State v. Davis

227 S.E.2d 97 (1976) 290 N.C. 511

STATE of North Carolina
v.
Tharoy DAVIS and Joseph C. Foster.

No. 68.

Supreme Court of North Carolina.

August 18, 1976.

Rufus L. Edmisten, Atty. Gen., and Lester V. Chalmers, Asst. Atty. Gen., Raleigh, for the State.

John E. Duke, Goldsboro, for Tharoy Davis, defendant-appellant.

William D. Spence, Kinston, for Joseph C. Foster, defendant-appellant.

SHARP, Chief Justice.

In the record on appeal defendant Foster lists 103 assignments of error. Of these he brings forward 19, setting them out in his brief in the manner required by Rule 28, Rules of Practice in the Supreme Court, N.C.G.S. Vol. 4A, Append. I (1970). Defendant Davis lists 104 assignments, all except No. 104, being identical in number and content with those of Foster. Davis has attempted to bring forward all but three of his assignments. In general disregard of Rule 28, Rules of Practice in the Supreme Court, he has attempted to correlate all 101 of them within seven groups. He essayed an impossible task—as would we, were we to undertake to accommodate this opinion to any such categorization. Our consideration of the record and briefs, however, reveals that relatively few require consideration. In the beginning, we dispose of the 12 assignments (abandoned by Foster) which Davis marshals in his Groups I and II.

Group I assignments, all but one of which involve pretrial motions, are that the court erred (A) in refusing to quash the bill of indictment; (B) in refusing to allow defendants' motion for discovery "in its entirety"; (C) in hearing defendants' discovery motions without the presence of Davis; (D) in failing "to hold a preliminary hearing until after defendant had been in jail several weeks"; (E) "in refusing to dismiss for lack of a speedy trial"; (F) in granting the State's motion to consolidate Davis's trial with that of Foster; and (G) in refusing defendants' motion to sequester the witnesses.

Neither error in the court's rulings on these motions nor prejudice resulting therefrom has been made to appear.

(A) The bill of indictment was drawn in the words of G.S. 15-144. It was, therefore, sufficient to support a conviction of murder in the first degree. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972), modified, 283 N.C. 99, 195 S.E.2d 33 (1973).

(B) The court's order upon defendants' motions for discovery entered under the then applicable statute, G.S. 15-155.4 (N.C.G.S. Vol. 1C, Cum.Supp. 1974) (repealed by 1973 N.C.Sess. Laws c. 1286, § 26) made available to them all information to which they were entitled. Had the court allowed either of the defendants' motions "in its entirety" he would have had to require every law enforcement officer who worked on this case to compile a daily log of his activities throughout his investigation and the State to surrender, without discrimination, its entire work product. For instance, Davis demanded "any and all statements made by any persons to the investigating officers"; and Foster demanded "a list of the names and addresses of all persons interviewed by agents of the State which the State [did] not intend to produce as witnesses at the time of trial, and the specific reasons why the State [would] not call said witnesses." A defendant is not entitled to the granting of a "motion for a fishing expedition nor to receive the work product of police of State investigators." State v. Davis, 282 N.C. 107, 111-12, 191 S.E.2d 664, 667 (1972). See State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972).

(C) The record discloses that the order entered upon defendant Foster's motion for discovery was made applicable to Davis by consent of his counsel. Further, the following statement appears in Davis's brief: "Although defendant's attorney admittedly made no request that the defendant be allowed to be present at the hearing before Judge Browning . . . it is submitted that the Court erred in not requiring the defendant's physical presence." Not so. The strict rule that an accused cannot waive his right to be present at every stage of his trial upon an indictment charging a capital felony, State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969), is not extended to require his presence at the hearing of a pretrial motion for discovery when he is represented by counsel who consented to his absence, and when no prejudice resulted from his absence. See Brown v. State, 225 Md. 349, 170 A.2d 300 (1960); Annot., "Presence at Trial—Law Argument," 85 A.L.R.2d 1111 (1962).

(D)-(E) The record reveals Davis was arrested on 2 February 1974 and between then and February 12th (exact date undisclosed) his parents employed Mr. John E. Duke to represent him. As privately employed counsel, Mr. Duke represented Davis at his preliminary hearing on March 7th and at his trial during the week of June 10th. After Davis's conviction and upon his affidavit of indigency, on June 16th the court appointed Mr. Duke to represent him on appeal to this Court. Defendant Foster was arrested on 4 February 1974, and, on 6 February 1974, Mr. William D. Spence, his present counsel, who has represented him throughout, was appointed as his attorney. The record discloses no request or demand by either defendant for a preliminary hearing earlier than March 7th nor for a trial before June 10th. Further, it is not suggested that the State purposely delayed defendants' trial or that any prejudice resulted to either defendant by reason of any delay in the proceedings. See State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972). State v. Ball, 277 N.C. 714, 178 S.E.2d 377 (1971); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969); State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965).

