*1 COUNT IN THE SUPEEME v. dissеnting Williams, opinion stated reasons 2d 113 at 422 at majority- portion of the from that Exum dissents Justice to remand death sentence votes opinion affirms the which imprisonment of life can be that a order sentence this case in imposed dissenting opinion in State stated in his the reasons (1975), 422, 212 2d 113 other than Williams, 286 Chapter relating 1201 of the of of to effect Section those Laws. 1973 Session v. CRAWFORD DEAN LOWERY NORTH CAROLINA
STATE OF No. 36 (Filed April 1975) — — gestae evidence of offense res Law 169— another §§ 1. Criminal objection testimony admitted similar without prejudiced rape a was not the admission into case Defendant in engaged testimony objection, that defendant in a evidence, of over against person of separate offense his victim criminal and distinct against perpetrated upon by participating nature crime in the friend, evidence com- same since defendant allowed defendant’s many during plained without times the course to come in of trial; further, commission the unnatural the evidence evidence, to act, the other tended exhibit a when viewed with sex chain of charge part respect rape and was a circumstances in gestae, admissible even and the evidence was if the res objected opportunity. promptly at each had own failure of court order mistrial its Law 128—§ Criminal — instructing jury by striking testimony error corrected motion failing testified, on its err to declare mistrial The trial court did not girl been when a' witness ... own motion raped, State’s guilty person prosecuted,” be since the court sus- should strike, in- allowed the motion to tained defendant’s jury not to consider it. structed — — objec- testimony object prejudicial failure to 162— 3. Criminal Law § tion waived by testimony prejudiced rape of a case was not in a sociology studied him that she had witness that the victim had told always stay possibility and was advised calm causing any harm, particularly try the attacker out talk testimony object аt trial. defendant did since SPRING TERM 1975 *2 Lowery — object 4. 162— failure to to Criminal Law evidence at trial § waived exception precluded It is well settled that with the of evidence public policy, object statute furtherance of failure to right so, introduction of evidence is a of waiver is do to admission, incompetent, proper appeal. its even if not a basis for 86— 5. Criminal Law cross-examination of to § defendant as other of- — propriety fenses may A defendant criminal not be asked if he has been arrested or specific offense, may, purpose impeach- indicted for a but he for the of ment, specific be asked has if committed criminal acts or other acts n reprehensible conduct, provided question good of inis faith. — subsequent rape pro- 86— Criminal Law cross-examination to § as —priety good question faith rape Where the record in this case showed that defendant was in subsequent fact viсtim, the time rape indicted at of this for a trial of another ample attorney there was basis for the district to ask defend- good offense, ant in did not err in whether he faith committed trial court failing upon to declare a mistrial its own motion. — 36; Rape penalty constitutionality 7. Constitutional Law § 7— death Judgment rape of death in case this does not contravene the Eighth and Fourteenth Amendments to the U. S. Constitution. Sharp Copeland dissenting Chief Justice and Justices and Exum as to death sentence. Appeal (a) /., Clark, under G.S. 7A-27 from Superior 1974 Criminal at the June Session of Alamance Court. proper form,
On an indictment defendant was convicted penalty. and received death Snyder, years Lynn age, seventeen testified that on July 1973, Burlington Saturday, to her she returned home in p.m. about Beach 6:00 She went to her Carolina brother’s nearby p.m. Coots, house around 7:00 or 7:30 Frank a friend years, there, and she asked him if he would several ride Tommy Wilson, look fоr a with her to friend she had met at prior Tommy’s Beach occasions. She had Carolina seen beach, at the mother while his mother had asked her to message give Burlington. him when she returned to a Frank agreed accompany her.
