State v. Smith

241 S.E.2d 674, 294 N.C. 365, 1978 N.C. LEXIS 1255

Opinion

SHARP, Chief Justice.

Defendant emphasizes most his assignment of error No. 11 challenging the admission in evidence of his confession, made on 19 January 1976 to Sheriff Fowler and Officer Kilgore, that he killed Jud Parker. Defendant contends that at the time he made this admission he was represented by counsel, Mr. Harrington. His attorney’s presence, therefore, was a prerequisite to a valid waiver of his right to remain silent and to have counsel present during any custodial interrogation. We reject this contention and overrule assignment No. 11 on two grounds:

(1) On 19 January 1976, the day defendant made his statement to the officers, he was neither charged with murder nor represented by counsel in this case. Uncontradicted testimony tends to show — and Judge Fountain found — that on Saturday, 17 January 1976, defendant was in jail on charges of forgery and the armed robbery of Oxner. Mr. Harrington represented him in the former charge but not the latter, although defendant had falsely stated to the court at a bail hearing that Harrington represented him in the robbery case also. For reasons variously stated, defendant was determined to get out of jail that weekend in order to see his girl friend. To that end he informed the district attorney he would exchange “valuable information on the Jud Parker case” for his release on bond and a plea bargain in his armed robbery case.

The district attorney was interested in defendant’s proposition and, under the misapprehension that Harrington represented defendant on the robbery charge, he requested Harrington to come to the jail and work out the arrangements about defendant’s testimony. Although most unwilling, Harrington was finally persuaded to come to the jail. When he talked to defendant he asked him specifically whether he had any part in the murder of Jud Parker. Defendant twice assured Harrington that he had not participated in the attempted robbery which resulted in the murder. He said that on the night Parker was killed “he was at a trailer out in the country, and there were three people at the trailer . . . discussing the killing.”

As set out in the preliminary statement of facts the district attorney declined to bargain on defendant’s terms. Harrington gave defendant some good advice about plea bargaining and left. Defendant remained in jail over the weekend, and on Monday, January 19th, he requested Sheriff Fowler to come to the jail for the specific purpose of discussing the Jud Parker murder case with him.

From the foregoing evidence it is quite clear that Mr. Harrington never represented defendant in this case.

(2) Even had Harrington “entered this proceeding” on defendant’s behalf on or before January 19th — which he had not — defendant would have retained his right to waive counsel. At defendant’s request Sheriff Fowler and Officer Kilgore came to the jail to talk with him. Before they talked to him, however, he specifically, knowingly, understandingly, and voluntarily exercised that right. See State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972); State v. Elliott, 269 N.C. 683, 153 S.E. 2d 330 (1967); State v. Davis, 267 N.C. 429, 148 S.E. 2d 250 (1966).

Defendant, however, would have this Court adopt the rule first enunciated by the New York Court of Appeals in People v. Arthur, 22 N.Y. 2d 325, 329, 292 N.Y.S. 2d 663, 666, 239 N.E. 2d 537, 539 (1968). This rule was succinctly stated in People v. Hobson, 39 N.Y. 2d 479, 481, 384 N.Y.S. 2d 419, 420, 348 N.E. 2d 894, 896 (1976) as follows: “Once a lawyer has entered a criminal pro ceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer. . . . Any statements elicited by an agent of the State, however subtly, after a purported ‘waiver’ obtained without the presence or assistance of counsel, are inadmissible.”

We also note that in Hobson the court was careful to point out that “the rule of the Arthur case is not an absolute. Thus, the fact that a defendant is represented by counsel in a proceeding unrelated to the charges under investigation is not sufficient to invoke the rule.” 39 N.Y. 2d at 483, 384 N.Y.S. 2d at 422, 348 N.E. 2d at 897.

The Arthur rule, that a defendant in custody who is represented by counsel may not waive his constitutional rights in counsel’s absence, .is not the law in this State. See State v. Dollar, 292 N.C. 344, 233 S.E. 2d 521 (1977); State v. Davis, 267 N.C. 429, 148 S.E. 2d 250 (1966). Further, as the New York Court of Appeals freely conceded in Hobson, 39 N.Y. 2d at 483-84, 384 N.Y.S. 2d at 422, 348 N.E. 2d at 897-98, the rule of Arthur extended a defendant protection under the State constitution beyond that afforded by the Federal Constitution as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d. 694 (1966).

