STATE of North Carolina
v.
Gregory A. COUSIN.
No. 51.
Supreme Court of North Carolina.
December 21, 1976.*521 Atty. Gen. Rufus L. Edmisten by Associate Atty. Elizabeth C. Bunting, Raleigh, for the State.
E. Lynn Johnson, Fayetteville, for defendant-appellant.
COPELAND, Justice.
Under Assignment of Error No. 4, defendant contends the trial court erred in denying defendant's motion to suppress the pistol belonging to Martha Ann Mack and her testimony. Defendant argues that this evidence was obtained directly through a disclosure by defendant's wife of a confidential communication and was thus inadmissible under G.S. 8-57.
In the course of their investigation, officers learned that Bowden and the defendant may have been involved in the murder-robbery and that they had a gun in their possession. Based on this lead, they arrested Bowden and the defendant at defendant's trailer. Alice Cousin, defendant's wife, was present at the time and was questioned concerning the whereabouts of the gun. At first she refused to tell them anything, but later she directed them to Martha Ann Mack's trailer where they procured the gun and learned from Martha Ann Mack that the defendant had acknowledged to her his involvement in the crime. Defendant claims his wife knew of the gun's location as a result of a confidential communication during their marriage.
G.S. 8-57 (Cum.Supp.1975) provides in pertinent part:
"The husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the failure of such witness to be examined shall not be used to the prejudice of the defense. . . . No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage. Nothing herein shall render any spouse competent or compellable to give evidence against the other spouse in any criminal action."
Defendant apparently relies on the "fruit of the poisonous tree doctrine" in contending that the gun and Martha Ann Mack's testimony were inadmissible. His argument, which attempts to graft a Fourth Amendment search and seizure doctrine to G.S. 8-57, is novel but we believe not warranted by the language of our statute. G.S. 8-57 is an evidentiary rule and applies to a spouse testifying or to the admission of a statement by a spouse into evidence. See 1 Stansbury's N.C.Evidence, §§ 59, 60 (Brandis Rev.1973); Comment, "A Survey of the North Carolina Law of Relational Privilege," 50 N.C.L.Rev. 630, 635 (1972). In the present case, Alice Cousin, never testified nor was any statement by her admitted into evidence. This assignment of error is overruled.
Under Assignments of Error Nos. 15, 16, 17, 24, 26 and 30, defendant maintains the court erred in admitting into evidence statements made by Larry Lovett before he died. Defendant argues that for this testimony to be admissible it must fall within the dying declaration exception to the hearsay rule.
*522 G.S. 8-51.1 (Cum.Supp.1975) provides as follows:
"The dying declarations of a deceased person regarding the cause or circumstances of his death shall be admissible in evidence in all civil and criminal trials and other proceedings before courts, administrative agencies and other tribunals to the same extent and for the same purposes that they might have been admissible had the deceased survived and been sworn as a witness in the proceedings, subject to proof that:
"(1) At the time of the making of such declaration the deceased was conscious of approaching death and believed there was no hope of recovery.
"(2) Such declaration was voluntarily made."
The record discloses that Larry Lovett appeared to be in great pain, was bleeding profusely from his head and stomach, and having difficulty speaking. The record further reveals that Larry Lovett was aware of his substantial injury. Over objections, Janice Whitten testified that when she saw Larry Lovett on the floor of the storeroom he told her he had been shot in "My head and my gut." This testimony was clearly admissible as a spontaneous utterance. State v. Bowden, supra; State v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974); 1 Stansbury's N.C.Evidence, § 164 (Brandis Rev.1973). Defendant also objected to the admission of Larry Lovett's question to Clarence Hilliard, "Didn't you see them two black dudes?", and his statement to Deputy Sheriff Baker that "two black dudes did it."
In State v. Bowden, supra, we said:
"The admissibility of a declaration as a dying declaration is a question to be determined by the trial judge, and when the judge admits the declaration, his ruling is reviewable only to determine whether there is evidence tending to show facts essential to support it. [Citation omitted.] Under the new statute, the declaration must have been voluntary and made when the declarant was conscious of approaching death and without hope for recovery. It is the requirement that the declarant be aware of his impending death that has most often concerned the courts under the case law and now concerns us under the statute. We note, without deciding, that the words `no hope of recovery' in the statute may make the statutory exception to the hearsay rule more restrictive than existing case law. However, we believe that on the facts of this case, the declarant Larry Lovett must have believed that there was no hope for recovery. It is not necessary for the declarant to state that he perceives he is going to die. If all the circumstances, including the nature of the wound, indicate that the declarant realized death was near, this requirement of the law is satisfied. [Citation omitted.]" State v. Bowden, supra, at 712, 228 S.E.2d at 421 (1976).
The evidence shows that when Larry Lovett made the remarks in question, he was in great pain, "writhing" about on the floor, crying "Help me, please," experiencing difficulty speaking and bleeding from multiple gunshot wounds of the head and stomach regions. The wounds were of such the nature that, taken with the fact that Larry Lovett died en route to the hospital, the trial judge could justifiably conclude that the declarant Larry Lovett realized that his death was imminent and that there was no hope of recovery. See G.S. 8-51.1, supra; 1 Stansbury's N.C.Evidence, § 146 (Brandis Rev.Supp.1976) at 151.
Moreover, as we noted in Bowden, the statement by Lovett to Hilliard implicating "two black dudes" is admissible as a spontaneous utterance. State v. Bowden, supra at 713, 228 S.E.2d at 423 (1976). These assignments of error are without merit and overruled.
