*1 COURT IN THE SUPREME v. Miller MILLER, v. CARL ARTIS PARNELL CAROLINA OF NORTH STATE McCLAIN, CLARK LARRY CAMPANELLA 79No. (Filed 1975) 17 December — attorney pre- time for 91—motion continue § Law 1. Criminal proper pare— of motion denial nor abuse its were defendant court did not discretion The trial rights by violated the trial court’s refusal constitutional Clark’s represented Bender all three case where defense counsel continue defendants months, Taiman both he and defense counsel for over two by throughout trial, employed represented Taiman was de- them with him hours on October conferred for two Clark fendant on on October of October, Taiman witnesses in Statesville intended interview by disappearance to do so reason of the but was unable daughter, knew the case would be called for trial Bender his permission requested October, to withdraw for Bender had as counsel denied, permission was but Bender made no conten- Clark defendant ready case, he was for Clark’s the record did in tion not show who defendant Clark’s Statesville witnesses were or what be, the oral would motion for continuance was not their proof. supported affidavit or other — plea county Law 27— in abatement in which crime occur- § 2. Criminal proof not at variance red— indictment properly plea court that The trial overruled defendants’ in abatement question alleged County in the offense occurred in Iredell which County charged indictment, rather than in Catawba bills of presented by the State since evidence tended to show that a witness their who observed defendants and victim at the crime scene testified them west observed on the side of the Catawba River and he County. Catawba — photographic right Law § identification 3. Constitutional 32— presence of counsel right presence has An accused no constitutional of counsel eyewitnesses viewing photographs purposes when are for of identifi- regardless suspect liberty cation, and this is true of whether the is at custody or in at the time. — pretrial 66— 4. Law in-court identification of § Criminal defendants proper photographic identification three In-court identification defendants witnesses was not by pretrial photographic procedures tainted identification where the the place only photographic identification took a few hours after viewing crime, photographs each witness was in- advised vestigating guess photo- he not to officer that conclude or that the person graphs nor picture crime, contained who committed the obligated identify anyone, he two of the witnesses were presence part hour, defendants the better of an neither anyone else, posi- of them ever identified and all three witnesses were tive their in-court identification. FALL TERM Miller *2 — derringer admissibility used in crime 42—§ 5. Criminal Law admitting rape in err into evi- in a case did not The trial court derringer pistol evidence tended to show where the dence a .38 caliber by one pistol hitchhiker of the defend- held on a male was that companion. raping hitchhiker’s female the others were ants while — questions objections what failure show Law § 6. Criminal 169— — prejudice no shown been answers would have what the answer would have been fails to show the record Where answer, permitted exclusion of such testi- witness been had the mony applies only prejudicial, and this rule held cannot be questions on cross-examination as well. examination but direct — — admissibility reading by copy record Law of DMV § 7. Criminal 80— — attorney no error district allowing properly err into evidence The court did not trial Vehicles, Department copy of nor Motor of a record of the certified by allowing read into evidence the district the same to be did attorney. err in — admissibility prior for consistent statements § Law 8. Criminal 89— corroboration day alleged on the of made three witnesses Statements competent purpose rape the limited detective were to a sheriff’s corroborating made them. the witnesses who of — attorney’s argument reference to race Law 102—district § Criminal 9. — no error attorney’s defendants which referred The district men, contended that three which black males or black as three following alleged rape genuine, hysteria and which victim’s average anything suggested woman abhors of this “. . white that . deprive type man” had to do with a black did not de- nature process rights or violate their due under of a fair fendants inflaming injecting prejudice racial Amendment Fourteenth against jurors defendant. the minds — attorney’s argument capi- reference to Law 102—district § 10.Criminal — punishment error tal attorney’s jury argument suggesting The district capital punishment used, thing wrong was that it was not people capital punishment con- was not a deterrent when were capital crimes but never executed was well within the bounds of victed legitimate debate. concurring. SHARP Chief Justice Copeland join concurring opinion. Exum in this
Justices concurring result. Lake Justice judgment Thornburg, appeal from Defendants Superior Session, This Court. case was
October Catawba Spring argued Term 1975. No. 52 at docketed and THE SUPREME COURT IN Miller indictment, proper upon tried Defendants were bills degree charging rape form, first Dar- them with the Deborah County. August 1974 in lene on 10 Catawba Case Darlene tends to show Deborah State’s evidence Stumphey (Michael) their (Deborah) left and Michael Case July company with Hollywood, Florida, 1974 in homes in on pur- couple for the and hitchhiked to North Carolina another attending rock festival in on the weekend pose of Charlotte August. time at this Deborah and Michael not married August subsequently married on the date after but allegedly raped defendants. Deborah which *3 couples prior in to the commence- arrived Charlotte two Chimney the rock festival and decided to hitchhike ment of They Chimney Atlanta, Geor- left Rock and hitchhiked to Rock. gia. point couple Florida, and returned to At this the other Charlotte, and Michael hitchhiked North Car- back Deborah olina. August They Friday evening, in on arrived Charlotte night parking 1974, spent the in a near the of the rock lot site festival, and decided to leave and hitchhike to the State Charlotte getting purpose Accordingly, for the married. Colorado morning August they hitchhiked west on 1-77. wearing they pair jeans was a blue Deborah were Michael’s carrying bag back-pack, fishing pole. a a duffel and a a.m., point at a near the intersection of About 1-77 Statesville, at a 1-40 offered ride three black traveling Hickory. males in a red vehicle west on 1-40 toward They accepted the offer and entered the car. proceeded stopped
theAs red vehicle west it at a service (defendant Clark) purchased gasoline. where the station Then, driver according Michael, of Deborah and westerly vehicle continued a direction a short distance going the driver stated he and ute. The vehicle exited from was to see a friend min- for a
1-40, traveled a short distance on road, eventually paved passed then entered dirt a a road and a point At house. this defendant Clark stated his friend was approxi- not at home. The vehicle was then driven around for mately mile, 1-40, one returned to and crossed over and con- approximately tinued on a dirt road for one mile to an area locally Sipes pond Fish known as “V. O. Pond.” This is located general vicinity of Lookout in the Dam and Catawba River. stopped point at a where Defendant Clark a cable was stretched road, turned around, across the dirt the vehicle and all five TERM 1975 FALL v. Miller yards fish got down to the occupants 50-75 out and walked up in a Franklin drove James pond. At this time a man named dogs. looking stray coon for his Franklin was blue vehicle. dogs. anyone a After brief inquired had seen whether He the immediate and left to his vehicle discussion he returned area. sight down out of point defendant walked