Miranda, of course, held that suspects in custody must be expressly warned that they have the right to remain silent during police interrogation as well as the right to consult with counsel before and during any such questioning. In Miranda, however, Mr. Chief Justice Warren was careful to say, “Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” The Chief Justice continued by saying that after an individual in custody had been informed of his constitutional rights in the words of the Miranda warning and been given an opportunity to exercise them, “the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Id. at 478-79, 86 S.Ct. at 1630, 16 L.Ed. 2d at 726.

Only a few courts have followed New York in holding that once an attorney has entered the case an accused cannot waive his right to counsel except in the presence of his attorney. State v. Johns, 185 Neb. 590, 177 N.W. 2d 580 (1970); United States v. Thomas, 474 F. 2d 110 (10th Cir.1973). Other courts, including Virginia, have expressly rejected the Arthur doctrine. Lamb v. Commonwealth, 217 Va. 307, 227 S.E. 2d 737 (1976). Accord, Moore v. Wolff, 495 F. 2d 35 (8th Cir. 1974); United States v. Durham, 475 F. 2d 208 (7th Cir. 1973); Coughlan v. United States, 391 F. 2d 371 (9th Cir. 1968); State v. Marks, 113 Ariz. 71, 546 P. 2d 807 (1976); Shouse v. State, 231 Ga. 716, 203 S.E. 2d 537 (1974); Commonwealth v. Yates, 467 Pa. 362, 357 A. 2d 134 (1976).

The case of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed. 2d 424 (1977) involved the admissibility of a confession made in the absence of Williams’ attorney. In affirming the ruling of the District Court and the Court of Appeals that the confession had been erroneously admitted into evidence Mr. Justice Stewart, writing the opinion of the Court, specifically noted: “The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as we do, that he did not.” Id. at 405-06, 97 S.Ct. at 1243, 51 L.Ed. 2d at 441. In his concurring opinion, Mr. Justice Powell expressed his view that “the opinion of the Court is explicitly clear that the right to assistance of counsel may be waived, after it has attached, without notice to or consultation with counsel. Ante at 405-406, 51 L.Ed. 2d 440.” Id. at 413, 97 S.Ct. at 1246, 51 L.Ed. 2d at 445.

Thus, we reassert and adhere to our well-established rule that in determining the admissibility of a confession by a suspect in custody, the crucial question is whether the statement was freely and understanding^ made after he had been fully advised of his constitutional rights and had specifically waived his right to remain silent and to have counsel present. State v. Frank, 284 N.C. 137, 200 S.E. 2d 169 (1973). Defendant’s confession was properly admitted.

After Sheriff Fowler was allowed to read Smith’s confession to the jury, defense counsel asked him, if two hours after giving that confession, defendant had not called the statement “a bunch of lies.” The district attorney’s objection was sustained by the court. Fowler would have answered, “He said it wasn’t true.” Defendant contends that his repudiation in the afternoon was “part and parcel” of that morning’s confession and that therefore it should have been admitted. We do not agree.

Moreover, were we to assume arguendo that labeling a statement “a buncb of lies” two hours after it was given to police was such an integral part of the original statement as to require the admission of the repudiation along with the confession, under the circumstances of this case the court’s failure to admit evidence of this repudiation was not prejudicial error. Defendant testified that he had told Officers Fowler and Kilgore after lunch that the statement he had made that morning was a lie. Kilgore also testified that defendant had termed the confession “a bunch of lies.” Where evidence of similar import to that which was improperly excluded is admitted at other times in the trial, the exclusion will not be held to be prejudicial error. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1, cert. den. 386 U.S. 911, 87 S.Ct. 860, 17 L.Ed. 2d 784 (1966); State v. Creech, 229 N.C. 662, 51 S.E. 2d 348 (1949). Assignment of error No. 3 is, therefore, overruled.

Defendant’s assignment of error No. 12 covers 13 exceptions to various portions of the district attorney’s summation and argument to the jury, all of which were noted for the first time in the record on appeal. No objections were made at trial to any of these remarks. We have repeatedly held that ordinarily objection to an improper argument by State’s counsel must be made before the verdict so that the trial judge may be given a chance to stop the argument and instruct the jury to disregard the prejudicial material. E.g., State v. Martin, 294 N.C. 253, 240 S.E. 2d 415 (1978); State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974). On equally numerous occasions we have also held that “the argument of counsel must be left largely to the control and discretion of the presiding judge. . . .” State v. Stegmann, 286 N.C. 638, 654, 213 S.E. 2d 262, 274 (1975); State v. Westbrook, 279 N.C. 18, 39, 181 S.E. 2d 572, 584 (1971). An exception to this rule is recognized in capital cases so that an appellate court may review the prosecution’s argument in spite of counsel’s laxity (e.g., State v. Smith, 279 N.C. 163, 181 S.E. 2d 458 (1971); State v. Dockery, 238 N.C. 222, 77 S.E. 2d 664 (1953). Even so, the impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero mo tu an argument which defense counsel apparently did not believe was prejudicial when he heard it. See 4 Strong’s N.C. Index 3d, Criminal Law § 102.2, for an extensive compilation of the cases so holding.

