STATE v. ALFORD

MOORE, Justice.

Defendants first challenge the constitutionality of North Carolina's death penalty. Questions raised by this assignment of error have been considered and found to be without merit in State v. Armstrong, 287 N.C. 60, 212 S.E.2d 894 (1975); State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Lowery, 286 N.C. 698, 213 S.E.2d 255 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975); State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975); State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975); State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974). We adhere to those decisions.

Defendants next contend that their rights under the Fourteenth Amendment to the United States Constitution were violated by the systematic exclusion of blacks from the trial jury. In State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972), we said:

The basis for this assignment of error lies in the fact that all prospective black jurors were peremptorily challenged by the district attorney, and that both defendants were blacks. There is no suggestion in the record that the district attorney had previously followed practices which prevented blacks from serving on the juries in his district. The United States Supreme Court has squarely ruled against the contentions here urged by defendants. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Court, in part, stated:

Defendants have failed to make out a prima facie case of arbitrary or systematic exclusion of blacks from the jury. This assignment of error is overruled.

Defendants moved for a change of venue under G.S. 15-135 (now G.S. 15A-957) due to adverse pretrial publicity in the news media. Defendants assign the denial of this motion as error. In support of the motion, defendants introduced as exhibits the following newspaper articles and television newscasts:

A motion for change of venue is addressed to the sound discretion of the trial judge and his ruling will not be overturned in the absence of an abuse of discretion. State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967). With the exception of the coverage of defendants' arrest, the articles are of a very general nature and likely to be found in any jurisdiction to which the trial might be moved. The coverage of the arrest only indicates that the defendants were charged with a crime. It in no way intimates that defendants were guilty. The record does not indicate that any prospective juror had read the newspaper articles or had seen or heard any other news releases pertaining to these cases. Nothing in the record shows that any juror had been influenced in any manner by this publicity. No abuse of discretion has been shown. This assignment is overruled.

Dr. Hobard Wood, a medical expert qualified to testify as to the cause of death, testified that he examined the body of Gregory Leonard on 7 November 1974 and performed an autopsy thereon. He further testified that the deceased had died as a result of a gunshot wound in the upper right lateral chest area and that there was powder residue around the wound indicative of a very close range of fire possibly down to near contact or contact range. Dr. Wood then identified two photographs of the deceased, one as being the person upon whom he performed the autopsy, and the other showing the location of the wound. Upon the introduction of these photographs, the court instructed the jury that the photographs were admitted for the sole purpose of illustrating or explaining the testimony of the witness.

Defendant assigns as error the introduction of these photographs. We find no merit in this assignment. The photographs were admissible to illustrate and explain the testimony of Dr. Wood, they were properly authenticated, and the jury was properly instructed that they were admitted for the sole purpose of illustrating and explaining the testimony of the witness. They were competent for that purpose. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972), rev'd as to death penalty, 409 U.S. 1004, 93 S.Ct. 453, 34 L.Ed.2d 295 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), rev'd as to death penalty, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972).

Defendants contend that the trial court erred in permitting the in-court identifications of defendants since such in-court identifications were tainted by and were the product of impermissibly suggestive lineup procedures. This lineup took place two weeks after the Viking Imports robbery. At that time four of the eyewitnesses identified Alford and two identified Carter. Defendants, relying on State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), cert. den., 396 U.S. 1024, 90 S.Ct. 599, 24 L.Ed.2d 518 (1970), claim that the two-week delay in itself invalidates the identifications. Rogers does not invalidate any lineup that occurs two weeks after the crime, but simply considers the time lapse as one of the factors in determining whether the lineup was impermissibly suggestive. Here, the court found, after voir dire examination, that the lineup consisted of young black males of approximately the same height and build, all similarly dressed, and also found that there was no evidence of any suggestion on the part of the police officers or any other person that would taint or color the identification of the defendants. In addition to its approval of the lineup procedures, the court further concluded that the in-court identifications of the defendants were of independent origin, based solely on what the witnesses saw at Viking Imports on 6 November 1974. A brief review of the evidence fully supports this conclusion.

