State v. Carey

218 S.E.2d 387 (1975) 288 N.C. 254

STATE of North Carolina
v.
Albert Lewis CAREY, Jr.

No. 82.

Supreme Court of North Carolina.

October 7, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. John R. B. Matthis, Raleigh, for the State.

John H. Hasty, Charlotte, for defendant appellant.

COPELAND, Justice:

Defendant first assigns error to the action of the trial court in ruling that the State's witness, B. J. Sloan, was an expert in the field of firearms identification, and in permitting the witness to testify that based on his examination of the four lead pellets removed from the body of James D. Sloop, Sr., he concluded that they were No. 6 buckshot. Defendant argues that since the witness was tendered as an expert in the field of "firearms identification," he was not qualified to testify in the field of ballistics. This assignment is without merit.

The qualification of an expert is ordinarily addressed to the sound discretion of the trial court and "[t]he court's findings that a witness is qualified as an expert will not be disturbed on appeal if there is evidence to show that, through study or experience, or both, he has acquired such skill that he is better qualified than the jury to form an opinion on the particular subject as to which he testifies." See generally 1 Stansbury, N.C. Evidence § 133 (Brandis Rev. 1973); 2 Strong, N.C. Index 2d, Criminal Law § 51 (1967). The evidence in the instant case clearly indicates that the witness Sloan, through both study and experience, had acquired the requisite skill to give his opinion as to the size of the lead pellets taken from the decedent's body. In State v. Jenerett, 281 N.C. 81, 90, 187 S.E.2d 735, 741 (1972), the defendant contended that the trial court erred in allowing a police officer, over the defendant's objection, to give an opinion as to the caliber of the bullet taken from the body of the deceased. In rejecting this contention, this Court, in an opinion by Justice Moore, stated:

"While the trial court did not expressly find the witness to be an expert in ballistics, the court did allow him to give his opinion as to the caliber of the bullet. By admitting the testimony as to the caliber of the bullet, the court presumably found him to be an expert. There was ample evidence to support such finding. [Citations omitted.]"

Even assuming, arguendo, that the admission of this testimony was error, it was clearly harmless since the witness Sloan testified on cross-examination that he had not compared any of the shot contained in the box of shotgun shells seized at defendant's residence with the shot taken from the decedent's body. This assignment is therefore overruled.

Defendant next assigns as error the overruling of his objection to the admission into evidence of his alleged statement given to Officer Holmberg and overheard by Officer Whiteside. The evidence indicated that Officer Starnes was in a position where he may have heard the statement, but he did not testify. Defendant also contends that the trial court committed prejudicial error by allowing the State to elicit on direct examination of Officer Holmberg the fact that he was assigned to the polygraph unit. Defendant has grouped these two arguments together. We will do likewise.

When Officer Holmberg initially took the stand he testified that he had been employed by the Charlotte Police Department for twenty-three years and that he was presently assigned to the polygraph unit. At this point, defendant's counsel asked the court to excuse the jury and thereafter told the court that the solicitor had been requested at the pretrial conference not to bring out any evidence "concerning the polygraph examination." The court stated it was irrelevant and overruled defendant's objection and denied his motion to strike.

Defendant relies on State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961), where this Court, in an opinion by Chief Justice Winborne, held that the results of a polygraph test are not admissible to establish the guilt or the innocence of one accused of a crime. The Court went on to state that: "Moreover, the parties should not be permitted to introduce lie detector results into evidence by indirection. [Citations omitted.]" Id. at 709, 120 S.E.2d at 172. Defendant's reliance on Foye is misplaced. In State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (171), this Court, in an opinion by Justice Lake, held that, under the circumstances there presented, there was no prejudicial error from testimony that the defendant had agreed to take and took a polygraph test, since "[t]here was no evidence, before the jury, as to the nature of the test, the questions propounded, the answers given, or the result of the test." Id. at 524, 184 S.E.2d at 288. In the instant case, as in Williams, the jury never heard any testimony as to the results of a polygraph test. In fact, defendant was not administered a complete polygraph examination and there were no results for the jurors to hear. This portion of the assignment is therefore overruled.