We have carefully reviewed the prosecutor’s arguments in this case, paying special attention to those instances to which defendant now takes exception. We find no error in these remarks, much less the gross impropriety which must exist to warrant an award of a new trial. E.g., State v. Locklear, 291 N.C. 598, 607, 231 S.E. 2d 256, 261-62 (1977).

A few examples from the 13 exceptions will suffice to demonstrate the soundness of the prosecutor’s arguments. Defendant complains in exception No. 21 that the district attorney violated G.S. 8-54 when, in his argument to the jury, he commented on defendant’s failure to testify: “I’ll say this to you about the statement that he made to Devine, he didn’t get back on the stand to deny it, did he? .... If Gary Watkins was telling it wrong, why didn’t he get up there and say, ‘You are lying Gary.’ He didn’t do that.” This exception is answered by the simple observation that the district attorney was inquiring why defendant did not get back “up there” on the stand. Defendant had already chosen to avail himself of G.S. 8-54, allowing a defendant to testify in his own behalf, when State’s witness Watkins was called on rebuttal. Once a defendant testifies, therefore, he assumes the status of any other witness and is subject to impeachment by the questions and arguments of opposing counsel. State v. Noell, 284 N.C. 670, 695, 202 S.E. 2d 750, 766 (1974); State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). These arguments may include comments on the witness’s failure to explain or deny incriminating evidence for, if an innocent explanation exists or a denial can properly be made, the witness may reasonably be expected to provide it.

The argument challenged by defendant’s exception No. 27 summarized defendant’s extensive criminal past. The district attorney reminded the jury that defendant had admitted dealing in a variety of drugs, committing fifty breaking and enterings in South Carolina, and being convicted of breaking and entering in Germany. Defendant contends that the sole purpose of this argument was to appeal unfairly to the passion of the jury.

The credibility of defendant’s disavowal of his confession was a crucial decision for the jury in this case. Prior acts of misconduct including criminal convictions may be introduced in evidence to impeach the credibility of a defendant. E.g., State v. Alford, 289 N.C. 372, 222 S.E. 2d 222 (1976); State v. Wright, 282 N.C. 364, 192 S.E. 2d 818 (1972); 1 Stansbury’s N.C. Evidence § 112 (Brandis rev. 1973). Since the evidence was properly admitted, the prosecutor was entitled to argue the full force of that evidence to the jury. Manifestly, the purpose of this argument was the same purpose for which the evidence was admitted — to discredit defendant in the eyes of the jury so that they would not believe his sworn testimony repudiating his pretrial confession. Notwithstanding, the district attorney never traveled outside the record, argued facts not in evidence, or placed his personal beliefs before thé jury with these arguments. The exceptions, upon which defendant bases his assignment No. 12, are without merit.

In assignment of error No. 13 defendant correctly argues that during his summary of the evidence and contentions of the parties the trial judge misstated one detail of defendant’s testimony. The judge told the jury that defendant contended he had never been to Lake Twitty and did not know that there was a chain across the road leading to the dam. On the contrary, defendant testified on cross-examination that he had once driven near the lake and had pulled up in front of the chain. However, defendant did not bring this misstatement to the judge’s attention while there was still time to correct the error before the verdict. As with jury arguments, an error by the judge in recapitulating the evidence or stating the contentions of the parties must ordinarily be brought to the judge’s attention in apt time for correction in order for an objection to the error to be preserved on appeal. More than seventy decisions nf this Court are listed in 4 Strong’s N.C. Index 3d, Criminal Law § 163 at 837, n. 27 in support of this proposition.