They place went first to the near the Alamance “Footsball” County Hospital. Later, Wilson was not there. at about 11:00 p.m., they place went a known as “Choosie Mothers.” Miss COURT IN THE SUPREME asked, any
Snyder people group the car аnd there left Tommy Defendant answered that he did and knew them Wilson. Snyder find Defend- and Mr. Coots to him. offered to take Miss Danny entered the seat of ant a friend named Cox back they place described which automobile Cox Coots’s meeting going place of the “Zulu Club.” car got were Snyder area, and and defendant stopped at a wooded stay and defendant Coots the car out. Miss headlights. about to turn off the took told Coots Tommy and, name. then decided steps called Wilson’s She four place at a like this and started to could be that Wilson *3 point, this defendant her arm and she At held turn around. something sharp in her Defendant told to walk back. her felt straight kill her. he. would or path pile. her down a to a sawdust He then led
Defendant with a knife and struck her several times her blouse cut off about neck, held knife to removed her cut-off the face. He her jeans pushed pile. the underwear and her back on sawdust and holding lying throat, top at her and while on knife While hand, her, pants his with he removed his other this position attempted to have intercourse with her. He did man- give age per- one two him penetration of or inches. She did not do to so. mission Danny emerged saying point, woods, from the
At this Cox anything police Defendant he could do had come. Cox dragged Snyder. then with Miss Defendant and Cox he wanted feet to the other of the sawdust her one hundred side about top pile. pile. males then came over the of the sawdust Five other Snyder putting jeans was her back on when defendant boys they naked, her the other wanted see asked again Snyder’s jeans. pulled Miss Defendant held off arms, boys ran their her while the other hands over her one of boys put vagina, body, one his mouth her at which put was then released and allowed to she screamed. She time her boys give made jeans on. Defendant one of other her opened her told her if she mouth about his shirt. thеy happened, would kill her. what path then down the the rail- ran followed emerged until she woods. She head- track saw road operated lights an automobile Helm and observed Officer police Department. Police She sat in car but Graham happened tell Helm what time because she was did not at that SPRING TERM 1975 people.” scared and embarrassed be connected with “those got She then with back into car Frank and on the Coots way go home tоld him turn around because she wanted to Department to the happened. Graham Police and tell them what police department She arrived at the about 1:00 a.m. and talked “couple to Officer Helm for a of hours.” She had another con- day versation (Sunday, July) with Officer Helm later in the presence mother, attorney. stepfather She Frick, a conversation with Bill Mr. the administrative as- Attorney, sistant for the July. District “sometime after” 8 cross-examination, On testified that she knew dope was Mothers,” used and available at “Choosie and that years pot ago. she had smoked two At no time did she Frank ask accompany pile Coots her and defendant sawdust call help. for his She hesitated to scream because she afraid killed, screaming she placed boys would be but started when one finger glasses in her rectum. Her vision without recognize objects away 50-50 and she cannot more than four feet glasses. wearing without her being She described the blouse she was flimsy material, low-neck and made of and stated that wearing she was not a bra because she was sunburned from the beach. attorney family Sny- Darlington, Mr. Fred of Miss *4 for
der, Sergeant present testified that he was with Helm and County Department members of the Alamance when Sheriff’s Snyder Miss identified the defendant as her On the assailant. evening July Snyder’s of 8 he noticed a cut on Miss arm and on upper lip her and lower inside her mouth. He testified that Snyder’s testimоny substantially Miss court was what told she during alleged rape. him their discussions
Sergeant Bobby Department Helm of the Police Graham patrol p.m. July 1973, testified that on while at about on 7 11:45 parked he saw Frank in his Coots automobile Street on River pile. about 300 to 400 feet of the sawdust he was south While talking Coots, Snyder emerged to Frank from Miss the woods crying wearing green upset. and was She was with shirt blood on it and she had blood on her name was “Tina” and that she was told him mouth. She her looking Tommy for friend ques- Wilson. He tell no could she condition answer tions, he her if she wanted to make so a statement later to Department. Police came to contact Graham She the Graham THE IN SUPREME COURT July Department appproximately on 2:00 a.m. Police happened, p.m. about 11:00 with told officers what and returned attorney