*1 COURT THE SUPREME IN objective plaintiffs’ readiness and suit, indication of willingness perform. grounds upon which the not indicate The record does summary judgment granted motion for defendants’ court
trial ground but, showing, on plaintiffs’ it could not have been on pay purchase they ready, willing, able to not that granted judge on the Obviously the motion price in cash. Indeed, appeal, defend- theory option was invalid. plaintiffs’ only argument cross-motion reference ants’ with correctly summary because judgment it was denied for plaintiffs is complete or that the contract is failed to show “have enforceable.” support- plaintiffs’ therefore, affidavits hold, willingness, and abil-
ing readiness, their materials have shown defendants ity part option-contract, and perform their of (f) of provided having respond thereto as Section failed summary judg- case, 56, under the circumstances of this Rule against decreeing performance specific of ment erred in option-contract appropriate, and the trial court entering it. Appeals which portion of That Court decision judge’s for plaintiffs’ motion the trial denial sustained the case summary judgment with reversed directions is entry Superior of the decree Court be remanded specific opinion. performance accordance part. part; Affirmed reversed ALFORD JOHN THOMAS CAROLINA v. STATE OF NORTH CARTER SHERMAN EUGENE 4No. 1976) (Filed 2 March — degree 36; murder death Homicide 31— first § § Law 1. Constitutional penalty constitutional degree upon penalty Imposition of first a conviction of the death murder constitutional. —jury 7; Jury 29— exclusion of blacks from § Law 2. Constitutional § systematic prima exclusion no facie case arbitrary ‘prima, make out a case Defendants failed facie showed from the where systematic blacks exclusion TERM 1976 *2 y. Alford challenged peremptorily jurors only prospective were that all black attorney by were black. district both defendants the — publicity change pretrial of 3. 15— no venue § Criminal Law denying in defend- The did not abuse its discretion trial court pretrial change allegedly for venue adverse ants’ motion of based on coverage publicity since, exception the news media with the in complained very arrest, general of the articles be of of a defendants’ were likely any jurisdiction to the trial nature and found in which moved, only might coverage the of the arrest indicated that defend- charged way were a crime but in ants no intimated were guilty, any juror prospective the record does not indicate that newspaper any seen read articles or had or heard re- other news pertaining nothing cases, leases any to these in the record shows that juror any by publicity. had been influenced in manner — photographs admissibility 4. Homicide 20— of deceased § for corrobo- ration degree prosecution properly The trial court in a first murder photographs purpose allowed into evidence two of of deceased for the corroborating testimony expert of an witness who testified as to cause of death. — pretrial lineup 5. Criminal 66—§ Law in-court identifications of defend- ants based on observation at crime scene eyewitnesses In-court of identifications defendants four by lineup place the crime were not tainted which took two weeks after lineup young approxi- crime since the consisted of black males mately height males, build, similarly dressed, the same all young any suggestion black and there was no evidence of part police person on color the identification of officers other that would taint or defendants; moreover, prop- the trial court erly concluded that the in-court identifications of defendants were of origin independent solely based on what the witnesses saw scene of the crime. 1; 6. — Searches weapon plain and Seizures § Homicide § 20— in view — admissibility warrantless seizure degree in robbery prosecution trial court a first murder and properly crimes weapon perpetration allowed into evidence a used in apartment where an officer purpose burst an into for the arresting therein, an outlaw when the officer entered he found Alford, outlaw and defendant he knew that Alford and defendant Carter were wanted for robbery, justified murder and armed he was arresting searching in Carter, Alford for and the officer en- objects plain titled to view, including seize weapon in question, in which were connected with the defendants. 