Johnny Rollins, one of the eyewitnesses, testified that the two men who came into Viking Imports on the afternoon of 6 November 1974 were defendants Carter and Alford. Carter had a .45-caliber pistol in his hand, and Alford had a smaller blue steel weapon in his hand. Alford was standing ten to twelve feet in front of Rollins and Carter was standing directly in front of him. He observed Carter for a period of two to four seconds and had a full look at Carter's face.

Bruce Wells, another eyewitness, testified that he had known Carter three and a half years and had been in school with him at South Mecklenburg High School. He saw Carter walk in through the front door and Alford walk in behind him. When they entered, Wells was some ten feet from Alford. The lighting was very good, he had 20-20 vision, he was able to see Alford, who came as close as five or six feet to him, for about fifteen seconds, and he observed Carter for about ten seconds.

Another eyewitness, Wayne Paul Perkins, testified that he was standing behind the counter and saw Gregory Leonard come in followed by two black males, one of whom went to the right of him and one to the left in front of the counter and pulled pistols. One had a Colt .45 automatic, nickel-plated pistol and the other a small caliber black pistol. He identified Alford. He stated that the lighting conditions in Viking Imports were very good, his vision is 20-20, he was within ten to twelve feet from Alford and observed him from five-to-six or seven seconds.

Glenn Ray Hooks, another eyewitness, testified that he was working in the stockroom at Viking Imports on the date in question when Alford came over and stuck a gun in his face. Hooks stated he has good vision, the room was well lighted, he was within about one foot of Alford and observed him for several seconds.

Each of these witnesses testified that the identification of the defendants was based solely on what he saw at Viking Imports on 6 November 1974.

We hold that the trial court's findings as to the validity of the eyewitnesses' in-court identifications were amply supported by competent evidence and therefore conclusive on this Court. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972); State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971). This assignment of error is overruled.

Defendants objected to the introduction of State's Exhibit No. 2, a .45-caliber pistol identified as being in the hands of defendant Carter during the holdup, and State's Exhibit No. 3, a 9 millimeter pistol identified as being in the hands of defendant Alford during the holdup and later determined to be the pistol which fired the fatal shot. These objections were overruled. Defendants assign this as error, contending that Officer Whiteside was unlawfully in the apartment where the weapons were found and the court erred in admitting evidence that was a product of an illegal search and seizure.

At the time Officer Whiteside went to an apartment leased to Deborah Dorothea Hasty on 19 November 1974, he knew that one Larry Waddell, charged with the capital crime of murder and a declared outlaw, was in this apartment. Under G.S. 15-48, an officer is empowered to take such power with him as he thinks fit and necessary for searching for and apprehending an outlaw. We hold then that when Officer Whiteside was informed that Larry Waddell was in the apartment in question he was well within his rights to burst into the apartment for the purpose of arresting Waddell. When he entered, he saw one individual who was identified as Waddell and another identified as Alford. Upon discovering Alford there and knowing that Alford and Carter were wanted for murder and armed robbery, he and the officers with him were justified in arresting Alford and searching for Carter. Officer Whiteside then went up the stairs where he observed Carter through an open door, coming out from between mattresses on a bed. At that time the 9 millimeter pistol was in plain view on a dresser. The seizure by the police of the pistol, which was in plain view during their search for Carter who, under the existing conditions, was aware of their presence and could use such weapon to make good his escape, was entirely justified. These facts are similar to those in State v. Curry, 288 N.C. 660, 675, 220 S.E.2d 545, 555 (1975), where we stated:

We therefore hold that by being lawfully on the premises the officers were entitled to seize such evidentiary objects connected with these defendants as were in plain view. State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973); State v. Simmons, 278 N.C. 468, 180 S.E.2d 97 (1971); State v. Hill, 278 N.C. 365, 180 S.E.2d 21 (1971); State v. McCloud, 276 N.C. 518, 173 S.E.2d 753 (1970); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970).

There is also no merit in the assignment of error concerning the introduction of the .45 automatic pistol. This pistol was found as the result of a search under a valid search warrant in the room in which Carter had previously been arrested.

