State v. Carter, 220 S.E.2d 313

State v. Carter

220 S.E.2d 313

N.C.

1975

Check Treatment

*41 MOORE, Justice.

Defendant first contends that the trial court erred in overruling his motion to strike the testimony of Homer Wright and to suppress the testimony of Fred Hurst, and in allowing the introduction of certain photographs. The record discloses that a district court judge and Superior Court Judge Grist entered orders directing the State to make available to defendant, among other information, a list of all prospective witnesses for the State and any tangible evidence that might be used against him.

The trial judgе, upon hearing defendant’s motion, found that no photographs had been made available to defendant, that the name of the witness Homer Wright had not been disclosed to defendant but was on file with the clerk of court as a subpoenaed witness, and that the name of witness Fred Hurst had appeared on a firearms report furnished to defendant. Judge Ervin then ruled that the disclosure orders did not clearly indicate that the photographs should be furnished, but if they were included within the scope of the orders they were only competent to illustrate the witness’s testimony, and that defendant was not prejudiced by their use. Concerning the testimony of Fred Hurst, Judge Ervin ruled that defense counsel’s possession of Hurst’s signed report provided him with sufficient notice of Hurst’s testimony but any additional documents relating to Mr. Hurst should be made available to defendant prior to Mr. Hurst’s testimony. The court ruled further that the testimony of Homer Wright was essentially cumulative to the statement of Patricia Bingham which had been provided defendant.

No right of discovery in criminal cases existed at common law. State v. Davis, 282 N.C. 107, 191 S.E. 2d 664 (1972); State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334 (1964), cert. den. 377 U.S. 978, 12 L.Ed. 2d 747, 84 S.Ct. 1884 (1964). Therefore, absent a statutory requirement, the defendant in a criminal case is not entitled to a list of witnesses who are to testify against him. State v. Hoffman, 281 N.C. 727, 190 S.E. 2d 842 (1972). Neither former G.S. 15-155.4 nor new G.S. 15A-903 requires this. Here, however, as in Hoffman, an order to supply defendant with certain information had been issued and the State had purported ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to comply with it. No evidence of bad faith on the part of the State is shown. See State v. Lampkins, 286 N.C. 497, 212 S.E. 2d 106 (1975). Thus, the *42 questiоn presented is whether the omission of the names of Homer Wright and Fred Hurst prejudiced defendant and deprived him of a fair trial. The trial court held not. We agree. Permitting these witnesses to testify and accepting the photographs into еvidence were matters within the discretion of the trial judge, not reviewable on appeal in the absence of a showing of an abuse of discretion. State v. Carey, 285 N.C. 509, 206 S.E. 2d 222 (1974); State v. Hoffman, supra. See also State v. Anderson, 281 N.C. 261, 188 S.E. 2d 336 (1972). No such abuse of discretion is shown. This assignment is overruled.

Defendant next assigns as errоr the refusal of the trial court to grant his motion to dismiss based on double jeopardy. This trial began on 6 January 1975 with a jury being empaneled, pleas entered, and certain testimony heard. On 8 January 1975, it was determined that one of the State’s witnessеs, Mr. Fred Hurst, was undergoing surgery and would be unable to testify until the next week. It appears that the district attorney was aware at the trial’s inception that this witness was having minor surgery but had been assured that he would be available to testify on either 8 or 9 Jаnuary.