1; 7. cigarette Searches and Seizures lighter plain § Homicide § 20— — — admissibility view warrantless seizure degree The trial court a first robbery murder and armed prosecution allowing did not err cigarette lighter into evidence a robbery identified one being exactly victims as like the one during taken robbery, from him lighter since the seized IN THE SUPREME COURT apartment plain to be lay believed view in an as it officer defendants an arrest warrant entered with the officer and into which Carter. defendant — question defendant con- 34— cross-examination Law § 8. Criminal proper prior cerning- offense robbery degree armed murder and in a first The trial court attorney allowing ask one prosecution district did err evidence, guns had been introduced into justify which he stole defendant if attorney ample ask district there was since good question in faith. *3 — argument supported attorney’s jury district Law 102—§ 9. Criminal by evidence attorney’s jury guns argument the used The district charged perpetration from a hard- the had been stolen of crimes in apartment sup- away a from defendants’ half block ware store by ported the evidence. — attorney’s jury argument propriety § Law 102— district 10. Criminal degree attorney’s argument jury a first in The district robbery prosecution in accord with substantial murder and armed permissible. unduly evidence, prejudicial, not and was — — robbery 21; degree Robbery 4— murder armed first § Homicide § 11. — employees sufficiency parts of evidence auto store degree jury murder Evidence was sufficient in first robbery prosecution to show armed where such evidence tended and parts p.m., four wit- defendants entered an auto store at 3:00 men defendants as two who entered store nesses identified emptied crimes, men committed the robbed the witnesses and they range register, the cash shot at close and killed a customer in the store. — prej- 12. Criminal Law 92— consolidation of of two § cases — testifying nontestifying udice to defendant benefit defendant prejudicial denying The trial court committed error in defendant testified, separate motion for Alford’s trial where defendant Alford presented alibi; his declared innocence and defendant testify given confessing pretrial not but Carter did statement participation crime; implicated Larry in his the statement one Alford; not Waddell the crime but did mention defendant evidence, wishing did not offer the statement into not to weaken its against Alford; case did not since call Carter as his witness testify, relying Carter could have refused to on the Fifth Amendment Constitution, thereby deprived effectively to the U. S. and Alford was testimony; of evidence which would have corroborated his alibi by Carter benefited the consolidation of the cases for trial as elected not use confession. dissenting. Huskins Justice SPRING TERM 1976 v. Alford Appeal by (a) Thorn- 7A-27 from defendants under G.S. Mecklenburg
burg, J., April at the 1 1975 Criminal Session of Superior Court. charged separate indictment,
Defendants were bills form, degree Gregory proper with murder the first pleas guilty, Leonard. On were consolidated cases objection for trial over of defendants. The returned ver- degree guilty dicts of of first murder De- each defendant. judgments appealed imposing fendants of death. sentences following: Evidence for the Staté tended to show the On Gregory Leonard, p.m., November 1974 around 3:00 his wife stopped Viking Foreign son Imports Ac- Parts & Car cessories, (Viking Imports), parts Inc. an auto Char- store lotte, Upon returning Carolina, purchase North some items for their car. discovering one to his car and had left that he purchases counter, on the Mr. Leonard reentered tobog- wearing green He store. was followed two black men gans, subsequently Viking employees identified four Im- ports as brandishing pistols, Defendants, defendants. ordered employees floor,” stating, holdup.” to “hit the is a As “this employees floor, stretched out on the heard a voice *4 ask, for,” “What and heard to a shot. Defendants continued employees up. threaten the with death if moved or looked They employees’ money, then pockets, searched their took personal emptied possessions, register. Defendants, the cash threatening death, next know demanded to where safe was located, but employees were told that no safe existed. The then forced into a bathroom while the defendants searched in vain for a safe and employees left. When ventured out bathroom, they gunshot wound, found Mr. Leonard dead of a range. very inflicted close tending
Defendant Alford testified and offered playing show that group he had basketball with p.m. approximately friends from 1:30 until p.m. 6:00 on 6 No- vember Several 1974. witnesses testified defendant Alford’s good character. testimony Defendant offered Carter who of his mother only two pictures identified of defendant Carter. necessary opinion. Other facts to decision are included IN THE COURT 376 SUPREME v. State Attorney by Attorney Assistant L. Edmisten General Rufus Thomas B. the State. General Wood for Alford; and John G. John Thomas L. Roberts James for Eugene Carter, appellants. Plumides Sherman defendant MOORE, Justice.
Carolina’s
of
[1]
Defendants first
death
penalty.
challenge
Questions
raised
constitutionality
assignment
of North
merit
and found to be without
considered
error have been
;
(1975)
Armstrong,
60, 212
2d 894
287 N.C.
S.E.
in State v.
;
(1975)
v.
