State v. Braxton

242 S.E.2d 769, 294 N.C. 446, 1978 N.C. LEXIS 1286

• Court: Supreme Court of North Carolina
• Decided: April 17, 1978
• Docket: 17
• Status: Published

Opinion

LAKE, Justice.

The four defendants were represented by separate counsel, both at trial and on appeal. Each appealed from a sentence to life imprisonment imposed upon him. Their assignments of error are not the same in all respects and they filed separate briefs. Consequently, we discuss their appeals separately.

APPEAL OF THE DEFENDANT BRAXTON

In his statement of the case on appeal, the defendant Braxton assigned as error: (1) The admission of various portions of the State’s evidence, this assignment being based upon 35 unrelated exceptions; (2) the denial of 18 motions of widely varying nature made by this defendant before trial, during its progress and after the verdict; and (3) the signing and entry of the judgment.

The first two assignments obviously violate Rule 10(c) of the Rules of Appellate Procedure, 287 N.C. 671, 699, which states that each assignment of error “shall, so far as practicable, be confined to a single issue of law.” This flagrant disregard for our rules is equally evident in the appeals of the other defendants also. Due to the serious nature of these cases, however, we have given careful consideration to all assignments of error made by each defendant.

Assignment of Error No. 3 is formal and requires no discussion. It presents for review only the record proper. State v. Wilson, 289 N.C. 531, 538, 223 S.E. 2d 311 (1976). The trial court had jurisdiction and no error appears on the face of the record proper. Furthermore, this assignment of error was not brought forward into the brief on appeal and is, therefore, deemed abandoned. Rule 28(a) of the Rules of Appellate Procedure, 287 N.C. 671, 741. This assignment is, therefore, overruled.

Assignment of Error No. 1 is, likewise, not brought forward into the brief on appeal and is, for the same reason, deemed abandoned. We have, nevertheless, carefully examined each of the exceptions upon which this assignment of error is based and find no merit in any of them. It would serve no useful purpose to discuss these rulings of the trial court seriatim.

In support of his Assignment of Error No. 2, the defendant Braxton contends that the court erred in denying his motion for a separate trial, allowing the motion of the District Attorney to consolidate the four cases for trial and in denying the motion of this defendant for a judgment of nonsuit. The remaining exceptions to the rulings of the trial court upon the motions of this defendant, included within his Assignment of Error No. 2, are not brought forward into the brief and, for the above mentioned reason, are deemed abandoned. We have, nevertheless, considered each of them and find each without merit. In the contention so made in the brief concerning the consolidation of the cases for trial and the denial of the motion for judgment of nonsuit, we also find no merit.

G.S. 15A-926(b)(2) provides:

“(2) Upon written motion of the prosecutor, charges against two or more defendants may be joined for trial:

a. When each of the defendants is charged with accountability for each offense; or

b. When, even if all of the defendants are not charged with accountability for each offense, the several offenses charged:

1. Were part of a common scheme or plan; or

2. Were part of the same act or transaction; or

3. Were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.”

The record shows that the State filed written motions prior to trial to consolidate the four cases here in question. While each of the successive rapes of the prosecutrix was a separate criminal offense, the record clearly shows that all of the offenses were parts of a common scheme or plan and each of the defendants was present, aiding and abetting in each offense. Under these circumstances, the granting of the motion for consolidation for trial rests in the sound discretion of the trial judge, and in the absence of a showing that the joint trial deprived the defendant of a fair trial, his exercise of that discretion by consolidating the cases for trial will not be disturbed on appeal. State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977); State v. Fox, 274 N.C. 277, 163 S.E. 2d 492 (1968); State v. Grundler, 251 N.C. 177, 191, 111 S.E. 2d 1 (1959), cert. den., 362 U.S. 917 (1960).

The defendant Braxton asserts that the consolidation of his case with the others for trial deprived him of a fair trial because, in violation of the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968), statements made to investigating officers by his codefendants were admitted in evidence over his objection.

G.S. 15A-927(c)(l) provides:

“(1) When a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court must require the solicitor to select one of the following courses:

a. A joint trial at which the statement is not admitted into evidence; or

b. A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him; or

c. A separate trial of the objecting defendant.”

In the present case, the trial judge chose, and the District Attorney complied with, the second of these alternatives. Statements made to investigating officers by defendants Burden, Howell and Mclver were the subjects of extended voir dire examinations. As a result, the trial court ruled that each such statement was admissible against the declarant, but required each such statement to be carefully edited so as to delete therefrom any reference to any other defendant. This was done prior to the introduction of such statement in evidence, the record indicating that all counsel participating in the trial collaborated in such editing. This procedure and the allowance of each such statement in evidence did not violate either G.S. 15A-927(c) or the rule of Bruton v. United States, supra. The admission of such statements was not error as to the defendant Braxton. He is not mentioned in any of the statements so edited and admitted.