It is only where the judge erroneously instructs the jury on a material fact not in evidence, that the error will be held so prejudicial as to require a new trial notwithstanding defense counsel’s failure to make timely objection. State v. McCoy, 236 N.C. 121, 71 S.E. 2d 921 (1952). Clearly, defendant’s prior knowledge of the existence of a chain at Lake Twitty was not a material fact, and misstating the evidence in this regard could not have had any significant effect on the verdict. It is incumbent upon an appellant not only to show error but to show prejudicial error. E.g., State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930). This assignment is overruled.

Defendant’s assignment No. 19 addresses the trial judge’s failure to instruct the jury that it could return only verdicts of first-degree murder or not guilty, thereby eliminating the possibility of a verdict of second degree murder or manslaughter. All the evidence adduced concerning the undoubted death of Jud Parker tends to show that he was killed by an attacker who had been waiting to rob him when he returned home. Parker’s assailant, therefore, is guilty of murder “committed in [an] attempt to perpetrate ... [a] robbery,” that is to say, first-degree murder. G.S. 14-17. If defendant’s statement to Sheriff Fowler that he shot Parker in a thwarted attempt to rob him is believed, defendant is guilty of first-degree murder. If his testimony and that of his witness is believed, he was never at the scene of the crime and therefore could not be guilty of any degree of homicide.

In this case there exists not a scintilla of evidence to support even an inference of a degree of homicide less than first-degree murder. “[W]here no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of ‘guilty of murder in the first degree,’ if they are satisfied beyond a reasonable doubt, or of ‘not guilty.’ ” State v. Spivey, 151 N.C. 676, 685-86, 65 S.E. 995, 999 (1909). The trial judge properly followed this injunction and instructed the jury that defendant was guilty of first-degree murder or not guilty. Defendant’s assignment of error No. 19 is overruled.

Defendant finally conténds that the trial court erred in its instruction to the jury on the issue of whether defendant killed Parker. Defendant argues that an instruction which expressly incorporated the phrase “proximate cause” was required as, for example, “defendant assaulted the deceased with a deadly weapon and thereby inflicted a wound which proximately caused his death.” Defendant refers us to State v. Ramey, 273 N.C. 325, 160 S.E. 2d 56 (1968) and State v. Redman, 217 N.C. 483, 8 S.E. 2d 623 (1940). To like effect are State v. Woods, 278 N.C. 210, 179 S.E. 2d 358 (1971) and State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476 (1971). We do not, however, understand these cases to create an exception to the general rule that no specific language is required to give a correct instruction, so long as the jury is properly instructed on the law bearing upon each essential element of the offense charged. 4 Strong’s N.C. Index 3d, Criminal Law § 111.

Unlike the charge before us, in the cases cited above the jury was instructed in language which assumed that the defendant had indeed killed the deceased, thus taking this issue away from the jury’s consideration. In the instant case, however, the jury was told, “if the defendant, with the use of a .25 caliber pistol, attempted to commit armed robbery of Jud Parker and in so doing and as a part of that transaction, shot and killed him . . . then the killing, under those circumstances, would have been murder in the first degree.” (Emphasis added.)

From the foregoing instruction the jury must have understood clearly that before they could find defendant guilty of murder they had to find beyond a reasonable doubt that defendant both shot and thereby killed Jud Parker. Since there is not the slightest evidence to suggest that Jud Parker died otherwise than from five .25 caliber gunshot wounds inflicted by his midnight assailant, a more elaborate explanation of proximate cause was unnecessary. Indeed, any such explanation might have been confusing.

We have carefully examined other portions of the judge’s charge and we can find therein no error. Defendant’s assignments of error Nos. 14, 15, 16, 17, and 18 are overruled.

Defendant’s remaining assignments of error involve rulings which, when viewed in context, are so obviously nonprejudicial that it is unnecessary to discuss the question of their dubious merit.

The record reveals no prejudicial error in defendant’s conviction of the crime of murder in the first degree for which he was charged. However, for the reasons stated in State v. Davis, 290 N.C. 511, 227 S.E. 2d 97 (1976), the sentence of death imposed upon defendant must be vacated and one of life imprisonment substituted therefor. Accordingly, the sentence of death is vacated and this case is remanded to the Superior Court of Union County with the following directions: (1) The presiding judge, without requiring the presence of defendant, shall enter a judgment imposing life imprisonment for the murder of which he has been convicted; and (2) in accordance with this judgment, the clerk of the superior court shall issue commitment in substitution for the one heretofore issued. It is further ordered that the clerk furnish to defendant and his attorney a copy of the judgment and commitment as revised in accordance with this opinion.

No error in the trial and verdict.

Death sentence vacated; life sentence substituted.