At this Clark pistol his hand. nearby shortly reappeared path with a signal who was pistol a friend use He said he intended to fired However, never out on the River. Clark boat Catawba to as pistol. time, McClain, referred At defendant the car “skinny one,” back to walk with him asked Deborah parked vehicle he her. reached so could talk with When get McClain and she refused. her in the car defendant asked She pulled to her stomach. then a knife and held it close coming up the back who was afraid and called out to Michael path. nothing we can babe, it, there’s her to “cool Michael told the back into she then thrown do.” Deborah testified that car. seat of the seat, defendant in the back While Deborah was crouched removed had she approached ask her if
Clark the vehicle and menstrual her replied her that she was clothes. Deborah any difference. cycle her that not make told did Clark *4 removed hand, holding in one Thereafter, McClain, knife intercourse had sexual jeans with and Deborah’s blue the other the finished, returned her. had defendant Clark heWhen Throughout engaged her. car intercourse with and sexual right After hand. engagement, held a knife his second Clark up Deborah and asked finished, Miller had defendant came Clark not be would replied that she if she could take a third one. She lying took then Miller if Defendant there didn’t have to. she vehicle, had sexual Clark, entered the knife from the During time Michael all this with Deborah. intercourse sight away gunpoint and out of held at some distance red vehicle. Following engagement Deborah and while the third scene, still
getting' dressed, Franklin returned James “act looking dogs. were told and Michael Deborah for his got Defendant Everyone vehicle. then into the red natural.” front; Deborah in the and Michael were seated Clark down Franklin wrote in the back. other two defendants depártéd. tag as the red vehicle number the license THE COURT IN SUPREME y. State Miller stopped The overpass, car at 1-40 Michael and an Deborah got they out, belongings retrieved their from the trunk. Clark then shook hands him with Michael wished a nice day. got Clark back into the red car and the three defendants away. Trooper drove came few In a minutes Dillard Dennis up nearby flagged ramp exit and Michael him down. Trooper hysterical Dillard said testified that Deborah was but go hospital. Trooper she did not want Michael told occurred, immediately Dillard what had a and the officer issued general police alert over his radio and commenced an un- occupied by successful search for a red vehicle three black males. A emerged thereafter, short time Franklin from James pond upon area Deputy and came Sheriff Ketchie of the County Department responded Iredell Sheriff’s who had general ensuing In conversation, pro- alert. Franklin Deputy vided Ketchie with the number license red vehicle previously he had pond. near encountered the fish meantime,
In the Deborah was taken to Catawba Memorial Hospital Wotring. where she was examined Dr. Dr. James Wotring testified that his examination of Deborah revealed presence sperm. Wotring of immotile and motile Dr. said very evidence of trauma was a small abrasion on Deborah’s right breast. Following examination, the medical Deborah and Michael questioned Sgt. were Department, County Price the Catawba Sheriff’s defendants,
warrants were obtained for the three incarceration, were arrested. their After both Deborah and Michael identified photographs. all three defendants from following morning, James Franklin identified defendants Larry Campanella Carl Miller and photographs Clark from fur- by Sgt. nished Price. Defendants offered no evidence. On cross-examination witnesses, however, tending State’s elicited to show that hitchhikers, Deborah and Michael were entered *5 red willingly request get vehicle out; and made no to previously engaged had Deborah intercourse; in acts of sexual drug that Michael had possession been convicted of and of break- ing entering; that both Deborah and Michael had taken drugs (marijuana THC) night incident; on before the injuries that Deborah had no other than a bruise her small on 587 1975 FALL TERM Miller during physical breast; offered no resistance and that she of intercourse defendants. acts (cid:127)various charge Following arguments counsel and degree rape and court, jury of first each defendant convicted directly appealed to Defendants to death. each sentenced assigning (a) pursuant errors Supreme to 7A-27 Court G.S. opinion. in the discussed Ray General; Attorney Ed/misten, B. L. William Rufus Attorneys General, Melvin, Assistant W. William for North Carolina. Attorneys Jr., Taiman, Wesley F. J. Bender
Harold appellants. for defendant
HUSKINS, Justice. for a continuance to enable his properly prepare [1] Prior to introduction of evidence defendant newly employed Clark counsel moved motion constitutes Denial of the
his defense. assignment of error. Clark’s first ordinarily addressed A motion for continuance ruling thereon is and its court sound discretion Baldwin, v. subject of discretion. review absent abuse Stinson, 267 ; v. 690, (1970) 2d 526 276 174 S.E. motion is However, 661, (1966). if 2d 148 S.E. constitution, right guaranteed by federal or state on a based of discretion presented and not question is one of law Phillip, reviewable. State of the court below is the decision 1003, 12 263, 386, U.S. 2d cert. denied 377 right (1964). The constitutional L.Ed. S.Ct. right con of counsel includes the to the assistance counsel prepare witnesses, accused and consult with the fer with 377, 60 Avery L.Ed. Alabama, 308 U.S. his defense. ; 45, 77 L.Ed. Alabama, (1940) 287 U.S. Powell S.Ct. 53 S.Ct. all represented had Bender The record that Mr. discloses Mr. months, he and and both defendants for over two
three Attorney throughout Tai- the trial. represented them Taiman 21 October Clark on was notified defendant man Clark Taiman conferred with Mr. to retain him. he desired go intended to and stated that he two hours on 25 October wit- interview 1974 to locate and 26 October to Statesville *6 THE IN SUPREME COURT [288. v. Miller State disappearance nesses but was unable to do so of reason daughter, of his a fact not made known to the court until the morning fully apprised the trial. Mr. Bender was the fact that the case called would be for at the 28 October previously requesting permis- Session. He had filed motion sion to withdraw as counsel for reason ill defendant Clark feelings alleged between Clark and over theft of McClain certain articles from Clark’s home McClain while McClain was free on bond. Permission to withdraw as counsel Clark denied, by Judge was by Judge Thornburg, first Ervin and later presiding judge. Mr. Bender that he made no contention ready merely for trial in Clark’s case but stated placed he felt position he was in a when Clark and conflict against turning McClain seemed to be each another. think ample opportunity
We
defense counsel Bender had
August 1974,
day
from 12
the second
after the commission of
alleged
day
offense,
until
of the trial
to confer with
possible
defendant
During
Clark and all
witnesses.