The contention of the defendant Braxton that his motion for judgment as of nonsuit should have been allowed on the basis of the weakness of the identification of Braxton by the prosecuting witness is utterly without merit. A motion for a judgment of non-suit is properly denied when the evidence, including evidence erroneously admitted (State v. Hunt, 289 N.C. 403, 222 S.E. 2d 234, death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed. 2d 69 (1976), considered in the light most favorable to the State and giving the State the benefit of every reasonable inference to be drawn therefrom, is sufficient to afford a reasonable basis for the finding by the jury that the offense charged has been committed and the defendant was the person who committed it. State v. Covington, 290 N.C. 313, 327, 226 S.E. 2d 629 (1976); State v. Warren, 289 N.C. 551, 559, 223 S.E. 2d 317 (1976); State v. Curry, 288 N.C. 660, 220 S.E. 2d 545 (1975); State v. Goines, 273 N.C. 509, 160 S.E. 2d 469 (1968).

The evidence for the State is abundantly sufficient to meet this test. The testimony of the prosecuting witness, taken to be true, as it must be upon such a motion, shows successive, forcible rapes by this defendant and each of his companions. Her identification of Braxton in court as one of her assailants was clear and unequivocal. She testified that she was dragged by Braxton and Burden from her automobile, which was parked in a parking lot in which the lighting was good enough to see “pretty well.” She was forced by them into the automobile parked beside her own and transported many miles, on a brightly moonlit night, during which Braxton was sitting immediately beside her and, thereafter, she was raped successively by him and his three companions in the moonlit abandoned house, into which they pushed her. It was Braxton who there virtually disrobed her and, following the successive rapes, compelled her to commit the revolting act of oral sex upon him. It was he who fired the pistol into the floor whereon she lay, the bullet striking the floor very close to her head. On the ride from the place where she was seized to the house wherein she was so raped, they passed through the well lighted streets of the City of Fayetteville and thereafter through the lighted streets of a small town. Under these circumstances, it is absurd to contend that the State’s evidence is not sufficient to go to the jury on the question of Braxton’s identity.

The identification of Braxton as one of the assailants is, furthermore, corroborated by the testimony of his barber that, on the day following this occurrence, Braxton had his head shaved, thus altering his appearance and that he said to another customer, who thereafter entered the barber shop, “I’m glad you can’t recognize me because I got to leave town.” Braxton was found by the police, three days later hiding in a closet.

After the prosecutrix had testified to the lighting in the parking lot from which she was abducted and that, hearing a knocking upon the window of her car, she turned and looked into the face of a black male standing at the window, she was asked if she recognized that man in the courtroom, to which she replied in the affirmative. Thereupon, each of the defendants objected. The objections were overruled and, with no request for a voir dire examination of the witness, she proceeded to identify that man as Burden. She testified that she reached to start her car again and thereupon Burden pulled the gun from under his jacket, stuck it up to the window, pointed it directly at her head and directed her to roll down the window. She looked to the other side to see if she could escape' through that door and, at that time, saw Brax-ton, identified by her in court, on the other side of her car. There was no objection specifically directed to this in-court identification of Braxton. Thereafter, without objection concerning his identification, the prosecutrix repeatedly testified concerning his presence and conduct throughout the series of events.

Assuming, without deciding, that, under these circumstances, the general objection by Braxton, above noted, with no request for a voir dire examination of the witness, was sufficient to require the court to conduct such an examination, in the absence of the jury, as to the admissibility of the testimony of this witness concerning the identity of Braxton as one of her assailants, the failure to conduct such voir dire was harmless error beyond any reasonable doubt.

No defendant made a motion, prior to trial, to suppress identification testimony by this witness. We find in the record no suggestion whatever of any questionable pretrial identification procedures. Nothing in the record indicates that this witness saw any of these defendants from the time they abandoned her on the rural road after the alleged offenses to their preliminary hearing upon the present charges. There is no suggestion in the record that she ever identified, or was requested to identify, any other person than these four defendants as one of her assailants on this occasion. As above shown, her opportunity to observe each defendant at the time of the occurrences was ample. It is inconceivable that a voir dire examination would have disclosed any basis for objection to her in-court identification of Braxton, or any of the other three defendants, as one of the men who so abducted and raped her.

The defendant Braxton’s brief states that this witness “did not identify him in the probable cause hearing,” but there is nothing in the record to show that, at the probable cause hearing, she was requested to identify any of the defendants.

Some time after her identification of Braxton and Burden as the men who pulled her from her own car and of Mclver as the driver of the car into which she was forced, at the request of Howell’s counsel, a voir dire was conducted with reference to the identification by the prosecutrix of Howell as the fourth man in the car into which she was forced. On this voir dire no defendant offered evidence and counsel for neither Braxton, Burden nor Mclver questioned the prosecutrix. This man was sitting on the passenger side of the front seat and the prosecutrix had testified before the jury that as she entered the car she did not get a good look at him. On the voir dire, however, she testified that this man turned around and she observed his full face as the car was passing through a small town in which there were street lights and lights of filling stations. Furthermore, as she testified, the light of a bright moon prevented the house into which she was taken from being dark. The moon would, of course, cast light into the car. In the course of this voir dire the witness testified:

“Q. Did you identify him [Howell] at the District Court hearing [the preliminary hearing]?

