McEachern’s Appeal
On his appeal defendant McEachern brings forward four assignments of error, upon which he makes three contentions. The first (based upon assignments Nos. 5 and 9) is that the trial judge erred in admitting the testimony of Danny J. Walters and Peggy Grainger, which tended to show that Mc-Eachern was guilty of another and independent criminal offense.
As pointed out in the preliminary statement of facts, witnesses Walters and Grainger testified over defendant’s objection, that on the night of 7 February 1975 they were “parking” in the Lover’s Lane area where the abduction of Mrs. Hardin occurred. At approximately 12:15 a.m. (which was approximately one half hour before the attack on Mrs. Hardin) a man, whom they identified as defendant McEachern, came up to their car and pointed a sawed-off shotgun into the open car window. The man had a nylon stocking pulled over the upper half of his head. He was accompanied by a smaller man, whom neither Walters nor Grainger could identify. Defendant Me- *438 Eachern ordered the two out of the car and asked if they had any money. He then directed Walters to “squat down” and told his accomplice to shоot him if he moved. Defendant then grabbed Miss Grainger and shoved her into the front seat of the car where he attempted to rape her. When Walters jumped up and rushed to the car in an effort to stop him McEachern struck him in the face with his fist. While McEachern was thus distracted, Miss Grainger managed to start her car and drive away. After she escaped, the two men took Walters’ wallet and left. Walters heard them leave in a car which had very loud mufflers and which sounded as if it had a three-speed standard transmission. The car first proceeded in a direction аway from the Lover’s Lane, but immediately turned around and headed back in the direction from which it had started. Thereafter, neither Grainger nor Walters saw McEachern again until they both identified him in a line-up at the police station on the following Tuesday evening.
Defendant contends that introduction of this evidence violated the principle enunciated in
State v. McClain,
The opinion in
McClain
enumerates eight exceptions to the general rule. Exception No. 4 reads as follows: “Where the .accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged.”
Id.
at 175,
*439
In
State v. Tuggle, supra,
the defendant was charged with the armed robbery of one Smith and with the armed robbery and kidnapping of one Kiser. The evidence showed that at approximately 7:15 p.m. on 20 November 1972 Smith and Kiser were in a general merchandising store of which Kisеr was the manager. An unmasked man came in with a shotgun and robbed Smith and the store’s cash register. To make his escape, the man forced Kiser to drive him in Kiser’s car to an area some distance from the store. At trial both Kiser and Smith, in addition to Kiser’s daughter who had seen the man abduct her father, identified the defendant as the perpetrator of the crime. Over the defendant’s objection the State introduced the testimony of a Mrs. Hicks, the manager of a convenience store situated within close proximity of the Kiser store. She testified that at 6:45 p.m. on 20 Nоvember 1972, an unmasked man, whom she identified as the defendant, came into the store carrying a shotgun. The defendant took the money from the cash register, forced Mrs. Hicks to the back of the store and left. On appeal the defendant argued that Mrs. Hicks’s testimony was erroneously admitted because it tended to show he had committed an unrelated criminal offense. In an opinion by Chief Justice Bobbitt, this Court rejected the defendant’s contention as follows: “Although in different counties, the distance from the Flash Market to Moorefield’s Grocery was three and а half miles or less. The interval between the robbery at the Flash Market and the robberies at Moorefield’s Grocery was brief. Both were committed hurriedly by an unmasked man. In each, the mode of procedure was the same, that is abrupt entrance into a lighted store with a shotgun pointed toward the occupant (s) and an immediate demand for the money. Proximity in place and time and similarities in method were relevant for consideration by the jury as to whether the man identified by her as the defendant and who had robbed the Flash Market was also the man who had committed the crimes for which defendant was on trial. We hold that the testimony of Mrs. Georgia Hicks was competent on the question of identity and properly admitted.
State v. McClain,
In
State v. McClain,
After examining in detail the various similarities in the nature and mannеr of the attacks upon the two victims, Justice Huskins, writing for the Court, in
State v. McClain, supra,
said: “The enumerated similarities tend to show a
modus operandi,
a common plan embracing the commission of both crimes, and also establish a chain of circumstantial evidence tending to identify defendant as the man who raped Miss Elliott. Thus, evidence of the Conklin offense was admissible and should not be rejected because it incidentally proves defendant guilty of another crime. Its logical relevance to the rape of Miss Elliott is obvious. The trial judge instructed the jury to consider such evidence ‘only as it relates to the identity of the defendant, Horace Ray McClain,’ as the man who raped Miss Elliott on 13 October 1971. It was competent on the question of identity and properly admitted. (Cites omitted.)”