time he
ample opportunity
had
prepare
Clark’s
No
defense.
names
of witnesses are
expected
shown.
prove
What defendant Clark
by possible witnesses in the Statesville area must be surmised.
The oral motion
supported by
for continuance is not
affidavit
proof.
suggests
other
state
This
of the record
a natural
go
reluctance to
to trial and affords no basis to conclude that
right
Clark
representation
was denied the
to effective
for lack
of time within
prepare
which to
present
his defense. The
facts show no abuse of discretion
violation of Clark’s
rights by
constitutional
the court’s refusal to continue the case.
Rigsbee,
State
tered occurred in Iredell fendants’ second [2] Before plea pleading in abatement, assignment County. Denial of that motion contending of error. bill indictment, alleged defendants constitutes offense en de (repealed July 1975)
Former G.S. 15-184
pro-
effective 1
vided that all offenses are deemed to have
committed in
been
county alleged
in the indictment unless defendant denies
by plea
same
in abatement. The statute did not
which
state
party
proof
had the
plea
burden of
if such
“At
filed.
common
law,
proof
upon
prove
burden of
the State to
county
offense occurred in the
named in the bill of indictment.
Oliver,
p.m. of the on the same defendant. photographs set for each shown three sets of six —a Miller; sec- photo defendant The set contained one of first McClain; photo of defendant ond set contained one Each set photo third of defendant Clark. set contained one general having composéd photographs persons the same of color, and respect race, age, type, hair appearance hair arranged. complexion for whom that set was of the defendant photo- at the series of to look The witnesses were then instructed graphs anyone. They identify obligated and told guess series were told should not conclude or picture person persons who photographs contained impor- They just as committed the that was crime. were told identify guilty suspicion persons from tant to free innocent viewing photographs parties. Deborah After both place took after Michael identified each of the defendants. This custody. Each wit- had been arrested and were in defendants upon identification of defendants was based ness stated that memory time not on the of them at the crime and displayed the officer. photographs IN THE SUPREME COURT
State v. Miller photographs Franklin nine witness James viewed Sunday August morning, photographs 1974. The nine included photo one of each defendant. Mr. Franklin identified defend- recognize ants Miller and Clark but failed to defendant McClain’s picture. This witness stated that his in-court identification based on his observation of defendants at the of the time crime photographs. not on identify He said: “I them what I saw at the river.”
Defendants
no
offered
evidence on voir dire. The court
found
facts in substantial
with the
accord
State’s witnesses and concluded that their
identification
in-court
origin
independent
way
defendants was of
and in
tainted
by the photographic display. Thereupon,
objection,
over
*8
permitted
identify
witnesses were
the three
in
defendants
open
jury.
court before the
is
This
the basis for defendants’
third, eighth
assignments
and fourteenth
of error.
Defendants contend their in-court identification was tainted
by
pretrial
the
photographic
(1)
identification in that
represented
were
by
(2)
counsel and
the
sur-
circumstances
rounding
suggestive
photographic
the
unnecessarily
identification were
irreparable
identity.
conducive
mistaken
the
gardless of
photographs
right
law is
[3]
time. State v.
We
firmly
find
whether
presence
established that an accused has no constitutional
no merit
purposes
Tuggle,
the
of counsel when
in either
suspect
284
identification,
prong
515,
at
eyewitnesses
liberty
Identification in States, Simmons v. 377, United 390 19 1247, U.S. 2d 88 L.Ed. (1968). S.Ct. 967 It was there held that “each case must be facts, considered on eye- its own and that convictions based on following witness pretrial identification at trial identification by photograph ground only will be set aside if the photographic suggestive procedure impermissibly identification was so give very as to rise to a substantial likelihood irreparable misidentification. standard This accords with our resolution a similar Denno, 293, issue Stovall v. 388 U.S. 301-302, 1199, 2d 1206, 1967, L.Ed. 87 S.Ct. and with de- question cisions of other courts on the photo- of identification graph.” suggestiveness [4] Applying the Simmons standard we find no photographic identification procedure impermissible used FALL TERM v. Miller viewing advised photographs was Each witness case. photographs investigative “the fact officer that you your judgment, you should not influence are shown to should picture of guess photographs contain the nor not conclude crime. You are person persons who committed just important to free obligated identify anyone. It as identify guilty parties.” suspicion persons from as to innocent Stumphey were in Furthermore, and Michael Deborah Case hour, part an presence of the defendants for better impres indelible an inferred that obtained and it be viewing took photographic appearance. The of defendants’ sion has Neither witness place few after the crime. hours witnesses, and the anyone else. Both of these ever identified positive in-court well, in their as witness James Franklin circumstances, light is little In of the total there identification. incorrectly The whole of defendants were identified. chance that by these in-court identification indicates evidence origin upon what independent and based witnesses was sug “by Impermissible river.” down witnesses observed amounting gestiveness process has not been to a of due denial admissibility. The the test of meets shown. findings supported found, com when are court petent such so appellate evidence, here, they courts. are conclusive on Morris, See 183 S.E. 2d 279 N.C. ; (1971) Harris, 2d (1966), denied 386 Gray, cert. *9 784, (1967). 911, Defendants’ L.Ed. 2d 87 860 U.S. 17 S.Ct. assignments eighth third, are and fourteenth overruled. Defendants contend the Exhibit [5] A .38 caliber 1 and admitted into evidence over derringer pistol pistol was never identified as was defendants’ identified as State’s objection. weapon allegedly the crime in connection with commission used charged improperly This consti admitted. and was therefore assignments twentieth of error. tutes defendants’ fourth and gun of the Stumphey one
Michael testified the used derringer. pearl “It had or defendants was a .38 caliber small that it I the rest believe white handles and was of was silver. 1, derringer.” Referring he said: to State’s Exhibit a 2-shot right gun. gun one be the “That is the . . . This here seems to they gun that That that was used and held on me. looks like they type; me; it is the it is the same model held on same derringer. kind; had; well, it looks like it. It is a it’s the same .38 592 IN THE SUPREME COURT
State v. Miller
derringer
I know it
I
to it
is a .38
because
had one similar
pointed
a
I
was
could tell because the
.38.