In Assignments of Error Nos. 18 and 20, defendant claims the trial court erred in permitting the in-court identification of co-defendant Bobby Bowden by witness Janice Whitten. In the earlier trial of co-defendant Bowden, defendant Cousin was similarly permitted to be identified. In that case the constitutionality of the in-court identification of a co-defendant in a defendant's *523 separate trial was challenged and the procedure found to be permissible. For the reasons stated in Bowden, these assignments of error are overruled. State v. Bowden, supra at 710-11, 228 S.E.2d at 422-423 (1976).
In Assignment of Error No. 19, defendant asserts the court erred in denying his motion for a continuance to allow him to prepare for the in-court identification of Bobby Bowden. Defendant contends the presence of co-defendant Bowden in the courtroom for the purpose of identification was "totally unexpected" and therefore he needed time to develop impeachment evidence.
A motion for continuance being addressed to the sound discretion of the trial judge, the denial of such a motion is not reviewable absent an abuse of discretion. State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975). This rule obtains unless the motion is based on a right guaranteed by the federal or state constitution. In such a case, the question presented is one of law and not of discretion and the decision of the lower court is reviewable. State v. Miller, supra.
No constitutional question is here presented. Defendant was not deprived of effective representation by counsel. From the time of counsel's appointment four months before trial up to final argument in this Court, defendant was zealously and ably defended. "[T]he fact, standing alone, that a continuance has been denied, does not constitute a denial of the constitutional right to assistance of counsel." Avery v. Alabama, 308 U.S. 444, 84 L. Ed. 2d 377, 60 S. Ct. 321 (1940).
As noted in Bowden, supra, the appearance in the courtroom of a co-defendant for the purpose of identification is neither a "legal surprise or impropriety." From the record it appears that the defendant had ample opportunity and that he availed himself of the opportunity in cross-examination and in his rebuttal to impeach witness Whitten's identification of the co-defendant. No abuse of discretion nor infringement of a constitutional right having been shown, this assignment of error is overruled.
In Assignments of Error Nos. 61, 62, 64 and 65, defendant challenges the court's refusal to dismiss the case at the close of the State's evidence and at the close of all the evidence, as well as the court's charges on armed robbery and felony murder. All of these assignments are based on defendant's contention that the State failed to prove an armed robbery had taken place. We do not understand defendant to contend that the instructions on armed robbery or felony-murder were in any way deficient, only that they should not have been given. We construe these assignments as argument by defendant that a motion for nonsuit should have been granted on the charges of armed robbery and felony-murder.
On this motion for nonsuit, the question for our determination is whether there is substantial evidence of each essential element of armed robbery and of defendant's being the perpetrator. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). The evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976).
The evidence when considered in the light most favorable to the State shows the following: (1) On the early morning of 7 August 1975, Larry Lovett and Norma Ehrhart were found fatally injured in the storeroom of the McArthur Road Seven-Eleven Store; (2) A sum of money had been taken from the floor safe of the store; (3) Defendant was seen leaving the store in a yellow Maverick automobile just prior to the discovery of the injured persons; (4) Lovett told two witnesses that "two black dudes" were responsible; (5) Defendant owned a yellow Maverick automobile with the same license plate number as the car seen leaving the scene; (6) Defendant had possession of a gun during the time of the robbery which later proved to be the murder *524 weapon. Besides these circumstantial facts, the State introduced the damaging testimony of Martha Ann Mack who recounted defendant's admission that he robbed the Seven-Eleven Store. There was sufficient evidence of the elements of armed robbery and of defendant's role as perpetrator and no error in either the submission of the jury instructions or in the denial of defendant's various motions.
Substantially the same argument was advanced in State v. Bowden, supra, and there we held that a motion for nonsuit was properly overruled. We are led to the same conclusion based on the nearly identical evidence presented in this case.
Defendant assigns as Errors Nos. 7-14 statements admitted into evidence which he alleges were rank hearsay. We have reviewed the record. Certain of the challenged statements were not clearly hearsay either because the witness appeared to be testifying from his personal knowledge or because the statement was not offered to prove the matter asserted but for some other nonhearsay purpose. Other statements, though hearsay, were admissible under recognized exceptions to the hearsay rule.
We choose, however, to decide these assignments on a simpler, common ground. Assuming arguendo that all these statements were technically incompetent hearsay, we find that they did not prejudice the defendant and that their admission could not have affected the result. State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972), cert. den. 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969). Error, if any there be, was harmless and these assignments are overruled.
Finally, defendant contends that the indictments should have been dismissed because the death penalty is unconstitutional. In Woodson v. North Carolina, ___ U.S. ___, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), the United States Supreme Court invalidated the death penalty provisions of G.S. 14-17 (Cum.Supp.1975) under which defendant was indicted, convicted, and sentenced to death. However, there was no error in failing to dismiss the indictments because this Court may substitute life imprisonment for the death penalty by authority of the provisions of 1973 Sess. Laws, c. 1201 § 7 (1974 Session).
This case is remanded to the Superior Court of Cumberland County with directions (1) that the presiding judge, without requiring the presence of defendant, enter judgments imposing life imprisonment for the two first-degree murders of which defendant has been convicted; and (2) that, in accordance with these judgments, the clerk of superior court issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to the defendant and his attorney a copy of the judgments and commitments as revised in accordance with this opinion.
Due to the serious nature of this case, we have searched the record for errors other than those assigned by the defendant and have found none.
In the trial we find
NO ERROR.
Death sentence vacated and, in lieu thereof, life sentence imposed.