Id.
at 362-63,
Finally, in
State v. Perry, supra,
the defendant was charged with rape. The victim, who identified the defendant at trial, testified that during the course of the crime, the defendant told her he had just gotten out of prison on the previous day. Over the defendant’s objection the State introduced evidence showing the defendant had been released from prison on the day pre
*441
ceding the rape. On appeal the defendant contended this evidеnce was incompetent because it showed his guilt of a separate, independent crime, unrelated to the one of which he was charged. After noting the rule that evidence of other offenses is inadmissible on the issue of the defendant’s guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature charged, the Court said: “It is, however, equally well settled that evidence relevant to the question of the identity of the accused with the perpetrator of the offense with which he is presently charged is not rendered incompetent by the mere fact that it discloses the commission by him of some other criminal offense. . . . Where the identity of the defendant and the perpetrator of the offense with which he is charged is at issue, the evidence tending to show his commission of another criminal offense, and thereby to show his identity with the perpetrator of the offense with which he is presently charged, is not rendered incompetent by the fact that a witness has testified to such identity.”
Id.
at 571,
The present case is controlled by these authorities. The crucial issue in the trial below was not whether Mrs. Hardin was raped in the manner in which she said she was but whether defendant McEachern was one of the two men who participated in the crime. The circumstances surrounding the attack on Walters and Grainger were similar to the attack upon Mrs. Hardin and her husband in the following respects: (a) In both, the victims were approached as they sat parked in the same secluded Lover’s Lane; (b) in both, the attackers were two black men— one medium height and the other much shorter; (c) in both, the larger man had a nylon stocking pulled over the upper half of his face; (d) in both, all the victims were ordered from the cars and the men ordered to sit on the ground; (e) a sawed-off shotgun was used as a weapon in both attacks, (f) the primary motive for both attacks was rape of the female victims; and (g) in both instances the perpetrators drove a car with unusually loud mufflers. These similarities, coupled with the fact that the attacks occurred within one half hour of one another, point unmistakably to the conclusion that the same men who attempted to rape Miss Grainger did rape Mrs. Hardin. Thus, the testimony identifying the defendant as one of the two men who attacked Miss Grainger was competent and admissible to establish that he was also one of the men who raped Mrs. Hardin. McEachern’s assignments Nos. 5 and 9 are overruled.
*442 McEachern’s assignment No. 10, upon which he bases his second contention, protests a portion of the solicitor’s argument to the jury. As to this assignment, it suffices to say (1) that defendant made no objection to the argument at the time it was made, and (2) that the substance of the argument was that the jury should believe the State’s witnesses and not defendant McEachern and his witnesses. Defendant has advanced no tenable argument to support his assertion that the solicitor’s remarks improperly influenced the verdict, and we are satisfied that they did not. Assignment No. 10 is overruled.
Defendant’s third contention, based on his assignment No. 14, is that the court erred in imposing upon him the death penalty. This assignment must be sustained.
After the preparation of this opinion but before it was filed, the Supreme Court of the United States in Woodson v. North Carolina, _ U.S. _, 44 L. W. 5267 (1976), a five-to-four decision filed 2 July 1976, invalidated the death penalty provision of G.S. 14-17 (Cum. Supp. 1975). By necessary implication, this decision also invalidated the death provisions of G.S. 14-21 (a) (2) (Cum. Supp. 1975), the statute under which defendant was convicted and sentenced to death. Therefore the judgment in case No. 75 CR 2366, which imposed the sentence of death upon defendant McEachern, is vacated; and, under the authority of N. C. Sess. Laws, c. 1201, § 7 (1973), (session of 1974), the sentence of life imprisonment is substituted in lieu thereof.