The trial was then recessed until the next week, the second week of the same session, with the jury being recalled on 15 January. Defendant concedes that the jury was well instructed prior to the temporary recess and questioned uрon their return concerning any preconceptions or conclusions they might have reached. Defendant did not object at the time the recess was ordered but before resumption of the trial on 15 January, defendant did objeсt on the ground that if the trial were resumed defendant would be placed twice in jeopardy for the same offense. Jeopardy attaches when a defendant in a criminal prosecution is placed on trial (1) on a valid indictmеnt or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in the case. State v. Neas, 278 N.C. 506, 180 S.E. 2d 12 (1971); State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838 (1962); State v. Crocker, 239 N.C. 446, 80 S.E. 2d 243 (1954); 2 Strong, N. C. Index 2d, Criminal Law § 26, p. 516. Defendant, in support of this position, relies upon two federal cases and one North Carolina Court of Appeals case. Downum v. United States, 372 U.S. 734, 10 L.Ed. 2d 100, 83 S.Ct. 1033 (1963), and Cornero v. United States, 48 F. 2d 69 (9th Cir. 1931), each *43 involved a situation wherein a jury was empaneled but then discharged prior to completion оf the first trial and the defendant was then brought to trial at a later date before a newly empaneled and different jury. State v. Coats, 17 N.C. App. 407, 194 S.E. 2d 366 (1973), involved a defendant who was charged with drunken driving and brought to trial for the first time in district court. During the trial, the case was continued until а later date in order to give the district attorney time to subpoena an additional witness. At the second trial in the district court, apparently the trial was begun anew with the defendant again entering pleas, etc. These three casеs are distinguishable from the case at bar, and the proceedings in them were understandably held to amount to double jeopardy. The simple answer to defendant’s contention ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in present case is that he was not subjected to double jeopardy because he was only subjected to one trial. Here, there was merely a temporary interruption of the trial based upon the unexpected inability of a scheduled witness to be present due to his physical сondition. This interruption did not deprive the defendant of his right to a speedy trial, did not cause any arbitrary or oppressive delay and did not handicap the defendant in the presentation of his case. The course and conduct of a trial are matters largely within the discretion of the trial court. See State v. Cavallaro, 274 N.C. 480, 164 S.E. 2d 168 (1968); Shute v. Fisher, 270 N.C. 247, 154 S.E. 2d 75 (1967); Cleeland v. Cleeland, 249 N.C. 16, 105 S.E. 2d 114 (1958). No prejudice to defendant and no abuse of discretion by the court is shown. This assignment is overruled.

The trial court admitted into evidence the statement made by defendant to Agent Berrier concerning the shooting. Defendant contends that its admission was error and, further, that the trial court’s findings of fact and conclusions of law were not entered into the record at the proper time. An extensive voir dire hearing was сonducted immediately prior to the' temporary recess on 8 January. The findings of fact and conclhsions of law are in the record dated 15 January, the date the trial resumed. It is true, as defendant contends, that in State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971), this Court indicated that it was thе better practice to make the findings of fact and conclusions of law at some time during the trial, and preferably at the time the statement is tendered and before it is admitted. In this case, prior to entering the order, the trial judge annоunced that he would permit the State to offer the statement *44 into evidence and said that he would give the reporter his findings of fact and conclusions of law in writing and put them into the record at the proper time. We find nothing wrong with this proсedure and see no prejudice to defendant.

Defendant strenuously contends, however, that his lack of sleep and food and his heavy use of drugs and alcohol shortly before his periods of interrogation rendered any statemеnt involuntary.

After an extensive voir dire hearing, the trial court found, in part, that on Friday evening, 2 August 1974, defendant was drunk and was not interrogated at that time because Chief Trull did not believe that he was in condition to be questioned; that on Saturday morning, between 9:00 and 9:30 a.m., 3 August, defendant wаs in-good shape and was not under the influence of intoxicating liquors or drugs; that defendant was not in custody at the time and was allowed to go across the street where he bought some crackers, cookies and a quart of choсolate milk; that on Saturday afternoon defendant was taken to a burger barn where he got some hot dogs and french fries, later took a nap for about one hour, and that throughout the evening he was supplied with cigarettes, food and coffee by the officers; that when the defendant was first questioned, Agent Berrier read him his rights verbatim from a printed form, that he gave defendant a copy ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of this form and that after his rights were read to him defendant read and signed the waiver of rights; that beginning about 9:00 or 9:30 p.m. and before questioning, Agent Berrier again read defendant his rights and defendant again signed a waiver of rights; that defendant was questioned in all for a total of two hours; that the defendant is twenty-five years old; that he completed the eleventh grade in high school, dropping out his senior year, but that he subsequently obtained a high school diploma by taking the GED examination, and that he also successfully completed a correspondence coursе in drafting and plan reading and qualified as a union carpenter by passing a written examination; and that he affirmatively and knowingly waived his right to have an attorney present during questioning. These findings of fact were amply supported by compеtent evidence, and so supported are binding on appeal. State v. Thompson, 287 N.C. 303, 214 S.E. 2d 742 (1975); State v. Pruitt, 286 N.C. 442, 212 S.E. 2d 92 (1975); State v. Bishop; State v. Baskin; State v. Thompson; State v. McCain, 272 N.C. 283, *45 158 S.E. 2d 511 (1968). Based upon the findings of fact, the court concluded that defendant was fully advised of his rights in accordanсe with the Miranda warnings, and that the statements made by the defendant were freely, understandingly and voluntarily made and were not induced by any coercion, duress, threats, undue influence or promises of leniency. We agree with the trial judge’s conclusions that the pretrial statement was freely, understandingly and voluntarily made and was therefore properly admitted into evidence.

