STATE v. BRITT No. 498A84.
360 S.E.2d 660 (1987)
320 N.C. 705
STATE of North Carolina v. Jerome Parker BRITT.
Supreme Court of North Carolina.
October 7, 1987.
Lacy H. Thornburg, Atty. Gen. by Thomas J. Ziko, Asst. Atty. Gen., Raleigh, for the State.
A. Jackson Warmack, Jr., Rich Square, for defendant-appellant.
Defendant contends on this appeal that the trial court erred in allowing his wife to testify against him at his trial and in imposing a life sentence without permitting the jury to determine his sentence. We find no reversible error in defendant's trial and sentencing. We also find no error in the denial of defendant's motion for appropriate relief.
Defendant was indicted on 9 January 1984 for the murder of James Thomas Cotton. The case came on for trial before Barefoot, J., on 7 May 1984, and the jury found defendant guilty of first degree murder. The trial judge sentenced defendant to life imprisonment after the State prayed judgment on the grounds that it knew of no evidence of any of the aggravating factors set forth in N.C.G.S. § 15A-2000. Defendant appealed to this Court.
The State's evidence at trial tended to show that defendant believed that his estranged wife was having an affaire with the victim, James Cotton, and that defendant
Defendant offered evidence that Cotton had previously harassed and threatened him. He testified that he went into the fish market on 19 December 1983 to resolve matters with Cotton. Although he took his shotgun with him from his truck, he left it outside the door of the fish market. As soon as defendant entered the store, Cotton started to fumble in his pockets. Believing that Cotton was going for a gun, defendant reached back outside the door for his own gun and shot Cotton.
The State called defendant's wife as one of its rebuttal witnesses. Defendant objected pursuant to N.C.G.S. § 8-57. Subsection (b) of that statute provides, "The spouse of the defendant shall be competent but not compellable to testify for the State against the defendant in any criminal action or grand jury proceedings...." N.C.G.S. § 8-57(b) (1986). See also State v. Waters, 308 N.C. 348, 302 S.E.2d 188 (1983). The trial judge accordingly held a voir dire where defendant's attorney questioned Mrs. Britt to determine whether she was being compelled to testify, and the following transpired:
Assuming, arguendo, that defendant is correct, we believe that the error was nevertheless not prejudicial.
Defendant also argues that the trial judge erred in sentencing him to life imprisonment without holding a separate sentencing procedure in accordance with N.C. G.S. § 15A-2000. He contends that the trial judge improperly allowed the district attorney to "elect" to try his case as a non-capital first-degree murder. Defendant is hardly entitled to assign error to the court's failure to allow him to be tried for his life. We shall discuss this assignment of error because it does raise significant questions.
The record shows that the trial judge met with defendant's attorney and the district attorney before a jury was selected. Although their conversation was not recorded by the court reporter, defendant's attorney has informed this Court that the district attorney indicated at that time that he would not seek the death penalty. The record clearly reflects that the case was in fact tried as a non-capital case. After the jury returned its verdict and was polled, the following transpired:
Defendant quite correctly notes that the question of trying a first degree murder case as capital or non-capital is not within the district attorney's discretion. See N.C. G.S. § 15A-2000 (1983); State v. Jones, 299 N.C. 298, 261 S.E.2d 860 (1980); State v. Johnson, 298 N.C. 47, 257 S.E.2d 597 (1979). He relies upon the trial judge's use of the word "elect" in arguing that the trial judge improperly permitted the district attorney to exercise discretion as to his sentence.