Accordingly, it is hereby ordered that, upon remand of this cause to the Superior Court of Robeson County, the presiding judge, without requiring the presence of defеndant McEach-ern, shall enter a judgment of life imprisonment in lieu of the sentence of death heretofore imposed upon him for the first degree rape of which he has been convicted. Further, in accordance with this judgment, the clerk of the superior court will issue a new commitment in substitution for the commitment heretofore issued. At the same time the clerk will furnish to defendant McEachern and his attorney a copy of the judgment and commitment as revised in accordance with this opinion.
Thompson’s Appeal
Defendant Thompson brings forward numerous assignments of error. Becаuse of the disposition we are required to *443 make of his appeal it is necessary to examine only two assignments, Nos. 6 and 9.
First, we consider the assignment that the court erred in not granting Thompson’s motion to nonsuit the charge of first degree rape. Specifically, defendant contends the evidence is insufficient to establish that Mrs. Hardin’s resistance to him was overcome, or her submission procured, through his use of a deadly weapon.
In
State v. Dull,
In rejecting the defendant Dull’s contention that the evidence was insufficient to establish that the victim’s resistance was overcome or her submission procured by the use of a deadly weapon, we held: Accepting the evidence of thе State as true “it is clear that the requirements of G.S. 14-21 (a) (2) were met and that the submission of the prosecutrix was procured by the use of the open knife that the defendant placed at her throat when he first encountered her.”
Id.
at 60,
The decision in Dull is authority for the proposition that a deadly weapon is used to procure the subjugation or submission of a rape victim within the meaning of G.S. 14-21 (a) (2) when (1) it is exhibited to her and the defendant verbally, by brandishment or otherwise, threatens to use it; (2) the victim knows, or reasonably believes, that the weapon remains in the possession of her attacker or readily accessible to him; and (3) she submits or terminates her resistance because of her fear that if she does not he will kill or injure her with the weapon. In other words, the deadly weapon is used, not only when the attacker overcomes the rape victim’s resistance or obtains her submission by its actual functional use as a weapon, but also by his threatened use of it when the victim knows, or reasonably believes, that the weapon is readily accessible to her attacker or that he commands its immediate use.
The State’s evidence brings its case against Thоmpson within the principles enunciated in
Dull.
Taking the evidence as true, as we must on a motion for nonsuit,
State v. Goines,
This evidence permits the inference that Thompson procured Mrs. Hardin’s submission through the use of a deadly weapon and is sufficient to overcome defendant’s nonsuit motion. The evidence tends to show that Thompson commanded the use of McEachern’s gun and that the gun was immediately available to him upon a tap on the window. It also permits the inference that Mrs. Hardin submitted to Thompson only bеcause of his threats to let “the big guy kill her” if she did not and because of her knowledge that the big guy’s gun was instantly available to Thompson.
Furthermore, the evidence permits the inference that Thompson aided and abetted McEachern in his two rapes of Mrs. Hardin. As we said in
State v. Overman,
As аn aider and abettor Thompson would be criminally responsible for the acts of McEachern and would be guilty of first degree rape if McEachern was regardless of whether Thompson himself had actually raped Mrs. Hardin. Taken as true, Mrs. Hardin’s testimony clearly establishes McEachern’s guilt of first degree rape as defined by G.S. 14-21 (a) (2) and Thompson’s guilt as an aider and abettor to McEachern’s crime. Thus on this ground alone defendant Thompson’s nonsuit motion was properly denied. We next consider assignment No. 9.
As set out in the preliminary statement defendant Thompson оffered evidence tending to establish an alibi defense. Inter alia, he stated that he arrived at his home at 2:00 a.m. and went in to bed. On cross-examination he was questioned about the circumstances surrounding his arrival home at that hour. The time was important because, according to Mrs. Hardin, her attackers would have still been with her at 2:00 a.m. He said *446 that when he got home his wife would not get out of bed to let him in and, because the screen door was locked, he had to crawl through a window into his house. Apparently, in response to the solicitor’s question defendant said: “Yes, my wife knew it was me when I came through the window; she is not here in the courtroom; as I told you once before, she is in Connecticut.”
After he testified, Thompson called several witnesses whose testimony tended to corroborate his alibi. He did not, however, call as a witness every person whom he said he had seen on the night in question. One of the witnesses he did not call was his wife.
