State v. Anderson
188 S.E.2d 336
N.C.
1972
Check Treatment
HUSKINS, Justice.

Defendant assigns as error that six jurors were excused for cause when each stated on voir dire examination that he would not vote in favor of the death penalty under any circumstances no matter how aggravated the case and no matter what the facts may be. We said in State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971), that “a venireman should be willing to consider all the penalties provided by State law and he should not be irreparably committed before the trial has begun to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceeding.” This accords with the holding in Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770 (1968). The six veniremen in question were properly excused because they were committed to vote against the death penalty before the trial commenced. This assignment is overruled.

Defendant’s second assignment is addressed to the consolidation of the two murder cases for trial. This assignment obviously has no merit. When a defendant is charged with crimes *265 of the same class and the offenses are not so separate in time or place and not so distinct in circumstances as to render a consolidation unjust and prejudicial, consolidation is authorized in the discretion of the court by G.S. 15-152. State v. White, 256 N.C. 244, 123 S.E. 2d 483 (1962); State v. Johnson, 280 N.C. 700, 187 S.E. 2d 98 (1972).

Appellant’s brief sets out no reason or argument and cites no authority in support of defendant’s third assignment of error. The assignment is therefore deemed abandoned under Rule 28, Rules of Practice in the Supreme Court. State v. Strickland, 254 N.C. 658, 119 S.E. 2d 781 (1961).

The State furnished defense counsel a list of State’s witnesses prior to selection of the jury. However, the witness Alton Daniels was unknown to the solicitor and his name was not on the list. The solicitor learned during the trial that Alton Daniels was an eyewitness to the shooting. He informed the court of these facts and was allowed to examine Daniels as a witness for the State over defendant’s objection. This constitutes defendant’s fourth assignment of error.

The record reveals that before this witness was allowed to testify the court interrogated the jurors and each juror stated that he did not know Alton Daniels by sight or by name. The court found that the name of the witness was not available to the State at the time the jury was selected and that defendant had suffered no prejudice from the fact that the name of this witness was not furnished prior to selection of the jury. The court thereupon in its discretion permitted the witness to testify, and we perceive no error therein. It was a discretionary matter not reviewable on appeal absent abuse of discretion, and no abuse of discretion is shown.

Defendant’s fifth assignment of error is based on denial of his motion for nonsuit at the close of the State’s evidence. His sixth assignment of error is based on denial of his motion for a directed verdict of not guilty at the conclusion of all the evidence. These assignments are formal and are overruled without discussion.

After the State and defendant had rested their case and after all arguments to the jury had been made, the court in its discretion allowed the State to recall two witnesses who had previously been examined and elicit from them additional evi *266 dence. Defendant objected to this procedure, and this constitutes his seventh assignment of error.

It is discretionary with the trial court to permit the introduction of additional evidence after both parties have rested and arguments have been made to the jury, but the opposing party must be given an opportunity to offer additional evidence in rebuttal. State v. Harding, 263 N.C. 799, 140 S.E. 2d 244 (1965); State v. Jackson, 265 N.C. 558, 144 S.E. 2d 584 (1965). The record shows that defendant was given an opportunity to offer additional evidence in rebuttal but declined to do so. Furthermore, it is noted that the additional evidence in question was inconsequential and could not have prejudiced defendant. Defendant’s seventh assignment of error is overruled.

The State again rested its case, and defendant again moved for a directed verdict of not guilty. Denial of his motion constitutes his eighth assignment of error. It has no merit and is overruled without discussion.

Defendant’s ninth and tenth assignments of error relate to the same legal question and will be treated jointly. By these assignments defendant challenges the constitutionality of the death sentences imposed upon him and contends that these cases against him should be remanded to the Superior Court of Martin County for imposition of a life sentence in each case. We think defendant’s position is sound for the reasons set out below.

On 23 July 1971 the United States Supreme Court entered memorandum decisions in the following North Carolina cases reversing the death sentence imposed by the trial court and affirmed by this Court, to wit: Atkinson v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 859, 91 S.Ct. 2283; Hill v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2287; Roseboro v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2289; Williams v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2290; Sanders v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2290; and Atkinson v. North Carolina, 403 U.S. 948, 29 L.Ed. 2d 861, 91 S.Ct. 2292. As authority for its decision in each case, that Court cited United States v. Jackson, 390 U.S. 570, 20 L.Ed. 2d 138, 88 S.Ct. 1209 (1968), and Pope v. United States, 392 U.S. 651, 20 L.Ed. 2d 1317, 88 S.Ct. 2145 (1968).