It is also defendant's contention that any alleged statement given by defendant to Officer Holmberg should be inadmissible because (i) the statement was not freely and voluntarily given; and (ii) the statement was induced by misrepresentations concerning the ultimate use of the polygraph examination. Defendant brought forward a similar objection to the introduction of this statement on the prior appeal. See 285 N.C. 509, 206 S.E.2d 222 (1974). In that case, this Court, after carefully reviewing all the evidence presented on voir dire, as well as the Court's findings of fact and conclusions of law, found no error in the ruling permitting the police officers to testify as to the statement made to them by defendant. Id. at 516-17, 206 S.E.2d at 227. The evidence at the second trial on this subject is substantially the same as that produced at the first.

In his brief, defendant concedes that the prior appeal constitutes the "law of the case" as to this issue but specifically asks that we reconsider the question in the light of State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975). In Pruitt, this Court, in an opinion by Justice Branch, held that the defendant's confession was not properly admissible in evidence since it was obtained "by the influence of hope or fear implanted in defendant's mind by the acts and statements of the police officers during defendant's custodial interrogation." Id. at 455, 212 S.E.2d at 100. The Pruitt decision was not grounded on the failure of the police to comply with the procedural safeguards enunciated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), but on the fact that the confession was not "voluntarily and understandingly made." Id., 286 N.C. at 454, 212 S.E.2d at 100. This has been the ultimate test as to the admissibility of confessions in this State since State v. Roberts, 12 N.C. 259 (1827).

Defendant contends that both Pruitt and Roberts render his confession inadmissible. In support of this contention, defendant asserts that he was misinformed as to the severity of the punishment for the charges against him (i. e., imprisonment as opposed to death); that he was told that the polygraph examination would be for his own benefit and for the benefit of the Charlotte Police Department; and that nothing elicited during the polygraph examination would be used in evidence against him.

Under the facts disclosed in this record, we find no merit in defendant's contentions. Defendant does not contend that he made the alleged statement to Officer Holmberg because the police were using the threat of a polygraph examination as a tool to force incriminatory admissions from him. Furthermore, defendant does not assert that he made the statement based on any improper inducement generating a hope that by doing so he might obtain relief from the criminal charges to which the confession related. See State v. Pruitt, supra, 286 N.C. at 458, 212 S.E.2d at 102-103. See also, State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). On the contrary, defendant affirmatively testified on direct examination that he did not make any incriminatory statement of any nature to Officer Holmberg or to any other officer on 11 July 1973, or at any other time. Under these facts, we cannot say that the statement and admission obtained from defendant were made under the influence of fear or hope, or both, growing out of language or acts of those who held him in custody. The admissibility of this evidence was for the trial judge. Based on the evidenced produced on voir dire, the trial judge found facts and made conclusions of law to the effect that defendant freely and voluntarily made the statement and admission as the State contended. There was ample evidence to support the trial judge's findings, and those findings in turn support the trial judge's conclusions that defendant freely, understandingly, voluntarily, and intelligently made a statement and admission to Officer Holmberg on 11 July 1973, without undue influence, coercion or duress, and without any promise, threat, reward, or hope of reward; that he had been fully advised of his constitutional rights and understood those rights; and that after being advised on these rights, he knowingly and intelligently waived his right to the presence of counsel at the time he made the inculpatory statement and admission. See State v. Thompson, supra, 287 N.C. at 318, 214 S.E.2d at 755. See also State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Pruitt, supra; State v. Thompson, 285 N.C. 181, 203 S.E.2d 781, cert. denied, 419 U.S. 867, 95 S. Ct. 123, 42 L. Ed. 2d 104 (1974). Thus, we adhere to our former opinion holding this evidence admissible. This assignment is overruled.