“A. I identified all four as the ones. They didn’t ask me to point them out as I recall.

“Q. Could you tell the difference between the four defendants at the District Court?

“A. Of course I could tell the difference between them.

“Q. If you hadn’t seen them at the District Court hearing, would you be able to identify them today?

“A. Yes, I would have.

* * *

“Q. You are saying, then, that your testimony today, your identification today, is based on your observations of these four defendants on the night of the 10th of February, 1977, is that correct?

“A. Yes, sir.”

Upon the conclusion of that voir dire, the court entered an order making full findings of fact that the in-court identification of Howell was based upon the witness’ identification of him on the night of the abduction and rape, and Howell’s objection to the allowance of such testimony as to him was overruled.

Clearly, the evidence thus brought forth upon the voir dire examination, conducted at the request of defendant Howell, removes any possible lingering doubt as to the admissibility of her testimony identifying the defendants Braxton, Burden and Mclver.

We find no error in the record which would justify the granting of a new trial to the defendant Braxton. His conviction and the sentence imposed upon him must, therefore, be affirmed.

APPEAL OF THE DEFENDANT BURDEN

The defendant Burden, like his codefendant Braxton, in his statement of the case on appeal, assigned three errors as follows: (1) The admission of evidence over objection, this being based upon 20 exceptions; (2) the denial of 14 motions made by Burden; and (3) the signing and entry of the judgment.

For the reasons stated in connection with the appeal of the defendant Braxton, Assignment No. 3 is without merit.

Burden, like Braxton, did not bring forward into his brief any of the 20 exceptions upon which his Assignment of Error No. 1 is based. This assignment, and the exceptions upon which it is based, are, therefore, deemed abandoned. We have, however, examined each of these exceptions and the portions of the record pertinent thereto and find no merit in any of them. It would serve no useful purpose to discuss these seriatim. We have previously discussed, in connection with the appeal of Braxton, the matter of the admissibility of the in-court identification of Burden by the prosecutrix. No further discussion of Burden’s exception thereto is necessary.

While the defendant Burden’s Assignment of Error No. 2 is based upon 14 exceptions to the denial of various motions made by him, he has brought forward into his brief on appeal only the matter of the denial of his motion for a separate trial and the denial of his motion to suppress evidence of a statement made by him to one of the investigating officers. The other exceptions upon which this assignment of error was based are, therefore, deemed abandoned. Rule 28 of the Rules of Appellate Procedure, supra. We have, nevertheless, considered these abandoned exceptions and the motions to which they relate and find no merit therein. Nothing would be gained by a detailed discussion of these.

With reference to Burden’s contention that it was error to consolidate the cases for trial, he asserts in his brief that the prosecuting witness was not able to identify him, or any of the other defendants, at the probable cause hearing. As above noted in our discussion of the appeal of Braxton, the record does not substantiate this assertion. Burden contends that the prosecuting witness identified him in court as one of her assailants solely because the cases were consolidated for trial and, consequently, he and his three codefendants were present in the courtroom as the defendants charged with the offenses. For this reason, he says, the consolidation was prejudicial to him. Burden does not contend that he was prejudiced by the admission in evidence of the carefully edited statements made by Mclver and Howell to the investigating officers, or that the admission of those statements violated either G.S. 15A-927(c) or the rule of Bruton v. United States, supra.

The in-court identification of Burden by the prosecuting witness as one of her assailants was clear and unequivocal. According to her testimony, it was he who first knocked upon the window of her car in the lighted parking lot and, with a pistol pointed at her head, ordered her to roll down the window and then to get out of the car. It was he and Braxton who dragged her from her car, forced her to enter the one driven by Mclver and then sat in the back seat of the car with her as they drove from the place of her abduction to the abandoned house where the multiple rapes occurred. On this long ride they traversed the well lighted streets of Fayetteville, went through a smaller town in which there were street lights and lighted filling stations and rode otherwise through bright moonlight. En route to the abandoned house, Burden was pointing the pistol at the head of the prosecutrix until she seized it from him, whereupon they struggled for it as she was firing it. Under these circumstances, it is too great a strain upon credulity to accept his contention that the only basis for in-court identification of him is the fact that he sat at the defendant’s counsel table along with the three codefend-ants.

Furthermore, the prosecuting witness testified that, as she struggled in the car with the defendant Burden for the possession of the pistol, it fired several times and the defendant Burden exclaimed that she had shot him in the finger. Officer Lovette, who interviewed Burden and obtained a statement from him the following day, testified that one of Burden’s fingers had “a wound on it.”