(F) The State's motion to consolidate the trial of the two defendants was addressed to the sound discretion of the presiding judge, and there is no basis for a contention that he abused his discretion. "Ordinarily, consolidation is appropriate when the offenses charged are of the same class and are so connected in time and place that evidence at the trial upon one of the indictments would be competent and admissible at the trial on the other(s)." State v. McVay and State v. Simmons, 277 N.C. 410, 414, 177 S.E.2d 874, 876 (1970). Obviously this is such a case.

(G) The sequestration of witnesses is likewise a matter in the trial judge's discretion and the record suggests no abuse. See State v. Clayton, 272 N.C. 377, 385-86, 158 S.E.2d 557, 563 (1968).

Included in Group I is Davis's assignment No. 3, that the court erred in permitting Clarence Jones, Jr., and Deputy Sheriff William E. Smith (witnesses for the State whose names were omitted from the list of potential witnesses furnished defendants prior to trial) to testify. It is apparent from the record that the omission of the names of these two witnesses neither deprived defendants of a fair trial nor resulted in any prejudice to them. The testimony of Clarence Jones in no way implicated either defendant in the robbery and murder at Grant's grocery. Deputy Sheriff Smith, Garris, and Pelletier, and SBI Agent Slaughter were the officers who made the preliminary investigation at the store on the night of the homicide. Smith was called as a witness to substitute for Pelletier, whose name was on the list but who had become unable to testify during the trial. Bad faith on the part of the State in omitting the names of Jones and Smith is not indicated. Permitting these witnesses to testify was a matter within the discretion of the trial judge, not reviewable in the absence of a showing of an abuse of discretion. State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975). None has been shown. This misplaced assignment is without merit and is also overruled.

Defendant Davis's Group II assignment of errors challenge the court's ruling allowing the State to challenge four jurors for cause. One stated unequivocally that his mind was "made up" with reference to defendants' guilt or innocence. As we interpret the answers of the other three challenged jurors to questions put to them by the solicitor on voir dire, each stated without equivocation that his opposition to capital punishment was such that he would refuse to return a verdict of guilty of murder in the first degree even though the evidence satisfied him beyond a reasonable doubt of defendants' guilt. The four challenges were properly allowed. See State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975); State v. Monk, 286 N.C. 509, 212 S.E.2d 125 (1975); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974). See also State v. Smith, 290 N.C. ___, 226 S.E.2d 10 (1976).

Assignment No. 77 is that the judge erred in overruling defendants' motions of nonsuit. The State's evidence, which we have taken pains to set out in considerable detail in the preliminary statement, was clearly sufficient to withstand these motions. Measured by the applicable and oft-stated rule (see State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966)), the testimony of the following witnesses sufficed to take the case to the jury on the question of defendants' guilt of the felony murder for which they were convicted: (1) Mrs. Barwick's identification of defendants as two of the three men who were in Grant's store on the occasion of the robbery and homicide and her chronology of the events occurring while they were in the store, which tended to implicate all three in the robbery; (2) Lucinda Carol Kornegay's testimony tending to show that on Friday, 28 December 1973, from noon until 5:00 p. m. the defendants, John D. Foster, and Hodges were together at her home, five miles from Sparky Grant's store; (3) Jack Foster's testimony that defendants, John D. Foster, and Hodges left his home, located four and one-half miles from the store, about 8:00 p. m. on 28 December 1973; and (4) the testimony of John D. Foster that, after he, defendants, and Hodges left Jack Foster's home about 8:00 p. m. on the day they got a jack for Tharoy's tape recorder and thereafter played basketball at Lou Kornegay's house, they stopped at a store with a tree and a gas tank in the yard; that Tharoy and Joe Foster went into the store and "a couple of minutes later" Hodges went in leaving him alone in the car; that in two or three minutes thereafter the three came back and Tharoy drove straight to Goldsboro.

Defendants' evidence, which tended to show that on 28 December 1973 at the time of the robbery and homicide in question they were in Raeford and that John D. Foster and Hodges were in Central Heights, was inconsistent with the State's evidence. It was therefore not for consideration in passing upon the motion for nonsuit. See 2 Strong's N.C.Index 2d Criminal Law § 104 (1967).