Vick,
37,
State
teenth lated Defendants Amendment systematic next contend exclusion of blacks from United that their States Constitution rights under trial the Four were vio jury. Cornell, we In State v. 187 S.E. said: alleges quash motion discrimination
“If the racial upon de- jury, composition of the the burden is . . . establish it. omitted.] fendant [Citations í í ‡ right tried person “A no be indicted or has *5 representative of his jury even to have a of his own race or right jury. to He does have constitutional race on the jury race from which of his own members be tried systematically arbitrarily excluded. have not been omitted.]” [Citations assignment in the fact of error lies for this The basis challenged by jurors peremptorily were prospective black
all TERM 1976 v. Alford attorney, were blacks. district both defendants suggestion attorney There is no record that the district previously prevented practices from followed which blacks serving juries Supreme on the district. United The States urged against squarely Court has ruled here the contentions Alabama, defendants. 759, In Swain L.Ed. 2d 380 U.S. Court, part, S.Ct. stated: presumption “. . particular . The case must be prosecutor using challenges that the is obtain State’s impartial jury try a fair and the case before court. presumption prosecutor is not overcome and the thereby subjected by allegations in the examination Negroes case hand all or were removed they Negroes. were . removed because . .
“. . But defendant . [*] must, [*] [*] pose issue, show systematic prosecutor’s challenges peremptory use of against Negroes period over of time. . . .” prima Defendants have failed make out a case of facie arbitrary systematic jury. exclusion of blacks from the assignment of error is overruled. (now Defendants moved for a G.S. 15A-957) due to adverse change of venue under G.S. 15-135 pretrial publicity assign news media. Defendants the denial of this motion as support error. In motion, ex introduced as following newspaper hibits the articles television news casts :
(1) Tuesday, A 11 March article in the Char- discussing Larry lotte Observer trial Waddell dry cleaning the murder of a owner store in which testimony accusing widow’s and in Waddell is recounted which Alford’s name mentioned defense witness the fact that he was arrested with is noted. Waddell
(2) Wednesday, A 12 Marsh article in the Char- conviction, lotte Waddell, Observer which stated that after jurisdiction. fled the (3) A 17 March 1975 editorial Tom Wicker discussing popularity Charlotte Observer death penalty. *6 THE SUPREME COURT IN
State v. on 19 1974 show- (4) A 9 broadcast November Channel out- ing capture had been declared an the of who Waddell of Carter and Alford who the arrest defendants law and apartment other broadcasts found in the same were coverage carrying the of crime. general dis-
(5) A article in the Charlotte Observer toughening cussing the attitude of the North Carolina Sen- robbery. armed ate toward general
(6) A on 9 article in the Charlotte Observer discussing publicity the the effect of news March jurors’ deliberations. change is addressed the sound
A motion for venue and his judge ruling not be over of the trial will discretion Mitchell, v. in the absence of abuse of discretion. turned 283 ; (1973) Blackmon, 280 Brinson, 185 S.E. 2d N.C. 286, Forth, 177 S.E. coverage exception of de S.E. 2d With very general arrest, nature the articles are of a fendants’ might any jurisdiction likely to which the trial be found coverage only that de indicates be moved. arrest way charged It intimates were crime. in no fendants a guilty. The record does not indicate any juror newspaper had prospective articles or read any pertaining news cases. seen or heard other releases these any juror Nothing in the record shows that had been influenced publicity. manner No abuse of discretion has assignment is overruled. shown. Dr. Hobard Wood, a medical expert qualified to testify body death,
as to the cause of testified that examined Gregory performed an au Leonard on 7 November 1974 and topsy thereon. further testified that the deceased had died He gunshot right upper lateral as area result wound in the chest powder in there was residue around wound range very possibly dicative of close of fire down to near range. photo contact Dr. contact or then identified two Wood graphs being deceased, person upon one as whom he performed showing autopsy, and the other the location of Upon photographs, wound. introduction these photographs court instructed the were admitted purpose illustrating explaining testimony for the sole of the witness. SPRING TERM 1976 v,
State Alford
*7
assigns
photo
Defendant
as error the introduction of these
assignment.
graphs.
photographs
find no merit
in this
explain
testimony
were admissible to illustrate and
of Dr.
they
Wood,
properly authenticated,
prop
were
and the
was
erly
purpose
instructed that
were admitted for the sole
illustrating
explaining
testimony
They
of the witness.
competent
purpose.