Finally, Burden’s own statement to Officer Lovette fully corroborates the woman’s testimony as to Burden’s part in her abduction from the parking lot in Fayetteville, her transportation to the abandoned house in Robeson County, his being wounded when the woman seized the pistol and fired it, and his having had sexual intercourse with her.

Clearly, the identification of Burden as one of the woman’s assailants was not brought about by the consolidation of these cases for trial.

Burden next contends that the court erred in denying his motion to suppress the above statement made by him to Officer Lovette. Before this statement was introduced in evidence, the court conducted a voir dire examination in the absence of the jury. Upon it, Officer Lovette and the defendant Burden testified. Burden testified that, at about noon on the day following the alleged rapes, he voluntarily went to the courthouse because he had heard the police were looking for him and there met Officers Lovette and Thompson. He testified that he did not make a statement to Lovette but did make one to Thompson. His mother, father and some friends were with him at the time. He told Officer Thompson that he did not want a lawyer present but did want to make a statement. When shown the statement which the State proposed to offer in evidence and, after the above mentioned editing, did put in evidence, Burden testified that he did not make “that statement.” He acknowledged that the officers read to him a statement of his rights and that the signature upon the statement in question looked like his. His testimony was that Officer Lovette and Officer Thompson both read the statement of his rights to him and then Officer Lovette left the room.

Officer Lovette testified on this voir dire that he interviewed Burden and advised him of his constitutional rights pursuant to the Miranda formula, whereupon Burden indicated that he understood his rights and wished to make a statement. Officer Lovette testified that he promised Burden nothing and did not threaten him or use any form of coercion to secure a statement from him. He further testified that while the statement was being made by Burden, Officer Thompson and Burden’s parents were present. He further testified that Burden made an oral statement of which Officer Lovette made notes and then reduced the statement to writing during the afternoon. He further testified that Burden made another statement to Officer Thompson in the absence of Officer Lovette. This second statement was then reduced to writing and Burden, in the presence of Officer Lovette, acknowledged it as his statement, whereupon Officer Lovette signed the statement as a witness thereto.

At the conclusion of this voir dire, the court made full findings of fact, including a finding that the defendant was advised of his constitutional rights pursuant to the Miranda formula, and that the statement made by Burden to Officer Lovette was made knowingly, understandingly and of his own free will without any promise or threat or coercion being used. Thereupon, the court concluded that such statment made by the defendant to Officer Lovette was admissible in evidence.

In his brief, the defendant Burden does not contend that he was not fully advised of his constitutional rights. His contention is that while Officer Lovette prepared the writing signed by Burden as his statement, such writing was “not the complete statements of the defendant but a story put together by the police officer” and, therefore, not admissible as the defendant Burden’s own statement. In this contention there is no merit. The written statement, which Officer Lovette testified he compiled from notes made by him of Burden’s oral statements, was shown to Burden and, according to the testimony of the officers, signed by Burden. Under these circumstances, it is immaterial that the written statement was not, word for word, identical with the oral statement. No discrepancies were pointed out by Burden in his testimony on the voir dire. We find no error in the admission in evidence of the statement.

Neither Burden’s brief nor our own careful examination of the entire record discloses any error prejudicial to him. His conviction and sentence are, therefore, affirmed.

APPEAL OF THE DEFENDANT McIVER

The defendant Mclver, like Braxton and Burden, in his statement of the case on appeal, makes three assignments of error: (1) The court erred in the admission of certain evidence, this being based upon 58 exceptions to various rulings with reference to the admission or exclusion of testimony or exhibits; (2) the court erred in denying certain motions of this defendant, this being based upon exceptions to 13 rulings upon various motions made by Mclver; (3) the signing and entry of the judgment.

As above stated, the third assignment of error is purely formal and requires no detailed discussion. The court had jurisdiction and no error appears upon the face of the record proper. Furthermore, this assignment of error is abandoned due to the failure of the defendant to bring it forward in his brief on appeal. Rule 28 of the Rules of Appellate Procedure, supra.

Like Braxton and Burden, this defendant has abandoned virtually all of the exceptions to rulings of the court upon the admission of evidence which were cited in his statement of the case on appeal as the basis for his Assignment of Error No. 1, through his failure to bring them forward into his brief on appeal. Rule 28 of the Rules of Appellate Procedure, supra. As in the appeals of those defendants, we have, however, examined those exceptions and the portions of the record pertinent thereto and find no merit in any of them. No useful purpose would be served by a discussion of these abandoned exceptions.

In his brief Mclver contends that the court erred in admitting, over his objection, irrelevant evidence. He states, correctly, that the test of relevancy of evidence is whether it tends to shed any light on the subject of the inquiry or has as its only effect the exciting of prejudice or sympathy. This Court so stated in State v. Page, 215 N.C. 333, 1 S.E. 2d 887 (1939), cited by the defendant, and again in State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506 (1965), cert. den., 384 U.S. 1020 (1966). The defendant lists, as instances of this alleged error, 11 of his exceptions to the rulings of the court on the admission of evidence, but he does not state wherein these portions of the evidence of the State fail to meet the above test of relevance. Our examination of the portions of the records to which these exceptions relate discloses beyond question the relevancy of each such bit of evidence as measured by the foregoing test. No useful purpose would be served by a detailed recounting of these bits of the evidence.