knew it was a .38 when it
at
I
was
me.
of the car
driver
showed me the shells.
He showed me some shells. He had the
hand.”
shells
his
general
weapons
As a
rule
are
there
admissible “where
tending
evidence
show
were used
the commission
Wilson,
674, 187
(1972).
a crime.”
v.
State
280
S.E. 2d 22
N.C.
fact, any
In
article shown
the evidénce to have
used
been
in
petent
charged
connection with the
commission
the crime
is com
properly
Sneeden,
evidence and
admitted.
v.
State
498,
(1968).
N.C.
far
“So
North Carolina
any
go,
object
decisions
which
has
relevant connection with
evidence,
the case is admissible in
trials.
tending
in both civil and criminal
Thus, weapons
be admitted where there is evidence
to show that
were used in the commission of a
against
crime or in
Stansbury’s
defense
an assault.” 1
North
(Brandis
1973).
Carolina Evidence
rev.
§
guilty
raping
Whether
are
defendants
innocent of
De
depend upon
borah Case does not
the absolute unmistakable
identity
pistol
used to intimidate the
her
victim and
com
panion.
Patterson,
190,
(1973) ;
v.
2d 16
Macklin,
496,
(1936).
All the
S.E. 785
evidence
pistol
tends
show a relevant connection
between
charged.
identified as
Exhibit 1
State’s
crime
Hence
pistol
properly
we hold the
conceded,
admitted. But if it be
arguendo, that
sufficiently
State’s Exhibit 1 had not been
iden
so
erroneous,
tified
as to render its admission
in view of the
gun
type
of the same
and model and which
like
looked
one of the
Stumphey by
State’s Exhibit 1
held on
Michael
raping
defendants while the others were
Deborah
Case,
Chapman
beyond
its admission was harmless
a reasonable doubt.
California,
386 U.S.
17 L.Ed. 2d
87 S.Ct.
(1967);
Patterson,
supra;
Fletcher and
Arnold,
State v. St.
Defendants’ of error is abandoned. *10 Case, prosecuting Deborah witness, testified cross- on prior engaged examination that to this she occasion had in sexual many intercourse. She was then “On asked: how occasions?” you any experience “Have had you ever “Do narcotics?” FALL TERM 1975 593 v. Miller State objection marijuana?” ques- The to each of these
smoke State’s tions was sustained. Stumphey “I
Michael testified on have cross-examination: guilty marijuana, pleaded possession of or convicted to of been breaking following OPA, entering.” LSD, E, andB questions put Stumphey then Michael were in the course the cross-examination: you drugs [by breaking entering]
1. after ?” “Were possession you 2. “You were convicted of and did have these drugs your for resale or for use?” own you any drugs?” 3. occasion “Have used these long you 4. “How did live in Texas?” you
5. did move “When Florida?” working you 6. at “Were time?” you 7. “Do believe in God?” you get following 8. “How did back Florida this inci- dent?” objection questions The State’s each these was sustained. rulings sixth, seventh, These court constitute defendants’
ninth, tenth, eleventh, assignments twelfth thirteenth error.
scope
[6]
aWhile wide
it rests
largely
latitude is
within the trial
allowed in
judge’s
cross-examination,
discretion.
King,
Strong’s
329,
;
224
(1944)
N.C.
30
2d
S.E.
230
7
N. C.
2d,
8, p.
However,
Index Witnesses
there
703
cases
cited.
§
the record before us fails to show
what
witnesses would
permitted
have answered had
been
do so. Thus
impossible
rulings
us
prejudicial
to know whether the
or not.
Where
record fails to show what the answer would
permitted
have been had the
answer,
witness been
the ex
clusion of
prejudicial.
such
cannot be held
Love,
691,
Brewer,
;
N.C.
State v.
(1967)
S.E.
187,
202 N.C.
applies
S.E. 363
rule
This
questions
to direct examination but to
on cross-examination as
Kirby,
well. State v.
(1970) ;
in one and at a experience nights; not a new two for that sexual intercourse was religious background; Deborah; that Michael had involving offenses that Michael had been convicted of various entering. drugs breaking impeaching evi- all this With credulity jury, conclude that dence before the it would strain credibility might further of these two witnesses have been impaired by out. questions hereinabove set their answers to the assignments error, Many questions referred to in these repetitious excluded, immaterial. which answers to In were of evidence harmless. Exclusion our view exclusion was may prej- held could not have affected the result be which Exceptions will to the exclusion of such udicial. Maynard, supra; Wall, be sustained. State ; Coleman, (1940) 566, 11 S.E. sixth, tenth, seventh, ninth, Defendants’ 2d 865 assignments eleventh, twelfth, are over- and thirteenth error ruled.