Defendant next contends that the trial court committed prejudicial error in allowing the State to introduce into evidence Exhibit 8—A, which was an excerpt from a list of armed robberies that included the attempted robbery of Williams' Exxon service station at Trade and Cedar Streets in Charlotte. Prior to its introduction into evidence, the court conducted a voir dire hearing and held that "the list may be received into evidence" provided that "all other parts of the document (other than the robbery at Williams' Exxon) shall be eliminated from the exhibit ... so that the jury will see only that portion relating to the Sloop Exxon Station matter."

The general rule in North Carolina is that in a prosecution for a particular crime, evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged. See, e.g., State v. Watson, 287 N.C. 147, 214 S.E.2d 85 (1975); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Fowler, 230 N.C. 470, 53 S.E.2d 853 (1949). See generally E. Cleary, McCormick on Evidence, 444-454 (1972); 1 Stansbury, N.C. Evidence, § 91 (Brandis Rev.1973); 2 Strong, N.C. Index 2d, Criminal Law § 34 (1967). But, if the evidence of other offenses tends to prove any other relevant fact, it will not be excluded merely because it also shows the defendant to have been guilty of an independent crime. See, e. g., State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975). See generally 1 Stansbury, supra, at § 91, and authorities there cited; 2 Strong, supra, at § 34.

The evidence complained of under this exception does not appear to be State's Exhibit 8-A, which was shown to the jury, and on which defendant had placed his check mark and initials beside a reference to the attempted armed robbery and murder at Williams' Exxon. On the contrary, defendant's exception appears to be directed to the testimony of the police officers preceding the introduction of State's Exhibit 8-A that tended to show defendant had placed a check mark and his initials beside other armed robberies on the list presented to him. Accordingly, defendant concludes that it made no difference that the other entries on the list had been deleted when State's Exhibit No. 8-A was introduced.

It is true that preliminary questioning showed defendant looked at a list and made several check marks and initials beside several armed robberies noted thereon. But, for the following reasons, we find no prejudicial error in the admission of this testimony.

First, it could be argued that since this evidence tended to prove another relevant fact, i. e., that defendant had admitted participating in the attempted robbery of Williams' Exxon, it was not excludable merely because it also showed defendant to have participated in other unspecified armed robberies in the Charlotte area. More importantly, when Officer Holmberg testified about a list of armed robberies presented to defendant, on which defendant made "several check marks," defendant made no objection. The North Carolina law on the failure to object in this situation is as follows: "The well established rule [is] that when incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost ...." State v. Godwin, 224 N.C. 846, 847, 32 S.E.2d 609, 610 (1945). Accord, e. g., State v. Grace, supra; State v. Stegmann, 286 N.C. 638, 653, 213 S.E.2d 262 (1975); State v. Jenerett, supra; State v. Little, 278 N.C. 484, 180 S.E.2d 17 (1971); State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969). Accordingly, even if the evidence of the other crimes was incorrectly admitted, its admission was rendered harmless by its prior admission without objection.

Defendant next contends that the trial court committed prejudicial error in limiting defendant's right to cross-examine the witness W. O. Holmberg.

The question involved is intertwined with the admissibility of defendant's inculpatory statement. Defendant contends that he was faced with a choice of either letting the alleged statement go into evidence unchallenged or of examining Officer Holmberg concerning the circumstances surrounding the alleged statement and thereby bringing out further evidence concerning the polygraph examination. Accordingly, defendant concludes he was "boxed in" and such a choice deprived him of the right to effectively cross-examine Holmberg concerning the circumstances under which defendant's statement was made.

While defendant's counsel was cross-examining Officer Holmberg, he asked the court to provide him with further instructions as to questions regarding the polygraph examination. The trial judge excused the jury and the following exchange occurred:

"MR. HASTY: All right. If it please the Court, so that I will understand, now am I to take it that you do not want me to ask Mr. Holmberg—

"COURT: I don't care what you ask Mr. Holmberg.