Mclver contends further, in connection with his Assignment of Error No. 1, that the evidence with respect to the activities on this occasion of the other three defendants should not be used to determine the guilt or innocence of the defendant Mclver and that the introduction of such evidence at the trial of Mclver was error such as to entitle him to a new trial. This contention is utterly without merit so far as the question of the relevancy of such evidence is concerned. The evidence for the State, if true, as the jury obviously found it to be, shows clearly that the four defendants acted in concert throughout in carrying out a common plan to accomplish a common purpose. The uncontradicted evidence of the victim is that each of the four defendants was present, aiding and abetting throughout the entire occurrence, from the abduction in the Fayetteville parking lot to the abandonment of the victim on a lonely road in Robeson County some three hours later. Each was present, aiding and abetting, while each of the other defendants raped the victim. Thus, each would be accountable for such rapes, as principal in the second degree, even if he, himself, had not had sexual intercourse with the victim. State v. Overman, 269 N.C. 453, 473, 153 S.E. 2d 44 (1967); State v. Hairston, 121 N.C. 579, 28 S.E. 492 (1897); State v. Dowell, 106 N.C. 722, 11 S.E. 525 (1890); State v. Jones, 83 N.C. 605 (1880). It is upon this theory that these cited cases hold a woman may be convicted of rape and so may the husband of the victim. The entire occurrence from the abduction to the final release of the victim was a unified course of criminal activity, in every part of which each of the four defendants was a participant. Consequently, all of the evidence recounting acts of the several defendants is relevant upon the inquiry as to the guilt of each and was properly admitted unless some other rule of evidence requires its exclusion. There is no merit in Mclver's Assignment of Error No. 1.

With reference to his Assignment of Error No. 2, Mclver contends that it was error to consolidate for trial his case with the cases of the other three defendants. We have discussed this contention in reference to the appeal of Braxton and no further discussion thereof is required in connection with the appeal of this defendant.

Mclver also makes the related contention that, in violation of the rule of Bruton v. United States, supra, his right to a fair trial was prejudiced by the admission in evidence, over his objection, of the carefully edited statements made to the investigating officers by Burden and Howell. The statement of neither Burden nor Howell, so edited, implicates Mclver in any part of the activities of the declarant related in such statement. Therefore, the admission of such statement in evidence does not violate the Bruton rule.

Mclver’s contention that it was error to deny his motion for judgment of nonsuit is obviously lacking in merit. The testimony of the prosecuting witness was that Mclver was the driver of the car in which she was transported from the point of abduction in the City of Fayetteville to the abandoned house in Robeson County wherein the multiple rapes occurred. Her testimony was that Mclver there twice had sexual intercourse with her without her consent. The rule governing the consideration of a motion for judgment of nonsuit is as above stated in connection with the appeal of Braxton. It need not be restated here. There is simply no merit whatever in this contention of Mclver.

There is no error in the denial of Mclver’s motion to suppress the evidence of his own statement to the investigating officer. Before this statement was admitted in evidence the court conducted a voir dire examination in the absence of the jury. Mclver did not testify at this voir dire examination. The evidence of the officer was that Mclver was taken to the Sheriff’s Department at 4:30 a.m., on 11 February 1977 (the night the alleged offense occurred). He made his statement at approximately 11:40 a.m., the same day. After the interviewing officer reduced Mclver’s oral statement to writing, Mclver said that the written statement was correct and signed it. Before the statement was made, the officer advised Mclver of his constitutional rights, pursuant to the Miranda formula, and Mclver signed a written waiver of those rights, including his right to have counsel present during his interrogation. No promises or threats were made to Mclver in order to procure his statement. The court found the facts to be as the officer so testified. We find no error in the denial of Mclver’s motion to suppress evidence as to the statement so given by him.

The defendant Mclver’s motions to set aside the verdict as contrary to the weight of the evidence and for the granting of a new trial for unspecified errors were directed to the discretion of the trial court and its rulings thereon are not reviewable in the absence of an abuse of discretion, which does not appear in this case. State v. Manuel, 291 N.C. 705, 231 S.E. 2d 588 (1977); State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977); State v. Downey, 253 N.C. 348, 117 S.E. 2d 39 (1960).

Mclver’s motion to'suppress evidence found in the car by investigating officers has no merit. The registered owner of the automobile was Mclver’s mother. The court conducted a voir dire examination and found that she consented to this search of the automobile by the officers, having consented to their taking it from the yard of her home, where the officers found it, to the courthouse. Evidence on the voir dire supports this finding and it is, therefore, conclusive. State v. Fox, 277 N.C. 1, 24, 175 S.E. 2d 561 (1970); State v. Gray, 268 N.C. 69, 79, 150 S.E. 2d 1 (1966), cert. den., 386 U.S. 911 (1967).