Young,
377,
for that
287 N.C.
(1975) ;
Crowder,
42,
214
2d 763
S.E.
State v.
285
203
N.C.
(1974) ;
;
Crews,
427,
2d 38
(1974)
S.E.
840
State v.
284
2d
N.C.
201 S.E.
Duncan,
412,
282
193
2d 65
S.E.
(1972) ;
Frazier,
181,
(1972),
State v.
185
2d 652
penalty,
1004,
rev’d as to death
295,
409 U.S.
34 L.Ed. 2d
Doss,
413,
S.Ct.
State v.
183 S.E. 2d
(1971),
penalty,
rev’d as
939,
to death
408 U.S.
33 L.Ed.
State v. Alford standing ten Alford was weapon in his hand. steel blue directly standing Rollins feet in front of and Carter twelve period for a of two four He observed Carter front him. in seconds look at face. a full Carter’s had eyewitness, that he Wells, testified another Bruce years and a and had been in school three half known Carter High Mecklenburg He saw Carter him at School. South through front Alford walk behind him. door and walk they entered, ten feet from Alford. The some Wells When lighting very good, vision, able to see had 20-20 he was Alford, him, who as close as five or six feet to for about came *8 seconds, for seconds. fifteen and he observed Carter about ten Wayne Perkins, eyewitness, that he Another Paul testified standing Gregory and Leonard was behind the counter saw males, went to the come in followed two black one of whom right of him and front of the counter and one left in pistol automatic, nickel-plated pulled pistols. One had a Colt .45 pistol. and the other caliber black He identified Alford. a small lighting Viking Imports stated that conditions in were He very good, 20-20, within his vision is he was ten to twelve feet Alford him five-to-six and observed from or seven seconds. Ray Hooks, eyewitness, he Glenn another testified that was working Viking Imports in the stockroom at on the date in question gun when came Alford over and stuck in face. good lighted, vision, Hooks stated he has the room well was he within about one foot of sev- was Alford and observed him for eral seconds.
Each of these witnesses testified the identification solely Viking of the defendants was based Imports on what he saw 6on 1974. November findings validity hold the trial court’s as to the eyewitnesses’ sup amply in-court identifications were
ported
competent evidence
therefore
conclusive on this
Henderson,
1,
Court.
S.E. 2d 10
Knight,
220,
State
v.
No.
defendant Carter
[6]
Defendants
.45-caliber
objected
during
pistol
to the introduction
identified
holdup,
as
being
State’s
of State’s
in the hands of
Exhibit No.
Exhibit
TERM 1976
v. Alford
being
hands of defend-
pistol
a 9 millimeter
identified
during
holdup
determined
and later
ant Alford
objections
over-
pistol
shot. These
which fired
fatal
contending
assign
error,
that Officer
this as
ruled. Defendants
weapons
unlawfully
apartment where the
Whiteside
admitting
were found and the court erred
illegal
product
of an
search and seizure.
apartment
leased
At the
went to an
time Officer Whiteside
Hasty
he knew that
to Deborah Dorothea
on November
Larry
charged
of murder
Waddell,
capital crime
one
with the
15-48,
outlaw,
apartment.
Under G.S.
and a declared
him as he
empowered
power
an officer is
to take such
necessary
searching
apprehending
thinks fit and
an
for
for
was in-
hold
outlaw. We
then that when Officer Whiteside
question
Larry
apartment
formed that
he
was in the
Waddell
rights
apartment
was well within
into
burst
arresting
purpose
entered,
saw one
he
Waddell. When
identi-
and another
individual who was identified as Waddell
knowing
discovering
Upon
fied as Alford.
Alford there and
robbery,
armed
Alford and
he
were wanted for murder and
Carter
arresting
justified
and the
with him were
officers
searching
up
then went
for Carter. Officer Whiteside
coming
through
open door,
stairs where he observed Carter
the 9 milli-
out from between mattresses
At that time
on a bed.
*9
by
pistol
plain
the
meter
police
was in
view on a dresser. The seizure
during
pistol,
plain
which
in
view
their search
was
who,
existing conditions,
under
aware of
for Carter
the
was
good
weapon
presence
their
and could
to make
use such
escape,
entirely justified.
similar to those
was
These facts are
Curry,
660, 675,
545,
in
v.