"MR. HASTY: I understand.

"COURT: But my point is, you were in chambers very emphatic that you didn't want this about the polygraph to come out. Now, if you're going to ask Mr. Holmberg what he told him the day before, I'm going to let him tell them everything he told him the day before because it's not fair to let you have your cake and eat it, too.

"MR. HASTY: Well, sir, I, of course, realize that I could open the door, as they say, but I don't believe I would do that unless I specifically asked him about any test.

"COURT: No, sir. When you start saying what he told him the day before, then the State is entitled to have the whole thing spread on it.

"MR. HASTY: Then I take it that you would rule the same way if I were to ask him if he told him that it would be to his benefit to take the examination.

"COURT: The polygraph test, and you would have opened it up.

"MR. HASTY: All right sir.

"COURT: Now, you can't put in half about the polygraph test. If you don't want it before the jury, why that's a decision you will have to make.

"MR. HASTY: That's the exact argument I made to the Supreme Court, and that is, of course, what the Supreme Court is letting the State do, get in half of it, and I, of course, am saddled with that decision. I realize that. All right, sir.

"COURT: And you're asking him if he told him something about the polygraph test, and wanting the jury to infer he's telling him about this statement. Now, that I can't permit.

"MR. HASTY: Well, yes, sir.

"COURT: He is going to have to explain what he said to him was about a polygraph test. Now, this is where we come to.

"MR. HASTY: Of course, the State is doing the exact opposite thing, letting the jury infer that this was a statement given without fear of a polygraph, which is, of course, not true. I will, of course, abide by your feelings.

"COURT: I am just telling you what is going to happen. If you don't, I'm going to let the State bring it all in.

"MR. HASTY: I just wanted to see where the perimeters were."

In his brief, defendant's argument is as follows: (1) State v. Foye, supra, State v. Williams, supra, hold that the results of a polygraph test cannot be either directly or indirectly introduced into evidence; (2) in order for defendant to effectively cross-examine Holmberg as to the circumstances surrounding the alleged confession, it was necessary to elicit testimony pertaining to the polygraph test, which the aforementioned rule does not permit; (3) therefore, defendant has been deprived of his absolute right of cross-examination.

Defendant's argument is faulty in two respects. First, the evidence defendant refers to was not the result of any polygraph test and it was not elicited during the course of a polygraph examination. Hence, neither Foye nor Williams is directly applicable. Second, the trial judge, in answer to a question by the defense as to the scope of permissible cross-examination, stated that he did not care what defendant's counsel asked Holmberg. However, the court also noted that if defendant "opened the door" as to the polygraph issue, then he would permit the State to bring out all the circumstances regarding the polygraph examination on redirect. Defendant's argument falls of its own weight and does not support his contention that he was deprived of his absolute right to cross-examination.

"`One of the most jealously guarded rights in the administration of justice is that of cross-examining an adversary's witnesses." Barnes v. Highway Commission, 250 N.C. 378, 394, 109 S.E.2d 219, 232 (1959), quoting from 1 Stansbury, N.C. Evidence, § 35 (Brandis Rev.1973). See generally E. Cleary, McCormick on Evidence § 19 (2d ed. 1972). Judge Snepp did not infringe upon defendant's right of cross-examination by any means. On the contrary, he told defendant's counsel "I don't care what you ask Mr. Holmberg." This assignment is therefore without merit and is overruled.

In his this next assignment of error, defendant argues that the trial court should have granted his motion for judgment as in case of nonsuit.

Defendant was originally charged with conspiracy to commit armed robbery, armed robbery, and felony-murder. All three charges were consolidated at defendant's first trial; however, a judgment of nonsuit was entered as to the charge of armed robbery.

Defendant now argues that since our Court held in its first opinion that a conviction of conspiracy to commit armed robbery does not merge into the murder charge, but is a separate offense, it cannot be used as a basis for a felony-murder conviction under G.S. 14-17. Defendant therefore concludes that he stands improperly convicted of first-degree murder since there is no principal felony upon which to base the felony-murder rule. Defendant's argument is based upon a misinterpretation of this Court's opinion.