statement, mother, stepfather a full to make essentially cor- which was introduced in evidence and which Snyder’s testimony. roborated Miss Sergeant cross-examination, that when Helm testified On night Snyder emerged a.m. on woods at 12:30 alleged he rape, “No” when asked her she answered criminally way. any she had been assaulted Frick, for administrative assistant Mr. William W. Attorney’s he Office, testified that interviewed Miss District Snyder regarding September sur- on circumstances alleged rounding rape. to him was introduced Her statement Snyder’s essentially testi- in mony. corroborated Miss evidence Sutton, specializing in ob- Dr. Edward B. a medical doctor Snyder gynecology, that examined Miss stetrics and at testified he July spermatozoa in her p.m. No were found on 8 2:55 vagina might spermatozoa out since Miss have been washed but Snyder process He found no bruises was in the of menstruation. body. on her abrasions defendant, Woods, acquaintance testified Mark an Steven Club,” July “Zulu 1973 he was a recent initiate on initiation rite he As an of which defendant was the leader. present pile. fight He was at the sawdust five individuals looking Mothers” when Miss Tommy Wilson, came “Choosie her to him. take
and heard defendant offer to car, turned, defendant smiled said As he entered with remained, pile.” then left who “Sawdust others Shortly thereafter, and four Woods and two others. pile. to the sawdust Mothers” and went friends left “Choosie holding Snyder, who was There, saw defendant Woods and saw an individual oral sex crying, named “Hoss” commit an bragging days later, heard “Hoss” two act her. One or on Snyder. committing He also heard the oral sex act Miss about parts say put private into Miss he had tried to *5 too Snyder’s private parts not she “moved but could because tight.” too much and was not he could cross-examination, Mr. stated that Woods On positive “Hoss” not that and that he was in the dark
see too well was committing act. an oral sex TERM SPRING 70S Defendant testified that he led Miss to the sawdust pile but at no time threatened her with a At the sawdust knife. pile, going give he asked her if she was “to some.” She [him] respond did not рlace but allowed him to his hand inside Danny blouse. pants. She removed her time, blouse and At that police Cox arrived and said the were At no time did there. clothing defendant parts attempt place private remove his boys in hers. The other then came and he observed Lee Snyder. “Hoss” Somers commit an oral sex act on Miss When he fall, pushed observed her start her back on her feet to keep hitting ground. her from He did turn to his friends say pile” leaving “Sawdust beforе “Choosie Mothers” with Snyder.
Douglas Ferguson pres- testified for the that he ent at pile July object” the sawdust “sharp on 7 1973 and saw a in the hand July 1973, police defendant. On 9 he took officers to an pile area near the Snyder’s sawdust and showed them Miss blouse some drop bushes where he had seen defendant it alleged rape. after stayed He in the cell with defendant at County night testimony Alamance Jail the before his testify against in this trial and defendant told him not to him because you you ... won’t live if do.”
Defendant was recalled and denied that he had threatened Douglas Ferguson. pertinent
Other facts opinion. to decision are set out in Attorney Cwrson, General James H. Jr. and At- Assistant torney General W. Claude Harris the State. Kelly appellant.
Donnell S. for defendant MOORE, Justice.
perpetrated upon her. separate [1] dence, Lynn Snyder by participating over distinct criminal offense first assigns testimony as error the admission into evi that defendant in the crime against against engaged person nature in a On examination, direct after testified that Danny raped Cox arrived and defendant told Cox anything he could do he wanted to with her. She stated further appeared again five other males and defendant disrobed *6 IN COURT THE SUPREME Lowery State v. objection appears narrative All of this was without her. form. following appears: then by Snyder: my (defendant) held ‘He “Answer gave boys boy my another held arm arms while ’
permission to ... Kelly: Objection. “Mr. ” Objection is Overruled.’
“The Court : ‘The it question nor does not set asked The record does out any objection question. disclose paragraph is another narrative where After this there one her arms testified that the defendant held boys they anything they wanted to told the could do other vagina. boys put his mouth on do with her and that one No
