hamilton, 1 N.C.App. 99, 160 S.E.2d 79.

We hold that the evidence introduced by the State, independent of the confession, was sufficient to create a reasonable inference that Jane Ellen Smith's death could have been caused by a criminal agency and was therefore sufficient to make out a prima facie showing of corpus delicti. This independent evidence of corpus delicti, together with defendant's confession, was sufficient to require submission of the case to the jury upon the question of defendant's guilt. State v. Moore, 275 N.C. 141, 166 S.E.2d 53. This assignment of error is overruled.

Defendant assigns as error the court's charge to the jury that the question of involuntary manslaughter was not before them in this case. In this there was no error. S.B.I. Agent Emerson, a witness for the State, testified that the defendant had told him that he and Jane Smith "got into an argument, a verbal argument, that no blows were passed between the two of them; that he had a .38 caliber revolver in the automobile with him and that he used the revolver and shot Jane Smith; that he took the body and left it in a wooded area off of Highway 55." There was no evidence that the shooting occurred in any other manner; defendant's evidence was that he had never shot Jane Smith at all and that he had never told the officers that he did. There was no evidential basis for submitting to the jury an issue of involuntary manslaughter. State v. Price, 271 N. C. 521, 157 S.E.2d 127; State v. Hamilton, supra.

Defendant assigns as error that the court failed adequately to charge the jury as to what would be sufficient legal provocation to reduce the crime from second-degree murder to manslaughter. There was in this case, however, no evidence of any legal provocation. The only evidence for the State as to how the killing occurred is quoted above. The defendant denied the shooting, denied his statement, and relied on alibi. On the evidence the court was not required to charge as to what might constitute legal provocation sufficient to reduce the crime of second-degree murder to manslaughter. Insofar as the court referred to the matter of legal provocation at all in its instructions to the jury, the charge could only have been beneficial to defendant, not harmful, and no prejudicial error is shown.

At the close of his charge, the trial judge, after instructing the jury that their verdict must be unanimous, stated:

"I would like to say, members of the jury, consistent with my statement made earlier, I will not keep you here beyond 9:00 o'clock, except by your request. If you have not reached a verdict by approximately 9:00 o'clock, I will make inquiry and if you have not and do not want to stay longer, we will recess for the evening and come back tomorrow; * * *"

Defendant contends this statement tended to put undue pressure upon the jury to hasten their deliberations and to surrender their unbiased judgment, thereby depriving him of a fair and impartial trial. There is no merit to this contention. Here, unlike the situation presented in State v. McKissick, 268 N.C. 411, 150 S.E.2d 767, the jury had not begun their deliberations when the challenged instruction was given; hence the statement was not made to get the jurors of one mind. Nothing in the challenged statement in the present case could have been rationally interpreted by any juror as coercive. On the contrary, the able judge was making it clear that he was not placing any time limitation upon the jury's deliberations, nor would he insist that they remain in session until an inconveniently late hour in the night. In stating that he would consult with and follow the jury's wishes in the matter, the trial judge placed no pressure upon any juror to surrender his independent judgment nor upon the jury as a whole to hasten its deliberations, and the defendant was not deprived of a fair trial.

Defendant's final assignments of error relate to the admission in evidence of the testimony of the State's witness, S.B.I. Agent Emerson, as to the incriminating statements made by the defendant. This testimony was admitted only after the trial judge had conducted an extensive voir dire examination in the jury's absence, at the conclusion of which the court made findings of fact that any statements made by defendant to the officers were made voluntarily and understandingly, without coercion, duress, promise, or threat, and after the defendant had been advised of his rights as required by the Miranda decision. These findings of fact are fully supported by the evidence taken on the voir dire examination and the trial court fully complied with the procedures prescribed in State v. Gray, 268 N.C. 69, 150 S.E.2d 1, for determining the admissibility in evidence of an extrajudicial confession. It is significant that the defendant himself testified in the voir dire examination that prior to questioning him S.B.I. Agent Emerson had advised him that he had a right to an attorney and that he could remain silent. The defendant testified before the jury that he had not made the statements attributed to him. Whether the defendant did or did not make the incriminating statements was a question of fact to be determined by the jury from the evidence admitted in its presence. State v. Gray, supra; State v. Guffey, 261 N.C. 322, 134 S.E.2d 619. By its verdict the jury obviously found against defendant's contentions.

In the entire trial we find

No error.

MALLARD, C. J., and BRITT, J., concur.