[7] Defendants contend court erred permitting the wit identify copy of a Joe a record ness of Ketchie certified showing Department license of Motor Vehicles Parnell McClain of number issued Artis BWS-181 was Chevrolet, num identification Statesville two-door allowing 164376Y248946, then read into ber same to be attorney. by the This defendants’ fifteenth evidence district assignment of error. 20-42(b) provides pertinent part follows: as
G.S. Depart- “The and such officers of Commissioner designate hereby prepare ment he are authorized to upon request Department seal of and deliver under the any Department, . and copy . certified record of the . FALL TERM 1975 State v. Miller any
every copy pro- such certified shall be admissible any ceeding original thereof, court like manner as the *12 without further certification.” among provides, copies things,
G.S. 8-35 of the other any public records of in of the State shall be received office any evidence and entitled full courts faith and credit in of the in this when State certified under of the chief seal the office agent charge officer or in thereof. clearly statutes, pari materia, These when construed in provide the for admission in certificate here evidence of the question. apparently cop-
Defendants properly concede certified kept by ies of Department records the Motor are of Vehicles admissible in evidence but contend there error in allow- ing attorney jury. the district read the the certificate before say proper procedure, Defendants appear, in their brief: “The it would speak
would be to the allow document to for itself and reading passed among jurors. to have the document the document the attorney extra dimension district added an highly prejudicial document which was to the defendants. The defendants were unable attor- to cross-examine the district ney concerning right document, and, therefore, were their denied of confrontation.” No further is made and no authorities are cited. assignment Moore, This is without merit. In v. 247 State 368, highway patrolman 26 (1957), N.C. 101 S.E. 2d a
permitted identify a similar certificate and read into evi- expressly dence. provides copy The statute certified such any any proceeding admissible court in like manner as original. We think it immaterial whether the certificate jury among read to passed jurors inspec- for their Obviously, tion. paper defendants could not cross-examine writing any better than could cross-examine the district attorney. assignment This is overruled.
witnesses at statement County Case, [8] purpose On 10 Michael Sheriff’s August 1974, trial, Sgt. Roy Price, Stumphey, corroborating Department. Following the statements were and James Franklin day the witnesses. detective of the offered alleged rape, with the testimony Officer each made evidence for Price re Catawba Deborah of these lated from the witness stand what the witnesses had him told THE COURT
596 IN SUPREME v. Miller
State
in substantial accord
witness was
and the
of each
statement
it. Admission
who made
with the
witness
through
testimony of
Price consti-
Officer
statements
these
assignment
error.
sixteenth
tutes defendants’
competent for the limited
Each of these statements was
corroborating
v.
it.
purpose
who made
State
witness
(1971),
18,
vacated
Westbrook,
2d 572
279 N.C.
181 S.E.
761,
939,
2d
“Now she testified that get there. She married there because was beautiful out they up by you there around that ended some fish lake told the river somewhere and I argue you all of them that standing by Franklin, pond Mr. the fish and then here, up he and them there. coon hunter That the white woman was said came saw hugged up up- to close or Why? boy. Why? ap- Because as a woman white prehensive she was being company about there of three black ” somebody to hold to. males without . . .
Exception No. 34 “Now, jury, one members I do not believe for story Stumphey up made such a
minute that Deborah including one of men to her. The that what each these said language that was used to her each one these three ” . black men . . .
Exception No. 35 “ you deadly weapon, a knife was . . . told that a She during
put one time intercourse at her waist and against No, put she did not make time it was her neck. one intercourse, up if and she was a mind to consent to that FALL TERM 1975 Miller you women, don’t know as and reasonable men she was going having to consent whenever her menstrual she was cycle. argue you I person, yellow a that white or or black any other color under the that sun would have inter- during cycle course with a woman the time of her menstrual animal, person is on level of an a that would deep carry such have a he desire to out the sex desire that thing you do would a like that. each She told that one they these black men had intercourse with and that her passed the knife from one to another.” Exceptions 36 and 37 Nos. “ may . . . One woman that this make statement happen they could not to me and her would kill first say may my another I resist meant life this would if it but my yours, not be wife or woman in case but this this you told that she was afraid of these three men and black display gun that did knife there.”
Exception 39No. you “I want to tell evidence this believable gives credence to the fact these three men black raped Stumphey Deborah as she testified that did and that is this. Her husband testified that whenever car went on . pieces, off down the road she . went to . crying upset said she was there at the Oxford School independent This Road. is shown an and I tell witness you along Franklin, with the of Mr. James *14 strongest is the that and evidence in the case.”
Exception 40 No. very up “Dennis Dillard came he said and she was very upset crying. Why excited want to in the world would crying gone voluntarily be if she had and consented having to sexual with relations these three men or sixteen twenty. you argue or Don’t know and I if the the case she could not come this courtroom and relate story you good that she has from people, this stand to be- argue you average I cause anything to the white woman abhors type
of this nature had to do with a black It us, is innate reported man. within but her she it and boyfriend reported rape within after five minutes highway were let up out on the there.”
Exception
41No.