It is well settled that "[w]hen a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree." State v. Fox, 277 N.C. 1, 17, 175 S.E.2d 561, 571. Accord, State v. Carey, Jr., supra (former appeal in the present case); State v. Carey, 285 N.C. 497, 206 S.E.2d 213 (companion case to the present one).

G.S. 14-17 expressly provides that a murder perpetrated in an attempt to commit robbery is murder in the first degree. For this reason, at the first trial the trial court properly refused to submit the charge of armed robbery to the jury as a separate offense. It should not, however, have been nonsuited. Our statement to the contrary in the first opinion was an inadvertence. The theory of the State's case was that defendant and four others had conspired to rob with firearms the operator of a filling station and, in the attempted robbery, one of the conspirators, "Peanut" Mitchell, shot and killed James Sloop.

It is perfectly clear from the evidence that "Peanut" Mitchell was guilty of murder in the first degree, although he was later permitted to plead guilty to second degree murder.

State v. Fox, supra, holds in such a situation that all the conspirators are guilty of murder in the first degree. In the companion case of State v. Carey, supra, Justice Huskins, speaking for the Court, stated: "Those who enter into a conspiracy to violate the criminal laws thereby forfeit their independence, and jeopardize their liberty, for, by agreeing with another or others to engage in an unlawful enterprise, they thereby place their safety and freedom in the hands of each and every member of the conspiracy." State v. Gibson, 233 N.C. 691, 65 S.E.2d 508 (1951).

"The felony-murder rule applies whenever a conspirator kills another person in the course of committing a felony, as against the contention that the killing was not part of the conspiracy. If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment will necessarily or probably require the use of force and violence, which may result in the taking of life unlawfully, every party to such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design. [Citations omitted.]" State v. Carey, supra, 285 N.C. at page 503, 206 S.E.2d at 218.

It seems to us that the better practice where the State prosecutes a defendant for first-degree murder on the theory that the homicide was committed in the perpetration or attempt to perpetrate a felony under the provisions of G.S. 14-17, would be that the solicitor should not secure a separate indictment for the felony. If he does, and there is a conviction of both, the defendant will be sentenced for the murder and the judgment will be arrested for the felony under the merger rule. State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975); State v. Moore, 284 N.C. 485, 202 S.E.2d 169 (1973). If the separate felony indictment is treated as surplusage, and only the murder charge submitted to the jury under the felony-murder rule, then obviously the defendant cannot thereafter be tried for the felony. State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972). So in this case it served no purpose to nonsuit the felony charge of armed robbery at the first trial and it should not have been done.

Nevertheless, this does not prevent the use of this fact (attempt to commit armed robbery) in the prosecution of the defendant for murder in the first degree. To establish the defendant's guilt, the State proves the defendant's participation in the conspiracy to rob. It is the proof of this fact which makes the defendant equally guilty with Mitchell, the trigger man, under the rule of State v. Fox, supra. The use of the fact that the defendant participated in the conspiracy to rob in order to tie him to the shooting of Mr. Sloop by Mitchell does not change the offense of murder. The proof of murder in the first degree is complete when the State proves beyond a reasonable doubt that Mitchell shot and killed Mr. Sloop in Mitchell's attempt to rob him. The conspiracy to rob is not an element of the murder. The offense of first-degree murder would have been the same had there been no conspiracy between Mitchell and this defendant. The purpose of proving the conspiracy is not to establish an element of the crime of first-degree murder, but to fasten responsibility therefor upon the defendant along with Mitchell.