Neither the brief of Mclver, nor our careful search of the entire record, reveals any error entitling Mclver to a new trial. His conviction and the sentence imposed upon him will, therefore, not be disturbed.

APPEAL OF THE DEFENDANT HOWELL

The defendant Howell first assigns as error the failure of the trial court to sustain his objections to four alleged leading questions by the District Attorney. The fourth of these questions was not leading since it did not suggest the answer desired. The other three questions were obliquely leading but two of them related to introductory matter and the remaining question dealt with the relatively trivial matter of the time when the pistol was fired by Braxton in the room of the abandoned house wherein the witness was allegedly raped by each of the defendants. We observe no possible prejudice to this defendant resulting from the form of these questions. It is elementary that counsel should not ask his own witness leading questions on direct examination but is equally well established that the allowance of such questions is within the sound discretion of the trial judge. State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974). This assignment of error is without merit.

The defendant Howell next assigns as error the overruling of his objections to certain evidence on the ground that such evidence was repetitious. The bits of testimony to which these exceptions are directed were trivial and the defendant was not prejudiced thereby even if this were not a matter in the discretion of the trial judge, which it is.

The defendant Howell’s next assignment of error relates to nine other miscellaneous rulings of the court overruling objections by this defendant to evidence introduced by the State and to one alleged expression of opinion by the court concerning a hole in the floor of the house, which the investigating officer testified was, in his opinion, caused by a bullet. These various rulings are simply stated in the brief without any argument or authority cited in support of the defendant’s position concerning them. The record indicates that the alleged expression of opinion by the court was not a statement by the court at all but a continuation of the testimony of the State’s witness. The several rulings of the court to which this assignment relates were clearly correct and no useful purpose would be served by discussing them in detail.

The defendant Howell’s Assignment of Error No. 3 is that the court erred in not instructing the jury that two specified portions of the State’s evidence did not apply to the defendant Howell. The first such portion of the testimony was in response to the District Attorney’s question to the victim of the assaults as to what the four defendants were doing while the victim was firing, within the car, five shots from the pistol which she had seized from the defendant Burden. In overruling the objection of this defendant’s counsel to that question, the judge directed the witness to be specific as to which defendant was doing what. Her reply was, “All four of the men in the car had started yelling at each other,” which, under the circumstances, was, to say the least, quite plausible testimony. The witness then stated that Braxton, Mclver and the third man, subsequently identified by her as Howell, were yelling at Burden and asking him why he gave her the gun. She testified that Burden’s response was that he did not give it to her; she took it and had shot him in the finger. Thereupon, she testified, Burden retook the gun from her and Braxton took it from him and reloaded it. This bit of evidence clearly related to all of the defendants. The other portion of the evidence to which this assignment relates was the testimony of the State’s witness Clawson, the barber, that he shaved all the hair from Braxton’s head the morning after the offenses are alleged to have occurred. It was not necessary for the court to instruct the jury that this testimony did not relate to the defendant Howell. The trial court was entitled to assume that the jury had sufficient intelligence to know that without being so instructed. There is no merit whatever in this assignment of error.

Howell’s Assignment of Error No. 5A relates to the ruling of the trial court concerning certain items found by the investigating officer in the Mclver automobile while the automobile was still in the yard of the Mclver residence. On voir dire examination, there was a direct conflict between the testimony of the investigating officer and the testimony of Mclver’s brother and mother as to whether the mother, who was the registered owner of the car, then gave the officer permission to search the car. The court ruled that such consent had not been shown by the State and, therefore, ruled that the items then taken from the car were not admissible as against Mclver but were competent evidence as against the other defendants because they had no standing to object to the search of the car. In his brief the defendant Howell concedes that he did not have standing to object to that search of the automobile. We find no error in this ruling of the trial court prejudicial to the defendant Howell.

This assignment of error also includes the court’s admission of testimony of the investigating officer who searched the car after it was removed to the Sheriff’s office with the consent of Mclver’s mother, the registered owner of the car. This was not the same officer who had removed certain articles from the car while it was in the Mclver yard. The testimony of this second investigating officer was that in his search of the car at the Sheriff’s office, which the court found to have been with the consent of the registered owner, he found in the inside rear of the car bloodstains and a hole in the side panel and, adjacent thereto, an indentation of a bullet which had not penetrated entirely through the panel. The defendant Howell now contends that his motion to strike this testimony should have been allowed because this was “pure conjecture” on the part of the officer. The testimony tended to corroborate that of the prosecutrix with reference to the firing of the pistol within the car. Obviously, the witness, a detective on the Sheriff’s staff with 35 years experience in law enforcement and military service, would be competent to express an opinion as to the cause of the damage to this interior panel of the automobile. The record does not indicate any statement by this defendant, or any of his codefendants, as to the basis of the objection to the testimony or any indication of a desire by them to inquire into the qualifications of the witness. Furthermore, the testimony in question was not given before the jury but in its absence during the course of a voir dire examination. We find no merit in this exception.