In his argument to the jury the solicitor the Honorable Joe Freeman Britt, attacked defendant’s credibility and that of his alibi witnesses. The solicitor suggested that defendant had persuaded some of his friеnds to perjure themselves in his behalf. Then, in an effort to illustrate the weakness of defendant’s alibi, the solicitor pointed out to the jury that defendant had not called as witnesses other people who, he said, had been in contact with him on the night in question and who could have easily corroborated his testimony. The solicitor implied that defendant had not called these people because he could not persuade them to lie for him. At this point the solicitor said: “He [defendant] says after he took the girls over there to the Patio and left thеm he came back home and slipped up the window and crawled in the house at 2:00 o’clock in the morning; that his wife knew he came in because his wife knows everything, he says. Have you heard from his wife? I can’t use a man’s wife against him, but he can use his wife for himself. Wouldn’t she be a good person to tell you when he came in and how he got in the house ? Have you heard from her ?”
This argument was outlawed by G.S. § 8-57, which provides in pertinent part: “The husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the fаilure of such witness to be examined shall not be used to the prejudice of the defense. ...”
Recently, in
State v. McCall,
This Court in granting the defendant a new trial said: “The provisions of G.S. 8-57, and decisions of this Court interpreting and applying them, impel the conclusion that where evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error, whether objection is interposed and exception noted or not.
Hooper v. Hooper,
The decision in State v. McCall, supra, and the cases cited therein, control the decision on Thompson’s assignment No. 9. As in McCall the solicitor’s argument violates both the letter and the spirit of G.S. § 8-57. Indeed, it would be difficult to imagine a case where the wife’s failure to testify would be potentially more prejudicial to a defendant. Here her testimony would have aided the establishment of his alibi. By highlighting to the jury the fact that she was not a witness, the district attorney, in violation of G.S. § 8-57, used the failure of the wife to testify for her husband to the prejudice of defendant. Notwithstanding the failure of the defendant’s counsel to object to the argument it was incumbent upon the trial judge, *448 on his own initiative, to intervene and to instruct the jury to disregard the solicitor’s argument. State v. McCall, supra. His failure to do so was error and, on the record before us, we cannot say that the error was harmless.
We feel constrained to point out that the primary error in this case is not the judge’s but thе solicitor’s. The retrial which must be had in this case is necessitated by his flagrant disregard of a mandatory rule which has been well-known statutory law in this State for over a hundred years.
See State v. Alford,
The State has no greater asset than a vigorous solicitor, learned in the law and dedicated to its enforcement, who investigates and prosecutes the State’s case according to the rules of law. In him the judge and jury, the public, and the accused can safely repose confidence. However, an able and vigorous solicitor who, in his zeal for conviction ignores а well known legal principle, serves no cause or person well — unless perhaps it be the guilty defendant who, .on the retrial, escapes justice because intervening time has made unavailable a crucial State’s witness. The taxpayers pay the expense of the retrial, another and unnecessary case is added to the already congested docket, justice is delayed not only in the particular case but also in others, witnesses are inconvenienced, and the strain upon all persons directly involved in the case — especially the victim of the crime — is compounded.
In both
State v. Peplinski,
In
State v. Britt,
“The balance between the dual roles of the district attorney as impartial representative of the people, and zealous advocate for the State is a delicate one. Yet accоrding fair treatment to the defendant does not require a compromise of advocacy, for zealousness and fairness are complementary qualities in an effective prosecution where the goal to be achieved is what it should be — a just conviction of the guilty. . . . The district attorney who prosecuted this case most likely committed the excesses noted by an overzealous desire to secure the conviction of an accused he believed to be guilty of murder. In that connection the following admonition of Justice Ervin, speaking fоr the Court in
State v. Warren,
“ ‘Ministers of the law ought not to permit zeal in its enforcement to cause them to transgress its precepts. They should remember that where the law ends, tyranny begins.’ ”
Id.
at 714,
It remains only to be said that the purpose of this repeated reprimand of the solicitor of the Sixteenth Judicial District is not to dampen his zeal as an advocate for the State but — since repetition is one method of teaching — to reiterate that prosecuting attorneys can best serve the cause of justice by themselves observing the law.
See State v. Miller,
As to defendant Thompson — New Trial.
As to defendant McEachern, Death Sentence Vacated, and in lieu thereof, Life Sentence Substituted. In the verdict—
No error.