The State's case was largely dependent upon Mrs. Barwick's identification of defendants. In assignment No. 18 defendants assert that the trial judge erred in permitting Mrs. Barwick to testify that defendants were two of the three people who were in the store on the occasion when she was robbed and Grant was killed. By this assignment they raise the crucial question in the case.

Specifically defendants contend: (1) On the voir dire to determine the competency of Mrs. Barwick's in-court identification of defendants, the court permitted the solicitor to ask such leading questions that he became the witness and supplied the answers which the State needed to prove its case. (2) Mrs. Barwick's testimony disclosed her observations of the men who were in the store to have been totally inadequate to form the basis for the identification of any person. (3) Her in-court identification of defendants was the result of the "impermissibly suggestive pretrial photographic identification procedures" employed by the investigating officers, and the judge's findings to the contrary, made at the conclusion of the voir dire, are not supported by the evidence. (4) The judge's findings of fact on voir dire were influenced by the incompetent testimony of Deputy Sheriff Garris that Hodges told him he was in the automobile outside Grant's store when he heard a shot whereupon he ran inside where he saw Davis, gun in hand, holding a white lady while Foster was getting the money from the cash register.

We discuss the foregoing contentions seriatim.

(1) Our examination of the record reveals no extensive or prejudicial leading of the witness Barwick by the solicitor on voir dire. On the contrary, it shows that he was unable to overcome Mrs. Barwick's determination "to tell it" in her own way and not to overstate her observations at the time, and that she successfully resisted all attempts by the solicitor to lead her. However, "it is firmly entrenched in the law of this State that it is within the sound discretion of the trial judge to determine whether counsel shall be permitted to ask leading questions, and in the absence of abuse the exercise of such discretion will not be disturbed on appeal." State v. Greene, 285 N.C. 482, 492, 206 S.E.2d 229, 235 (1974). See State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965); 1 Stansbury's N.C.Evidence § 31 (Brandis Rev., 1973). Defendants' assignments charging prejudice from the solicitor's leading questions are overruled.

(2)-(3) In the record we find no evidence which would support a finding that Mrs. Barwick's photographic identification of defendants was the result of "impermissible suggestiveness" or resulted from procedures creating a substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Cross, 284 N.C. 174, 200 S.E.2d 27 (1973); State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972). All the evidence tends to show: On different occasions between 28 December 1973 and 15 February 1974 Officers Slaughter and Garris showed Mrs. Barwick at least 60 black and white photographs of black males. She identified none of the pictures as being photographs of the men she saw in the store on the night of 28 December 1973, although on three occasions a photograph of each defendant taken from his high school annual was among those shown her. On 15 February 1974, however, the officers handed her two folders, State's Exhibits 8 and 9, and asked her to "see if she could identify anybody on these." Nothing further was said. See State v. McNeil, 277 N.C. 162, 172, 176 S.E.2d 732, 737-38 (1970), cert. denied, 401 U.S. 962, 91 S.Ct. 967, 28 L.Ed.2d 245 (1971). Exhibit 8 contained a colored photograph of Davis in a "line-up" of seven colored photographs; Exhibit 9 contained Foster's picture in a similar line-up of colored photographs. Mrs. Barwick looked "a couple of minutes" and then pointed to the Davis picture in Exhibit 8 and to Foster's in Exhibit 9 and said, "This one and that one." At the officer's request she put her initials and the date, "2-15-74," under each picture. Prior to that time Mrs. Barwick had made no identification, either from photographs or a police line-up of individuals. She had, however, told the officers that several of the photographs, and one man in the line-up resembled one of the men she saw in the store at the time of the robbery.

Mrs. Barwick knew that two suspects had been arrested and were in jail on 15 February 1974, but she had seen no pictures of them and did not know their names. On this occasion she asked the officers no questions because (she said) on previous occasions when she had inquired of them "if they had any clues or anything" they had always responded that they could tell her nothing. However, several minutes after she had initialed and dated the pictures she asked the officers if "they" were "the men." The officer told her they could make no comment on her identification and left.

At this stage of the proceedings Mrs. Barwick's inquiry whether the pictures she had identified were "the men" would seem to evidence only a natural curiosity to know if the men on whom she "had put the finger" were the men the officers had arrested.