288
220
555
State
S.E.
we
where
stated:
lawfully
record,
in
“Upon
the
the officers
house, having
believe
Bowles
Ronald Johnson
reason to
might
circumstances,
and Stevens
be therein. Under
weapons in a house wherein
seizure
the officers of these
robbery
charged
degree burglary and armed
men
might
with first
hiding
deemed unreason-
well have been
cannot be
weapons
and the
able. The admission
overruling
objection
testimony
the defendants’
concerning
expert
them can-
ballistics
witness
State’s
be deemed
error.”
IN THE
COURT
SUPREME
State v.
by being lawfully
premises
on the
therefore hold
evidentiary objects
entitled to
con
the officers were
seize such
plain
State v.
defendants as were in
view.
nected
these
Simmons,
Allen,
503,
(1973);
v.
2d 9
State
282 N.C.
S.E.
(1971) ;
Hill,
468,
v.
278 N.C.
There is also no merit in the pistol ing pistol. introduction of the .45 automatic This warrant found as the result of a search under a valid search previously had been arrested. room in which Carter like the one that lighter, identified [7] Defendants also it taken from illegally one of the seized. This object him during robbery the introduction of a cigarette lighter victims robbery, on the being exactly was found cigarette ground day following robbery during apart of an on the ment a search apartment to be defendants. Armed with believed Carter, an arrest warrant for defendant Hamlin went Officer apartment par to this tially open and knocked at the door. The door was looking
and Officer Hamlin went for Carter. entered, cigarette lighter he first he on a couch When in saw living room. Officer Hamlin did not search for evidence premises left but after he determined that defendant Carter lighter apartment. plain was not in the This view as premises entered the with the lawful warrant arrest Carter. prohibit . “. . The law does not without a warrant seizure discharge an officer in of his official duties where plain . article seized is in v. view. . .” State [Citations omitted.] Howard, v. S.E. 2d State Allen, supra; Simmons, Hill, supra; McCloud, supra; v.
Virgil, supra. assignment is overruled. Defendants contend the court erred allowing the district attorney guns, to ask Alford if he stole the which *10 evidence, into from There is no introduced Builders Hardware. merit to this contention. The evidence pistols that two of discloses apartment found in the where defendants were arrested from that had in fact been stolen place Builders Hardware and apartment just across street from the business was living. defendants were where 883 TERM 1976 (cid:127) v. Alford State Although may he has be asked if been not defendant accused, arrested, particular crime, v. for a indicted may Williams, 2d 185 S.E. 174 Wil- As. we said in asked if he fact committed a crime. liams: permissible, purposes impeachment,
“It including witness, in a cross-examine a the defendant crimi concerning by asking case, questions disparaging nal col degrading relating lateral matters criminal ; Patterson, (1842) 24 conduct. State v. N.C. 346 Davidson, Ross, 275 119 N.C. 550, 553, (1969). questions re S.E. Such the knowledge witness, late to matters within accusations of kind do not under made others. We take here to mark the limits of such cross-examination ex say generally subject cept (1) scope to the thereof is (2) questions judge, must discretion of the trial good be asked faith.” Mack,
See also State v. Gainey, 185 S.E. 2d Here, ample justify attor- there was evidence the district ney good pistols. This faith to he had stolen the ask Alford if assignment is overruled. By their tenth assignment error, contend Attorney permitting the court erred “in District to in argument jury refer to the to evidence that was not record, language permitting and in him to use passions jury.” Specifically,