However, we have previously held that where there is no evidence of any aggravating circumstance, the trial judge need not conduct the sentencing proceeding set forth in N.C.G.S. § 15A-2000 but may proceed to pronounce sentence of life imprisonment. See State v. Johnson, 298 N.C. 47, 257 S.E.2d 597. When the State has no evidence of any aggravating circumstance, the district attorney may so inform the court. In doing so, the district attorney is not exercising any discretion as to defendant's sentence, because a jury may not
In State v. Johnson, we said, "In a case in which the state has no evidence of an aggravating circumstance we see nothing in the statute which would prohibit the state from so announcing to the court and jury at the sentencing hearing." 298 N.C. at 79-80, 257 S.E.2d at 620 (emphasis added). Relying on this sentence, defendant contends that the district attorney may only make this announcement at the close of the guilt phase of a trial. Defendant has stretched the wording in Johnson beyond its intended meaning. All Johnson said was that the State could make its announcement at the close of the guilt phase; it did not say that this was the only permissible moment. Id. Although we reiterate our conclusion that any such announcement must be based upon a genuine lack of evidence to support the submission of any aggravating factors, see id., there is nothing to prevent the State from making the announcement at the beginning of the trial, see State v. Meisenheimer, 304 N.C. 108, 111 n. 1, 282 S.E.2d 791, 794 n. 1 (1981), or at any other time.
The record before this Court shows no evidence of any of the aggravating factors listed in N.C.G.S. § 15A-2000(e). Accordingly, the trial court committed no error with respect to N.C.G.S. § 15A-2000 in its conduct of defendant's trial and sentencing. See State v. Meisenheimer, 304 N.C. 108, 111 n. 1, 282 S.E.2d 791, 794 n. 1.
After defendant's conviction and entry of notice of appeal to this Court, one of the four witnesses who was in the fish market at the time of the shooting, Joe Louis Moody, recanted his testimony and filed an affidavit which in substance corroborates defendant's trial testimony. Defendant, pursuant to the provisions of N.C. G.S. § 15A-1411 to -1422, filed a motion for appropriate relief in this Court. By order entered 20 March 1985, we remanded the case to the Superior Court, Northampton County, for an evidentiary hearing on defendant's motion. The hearing was held at the 15 April 1985 Criminal Session of Superior Court, Northampton County, with Stephens, J., presiding. After hearing testimony from the witness Moody and from the deputy sheriff who investigated the murder, Judge Stephens made findings of fact and conclusions of law and denied the motion. We find no error.
Defendant seeks a new trial pursuant to N.C.G.S. § 15A-1415(b)(6) (1983) which permits a motion for appropriate relief to be made more than ten days after entry of judgment on the grounds that:
In State v. Ellers, 234 N.C. 42, 65 S.E.2d 503 (1951), a case in which the key witness repudiated his testimony after the jury verdict but before judgment was entered thereon, the Court held that the defendant was entitled to a new trial because the recantation removed the basis for the verdict. In so holding, the Court said, "the decisions ordinarily applicable to newly discovered evidence will not be held as controlling upon a factual situation like that disclosed by the present record." Id. at 45, 65 S.E.2d at 505. Nevertheless, several subsequent cases have used the newly discovered evidence standard for determining whether a defendant is entitled to a new trial based on repudiated or recanted testimony. See State v. Morrow, 264 N.C. 77, 140 S.E.2d 767 (1965), State v. Roddy, 253 N.C. 574, 117 S.E.2d 401 (1960), and State
Our usual standard for evaluating motions for a new trial on the grounds of newly discovered evidence requires a defendant to establish seven prerequisites:
State v. Cronin, 299 N.C. 229, 243, 262 S.E.2d 277, 286 (1980). See also State v. Beaver, 291 N.C. 137, 229 S.E.2d 179 (1976). This standard is a modification of the "Berry" rule, initially set forth in Berry v. State, 10 Ga. 511 (1851) (setting forth essentially the same prerequisites but lacking the requirement that the newly discovered evidence be "probably true"). The Berry rule is commonly used in evaluating newly discovered evidence. See generally Note, Gary Dotson as Victim: The Legal Response to Recanting Testimony, 35 Emory L.J. 969, 973-75 (1986) (hereinafter cited as Dotson).