Defendant Howell’s Assignment of Error No. 5E is to the failure of the court to grant his motion to suppress the evidence of his own statement to the investigating officer. In this assignment also there is no merit. In one of the numerous voir dire examinations conducted throughout this trial, prior to the court’s ruling upon Howell’s motion to suppress evidence of this statement, the officer, who interviewed Howell and who took the statement from him, testified that he, prior to questioning him, advised Howell as to his constitutional rights pursuant to the full Miranda formula. This officer further testified that Howell was then awake and alert and indicated that he fully understood these rights, that no promise or inducement was made him in order to obtain the statement and no coercion whatever was exerted upon him to persuade him to make it. According to this officer’s testimony on the voir dire examination, this advice as to his rights was given to Howell just moments prior to the interview in which Howell’s statement was made, this being at approximately 11:40 a.m., following Howell’s arrest at approximately 5 a.m., which, in turn, was some four or five hours after the alleged offenses.

Howell testified on this voir dire to the effect that he was not advised of any of his constitutional rights, either by the arresting officer or the one who interviewed him, saying: “No, he didn’t read no rights to me. Ain’t no Sheriff or no detective read rights to me. Ain’t nobody read any of them to me.” He further testified that while he did make a statement to the officer, it was not the one offered in evidence by the State. He acknowledged that he signed the paper purporting to be his statement but said the officer would not let him see it and did not read it to him. He also acknowledged that at the time of his arrest he signed a paper purporting to be a waiver of his constitutional rights, but said he did not read it and simply signed it as he was directed by the officer to do. He went to the Eleventh Grade in school and said he could write a little but could not read well.

At the conclusion of this voir dire, the court entered an order containing findings of fact, in accordance with the testimony of the officers, that when Howell was first arrested at approximately 5 a.m., he was advised of his rights by the arresting officer and signed a waiver thereof, that at approximately 11:40 a.m., he was again advised of his rights by and made a statement to the interviewing officer, no promise or threat having been made and no coercion having been exercised upon him. Upon these findings, the court concluded that all of his constitutional rights were properly related to Howell, that Howell signed the waiver of rights understandingly and made the statement to the officer voluntarily and understandingly. The court thereupon denied the motion to suppress evidence of the statement.

Prior to the introduction of Howell’s statement in evidence before the jury, another voir dire was conducted with reference to events at the time of his arrest, which was approximately 5 a.m., some six and a half hours prior to the making of the statement. On this second voir dire, a police officer testified: He was one of three officers who went to the Mclver home in search of the Mclver automobile; when Mclver subsequently arrived at the residence, he took the officers to Howell’s residence, advising them that he had been with Howell all night; at the request of the officers, Howell then accompanied the officers and Mclver to the Mclver residence. Howell was not then under arrest and was so advised; he, Mclver and the officers then went, in the officers’ car, to the Sheriff’s office where detectives talked with Howell and Mclver separately.

The officer in whose car Howell rode from his own residence to that of Mclver, and thence to the Sheriff’s office, testified on this second voir dire that he “advised him of his rights when he got into my car,” this being “the thing that we usually do to anyone that we are questioning or talking with.”

On this second voir dire, Howell also testified. He again denied that the above mentioned officer advised him of any rights and said he first refused to go to the Sheriff’s office but then went at the insistence of the officers.

Thereupon, Officer Thompson, a member of the Sheriff’s staff, testified on this second voir dire: He first saw Howell in a room by himself at the Sheriff’s office about 4:30 a.m., then knowing Howell was a suspect in this case; he then went into the room where Howell was and read him his rights from a form sheet and explained those rights to him; Howell then signed a waiver of those rights and thereafter Officer Thompson asked Howell if he knew anything about the rape case; Howell stated that he did not know anything about it. Subsequently, Officer Thompson procured a warrant for Howell’s arrest and arrested him.

At the conclusion of this second voir dire, the court again denied Howell’s motion to suppress the evidence of his statement and permitted an edited version thereof to be read to the jury, the editing having been done by the court and all counsel so as to delete from the original statement, as written by the interviewing officer, any references therein to the other three defendants in order to comply with the rule laid down in Bruton v. United States, supra.

The findings of the court upon the said voir dire examinations, being supported by evidence, are conclusive. State v. Fox, supra; State v. Gray, supra. They establish that the statement by Howell was made freely and voluntarily, was not induced by threats or promises and was made after he had been fully advised of and understood his constitutional rights as set forth in the Miranda formula.