Conspiracy is a separate offense from the attempt to rob. Conspiracy is a completed crime when it is formed, without any overt act designed to carry it into effect. Thus, it follows that the conspiracy to rob does not merge into the offense of first-degree murder. The defendant can properly be sentenced for both offenses. State v. Carey, Jr., supra; State v. Goldberg, 261 N.C. 181, 202, 134 S.E.2d 334; State v. Brewer, 258 N.C. 533, 539, 129 S.E.2d 262; State v. Davenport, 227 N.C. 475, 494, 42 S.E.2d 686.

It is clear, therefore, that the nonsuit motion of the defendant was properly overruled. It was entirely proper to submit the case to the jury as to the defendant's guilt of the separate offenses of conspiracy to rob and murder in the first degree. These offenses do not merge. This assignment of error is overruled.

In his next series of assignments, defendant contends: (1) That the trial court committed prejudicial error in allowing the State to cross-examine defendant's wife concerning prior inconsistent statements and by inquiring into the statements by reading them into evidence; (2) that the trial court committed prejudicial error in permitting the State to introduce defendant's wife's inconsistent statements into evidence; and (3) that the trial court erred in denying defendant's motion for a mistrial based on Nos. (1) and (2) above. Defendant has combined these questions in his brief for purposes of argument. We will do likewise.

Pamela Carey, defendant's wife, voluntarily testified for defendant and on direct examination more or less corroborated defendant's defense of alibi. However, on cross-examination, Pamela denied, among other things, that she knew James Calvin "Peanut" Mitchell before 10 July 1973 when she saw him at the Mecklenburg County jail. Upon further cross-examination Pamela admitted that she had signed two statements (State's Exhibits Nos. 12 and 13) in the presence of Officer H. R. Thompson on 10 July 1973. However, she denied having made any of the statements contained in either of these documents. Both of the prior statements indicated that Pamela had in fact known James Calvin "Peanut" Mitchell prior to 10 July 1973 and that she had been with her husband and "Peanut" and others on at least two occasions. State's Exhibit No. 12, about which Pamela was cross-examined, was offered into evidence by the State in rebuttal. It reads as follows:

"About a month ago, I don't remember whether it was morning or evening, but I had asked Butch [the defendant] to carry me to my mother's to check on her. When he left, he came back in about an hour. Tony Dorsey was with him and a boy named Peanut (I don't know his real name), and Anthony Carey. Butch asked me if I was ready to go, and I said I would be ready in a minute as I had just got out of the bathtub. We went up to 77. We got on 77 at Belhaven Boulevard. He went out 77 and he got off on Morehead. Butch said, `I'll take you to your mother's in a minute. I want to stop right down here.' We then turned on the street next to the tuxedo rental place on South Boulevard. We turned down by that place and turned right, and he stopped at the first corner. I said, `Since we are here, I'm going to stop and talk to Miss Evelyn.' Her sons were sitting on the porch. I saw Peanut raising up to get out, but I didn't pay any attention to where he was going.

"I talked to the boys on the porch, and then I walked up to Miss Bee's house where I saw Sheila Clark sitting on the porch. Then I talked to her about two or three minutes. When Butch left, he said, `I'll be back in a minute.' Butch, Anthony and Tony pulled out. They were gone about five or ten minutes. They were gone just long enough to have ridden around the block. Then I got in the car. Anthony, Peanut, Tony and Butch were already in the car when I got in.

"Then they went up Park Avenue and they took me to my mother's house on Wilmore Drive, and I got out. Peanut was laying down in the back of the car until we got down to about South Tryon and Park Avenue, and then he raised up out of the back seat. I didn't see a gun or anything. They let me out at my mother's and I said, `Wait and let me see if she's home.' Butch said he'd be back in about an hour. I was looking at T.V. that night at home by myself, and I saw where the U-Drive It on South Boulevard was robbed or something, but I didn't pay attention to every detail. Then I got nervous and scared."