We have carefully examined all the photographs and albums which the officers exhibited to Mrs. Barwick and, like the trial judge, we attach no significance to the fact that on three occasions she failed to identify high school pictures of the two defendants among the 60 black and white photographs submitted to her. In our view, the boyish photographs taken from high school annuals, "three or four years old" on 28 December 1973, bear no identifiable resemblance to the colored pictures of defendants taken on the second or third day of February 1974—less than 40 days after the homicide. In the intervening three or four years between high school and 28 December 1973 defendants had become men and members of the armed forces. However, it is not without significance that when Mrs. Barwick was shown current photographs of defendants she quickly picked both from a collection of 14 pictures of men of comparable age, size, and color as the persons she saw in the store on the occasion of the robbery. When asked to explain how she recognized the defendants when she saw their pictures in Exhibits 8 and 9 she said, "I don't know how I was able to know it, I just did. Like I would know anybody else I had really seen. I don't know, I just knew it when I saw the pictures."

Defendants argue strenuously that Mrs. Barwick's observations of the men who came in the store on the night of the robbery and homicide were only casual glimpses, patently insufficient to form the basis of a reliable identification. They have construed the literalness and caution in Mrs. Barwick's testimony, not as evidence of a fixed purpose not to deviate in the most minute detail from the facts as they were impressed upon her mind at the time, but as manifesting an ultimate uncertainty of her identifications. The record does not support such a conclusion. Mrs. Barwick's testimony indicates that when she registered a mental picture she said so; when she didn't she said so. See State v. McNeil, supra. Indubitably she had ample opportunity to observe the man who took the beer from the cooler and brought it to the counter where she stood. She said she thought she got a mental picture of him during these two procedures, and she identified him as defendant Tharoy Davis. In answer to the solicitor's question whether she was positive that "Tharoy Davis was in Sparky Grant's grocery store on the night of December 28, 1973 purchasing beer at the time of the gun shot," she said, "I am sure it was him."

The mental picture she said she got of the man she identified as defendant Joseph Foster was obtained when, after she had heard two others leave, she saw him standing six feet from her at the front door, trying to pull over his head a yellowish toboggan with a green and red stripe around it. She described his wearing apparel as khaki pants and a faded blue jean coat. Prima facie, she did get a mental picture of the man standing there. When the solicitor asked her if she was positive that defendant, "Joseph Foster, was in Sparky Grant's grocery near the door very shortly after the gunshot on the night in question," she replied, "I am sure."

Defendants also contend that upon crossexamination on the voir dire and at the trial Mrs. Barwick invalidated her identification of Davis as one of the men who entered the store on 28 December 1973 when she said State's Exhibit S-2-1, a black and white photograph which was not a picture of Davis, bore such a striking resemblance to one of the individuals she saw that night that it could have been he. At the time she gave this testimony on voir dire she pointed to Davis and said, "It looks like that one over there to me . . . I'm talking about the one at the end with the white coat and blue shirt." On crossexamination before the jury she adhered to her opinion that Exhibit S-2-1 could have been the man she saw go to the beer cooler "because it looks like the Davis boy to me. I know now that this is not his photograph. What I am saying is that the picture resembles this fellow over there."

In our view S-2-1 does indeed resemble the color photograph of Davis, and—presumably—the judge and the jury, who saw both the photograph and Davis, agreed with Mrs. Barwick that it did. In any event, this comparison was just one of the facets of the entire evidence, all of which was for consideration of the judge on voir dire and the jury at the trial.

Finally, defendants assert that the trial judge's findings on voir dire and his conclusion that Mrs. Barwick's in-court identification of defendants was admissible was "tainted" by the incompetent testimony of Deputy Sheriff Garris that Hodges told him he and defendants were at Grant's store on the night of the robbery-homicide; that after hearing a shot he ran inside and saw Davis, gun in hand, holding a white woman while Foster emptied the cash register. Defendants contend that without the assurance of this hearsay evidence Judge Lanier would not have found Mrs. Barwick's observations a sufficient basis for her identification.

Garris's challenged testimony is, of course, a classic example of inadmissible hearsay, and it was clearly incompetent. Defendants' objections should have been sustained. Decisions of this Court recognize, however, that in a "hearing was before the judge on a preliminary motion, the ordinary rules as to the competency of evidence applied in a trial before a jury are to some extent relaxed, for the reason that the judge with knowledge of the law is able to eliminate from the testimony he hears that which is immaterial and incompetent, and consider only that which tends properly to prove the facts to be found." Cameron v. Cameron, 232 N.C. 686, 690, 61 S.E.2d 913, 915 (1950). See Mayberry v. Insurance Co., 264 N.C. 658, 142 S.E.2d 626 (1965); Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114 (1954); 1 Stansbury's N.C.Evidence § 4a (Brandis rev. 1973). The rule enumerated in these decisions is also the rule in the federal courts.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Supreme Court said, ". . . the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.