*267 Jackson and Pope stand for the proposition that every defendant has a constitutional right to plead not guilty and that the Federal Constitution does not permit the establishment of a death penalty applicable only to those defendants who assert their constitutional right to contest their guilt before a jury. At the time Atkinson, supra, and the other five North Carolina cases arose, the death penalty in North Carolina was expressed in G.S. 14-17 and G.S. 15-162.1.

G.S. 14-17 provides in pertinent part as follows: “A murder which shall be perpetrated ... by any . . . willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury.”

G.S. 15-162.1 provides in pertinent part as follows: “(a) Any person, when charged in a bill of indictment with the felony of murder in the first degree, or burglary in the first degree, or arson, or rape, when represented by counsel, whether employed by the defendant or appointed by the court under G.S. 15-4 and G.S. 15-5, may, after arraignment, tender in writing, signed by such person and his counsel, a plea of guilty of such crime; and the State, with the approval of the court, may accept such plea.... (b) In the event such plea is accepted, the tender and acceptance thereof shall have the effect of a jury verdict of guilty of the crime charged with recommendation by the jury in open court that the punishment shall be imprisonment for life in the State’s prison; and thereupon, the court shall pronounce judgment that the defendant be imprisoned for life in the State’s prison.”

The decisions in Jackson and Pope apparently condemned as unconstitutional the language of G.S. 15-162.1 because, with the language of that statute in effect, our death penalty applied only to those defendants who asserted their constitutional right to plead not guilty. To correct that infirmity, G.S. 15-162.1 was repealed by Chapter 117 of the 1969 Session Laws, effective 25 March 1969. Such repeal left in effect, applicable to all alike, the provisions of G.S. 14-17; and this Court has consistently upheld the constitutionality of that statute. State v. *268 Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971); State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971). However, for some obscure reason, the General Assembly reenacted the provisions of G.S. 15-162.1 by Chapter 562 of the 1971 Session Laws, effective 15 June 1971. Then, apparently to correct the error, G.S. 15-162.1 was again repealed by enactment of Chapter 1225 of the 1971 Session Laws, effective 21 July 1971. It thus appears that from 15 June 1971 to 21 July 1971 the death penalty provisions of our statutes once again applied only to those defendants who asserted their right to plead not guilty. United States v. Jackson, supra; Pope v. United States, supra; Atkinson v. North Carolina, supra. Here, the murders were committed on 29 June 1971 while the provisions of G.S. 15-162.1 were in effect, and therefore the death sentences in these cases are unconstitutional and cannot be carried out. Hill v. North Carolina, supra [403 U.S. 948, 29 L.Ed. 2d 860, 91 S.Ct. 2287].

Applying the constitutional principles enunciated in Jackson and Pope, and following the procedure adopted by this Court in State v. Hill, 279 N.C. 371, 183 S.E. 2d 97 (1971), the judgments of the Superior Court of Martin County, insofar as they imposed the death penalty, are reversed. These cases are remanded to the Superior Court of Martin County with directions to proceed as follows:

1. The presiding judge of the Superior Court of Martin County will cause to be served on the defendant Lionel Anderson, and on his counsel of record, notice to appear during a session of said superior court at a designated time, not less than ten days from the date of the order, at which time, in open court, the defendant Lionel Anderson being present in person and being represented by his counsel, the presiding judge, based on the verdicts of guilty of murder in the first degree returned by the jury at the trial of these cases at the September 1971 Session, will pronounce judgments that the defendant Lionel Anderson be imprisoned for life in the State’s prison, to be served concurrently or consecutively as the judge in his discretion may determine.

2. The presiding judge of the Superior Court of Martin County will issue a writ of habeas corpus to the official having custody of the defendant Lionel Anderson to produce him in *269 open court at the time and for the purpose of being present when the judgments imposing life imprisonment are pronounced.

Remanded for judgment.

Justices Higgins and Lake dissent.