COURT
IN THE SUPREME
598
v. Miller
State
requirements
procedural
process
due
substantive
every person
mandate that
the
Amendment
of
Fourteenth
right
charged
has an
to
fair trial before
with a crime
absolute
Richmond,
jury. Rogers
unprejudiced
impartial
judge
v.
and an
an
;
(1961)
760,
534, 5
Ordinarily, left counsel is presiding judge, and counsel and discretion control *15 argument hotly contested cases. the allowed wide latitude Westbrook, 18, (1971), 572 vacated 181 S.E. 2d v. 279 N.C. State 939, reasons, 761, 33 L.Ed. 2d 92 2873 408 S.Ct. other U.S. for FALL TERM 1975 599
State v. Miller ; (1972) Seipel, 335, (1960) ; 432 State v. 252 113 2d N.C. S.E. supra; Barefoot, Little, 417, v. State State v. 228 45 N.C. S.E. argue may (1947). jury 542 2d facts in evi- Counsel dence and all reasonable to be drawn therefrom and inferences Conner, 109, law 244 relevant thereto. State v. 92 N.C. S.E. (1956) ; Willard, 259, 2d 668 v. 241 84 2d S.E. N.C. may (1954). Language 899 consistent with the in evidence facts present supra. Monk, used to be each side of the case. State v. hand, may On the other counsel not rec- travel outside place jury incompetent prejudicial ord and before the mat- by injecting knowledge ters into his facts of his own Noell, or other facts not included in 284 the evidence. State 670, (1974) supra; ; Phillips, 202 2d N.C. S.E. 750 Dockery, may 222, (1953). 77 2d 664 coun- Nor argue principles of law State v. sel Crisp, not relevant to the case. 407, (1956). N.C. 2d 402 duty court, upon objection,
It is the of the trial to censure law, remarks not warranted either the evidence or or prejudice jury. remarks calculated to mislead impropriety When gross proper it is correct court Smith, ex mero motu. 631, abuse S.E. 2d (1954) ; Miller, 646, accord State v. 157 S.E. 2d foregoing principles applied When the of law are challenged portions attorney’s argument, we the district alleged context, improprieties, conclude that considered deprive were insufficient or defendants of a violate fair rights process their due under the Fourteenth Amendment. Exceptions When the remarks embraced in Nos. 37, 39 analyzed, apparent and 40 are contain no objectionable reference to defendants. In each instance simply referred as “three “three black black males” or jury throughout men.” It was obvious to the the trial that de- fendants were members com- black race. statements gave plained jury already information it had acquired by personal every race, observation. Not reference to nationality, religion defendant, objectionable, of a even when requires a Annot., Appeal Prejudice, new trial. See Counsel’s (1956). Certainly where, here, A.L.R. refer- wholly innocuous, ences to race are such remarks be prejudicial. held *16 COURT SUPREME IN THE
600 Miller State v. brings question attor- the district whether This us to Exception prejudicial ney’s argument 41 No. was so embraced argument think not. as to challenged reversible error. constitute We light appraised in and here must be considered cir- which was These context and under it made. circumstances closing opening and reveal that defendants had cumstances already argument opening argument jury, had and the to the arguments Attorney of defense Bender. While the been made counsel are not contained appeal, in the record on should argument attorney’s challenged, it is is district be when the quite strongly argument opening apparent Mr. Bender that in his voluntarily that Deborah Case had consented contended defendants; that she had intercourse with the three sexual husband, her Florida a who was not hitchhiked from with man motels; that sleeping road, camp grounds, at beside the drug companion users; and that Deborah had her were she and admittedly engaged in sexual intercourse with other acts of vigor undoubtedly argued setting, men. In that counsel essentially prostitute hippie who that was conviction offered sexual favors. contending, Deborah seeking approached no defendants resistance when arguments, prosecutor reply In those justification, had Deborah con- not without crying not Officer Dillard sented she would have been when feigned. Among hysteria genuine, arrived that her logic support the the of his contention about reasons advanced argue average you'that matter, he said: “I white anything type had in nature to do woman abhors of this us, reported man. It innate within she it and with a black is but boyfriend reported rape her within five minutes after highway argument, up let out there.” It was an on the an assertion. represents Exception appears It No. further argument objec- lengthy
an isolated incident to which Although interposed the record reveals tions were at trial. disclosed, judge, reasons not had left the bench the trial attorney’s argument, gone during to his chambers the district legal significance. summoned, judge If would is of no this have objections notice returned to the bench a moment’s timely lodged. Ordinarily, objection and have an could been argument E.g., exception to comes too late after verdict. Williams, (1970), 2d 503 rev. on other 948, grounds L.Ed. 2d S.Ct. 403 U.S. jury duty made improper When FALL TERM 1975 y.
State Miller
opposing
timely objection
counsel
judge
“to make
so that
transgression by instructing
correct
jury.”
White,
;
(1975)
S.E. 2d 445
Hawley,
*17
(1948).
argument
However,
if
of
capital
grossly
counsel in a
improper
case is so
that removal of
prejudicial effect,
its
after a
instruction,
curative
in
remains
general
doubt,
requiring
the
objection
rule
before verdict does
apply.
White, supra;
not
State v.
Williams, supra;
State v.
Miller, supra;
Dockery,
supra;
State v.
supra.
Hawley,
State v.
Here,
alleged impropriety challenged
the
by Exception
No.
magnitude.
is not of such
A curative instruction
judge,
from the
opportunity
give
had he been afforded an
it,
to
would have
any prejudice
engendered
possibly
removed
by
argument.
the
argument
of defense counsel
Silence
some indication
when the
was made is
that,
time, they thought
at the
defendants were
suffering little or no harm.
approve
language
we do not
by
While
the
used
the district
attorney,
not
use,
light
we do
think its
facts
circumstances
record,
disclosed
the
prejudicial
constitutes
requiring
See, e.g.,
error
710,
a new trial.
Bowen,
230 N.C.
(1949).