. . . . .

"That the same rules of evidence governing criminal jury trials are not generally thought to govern hearings before a judge to determine evidentiary questions was confirmed on November 20 last year [1973] when the Court transmitted to Congress the proposed Federal Rules of Evidence [Rules 104(a) and 1101(d)(1)]. . . . The Rules in this respect reflect the general views of various authorities on evidence. 5 J. Wigmore, Evidence § 1385 (3d ed. 1940); C. McCormick, Evidence § 53, p. 122, n. 91 (2d ed. 1972). See also Maguire & Epstein, Rules of Evidence in Preliminary Controversies as to Admissibility, 36 Yale L.J. 1101 (1927)." Id. at 172-74, 94 S.Ct. at 994-95, 39 L.Ed.2d at 250-51.

Seemingly, Judge Lanier in the trial below interpreted the quoted statement from Cameron v. Cameron, supra, to mean that upon a voir dire or other preliminary judicial inquiry every rule of evidence is suspended. Such an interpretation is not in accord with the law of this State. While our reports abound with decisions in which the rules were relaxed, this Court has never subscribed to Professor Wigmore's premise that, "In preliminary rulings by a judge on the admissibility of evidence, the ordinary rules of evidence do not apply. . . ." 3 J. Wigmore, Evidence § 1385 (2d ed. 1923). See also 5 J. Wigmore, Evidence § 1385 (Chadbourn rev. 1974). Indeed, as stated by Maguire and Epstein in an article discussing the Wigmore proposition, "Nothing is clearer than that a trial judge in any jurisdiction will be reversed for lack of enough material and competent evidence to support his finding, no matter how much inadmissible evidence there was in his favor. That is to say, if the judge stands convicted beyond a reasonable doubt of having decided on the basis of improper evidence neither Greenleaf nor Wigmore nor Willes has power to absolve him." Rules of Evidence in Preliminary Controversies as to Admissibility, 36 Yale L.J. 1101, 1116-17 (1927). See also C. McCormick, Evidence §§ 53, 60 (2d ed. 1972).

Unquestionably it is the rule in this jurisdiction that a judge's findings of fact will be reversed where it affirmatively appears they are based in whole or in part upon incompetent evidence. Hicks v. Hicks, 271 N.C. 204, 155 S.E.2d 799 (1967); Mayberry v. Insurance Co., supra; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668 (1958); Reid v. Johnston, supra. The safe practice, therefore, is for the trial judges to adhere to the rules of evidence. However, "`in the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence in making his decision.' (cite omitted) And the court's finding of fact will not be reversed unless based only on incompetent evidence. (cites omitted) If the findings are supported by competent evidence, they are binding on this Court even though there is evidence to the contrary." Cogdill v. Highway Comm. and Westfeldt v. Highway Comm., 279 N.C. 313, 319-20, 182 S.E.2d 373, 377 (1971); Mayberry v. Insurance Co., supra; 1 Stansbury's N.C.Evidence § 4a (Brandis rev. 1973).

In the absence of affirmative evidence to the contrary, we shall continue to indulge the presumption that judges learned in the law have based their findings upon competent evidence. However, we take this occasion to point out that this presumption is weakened when, over objection, the judge admits clearly incompetent evidence. "[S]o far as we continue the rules we ought to live up to their spirit." 36 Yale L.J., supra at n. 5, 1102. We also note another fact which is not without significance in the administration of justice: the objecting party against whom incompetent evidence has been admitted will rarely share the appellate court's faith that the trial judge, in finding the facts, was governed by correct rules of law. He and his counsel will be prepared to agree with the commentator who remarked, "Nature does not furnish a jurist's brain with thoughttight compartments to suit the convenience of legal theory, and convincing evidence once heard does leave its mark." 36 Yale L.J., supra at 1115. The defendant and his attorney can also be counted on to distrust the following assertion of the trial judge who preferred not to contend with the rules of evidence: "`[T]his Court after 35 years, can skim the cream off and let the whey and clabber go to the pigs.'" General Metals v. Manufacturing Co., 259 N.C. 709, 712, 131 S.E.2d 360, 362 (1963). Suffice it to say that adherence to the rudimentary rules of evidence is desirable even in preliminary voir dire hearings. Such adherence invites confidence in the trial judge's findings.