Defendant next assigns as error the denial of his motion for judgment as of nonsuit. Specifically, he contends thаt he comes within the purview of the rule stated in State v. Bolin, 281 N.C. 415, 189 S.E. 2d 235 (1972), that ‘“[w]hen the State introduces in evidence exculpatory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in еvidence, the State is bound by these statements.’ State v. Carter, 254 N.C. 475, 479, 119 S.E. 2d 461, 464 (1961), and cases cited. [Citations omitted.]” However, it is equally well established that the introduction by the State of an exculpatory statement made by the defendant does not preclude the State from showing that the facts concerning the crime were different. State v. Bolin, supra; State v. Cooper, 273 N.C. 51, 159 S.E. 2d 305 (1968); State v. Bright, 237 N.C. 475, 75 S.E. 2d 407 (1953). On motion for judgment as of nonsuit the evidence must be considered in the light most favorable to the State and the State must be given the benefit of every reasonable intendmеnt ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍thereon and every reasonable inference to be drawn therefrom. Contradictions and discrepancies even in the State’s evidence are matters for the jury and do not warrant nonsuit. State v. Bolin, supra; State v. Murphy, 280 N.C. 1, 184 S.E. 2d 845 (1971); State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967).

When the evidence in this case is so considered, the jury could find the following facts despite certain statements to the contrary by defendant:

(1) Defendant borrowed the murder weapon on Tuesday, 30 July 1974.

(2)' Defendant had possession of the murder weapon and the victim’s weapon on the afternoon of 2 August 1974 when he was seen hiding them in an old washing machine behind the clubhouse.

*46 (3) Defendant sent his girl friend Cherokee to retrieve the murder weapon from its hiding place in order to sell it to Donald Terry. Terry, upon cleaning the pistol, found that it had been fired twice.

(4) Defendant had asked one Bill Pack a few days before the shooting to help him rob “Pop’s” and another store in McAdenville but Pack refused.

(5) Defendant and Chandler were in possession of severаl hundred dollars on the afternoon of 2 August 1974 and several payroll checks that had already been endorsed, at least two of which were identified as having been cashed at Stroupe’s Place the night before the shooting.

(6) Defendant admitted telling his girl friend Cherokee that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he and Chandler had “killed and robbed Ben Stroupe.”

We find the evidence presented by the State sufficient to carry the case to the jury on the murder charge contained in the bill of indictment. Defendant’s mоtions for judgment as of nonsuit were properly denied.

Defendant’s final contention that the imposition of the death penalty results in cruel and unusual punishment and is therefore constitutionally impermissible has been rejected by this Court in many recent decisions, including State v. Robbins, 287 N.C. 483, 214 S.E. 2d 756 (1975); State v. Stegmann, 286 N.C. 638, 213 S.E. 2d 262 (1975); State v. Honeycutt, 285 N.C. 174, 203 S.E. 2d 844 (1974); State v. Dillard, 285 N.C. 72, 203 S.E. 2d 6 (1974); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974); State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973). We adhere to those decisions.

Our careful search of this entire record discloses no error warranting a new trial.

No error.