Moreover,
55 S.E. 2d
guilt
the evidence of
is
overwhelming and there
upon
is
reasonable basis
which to
different
likely
conclude that a
challenged
result would
have ensued had the
argument
entirely
been
omitted.
thing wrong
respect
used and
[10]
The district
to
certainly
capital punishment:
there is no deterrent
attorney
capital punishment
made the
“I
argue
following argument
is that
to crime when a
you
it has not been
the
person
with
capital
of a
is convicted
crime and never executed. We have
an
not had
execution in the State of North Carolina close to
years now,
objection
twelve
...”
exception
Defendants’
argument
interposed
was not
appears
this
at
for the
appeal
in the
Exception
first time
record on
No. 42 embraced
assignment
their nineteenth
of error. Defendants contend
authority
these remarks constitute reversible error on
of State
Hines,
signment represent not an of such of error do Assignment prejudicial gravity to error. nineteen as constitute overruled. is therefore a mistrial are and for based Defendants’ motions strike gun (S-l). These mo- into evidence
on the introduction properly Defendants’ motion for a overruled. new tions were the trial to the sound discretion of court addressed absent abuse of discretion. action is reviewable whose Downey, 2d 39 has No abuse carry plenary evidence the case to There was been shown. jury support appears no error the verdicts. Hence from charge to nonsuit. examined the of motion We have' denial assignment of error merit in the addressed to it. find no We seventeenth, without discussion defendants’ overrule therefore twenty-second twenty-first assignments eighteenth, of er- ror. having
Prejudicial shown, error not been the verdicts and upheld. judgments be must
No error. concurring: Sharp
Chief Justice facts I have this a close case on the would dis- Had been ground on the for a new trial the solici- sented voted FALL TERM 1975 y. Miller argument opinion tor’s as set out in the of the Court was both improper prejudicial. Because the evidence of the defend- guilt overwhelming entirely- ants’ is so decisive and I am way convinced there was case, the State have lost this opinion argument I in the concur Court’s that the solicitor’s did However, my not affect the I express verdict. am constrained to exceptions view that the Court’s treatment of defendants’ argument commensurate with the solicitor’s infraction opinion. of the rules it reiterates in the only suggestion opinion any in the Court’s it has challenged portions argument
criticism of the of the solicitor’s statement, approve language is the by we do not “While used attorney, light use, the district we do not think its record, the facts and circumstances disclosed constitutes prejudical requiring disparage- error a new trial.” This mild ment, read in connection with the characterization Court’s challenged argument “alleged improprieties,” and its prosecution comment that “zeal in the of criminal cases is to be condemned,” likely commended and not emphasize is not duty Court’s statement solicitor’s “to hold himself proper under restraint . . . and avoid misconduct which deprive tend to the defendant of the fair trial to which he is entitled. ...” argument nothing The solicitor’s added State’s case. merely totally unnecessary
It created situation to be dealt with appeal. Under all circúmstances the can egregious which, as an characterized blunder be in a case involv- ing guilt, less conclusive evidence of defendants’ would have *19 expense, delay, the in all and upon resulted other strains the justice my of which inherent administration view, are in retrials. In argument in this case the deserves censure and should not comment, the approve.” dismissed “We do not be Copeland join concurring and Exum opin- Justices in this ion. concurring
Justice in result. Lake parts I opinion except concur in all of the of Huskins Justice suggestion argument prosecuting in the therein that the of the attorney improper. I impropriety no see in it. COURT IN THE SUPREME Miller v.
State 572, 18, 39, 181 2d Westbrook, S.E. 279 N.C. In State v. said: this Court argument of counsel has said “This Court largely of the the control and discretion
must be left lati- be allowed wide judge that counsel must presiding argument hotly v. of contested cases. State in the tude Seipel, 432; Barefoot, 241 State v. 335, 113 2d 252 N.C. S.E. 710, 424; Bowen, 650, v. 230 N.C. 2d State N.C. Little, 417, 45 2d 542. 466; v. 228 N.C. S.E. 2d State S.E. He insinuating by argument, questions, may not, however, incompetent prej- means, place jury before or other legally evidence, in not admissible matters udicial argument inject into his of the record’ or ‘travel outside not knowledge or other facts included of his own facts 516, Phillips, 2d S.E. evidence. Dockery, 222, 664; State 762; 2d v. S.E. State prosecuting Little, supra. hand, On the other when the v. attorney go his character- outside record and does by supported evidence, the defendant are izations by being to a not entitled new reason defendant in'uncomplimentary argument. terms characterized Brown, supra. Trial, Jur., said, “In Am. note ‘The § denunciation and will line between abuse which reverse * * * not, conviction, and that which will seems rest on personal between mere abuse and invective the distinction by crime forth character of the shown called * ** evidence.’ present case, “Applying principles, find these we vigorous prosecuting attorney in the guilty urging jury return a verdict of mur- his degree der the first without recommendation as which, effect, punishment punishment, fixes the at departure asphyxiation, from the death evidence legitimate drawn inferences be therefrom.” supra, opinion Westbrook, unanimous The death sentence therein sustained was Court. vacated entirely Supreme point an different Court of the United See, Westbrook, States. *20 Supreme any
68. Court of United States did not The note FALL TERM 1975 Miller argument error whatsoever in our decision so far as of counsel adopted by approving us, is concerned. Had rule so attorney’s prosecuting argument, been deemed erroneous West- complete trial, entitled to brook would have been new vacating simply a of the death sentence. rights fanaticism, swept tidal
The wave civil which has nation, judicial many opinions over this has washed into errors hamper justice. which administration criminal In the slushy quagmire resulted, which has rate incidence of vicious crimes continues to rise in this State as it does elsewhere. (1) prosecuting Two of these errors are attorney idea false that a present calm, detached, must State’s case neu- any employ tral manner while defense counsel is free to tactics arguments ingenuity suggest, (2) his can race is a fact which can never be mentioned in a criminal trial. prosecuting attorney
The is an officer of the court. So is the defense counsel. Both are members of the Bar and both are obligated high represent pursuant to their clients stand- proper ards set in its ingly It Code Ethics. is not for either know- law, evidence, to misstate the distort the draw unwarranted inject therefrom, appeal prejudice inferences in irrelevancies or argument jury, required his to the court or the but neither is present impartiality his with the and calmness expected judge delivering charge of voice his jury. prosecutor, counsel,
The like the defense is an advocate. Prior to trial he examined has the State’s and inter- evidence result, viewed witnesses. As a has he satisfied himself of the guilt drawing to the extent of defendant’s the bill of indict- determining place ment and the defendant on trial and seek just punishment. grand his conviction and jury, his ab- sence, has heard or all some of the State’s witnesses and has probable prosecutor’s duty present found cause. It is the strongest, light. case in its State’s a similar fair The defense counsel owes duty system adversary the defendant. This is our justice zealous, advocacy impartial judge fair before an — jury. judge It is well for the trial to remain on the bench throughout arguments, attorney prosecuting both counsel, improper defense in order to avoid remarks counsel their zeal and in the heat of their battle *21 IN THE SUPREME COURT Miller
State v. arguments for all jury’s It seem advisable would also verdict. reporter and included jury taken the court to be the to be assigns appeal as the event the defendant in in the record prosecutor. error the remarks pre- oratory emphatic presentation in counsel
Zeal,
argument
prosecutor
thereon,
de-
senting
be he
or
evidence
commended,
long
tend
counsel,
as it does not
is
be
so
fense
The
jury’s
in
case.