In this case, Mrs. Barwick's testimony that defendants were the men she saw in the store on the night of 28 December 1973 was competent and sufficient evidence, unaided by the Garris hearsay, to sustain the court's findings that her identification of defendants "was based on her independent observations at the time and scene of the robbery and homicide and was not influenced or tainted by other identification acts or procedures prior to the calling of the case for trial." Since defendants offered no evidence on voir dire and the testimony of the State's witnesses was uncontradicted the court's findings of fact meet minimum requirements. However, as we have heretofore pointed out in a number of cases, they do not conform to the better practice. State v. Covington, N.C., 226 S.E.2d 629 (1976).

Here we note that the jurors, who did not hear the incompetent testimony which Officer Garris gave on voir dire, found Mrs. Barwick's testimony creditable and accepted her identification of defendants after hearing defendants' evidence tending to establish an alibi and Davis's specific denial that he had never been in Grant's grocery or participated in robbing Mrs. Barwick. Mrs. Barwick's identification of Davis was positive, and it is a fair inference from all the evidence that, if Davis was in the store and a participant in the robbery, defendant Foster and his brother, John D. Foster, were also participants. Obviously the jury found it significant, and not mere coincidence, that Mrs. Barwick, who had previously declined to identify any person, on 15 February 1974 identified both defendants in a photographic line-up when, for the first time, she saw recent pictures of them.

The court's conclusions of fact on voir dire are supported by plenary, competent evidence, which is also uncontradicted. They are, therefore, conclusive on appeal. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Cross, 284 N.C. 174, 200 S.E.2d 27 (1973); State v. McVay and State v. Simmons, 277 N.C. 410, 177 S.E.2d 874 (1970); Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495 (1970). See State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968). Defendants' assignment No. 18 is overruled.

Defendant Davis, who testified in his own behalf, assigns as error, assignment No. 81, the action of the judge in interrupting his charge to address the following inquiry to counsel for defendant Foster, "Mr. Spence, do you want me to charge on your client's decision not to testify?" Mr. Spence replied that he did. Whereupon, Judge Lanier instructed the jury that defendant Joseph C. Foster had the election to testify or not as he saw fit and that his failure to testify "shall not create any presumption against him." Davis's assignment No. 82 is that, to this instruction, Judge Lanier failed to add, "Therefore, his silence, is not to influence your decision in any way." Although not the subject of an assignment of error, Davis now contends that it was also prejudicial error for the court not to charge that Foster's failure to testify should not be considered against Davis.

We disapprove the manner in which the judge handled the failure of Foster to testify. This Court has emphasized and reemphasized that it is better for the court "to give no instruction concerning failure of defendant to testify unless he requests it . . .." State v. Bryant, 283 N.C. 227, 234, 195 S.E.2d 509, 513 (1973), and cases cited therein. In this case, defendant Foster had made no such request, and for the court to have broached the matter in the presence of the jury by an interruption of his charge was indeed a breach of technique. However, counsel for Foster obviously thought the judge's instruction had taken care of the matter for, in his discriminating selection of the assignments of error which he would press on appeal, he did not bring forward assignment No. 81, and we can perceive no prejudice to Davis from it. Had Davis deemed the judge's question to Mr. Spence inimical to him, an immediate request that the court give the instructions, which he now contends it was error to omit, would have been appropriate. Here we note that Davis's testimony as a witness for himself was of equal probative value to Foster. Further it was corroborated by a witness offered by Foster. Davis' assignments of error Nos. 81 and 82 are overruled.

In his sixth category defendant Davis, without citation of authority or supporting argument, lists twelve assignments to the charge in addition to the two considered above. Illustrative of these are: "80. The court erred in not giving a complete charge on reasonable doubt. Ex. No. 681 (R. p. 472)" . . . "No. 83. In that the court erred in its charge on circumstantial evidence. Ex. No. 684 (R. p. 473). Defendant Davis feels that the court did not give a complete charge on `circumstantial evidence' and that the brief charge was erroneous." Of Davis' 14 assignments to the charge Foster brings forward only one, assignment No. 90, which asserts that the court "erred in instructing the jury on `acting in concert' so as to, in effect, charge the jury that it should convict both defendants if either one is found guilty."