Defendants also object to the introduction of a cigarette lighter, identified by one of the robbery victims as being exactly like the one taken from him during the robbery, on the ground that it was illegally seized. This cigarette lighter was found on the day following the robbery during a search of an apartment believed to be the apartment of defendants. Armed with an arrest warrant for defendant Carter, Officer Hamlin went to this apartment and knocked at the door. The door was partially open and Officer Hamlin went in looking for Carter. When he first entered, he saw a cigarette lighter on a couch in the living room. Officer Hamlin did not search for evidence but left the premises after he determined that defendant Carter was not in the apartment. This lighter was in plain view as he entered the premises with the lawful arrest warrant for Carter. ". . The law does not prohibit a seizure without a warrant by an officer in the discharge of his official duties where the article seized is in plain view. [Citations omitted.] . ." State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968); State v. Allen, supra; State v. Simmons, 278 N.C. 468, 180 S.E.2d 97 (1971); State v. Hill, supra; State v. McCloud, supra; State v. Virgil, supra. This assignment is overruled.

Defendants contend the court erred in allowing the district attorney to ask Alford if he stole the guns, which had been introduced into evidence, from Builders Hardware. There is no merit to this contention. The evidence discloses that two of the pistols found in the apartment where defendants were arrested had in fact been stolen from Builders Hardware and that this place of business was just across the street from the apartment where defendants were living.

Although a defendant may not be asked if he has been accused, arrested, or indicted for a particular crime, State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), he may be asked if he in fact committed a crime. As we said in Williams :

See also State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972).

Here, there was ample evidence to justify the district attorney in good faith to ask Alford if he had stolen the pistols. This assignment is overruled.

By their tenth assignment of error, defendants contend that the court erred "in permitting the District Attorney to refer in his argument to the jury to evidence that was not in the record, and in permitting him to use language that was calculated to arouse passions of the jury." Specifically, defendants object to the statement of the district attorney to the jury that "there has been the evidence come out that the two guns were stolen from Builders Hardware. The two defendants lived half a block away." Officer Whiteside testified that the two weapons in question, the Colt .45 and the 9 millimeter caliber pistol, were new weapons belonging to Builders Hardware and were taken from Builders Hardware in a robbery on 21 October 1974. The evidence further disclosed that the apartment at 137 South Irwin Street, where defendants lived, was across the street from Builders Hardware. Obviously, the district attorney's argument was based on evidence introduced at the trial.

Defendants further assign the following portion of the district attorney's argument to the jury as error:

In this jurisdiction, wide latitude is given to counsel in the argument of contested cases. Moreover, what constitutes an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge. State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970), rev'd as to death penalty, 403 U.S. 948, 21 S.Ct. 2290, 29 L.Ed.2d 860 (1971); State v. Christopher, 258 N.C. 249, 128 S.E.2d 667 (1962); State v. Bowen, 230 N.C. 710, 55 S.E.2d 466 (1949). Ordinarily, exceptions to improper remarks of counsel during argument must be taken before verdict. State v. Noell, supra ; State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970); State v. Hawley, 229 N.C. 167, 48 S.E.2d 35 (1948); State v. Tyson, 133 N.C. 692, 45 S.E. 838 (1903). Such exceptions, like those to the admission of incompetent evidence, must be made in apt time or else be lost. This general rule has been modified in recent years so that it does not apply to death cases where the argument of counsel is so prejudicial to defendant that the prejudicial effect of such argument could not have been removed from the jurors' minds by any instruction the trial judge might have given. State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970); State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967); State v. Dockery, 238 N.C. 222, 77 S.E.2d 664 (1953). In instant case, no objections were made to the district attorney's remarks during the course of the trial but exceptions were entered after verdict. After careful review, we hold that the argument made by the district attorney was in substantial accord with the evidence, was not unduly prejudicial, and was permissible. This assignment of error is overruled.