calculated to ants defend arouse object attorney to the statement of the district guns “there has the evidence come out that the two were stolen from Builders Hardware. The two defendants lived away.” half a block Officer testified the two Whiteside weapons question, and the Colt .45 9 millimeter caliber pistol, weapons belonging were new to Builders Hardware and robbery were taken from Builders Hardware in on Octo ber apartment 1974. The evidence further disclosed that Street, Irwin lived, South where defendants across Obviously, street Builders Hardware. the district attor ney’s argument was based trial. introduced at the *11 COURT IN THE SUPREME 384 State v. Defendants further assign following portion argument attorney’s error: district you think, of a man and what kind . . I want thirty and within men, into a store kind of could walk what person up walking store, to a could walk into a seconds out they his heart and blow had never seen before outside in an automobile and his child sat while the door. Here’s a wife lying year boy twenty-four on old running mouth, these ground out of his with blood walking guns hands, around in their two here taking by one, pistol, one in that store and men who are me, saying, holding ‘Look at it to their heads By G-, you.’ if that I kill m- f-. want your cold, I’m run I can’t stand it. make blood doesn’t preacher there, whose speaking man out here boy walking lying dead, two that floor and these guns holding people, tell- their on these around the room ing them, you,’ going you. I to kill ‘I’m to kill want already killed man.” time one the same given jurisdiction, to counsel In this wide latitude argument Moreover, of contested cases. what constitutes ordinarily privilege must left to the sound dis of this abuse cretion Williams, 703, judge. 174 of the trial State v. 276 N.C. 948, penalty, 29 403 U.S. rev’d as to death S.E. 2d 503 (1971) ; Christopher, 258 860, v. L.Ed. 2d 21 2290 S.Ct. (1962) ; Bowen, 249, v. 230 N.C. 128 2d 667 S.E. exceptions (1949). Ordinarily, improper 710, S.E. during argument must be taken before ver remarks counsel supra; Williams, 703, Noell, State v. 276 N.C. dict. State ; 167, Hawley, 48 S.E. 2d 503 State v. 229 N.C. 174 S.E. (1948); Tyson, 2d 35 State v. 133 N.C. 45 S.E. incompetent exceptions, evi like those to admission Such general dence, apt must be made in time or else be lost. This years apply that it does not rule modified in recent so has been argument prejudicial counsel is so to death cases where argument prejudicial could effect of such to defendant jurors’ instruc from the minds not have been removed Williams, might given. judge have tion the trial Miller, 2d 503 174 S.E. Dockery, (1967) State v. 2d 335 S.E. objections case, (1953). In instant no were made during attorney’s remarks of the trial course to the district TERM State v. Alford exceptions review, After entered after careful but verdict. *12 argument attorney we hold that made district unduly evidence, prej- in udicial, with the was not substantial accord assignment permissible. This error of is over- ruled. Defendants next assign as error the court’s refusal
allow
the defendants’ motion for nonsuit at the close of
grant
evidence,
State’s
and the court’s
a motion for
refusal
guilty.
directed
A
verdict of not
motion for a directed verdict
guilty
challenge
sufficiency
of not
and a motion for nonsuit
go
jury.
Wiley,
114,
of the evidence to
to the
v.
242
State
N.C.
(1955).
here,
86
2d 913
S.E.
Under
circumstances
the motion
guilty
judgment
for a directed verdict of not
motion for
compulsory
Glover,
legal
nonsuit have the same
effect. State v.
319,
(1967). Upon
270 N.C.
154
motions,
S.E. 2d 305
such
court must find that
there is “substantial evidence . . . both
charged
that an offense
. . .
has been committed and
it,”
the defendant
committed
it
before
can overrule
Cutler,
379,
679,
State
383,
motions.
v.
271 N.C.
156 S.E. 2d
(1967).
Morgan,
214,
682
See State v.
268 N.C.
150
2d
S.E.
;
(1966)
Roux,
377
555,
State v.