Notwithstanding defendant Davis' failure to comply with well established appellate rules, in view of the sentences involved, we have carefully examined the charge as a whole and with particular reference to each assignment of error. Although the charge falls short of being a model, when it is read as a whole—just as the jury heard it—we find no reason to believe that the jury was misled as to the applicable law. The applicable rule is stated in 7 Strong's N.C. Index 2d Trial § 33 (1968) as follows: "A charge will be construed contextually as a whole, and when, so construed, it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed, an exception thereto will not be sustained, even though the instruction might have been more aptly given in different form."

The crucial question in this case was the identity of the men who robbed the cash register in Grant's grocery on the night of 28 December 1973. When the charge is construed as a whole we think the jury must have understood the judge to mean that if they were satisfied beyond a reasonable doubt that Davis and Foster were acting together while in the course of or attempt to rob Grant's store, and that either one of them shot and killed Grant both would be guilty of first degree murder, but the issue of the guilt of each defendant was to be considered individually.

The assignments of error included in defendant Davis' Groups IV, V, and VII embrace the assignments which Foster brings forward in his brief under questions VII, VIII-a, XI, XII, and XIII. All challenge the court's rulings upon the admission and exclusion of evidence. After examining each assignment we have concluded that most are without merit and that there is no reasonable possibility that any erroneous admission or exclusion of evidence might have contributed to the convictions. State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972), cert. denied, 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 112. See 1 Strong's N.C. Index 2d Appeal and Error § 49 (1967).

Both defendants assign as error the action of the court in allowing the jury to be polled by the deputy clerk of the Superior Court of Lenoir County. "In the absence of any statutory provision as to the method of conducting a poll of the jury, the matter is within the discretion of the trial judge. The polling is usually conducted by the trial judge, or by the clerk of the court under the supervision of the judge." 76 Am.Jur.2d Trial § 1122 (1975). In State v. Boger, 202 N.C. 702, 163 S.E. 877 (1932), this Court recognized the "right of a defendant in a criminal action tried in a court of this State to have the jurors polled by the judge or under his direction, when a request for such poll is made in apt time, after an adverse verdict has been returned by the jurors. . .." Id. at 703, 163 S.E. at 877 (emphasis added). Polling the jury is clearly a ministerial act which, even in a capital case, may be performed by the deputy clerk of court in the presence and under the supervision of the trial judge. Defendants' assignment No. 94 is overruled.

We have considered the entire record in this case as well as each of the defendants' assignments of error with care commensurate with the sentences from which they appealed. Having done so, we find no error which, in our opinion, influenced the verdicts. We therefore affirm the verdicts. However, the motion of each defendant in arrest of judgment upon his conviction of common law robbery must be sustained. Since the robbery was used to prove an essential element of the charge of murder in the first degree for which each was also convicted and sentenced, separate judgments imposing additional punishment for the robbery cannot stand. See State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975) (death sentence vacated 6 July 1976, ___ U.S. ___, 96 S.Ct. 3210, 48 L.Ed.2d ___), cases cited therein, and State v. Lock, 284 N.C. 182, 200 S.E.2d 49 (1973). Assignments of error Nos. 99 and 103 are sustained and the judgments upon defendants' conviction under indictments 74CR1249 and 74CR1103 are arrested.

After the preparation of this opinion, but before it was filed, the Supreme Court of the United States in Woodson v. North Carolina, ___ U.S. ___, 96 S.Ct. 2978, 48 L.Ed.2d ____, 44 L.W. 5267 (1976), a plurality decision filed 2 July 1976, invalidated the death penalty provisions of G.S. 14-17 (Cum.Supp.1975), the statute under which the defendants Woodson and Waxton were convicted of first degree murder and sentenced to death. This statute is the codification of Ch. 1201, N.C. Sess. Laws (1973, 2d Session 1974). Defendants in this case, Davis and Foster, were not sentenced to death under that statute. We must, however, consider the effect of the Woodson decision upon the sentence of death imposed upon them.

Davis and Foster were sentenced under G.S. 14-17 (1969) before it was rewritten by Ch. 1201 (effective 8 April 1974) and after it was interpreted by this Court in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). At that time, in pertinent part, G.S. 14-17 provided:

"A murder . . . which shall be committed in the perpetration or attempt to perpetrate any . . . robbery . . . shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison . .."

In Waddell all the members of this Court concurred in the view that the decision of the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the Eighth and Fourteenth Amendments prohibit the infliction of the death sentence if the applicable statute permitted either judge or jury to impose that sentence as a matter of discretion, and that, because G.S. 14-17 (1969) gave the jury the "unbridled" discretion to impose either the life or death sentence, no death sentence could be executed under it. In Waddell the majority of this Court held that the Furman decision invalidated only the proviso of the statute permitting a jury to recommend life imprisonment and that the portion of the statute mandating the death penalty remained intact.