objection appears. or to strike motion Stansbury’s (Brandis 27, pp. Rev. N. Evidence 69-70 C. 1973), states: question, objection specific In should be ... case of a question wit- made as soon and before the asked however, Sometimes, ness bility by time inadmissi- has to answer. question, apparent is not indicated but becomes objection some feature of the answer. In such cases inadmissibility becomes should be made as soon as the known, strike out and should be in the form of a motion to ” objectionable part of it. . answer . . discloses that This was done. The record further many complained same evidence in without of came during trial, on some occasions times coursе response questions defendant’s counsel. cross-examination, that defendant On stated boys boy kissed and another held her arms while the other sex one them committed the unnatural fondled her and while act on her. Investigator Frick, Helm and
Without Officer Snyder’s them corroboration, statements to testified as to Miss regarding sex the unnatural act. TERM SPRING *7 story eyewitness, the same Woods, an
Mark Steven objection. without that claimed himself told of this act but Defendant push falling ground that all he did was to the was up. that evidence is admitted well established rule is when theretofore or there
over but the same evidence has objec objection, the benefit of the after admitted without been 30; Little, ordinarily Stansbury’s, stipra, 1 State v. tion lost. is § Owens, (1971) ; 484, 2d v. N.C. 278 N.C. 180 S.E. 17 State 277 576, (1971) ; Jarrett, 157 697, 2d 442 v. 271 N.C. 178 S.E. 2d 4 State (1967). similar with Defendant here allowed evidence S.E. out objection. and therefore lost the benefit of Further, think the evidence under the facts of this case we objected promptly at each was admissible even if defendаnt had proof of another opportunity. Ordinarily, cannot offer the State for which independent distinct from the crime crime of and being though separate prosecuted offense even is Stansbury’s supra, charged. 1 is of the same crime nature as the (1973) ; 91; Humphrey, 570, 2d 516 v. 283 196 S.E. N.C. § ; (1969) Atkinson, 288, State v. 2d 275 N.C. McClain, evidence 2d 364 Such 81 S.E. ‘ intent, quo animo, competent, however, to show . . . res
design, guilty scienter, knowledge, or to make out respect the the gestae, in or to a chain of circumstances exhibit trial, with are so connected matter on when such crimes light charged upon of these one or more offense questions. as to throw ’ ” Jenerett, State v. omitted.] [Citations quoting 81, 89, (1972), from State 2d Atkinson, supra. Stansbury’s, supra, 1See left when the defendant
The evidence tends to show that other place Snyder, he turned to several footsball with Miss males, smiled, said, pile.” other males “Sawdust Several alleged rape, shortly pile arrived Lee “Hoss” the sawdust after defendant, Somers, with the aid of committed Snyder. unnatural think the evidence sex act on Miss We act, unnatural when viewed with other commission of the sex respect evidence, tended to a chain of exhibit circumstances gestae. charge, part and was a of the res The evidence assignment properly admitted. This is overruled. THE IN SUPREME COURT [2] next contends trial court erred fail ing mistrial on own motion declare a its when the State's wit ness, Darlington, Mr. testified follows:
“Question your Mr. Pierce: What was interest the matter? Darlington daughter my- I: have a Mr. “Answer they girl close mine
self and are friends of and I felt if the guilty person raped, prosecuted. been should be Kelly Object Honor, : Your we and move “Mr. answer be stricken. I in- Sustained, Allowed, *8 “The Motion Court: jury not to
struct the consider that.” a mistrial was made. Defendant No motion for elected to jury proceed with the trial to take his chances with the may impaneled. these not Undér circumstances he success then fully court, motion, that the of its own should contend have Indeed, “. . . without a mistrial. defendant’s consent declared or a mistrial, by him, had mero motion the court declared ex judge motu, of the trial the would most at the onset cer next tainly plea jeop former have been confronted with defendant’s of ardy. Moore, 142, 150, 171 State v. 276 N.C. omitted.]” [Citations “ only 453, (1970). necessity 2d It is in cases of 458 ... S.E. attaining justice may the ends that a mistrial be ordered capital of the in a case without the consent аccused. [Citations Harris, 697, 700, 232, 2d v. 223 N.C. 28 S.E. State omitted.]” 235 Accord, Moore, supra; Crocker, (1943). State v. v. State Here, 446, (1954). 2d 80 243 the court 239 N.C. S.E. sustained strike, the the allowed motion to and instructed generalized jury not to it. not believe this consider We do that by Darlington girl Mr. that made been statement “if guilty party prosecuted” (emphasis added) raped, should be inherently prejudicial impact that its so initial was erased judge’s emphatic prompt that instruction jury (later not consider it. As Justice Devin Chief the Justice) should 725, Ray, 729, 482, v. 212 N.C. 194 said in State S.E. (1938) : 484 justice system the administration for “[0]ur
through by jury assumption upon is based trial jurors men of intelli- trial are character of sufficient gence fully comply understand and with the instructions to 707 1975 TERM SPRING v.