Defendants next assign as error the court's refusal to allow the defendants' motion for nonsuit at the close of the State's evidence, and the court's refusal to grant a motion for a directed verdict of not guilty. A motion for a directed verdict of not guilty and a motion for nonsuit challenge the sufficiency of the evidence to go to the jury. State v. Wiley, 242 N.C. 114, 86 S.E.2d 913 (1955). Under the circumstances here, the motion for a directed verdict of not guilty and the motion for judgment of compulsory nonsuit have the same legal effect. State v. Glover, 270 N.C. 319, 154 S.E.2d 305 (1967). Upon such motions, the court must find that there is "substantial evidence . . . both that an offense charged . . . has been committed and that the defendant committed it," before it can overrule the motions. State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967). See State v. Morgan, 268 N.C. 214, 150 S.E.2d 377 (1966); State v. Roux, 266 N.C. 555, 146 S.E.2d 654 (1966). In deciding this question, the trial judge must consider the State's evidence in the light most favorable to the State without considering the evidence of defendant in conflict therewith. Eyewitnesses positively identified the defendants as the two men who participated in the robbery and the killing of Mr. Leonard. Alford offered evidence tending to show that he did not participate in the robbery or in the murder and in fact, was not present at Viking Imports on this occasion. It is for the jury to determine the truth and credibility of the evidence. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968); State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967). This assignment is overruled.

Finally, Alford assigns as error the denial of his motion for a separate trial. Alford concedes that ordinarily such motions lie within the sound discretion of the trial judge. In State v. King, 287 N.C. 645, 215 S.E.2d 540 (1975), defendants were charged in separate bills of indictment with first degree murder. There we said:

Alford contends, however, that the defenses of the defendants in this case were antagonistic. Alford testified as a witness, declaring his innocence and claiming an alibi, in support of which he offered several other witnesses. Evidence of his good character and lack of any serious criminal record was also introduced.

Carter, on the other hand, elected to remain silent and vigorously cross-examined Alford's alibi witnesses. Carter's reason for remaining silent is apparent when his pretrial statement to the officers is read, a copy of which was attached to Alford's motion for a severance and is as follows:

Carter did not take the stand and the State did not offer the statement in evidence, relying on other evidence of Carter's participation in the crimes and apparently not wishing to weaken its case against Alford. Neither did Alford attempt to introduce the statement. Under these circumstances, Alford could have called Carter as his witness but Carter could have refused to testify, relying on his rights under the Fifth Amendment to the United States Constitution. Hence, Alford was effectively deprived of evidence which would have corroborated his alibi testimony. Carter, on the other hand, benefited by the consolidation of the cases for trial as the State elected not to use his statement. Under these circumstances, we believe Alford was entitled to a separate trial. As Justice Sharp (later Chief Justice) said in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968):

We believe Alford has made such showing in the present case.

In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court of the United States was faced with a similar situation. In that case, defendant Chambers called one McDonald to introduce that witness's written confession to the crime for which Chambers was standing trial. However, on cross-examination by the State, McDonald repudiated the confession and asserted an alibi. Chambers' subsequent attempt to cross-examine McDonald as an adverse witness, with regard to the confession and alibi and other oral confessions made by McDonald, was denied by the trial court on the basis of the Mississippi rule that a party may not impeach his own witness. The trial court also excluded as inadmissible hearsay evidence the testimony of three other witnesses offered by defendant as to oral confessions allegedly made to each of them by McDonald shortly after the murder for which Chambers was being tried. The Court, in an opinion by Mr. Justice Powell, concluded that the combined effect of these two evidentiary rules violated Chambers' due process right to a fair trial, including the right of confrontation guaranteed under the Sixth Amendment. The Court reaffirmed that "few rights are more fundamental than that of an accused to present witnesses in his own defense," and that the right of cross-examination and confrontation are vital to the "accuracy of the truth-determining process." Specifically, the Court held that the trial court erred in excluding the hearsay statements by McDonald because enough assurances of trust-worthiness existed in the circumstances surrounding the statements and in the fact that McDonald was present and available for cross-examination by the State.

In Truman v. Wainwright, 514 F.2d 150 (5th Cir. 1975), a case involving motions for a separate trial, the Court held that "due process is violated when a defendant is `effectively prevented from exploring' his accusations that another person committed the crime for which [he] stands accused." In Maness v. Wainwright, 512 F.2d 88 (5th Cir. 1975), a case involving similar motions, the Court concluded that on the basis of Chambers the question that must be asked in these cases is whether defendant's defense was "less persuasive" to such a degree that we must conclude that his right to a fair trial was violated.