attention from the evidence
the
the
to divert
prosecutor,
counsel,
the
left
defense
should be
free to strike
like
long
The
blows,
are fair.
test
is thus stated
so
hard
by
Huskins,
speaking
a unanimous
Court
State
Justice
509,
125,
2d
wherein
allowed a
Monk,
we
v.
attorney’s
prosecuting
“departure
the
for the
from
new trial
legitimate
the
inferences to be drawn
therefrom”:
evidence
argue
entitled to
the
for both sides are
“Counsel
jury
and the facts
the law
evidence
all reasonable
Conner,
v.
to be drawn therefrom. State
inferences
(1956) ;
109,
Willard,
92 S.E. 2d
(1954) ;
259,
v. Campo,
“It is the of in all present of the trial State’s case with earnestness legitimate every bring vigor and to use means to about just conviction.” argument proper Thus, test of whether is it is relevant jury to be decided and a fair statement of the issue legitimate inferences and conclusions to be evidence required It persons that all fair drawn therefrom. minded agree with counsel’s inferences and deductions will from the evi Monk, enough supra, dence. As we said and relevant to the reasonable issue. be attorney prosecuting
The in this case average anything type “the white abhors woman this man,” had to nature that do with a black meets test and argument. legitimate, proper very jury’s rape nature The crime of raises for the question alleged determination con- whether victim FALL TERM 1975 Miller upon sented to the sexual intercourse. burden rests every beyond rape prove State in case to a reasonable doubt she did not so consent. The determination of whether she did or jury
did not consent is a matter in which the is limited testimony. Consent, it, to her denial of consent in her or lack of is also a ing of inference or conclusion matter from surround- *22 Both the the defense
circumstances. State and are entitled to jury’s attention, argument, call to the matters in evidence urges from which be drawn the inference or conclusion it jury appearance defendants, to draw. The of the identified alleged assailants, in the courtroom victim her as is a jury. Furthermore, matter before the in the of the witness, Franklin, State’s Obviously, Mr. are referred to as “colored.” jury knew, argument by prosecut- before the ing attorney charges that this is a case in which the State three Negro rape men with the of a white woman. legitimate that,
Is it then a inference because of this racial alleged participants, difference between victim did not Every boy girl consent to the intercourse? Of course it is. junior high age personal appearance school knows that ais willingness in the accept factor desire for and sexual rela- principle requires pre- tions. No of law members of this Court to ignorant truth tend to be of a we have all known since before began dating opposite we first of the members sex. Personal by many attractiveness other members sex is affected things race, cleanliness, features, size, shape, manner, facial — clothing many only others. One who doubts it need look at advertising. every and other course, television person by commercial Of way by in the is affected same the race of another or aspects personal say appearance, other of his or her but to proposing that the race of a man sexual to a intercourse woman legitimate determining is not a factor in her ad- consent his utterly is unrealistic. vances provision requires No of the or Federal Constitution ignored racial difference be the trial of an action in Benjamin which it is relevant to an issue to be determined. As Disraeli, minority, a a member of said: “No man will treat with principle race, key history.” indifference the for it is the experience Certainly, common and observation con- lead to the question clusion racial difference is relevant of a acceptance partner woman’s consent to of a man her as in sexual relations. COURT THE SUPREME IN Bindyke attorney- prosecuting important It is to remember injects question of consent. This on
mentioned race argue that defendants these case. He did not therefore, prejudice into the likely rape than Negroes to commit and, more are of the defendant would would Race defendants be. three white not be relevant larceny, robbery, burglary, prosecution for to a filthy just uncleaniness, driving, personal or murder reckless com- expression would not be. Race would be dress or facial punishment to be to the determination of the pletely irrelevant rapist upon or a defendant convicted the convicted inflicted improper for Obviously, any other crime. it would be attorney jury a prosecuting to ask a to infer that because a Negro race, any race or of other a member defendant argue offenses, group, one other or to committed of these he inferring any the crime for other element of race as a basis his charge rape, rape, but, the issue of in a for consent of court say the man and the racial difference between and, therefore, proper matter is not relevant woman argument, argument contrary experience. simply human State’s *23 Negro rape woman man not that of a white a was argument rape than her a white The worse crime man. is a prosecutrix did consent that the In intercourse. entirely proper. my opinion, the CAROLINA v. DONALD BINDYKE STATE OF NORTH PAUL
No. (Filed 1975) 17 December Conspiracy conspiracy criminal defined § 1. 3— conspiracy agreement per- A more criminal an between two or is way sons to or sary an unlawful act or a act unlawful do to do lawful an means, conspiracy unlawful but neces- constitute it is not parties together agreed express should come have object; rather, mutual, implied terms to unite for a common under- standing sufficient, conspiracy is so far as the combination or con- cerned, to constitute the offense. — agreement Conspiracy necessity 2. § as crime of action 3— conspiracy execution; therefore, is the crime its necessary complete conspiracy. overt act the crime of — Conspiracy conspirator admissibility 3. 5— acts and § declarations against co-conspirators conspiracy exist, Once a has been shown acts and declara- conspirator, tions of each done or uttered in furtherance of a common illegal design, against are admissible in evidence all.