266
State Bass, v. Turner, order their consolidation trial. State N.C. 268 N.C. ; (1972) v. 2d 384 186 S.E. Hamilton, 2d 406 150 S.E. Morrow, 277, 141 (1964).” 592, 138 S.E. 2d however, contends, that the defenses the defend- antagonistic. wit- Alford testified as a ants this case declaring claiming alibi, ness, support innocence which offered several other witnesses. Evidence good also and lack of serious criminal record was character introduced. hand,
Carter, on remain silent and the other elected to *13 vigorously cross-examined Alford’s alibi witnesses. Carter’s remaining pretrial apparent silent state- reason for ment is when copy read, to to the officers is of which attached for a and follows: Alford’s motion severance is as years age Eugene Carter, and “I, am 18 Sherman my PI, Charlotte, I is 415 N. have address ... C. Wood. duly Guerette, who been and warned Ronald T. advised my City Policeman, has identified himself Charlotte as right making any statement, to the advice of counsel before any all, I do not to make at nor have statement myself any manner. incriminate hearby right expressly my of to “I waive to the advice following voluntarily counsel, and make the statement knowing person, I make offense the aforesaid statement may against used trials for the me at trial or following concerning or which the statement offenses herein made. following my
“I is made of declare statement reward, promise hope without or without own free will fear or harm, physical coercion, threat of without favor or leniency leniency, favor, or offer of without or offer any person persons whomsoever. (Larry Waddell) picked up and me to
“He me asked go that we went to with him. was the afternoon walking Viking Parts on Morehead. Auto He was Tuckasagee was at the corner of & We time. This Walnut. go Viking Parts, Auto and he told me ‘Let’s walked to rob a gun gave place.’ pants it to He had the he TERM 1976 y. State Alford in, gave me. we me a .45 automatic. I had Before went gun gun. not the. the other seen before that. He had gun. the same time. He black We went into the store at said regis- anybody 'Freeze, cash don’t move.’ And I went to the running got money ter I around the out counter. register. Larry open of the cash It I think. took people. wallets I and watches from the came around Larry got passed I counter and I to door running Larry pop. I heard a left was behind me. down We ran tracks, Cedar towards the tracks and then down stopped towards to Summit. Summit We divide money. threw the wallets in the bushes as we ran down -Summit-the I tracks. went Club on Trade mins, (Big Brothers). About 2 3or later a friend me told got looking police someone killed and that night Larry me. That I saw over at a I friends house. it, you asked him did he do did kill the man and he would nothing. say day Since this I have not able forget It it. bothered me because man All was killed. got say sorry. I’ve is I’m very sorry happen. “I Sherman is it And again Iif had do it over I would not do it. consisting “I page(s), have read this statement accuracy and I affirm to the truth and of thé facts con- tained therein. completed “This statement A.M., at 1:00 on the *14 day November, of 1974. Eugene
s/ Carter Sherman Signature giving of Person voluntary statement” not Carter did take the did not offer stand the State evidence, relying the in in the statement on of Carter’s other evidence participation wishing apparently to crimes and not against attempt weaken its case did to Alford. Neither Alford circumstances, introduce the statement. these Under Alford'' could have called Carter as his witness could have but Carter testify, relying rights to refused on his under Fifth the Amend- ef-,. Hence, ment United States Constitution. Alford was fectively deprived of evidence which would have corroborated testimony. Carter, hand, by his alibi on the other benefited the the consolidation of cases for trial as the State to elected not THE IN COURT SUPREME v. Alford circumstances, use Under these we believe his statement. Sharp (later separate As to trial. Justice Chief was entitled a Fox, Justice) said in State (1968) :
“ jointly indicted would . . . [W]hether jointly separately the discretion of was in sound tried showing court, and, in the absence the trial joint trial, deprived the trial the movant fair would not be court’s discretion disturbed the exercise upon added.) (Emphasis appeal. ...” omitted.] [Citations showing present case. has made such believe Alford Mississippi, L.Ed. 2d 410 U.S. In Chambers Supreme United States the the Court S.Ct. case, defendant In that with a similar situation. was faced that witness’s McDonald introduce called one to Chambers Chambers stand- written confession to ing crime which by State, However, Mc- trial. cross-examination repudiated and asserted an alibi. Donald confession subsequent attempt to McDonald as cross-examine Chambers’ regard witness, and alibi and adverse the confession by by McDonald, denied other oral made confessions may Mississippi party trial rule that a court on the basis impeach The trial court also excluded as his own witness. testimony hearsay wit- of three other inadmissible allegedly by offered defendant as oral confessions nesses shortly made each of them after the murder McDonald being opinion Court, for which tried. The in an Chambers Powell, combined effect of Justice concluded that Mr. evidentiary right process these rules two violated Chambers’ due including guaranteed trial, right to a fair confrontation “few under the Sixth Amendment. Court reaffirmed that rights present are more than that of an fundamental accused right defense,” in his own and that of cross- witnesses “accuracy examination and confrontation are vital truth-determining process.” Specifically, Court held excluding hearsay the trial court erred statements enough McDonald existed because assurances of trustworthiness surrounding in the circumstances and in the statements present fact that McDonald was and available for cross-exami- *15 nation the State. 