Unquestionably, in instant case, there was substantial evidence against Alford, including his identification by four eyewitnesses. However, there is no doubt that his alibi defense was "less persuasive" than it would have been had it been strengthened by the introduction of Carter's statement or testimony. Under the circumstances of the joint trial, Alford was precluded from introducing this statement or this testimony. Now that Carter has been convicted, Alford can call him as a witness. If Carter then attempts to deny his confession or refuses to testify, the situation as discussed in Chambers arises and Alford can proceed as suggested in that case. We therefore hold that his defense was so prejudiced as to amount to a denial of due process and his right of confrontation. Truman v. Wainwright, supra; Maness v. Wainwright, supra. By reason of the denial of his motion for a separate trial, Alford is entitled to a new trial.

A careful review of the record leads us to these conclusions:

1. Alford is entitled to a new trial and it is so ordered.

2. In the trial of Carter, we find no error.

HUSKINS, Justice (dissenting).

Analysis of the decisions cited in the majority opinion leads me to conclude that defendant Alford's conviction should be upheld.

In awarding defendant Alford a new trial, the majority rely primarily on Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In that case, defendant was convicted of murdering a policeman who was killed in the aftermath of a barroom brawl involving a sizeable crowd. After Chambers' arrest, one McDonald confessed to the crime. At Chambers' trial, the State was able to produce little hard evidence of defendant's guilt, and Chambers' defense depended in large part on being able to show that McDonald had shot the policeman. When the State failed to call McDonald, defendant called him for the defense and introduced McDonald's confession. On cross-examination by the State, McDonald repudiated his previous confession as having been part of a scheme by one Stokes to obtain Chambers' release, whereupon they would all share in the proceeds of a lawsuit Chambers would bring against the city. The State "voucher" rule prevented Chambers from impeaching McDonald, since Chambers had called McDonald as his own witness. The trial court also excluded the proffered testimony of three different witnesses who would have testified that McDonald had admitted to them that it was he, not Chambers, who shot the policeman. Exclusion was based on the ground that these out-of-court confessions violated the hearsay rule. The United States Supreme Court held that the combined effect of these two State evidentiary rules prevented Chambers from introducing testimony which strongly implicated McDonald, rather than Chambers, as the murderer, and that this "denied [Chambers] a trial in accord with traditional and fundamental standards of due process."

I do not question the soundness of the legal principles enunciated in Chambers. I do, however, disagree with the majority's application of Chambers to the case at bar. The holding of the United States Supreme Court in Chambers was closely tied to the particular facts of that case—facts which were, in my opinion, sufficiently different from those in the instant case to remove it from the ambit of Chambers. In Chambers, as the Supreme Court emphasized, the State's case against defendant was very weak. Defendant called a witness who had earlier confessed to the crime with which defendant was charged, and when this witness repudiated his prior confession, defendant tried, but was not permitted, to impeach the witness with his earlier statement. This having failed, defendant nevertheless persisted, again unsuccessfully, in his efforts to bring before the jury the fact that the repudiating witness had previously confessed not only to the police, but to three other persons as well.

In the instant case, as the majority concedes, there was "substantial evidence against Alford, including his identification by four eyewitnesses." Moreover, defendant at no time sought to call Carter as a witness, nor did he offer as evidence Carter's written confession which tended to implicate one Larry Waddell as the second perpetrator of the robbery-murder. Unlike Chambers, there is no way of knowing what would have transpired had Alford called Carter or sought to introduce his prior confession. Thus, in its present posture, this case, unlike Chambers, is not one in which "the [trial] court . . . excluded evidence that strongly pointed the finger of guilt at [another] while the evidence against [defendant] was minimal." Maness v. Wainwright, 512 F.2d 88 (5th Cir. 1975) (emphasis added). Nor is it a case, again unlike Chambers, "where the court prohibited the defense from making a plausible argument that someone else committed the crime, or where a serious and continued effort by the defense to get its theory of the case before the jury was frustrated." Truman v. Wainwright, 514 F.2d 150 (5th Cir. 1975) (emphasis added). Actually, in both of these 5th Circuit cases the court held Chambers inapplicable on the facts there involved.

In view of the strength of the State's case against defendant Alford, and absent any attempt by him to call the confessing witness to testify or introduce into evidence the confession itself, I cannot read Chambers so broadly as to be dispositive of this case.

For the reasons stated, I respectfully dissent from that portion of the majority opinion awarding defendant Alford a new trial. I vote to affirm.