The defendant Howell next contends that the edited statement introduced in evidence before the jury was not the statement actually made by Howell. Obviously, it was not the complete statement as originally signed by Howell for, in order to comply with the rule of Bruton v. United States, supra, certain references in the original statement to the other defendants had been deleted. This editing made the statement somewhat incoherent, but a comparison of the original statement with the edited copy fails to show any prejudice to Howell resulting from the editing. Howell, in his brief, concedes that the edited statement “complies with the dictates of Bruton v. United States,” supra. His contention that the use of his statement so edited deprived him of his right of confrontation and of due process of law is completely baseless. As against him, the entire statement was admissible. The edited statement was no more prejudicial to him that would have been the entire original statement, nor did the editing distort the meaning of the statement as to him. There is no merit in this assignment of error.

Prior to trial, the defendant filed a motion for discovery pursuant to G.S. 15A-902(a). An order of discovery was entered by the court directing in full the discovery sought in the defendant’s motion. The defendant now contends that the court erred in admitting evidence of which the defendant had not been advised, pursuant to the said discovery order. This consisted of the following:

(1) A photograph of the defendant Howell, himself, which a witness, one of the investigating officers, testified correctly portrayed his appearance when that officer observed him at the Sheriff’s office the night the offense occurred. At the time this was introduced in evidence, the defendant Howell objected without any statement of reason for his objection and made no reference to his motion for discovery.

(2) The testimony of the physician who examined the pros-ecutrix following the alleged assaults. When this witness was called to the stand, the defendant Howell objected to his being allowed to testify, for the reason that he had asked for a copy of the physician’s report in the discovery motion and the District Attorney had then stated he did not have such report in his possession. In response, the District Attorney informed the court that he still did not have a medical report and, furthermore, such report would, in his opinion, be privileged as between the physician and his patient.

(3) The admission in evidence of partially burned articles found by investigating officers in or near the house where the rapes are alleged to have occurred and identified by the pros-ecutrix as portions of her clothing and other personal articles. To the introduction of this evidence, the defendants objected on the ground that, with reference to these articles, the order of discovery had not been obeyed. The court conducted an extensive voir dire and concluded that, as to these articles, the State had complied with the order of the court and the provisions of the discovery statute.

(4) The entire testimony of the prosecutrix. The basis for this objection to this evidence was that the order for discovery directed the State to disclose all aliases by which the prosecutrix had been known. The District Attorney replied at that time that he did not know of any such aliases. The defendant Howell contends that the maiden name of the prosecutrix should have been disclosed. The court ruled that the District Attorney had complied with the discovery order.

There is no merit whatever in this contention by the defendant Howell. Obviously, a married woman’s maiden name is not an alias. Furthermore, G.S. 15A-910 provides that the court “may” forbid the introduction of evidence not disclosed to the adversary in accordance with a discovery order. Thus, the admission or exclusion of such evidence is left in the discretion of the trial court. State v. Thomas, 291 N.C. 687, 231 S.E. 2d 585 (1977). There was no abuse of discretion in the court’s ruling and there is no merit in this assignment of error.

The defendant Howell’s next assignment of error is that the court abused its discretion in finding that the identification of Howell by the prosecutrix was of independent origin. We have previously discussed the admissibility of the witness’ identification of the defendants in connection with the appeal of Braxton. No further detailed discussion of this matter is required in connection with the appeal of Howell. With reference to the identification of the defendant Howell, the court conducted a voir dire examination in the absence of the jury, the evidence at which clearly disclosed ample opportunity of the prosecutrix to see and remember the appearance of Howell during her long ride in the car with him from the point of abduction to the point of her release on the lonely road in Robeson County. It was a bright moonlight night and, in the course of the ride, they passed through a small town with street lights and lighted filling stations. At that time, Howell turned around from his position in the front seat beside the driver and the prosecutrix saw his full face. The house in which the multiple rapes occurred was not dark because of the bright moonlight. Both there and at the time when he, according to her testimony, raped her in the automobile, she was obviously in close proximity to him long enough for her to observe and remember his appearance. There is no merit in this assignment of error.

The defendant’s motion for judgment of nonsuit was properly overruled, for reasons heretofore discussed in connection with the appeal of the defendant Braxton. His motions to set aside the verdict as being against the weight of the evidence and for a new trial were, as heretofore stated, addressed to the discretion of the trial court and, in the denial thereof, there was no error. His motion for arrest of judgment was properly denied, there being no defect appearing upon the face of the record proper. For the same reason, his exception to the signing and entry of the judgment requires no discussion.

This defendant, like his codefendants, has had a fair trial in accordance with the law of this State. His conviction and sentence will not be disturbed.

As we said in State v. Overman, 269 N.C. at 470, “Contributory negligence by the victim is no bar to prosecution by the State for the crime of rape,” so the prosecutrix’ going alone in the evening to the part of the City of Fayetteville where she was abducted does not affect the validity of the judgment here entered.

As to the Defendant Braxton: No error.

As to the Defendant Burden: No error.

As to the Defendant Howell: No error.

As to the Defendant Mclver: No error.