1975), Wainwright, (5th Truman
In Cir. F. involving separate trial, a case motions for a the Court held SPRING TERM process ‘effectively that “due is violated a defendant is when prevented exploring’ person from accusation that another crime In committed the v. for which he stands accused.” Maness involving Wainright, (5th 1975), F. 2d 88 a case Cir. motions, similar the Court on the concluded that basis of question Chambers be in these cases is i must asked persuasive” whether defendant’s defense was “less to such a| degree right must we conclude that his to a fair trial was j violated. Unquestionably, case, in instant there substantial was evi against Alford, including eye
dence his identification four However, witnesses. there no doubt alibi defense persuasive” was “less than would it it have been had strengthened by the introduction of Carter’s or testi statement mony. joint trial, Under the of the Alford was circumstances precluded introducing testimony. this statement or this Now that convicted, Carter has been Alford can call him as a deny witness. If attempts Carter then his confession or re testify, fuses the situation as discussed in Chambers arises proceed suggested and Alford can in that case. therefore hold that prejudiced his defense was so as to amount a denial process right of due confrontation. and his Truman v. Wain wright, supra; By v. Wainwright, supra. Maness reaso.n denial of separate trial, his motion for a Alford is entitled to a new trial.
A careful review of the record leads us to these conclusions: 1. Alford is entitled to a new trial and it is so ordered. Carter, 2. In the trial we find no error. dissenting.
Justice Huskins
Analysis
majority opinion
cited in the
decisions
leads me to conclude that defendant Alford’s conviction should
upheld.
awarding
In
trial,
majority
defendant Alford a new
rely primarily on
Mississippi,
Chambers v.
U.S.
L.Ed. 2d
case,
I do not the soundness disgree the ma- do, however, I enunciated in Chambers. holding jority’s application to the case at bar. of Chambers closely Supreme Court in Chambers of the United States were, which particular to the facts of that case—facts tied my sufficiently instant case opinion, from those in the different Chambers, as the it In to remove ambit Chambers. against emphasized, defendant Supreme case Court State’s very who had earlier weak. Defendant called a witness charged, and defendant was to the crime with which confessed confession, repudiated prior defendant when this witness impeach tried, permitted, with his not witness but was having failed, defendant nevertheless earlier statement. bring again unsuccessfully, efforts to before persisted, repudiating previously witness had the fact that only persons police, as but to three other confessed well. majority concedes, case, there In instant as the including against Alford, his identification “substantial sought eyewitnesses.” Moreover, defendant at no time four witness, evidence Carter’s nor did offer as call Carter TERM 1976 Group
Insurance
Parker
implicate
Larry
written
one
confession which tended to
Waddell
robbery-murder.
perpetrator
Cham-
as the second
Unlike
*17
way
bers,
knowing
transpired
there is no
have
what would
sought
prior
had Alford called
con-
Carter or
introduce
Chambers,
Thus,
present
case,
posture,
fession.
in its
unlike
not one
which “the
.
excluded evidence
court
. .
[trial]
strongly
finger
guilt
pointed
while
[another]
against
the evidence
minimal.”
Maness
[defendant]
Wainwright,
(5th
1975)
(emphasis added).
fessing testify witness or introduce into evidence the itself, broadly confession I read cannot Chambers so to be dispositive of this case. stated, respectfully For the I reasons dissent from that portion majority opinion awarding defendant Alford a new I trial. vote affirm. Corporation HARTFORD,
SECURITY INSURANCE OF GROUP LUCILLE CROOM PARKER NORTH CAROLINA FARM BU- REAU MUTUAL INSURANCE COMPANY No. 75 (Filed 1976) 2 March — — liability policies Insurance § 90— automobile non-owned vehicle busi- — occupation private passenger ness exception exclusion automobile Where, accident, operat- at the time of an the insured driver was ing heavily delivering a truck she loaded corn to the mill operated, from a farm which she and her husband truck by another, operation been loaned to her husband truck coverage excluded from non-owned automobile of “Combination” “Family” policies automobile issued to driver her husband occupation” (1) hauling the “business or exclusion thereto since