In Woodson the Supreme Court noted that the effect of the Waddell decision was a statute which "survived as a mandatory death penalty law." ___ U.S. at ___, 96 S.Ct. at 2982, 44 L.W. at 5269. Thus it is plain that G.S. 14-17 (1969), as it was interpreted by Waddell, is unconstitutional under the rationale of Woodson, which, in effect, nullified this Court's holding in Waddell. Consequently, we are now in the same legal position relative to the punishment for crimes which were punishable by death under G.S. 14-17 (1969) between 18 January 1973 and 8 April 1974 as we were in the post-Furman and pre-Waddell period.

For crimes committed or tried during that period this Court consistently vacated the death sentence and ordered a sentence of life imprisonment imposed in lieu thereof. See, e.g., State v. Waddell, supra; State v. Frazier, 283 N.C. 99, 195 S.E.2d 33 (1973); State v. Chance, 283 N.C. 102, 194 S.E.2d 858 (1973); State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973); State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973); State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972). Where the trial court imposed a sentence of life imprisonment this Court affirmed the judgment. State v. Alexander, 284 N.C. 87, 199 S.E.2d 450 (1973). In an instance where the death penalty could not be imposed because of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) and Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968), this Court ruled that life imprisonment was the appropriate judgment, State v. Childs, 280 N.C. 576, 187 S.E.2d 78 (1972).

Both common sense and rudimentary justice demand that the maximum permissible sentence of life imprisonment now be imposed upon a person convicted of first degree murder or rape committed between Waddell and the enactment of Ch. 1201 which rewrote G.S. 14-17. This interpretation is bolstered by the General Assembly's enactment of Ch. 1201, § 7, N.C. Sess. Laws (1973, 2d Session 1974), effective 8 April 1974, which specifically provided: "In the event it is determined by the North Carolina Supreme Court or the United States Supreme Court that a sentence of death may not be constitutionally imposed for any capital offense for which the death penalty is provided by this Act, the punishment for the offense shall be life imprisonment." The policy underlying this statute is by analogy as applicable to the invalidation of the mandatory death penalty declared by the Waddell interpretation as it is to the invalidation of the mandatory death penalty law enacted by the General Assembly, both of which were invalidated by Woodson. This statute manifests the General Assembly's intent to eliminate any possibility that, because of the action of the Supreme Court, the punishment for a crime for which it had mandated the death penalty would be left in limbo between its sessions.

The contention that, with reference to first degree murder (or a rape) committed prior to the 1975 Act, the only permissible punishment is a maximum of ten years' imprisonment under G.S. 14-2 (1969) is unrealistic. It is noted that the punishment for second degree murder is now imprisonment for life or a term of years, G.S. 14-17 (Cum.Supp.1975), and for manslaughter, up to twenty years, G.S. 14-18 (1969). Murder in the first degree is obviously the most serious of the felonious homicides. (Similarly, the punishment for second degree rape is imprisonment for life or a term of years, G.S. 14-21 (Cum.Supp.1975), and for assault with intent to commit rape, imprisonment up to fifteen years, G.S. 14-22 (1969).)

We hold, therefore, that the punishment for the defendants in this case is life imprisonment. For that reason, each defendant's motion in arrest of the judgment imposing upon him the death penalty must also be allowed. Therefore, the judgment in case No. 74CR1248 imposing the sentence of death upon defendant Foster and the judgment in case No. 74CR1102 imposing the sentence of death upon defendant Davis are vacated, and sentences of life imprisonment substituted in lieu thereof.

Accordingly, it is hereby ordered that these cases be remanded to the Superior Court of Lenoir County with directions (1) that the presiding judge, without requiring the presence of defendants, enter as to each defendant a judgment imposing life imprisonment for the first degree murder of which he 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 each defendant and his attorney a copy of the judgment and commitment as revised in accordance with this opinion.

In No. 74CR1103 (Davis, armed robbery)—Judgment Arrested.

In No. 74CR1102 (Davis, murder)—Death Sentence Vacated and, in lieu thereof, Life Sentence Substituted.

In No. 74CR1249 (Foster, armed robbery)—Judgment Arrested.

In No. 74CR1248 (Foster, murder)—Death Sentence Vacated and, in lieu thereof, Life Sentence Substituted.

In the verdicts—No Error.