State done so. court, presumed to have [Citation and are ” omitted.] 645, Helderman, 207 S.E. Accord, Highway 285 N.C. v. Comm. assignment supra. is over- ; Moore, This (1974) v. 2d State 720 ruled. in her statement school and life.” The record does and and to [3] testimony to try attempt cases to save and so taking to talk the attacker next to him forth, this course assigns witness life or not disclose that said: and was advised Frick that error the admission . . they had studied the getting out of [S]he the defendant had taken beat causing to prosecuting witness up always or scarred into sociology in possibility made any stay evidence harm calm any for testimony of this witness.
cluded [4] It is well settled that with the statute in furtherance of public policy, which exception of evidence exception pre assignment error, applicable the failure' ob is not to this right ject the introduction of the evidence is a waiver of incompetent, proper admission, not a so,, and its even if do 2d, Appeal appeal. Strong, and Error 1 N. Index basis C. 541, 2d (1967) ; Gurley, 725 State v. S.E. (1967) ; McKethan, (1973).; 2d 341 N.C. Howell, It is 2d 235 ... exceptions to the evidence. late after the trial to make too Howell, 81-82, 2d id. at 79 S.E. *9 [Citations omitted.]” prejudicial. do not this innocuous statement believe We assignment is overruled. This assigns Next, the defendant the failure of trial [5, as error 6] upon court to mistrial after the follow declare its own motion a ing question by attorney of the defendant was asked the district your you April 5, 1974, insert on cross-examination: “On didn’t Kathy said, private parts then into Cox?” The court “When?” objection. “April 5, 1974,” court the the sustained When ruling in favor of defendant. De The trial court’s was error Williams, fendant concedes that under the rule in State v. 279 663, properly (1971), 185 2d the solicitor asked N.C. S.E. 174 question. Williams, In this it is statеd: permissible, purposes impeachment,
“It is including witness, cross-examine a the defendant in crimi- a. asking by disparaging questions concerning case, nal col- IN THE SUPREME COURT 708 State v. degrading relating con- to his criminal
lateral matters questions matters relate to duct. Such [Citations omitted.] knowledge witness, not to accusations the the within by mark any not undertake here to kind made do others. We say generally except to limits of such cross-examination the subject the (1) scope to the discretion of thereof is good judge, (2) questions must be trial faith.” asked 675, Id. 185 2d at 181. S.E. may
A asked he has been arrested defendant not be criminal may, purpose of specific offense, for the or for a but indicted impeachment, criminal be if he has committed acts asked provided ques- specific reprehensible conduct, acts of other good Gainey, 366, 280 N.C. 185 S.E. tion faith. State v. is supra. (1972) ; Williams, 2d v. The record shows 874 State trial for that defendant was in fact indicted at the time of this the 1974; ample rape Kathy April 5, hence, there was Cox good assign- question this faith. basis for to be asked in This ment is without merit. imposing
Finally,
judgment
contends that
penalty
Eighth
and Fourteenth
death
contravenes
Amendments
Constitution
United States.
[7]
questions'
raised
defendant have been raised
Supreme
North
number of recent cases before the
Court of
judgment
Carolina. The
that the
does
answer in each
death
is
Eighth
See
contravene the
Fourteenth Amendments.
Fowlеr,
(1974) ;
90,
v.
v.
State
285 N.C.
State v. Silver No error. Sharp dissenting penalty:
Chief Justice
as to the death
for which defendant was convicted occurred on
July 1973,
January
day
1973,
7
a date between 18
on which
opinion
Waddell,
431,
in State v.
19,
282 N.C.
194
2d
April 1974,
day
was filed and 8
on which the 1973 General
Assembly
rewrote G.S. 14-21 at its second session
the enact-
1201,
2,
ment of
(1973).
Ch.
Sec.
N. C. Sess. Laws
For the
dissenting opinion
reasons stated in the
of Chief Justice Bobbitt
Jarrette,
625, 666,
721,
202
2d
(1974),
opinion
Higgins
an
in which
joined,
Justice
and I
I
dissent as to the death sentence and vote to remand for the
imposition
imprisonment.
of a sentence of life
See also the dis-
supra
Waddell,
sents in
476,
at 453 and
to remand for
imprisonment
of a sentence of life
dissenting
opinion
reasons stated in
Williams,
in State v.
(1975).
N.C. 422 at
STATE OF NORTH CAROLINA v. FRANK JAMES SILVER
No. 35 (Filed April 1975) — admissibility
1. Criminal Law § of confession consideration of voir 76— only improper dire evidence determining admissibility confession, In of a the Court must record, merely look presented to the entire to the evidence on a hearing. voir dire — involuntary admissibility Criminal Law confession of subse- 76— — quent presumption confession Where a confession has been obtained under circumstances render- ing involuntary, presumption imputes it prior which arises the same