However, several jurisdictions have been troubled by the idea that recanted testimony is a special type of newly discovered evidence. See, e.g., State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App.1986); State v. Taylor, 287 N.W.2d 576 (Iowa 1980); Thacker v. Commonwealth, 453 S.W.2d 566 (Ky.1970); State v. Caldwell, 322 N.W.2d 574 (Minn.1982); State v. Sena, 103 N.M. 312, 706 P.2d 854 (1985); see generally 3 C. Wright, Federal Practice and Procedure § 557.1 (2d ed. 1982) (hereinafter cited as Wright). It "affects the integrity of the judicial process in a way that overlooked evidence does not." State v. Lawrence, 112 Idaho at 151, 730 P.2d at 1071 (citing 3 C. Wright, Federal Practice and Procedure § 557.1 (2d ed. 1982)). In recantation cases, what is sought is a new trial without untruthful testimony rather than one that merely adds different material. State v. Caldwell, 322 N.W.2d 574, 585 (Minn.). Accordingly, although most states and at least two federal circuits continue to use the same standard for evaluating motions for a new trial on the basis of recanted testimony, several jurisdictions use a special standard. See generally Dotson, 973-975. A few use tests peculiar to their own jurisdiction, e.g., People v. Bracey, 51 Ill.2d 514, 283 N.E.2d 685 (1972) (due process test—defendant has burden of showing that perjured testimony was used, then state must show that the testimony was harmless beyond a reasonable doubt); State v. Robillard, 146 Vt. 623, 508 A.2d 709 (1986) (combination of first and third parts of Larrison rule with "probability" standard). However, most of the federal circuits and at least four states have adopted the "Larrison" rule, first enunciated in Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Blankenship v. State, 447 A.2d 428 (Del.1982); State v. Lawrence, 112 Idaho 149, 730 P.2d 1069 (Ct.App.); State v. Caldwell, 322 N.W.2d 574 (Minn.); Pickering v. State, 260 N.W.2d 234 (S.D.1977); Wright § 557.1 (1982). Under the Larrison rule, a defendant may be allowed a new trial on the basis of recanted testimony if:
Larrison, 24 F.2d 82, 87-88 (7th Cir.) (emphasis in the original). We note that the Larrison rule has been adopted by the Fourth Circuit. See United States v. Wallace, 528 F.2d 863 (4th Cir.1976). Although the Larrison rule has not been universally approved, see, e.g., United States v. Krasny, 607 F.2d 840 (9th Cir.1979), cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 775 (1980); United States v. Stofsky, 527 F.2d 237 (2d Cir.1975), cert. denied, 429 U.S. 819, 97 S.Ct. 65, 50 L.Ed.2d 80 (1976); Stevenson v. State, 299 Md. 297, 473 A.2d 450 (1984); State v. Robillard, 146 Vt. 623, 508 A.2d 709, we nevertheless believe it to be a better standard for evaluating motions for a new trial based on recanted testimony than the usual standard employed in considering motions made on the basis of newly discovered evidence. We therefore adopt a North Carolina version of the Larrison rule, modified and restated as follows: A defendant may be allowed a new trial on the basis of recanted testimony if:
We are not convinced that part three of the Larrison rule, requiring that the party be taken by surprise or not know of the falsity until after the trial, is a prerequisite to the award of a new trial if the conviction was based upon perjured testimony. We therefore do not adopt part three of the Larrison rule.
The defendant, the State and the court below considered defendant's motion for a new trial under the usual rules relating to newly discovered evidence. Nevertheless, Judge Stephens' findings and conclusions are sufficient to allow review under both the more usual standard actually employed and under the new rule we adopt today. Specifically, the judge concluded that the witness Moody's recantation was not probably true. In support of this conclusion he found, inter alia:
The quoted findings, to which no exception is taken, fully support Judge Stephens' conclusion that Moody's testimony is not "probably true." Therefore, defendant was not entitled to a new trial on the basis of Moody's recantation under the usual standard for newly discovered evidence. Similarly, under the rule we adopt today, the judge must be "reasonably well satisfied that the testimony given by a material witness is false." Judge Stephens specifically found that "the defendant has failed to satisfy this court that Joe Louis Moody testified falsely at the defendant's trial." The judge's findings can only support the conclusion that he was not "reasonably well satisfied" that Moody's trial testimony was false. Defendant has accordingly failed to meet the first requirement of the Larrison rule and is also not entitled to a new trial when that standard is employed. Accordingly, defendant's motion for appropriate relief was properly denied.
For all of the reasons previously discussed, we hold that defendant received a fair trial, free from prejudicial error, and that there was no error in the denial of defendant's motion for appropriate relief.
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