State's Exhibit No. 13 referring to 9 June 1973, about which Pamela was cross-examined, was offered into evidence by the State in rebuttal. It reads as follows:

"I was at home over on Oregon Street and Butch, Anthony, Tony and Peanut came by the house to get me. Butch said, `Are you ready to go to the store?' I said, `Yes, I'm ready.' Butch gave me a ten dollar bill and Tony, Anthony, Peanut, Butch and I got in the car. We came up to Rozzell's Ferry Road and Butch parked in the parking lot at Norman's Grocery Store. I got out and I went in the store. I stayed in there about fifteen minutes looking and seeing what I wanted to buy. As I came out the door, I saw Peanut running up the street, and he turned a corner to the left beside the store, and the boy who was running behind him stopped at the corner, and he put a gun up and he pulled the trigger. He didn't look around to see if anybody was standing on the street or nothing and just started shooting. He shot once. Peanut ran to the left beside the store. There was a truck there, and he got behind the truck and then ran on up the path. You can go up that path and get to where we stay.

"When Butch saw Peanut running, he drove off. Anthony, Tony and Butch were all in the car when he pulled out. They came back and picked me up and took me home. When we got there, Peanut was upstairs just sitting in a room. I saw him messing with his arm, and Peanut said, `I can get it out.' and he took a knife he had in his pocket and pulled a little shot out of his shoulder. I told Butch to get Peanut out of the house and not to bring him back any more. I gave Butch the change, and he handed me three dollars back and told me to keep it. They all left in the car, and they came back without Peanut a little later."

G.S. 8-57 provides, in pertinent part, as follows: "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. Every such person examined as a witness shall be subject to be cross-examined as are other witnesses. No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage."

When defendant's wife was examined as a witness for defendant, she was therefore subject to be cross-examined to the same extent as if unrelated to him. State v. Bell, 249 N.C. 379, 381, 106 S.E.2d 495, 497 (1959). See also State v. Tola, 222 N.C. 406, 23 S.E.2d 321 (1942). Accordingly, if based on information and asked in good faith, it was permissible for the district attorney to ask Pamela Carey about her prior inconsistent statements as they related to her previous relationship with "Peanut" Mitchell for purposes of impeachment. See State v. Bell, supra. See also State v. Mathis, 13 N.C.App. 359, 185 S.E.2d 448 (1971), where the Court of Appeals dealt with a similar problem. See generally Comment, A Survey of the North Carolina Law of Relational Privilege, 50 N.C.L.Rev. 630 (1972). Both of Pamela's inconsistent statements revealed that she knew "Peanut" Mitchell prior to the date of this offense. But in neither of these statements does she say that her husband was involved in other crimes. In fact, she puts herself at a substantial distance from the events. In State's Exhibit No. 13 she does indicate that she heard about a robbery on the T.V. program that night. By this she certainly does not involve the defendant in that armed robbery. So the contention of the defendant that she could not be cross-examined on matters concerning her husband's unrelated criminal offenses has no application to the facts of this case. The statements about which Pamela was cross-examined, and which were later offered into evidence, did nothing more or less than show that Pamela had made two prior inconsistent statements and by these she acknowledged that she had known "Peanut" Mitchell for more than a month before the date of the statements on 10 July 1973.

Justice Ervin in the landmark case of State v. McClain, 240 N.C. 171, 173, 81 S.E.2d 364, 365 (1954), sets forth the rule upon which defendants rely:

"The general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. [Citations omitted.] This is true even though the other offense is of the same nature as the crime charged. [Citations omitted.]"

Then follows the eight exceptions to the rule. We believe that one of these is applicable to our case. It reads:

"6. Evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. [Citations omitted.] Evidence of other crimes receivable under this exception is ordinarily admissible under the other exceptions which sanction the use of such evidence to show criminal intent, guilty knowledge, or identity." Id. at 176, 81 S.E.2d at 367.

The defendant contends that the court committed prejudicial error by permitting the cross-examination of Pamela as to prior inconsistent statements and by the introduction of those inconsistent statements because they tended to implicate defendant in other unrelated crimes. We do not believe this to be so, but if it is subject to this interpretation, Rule 6 of the exceptions in McClain, supra, is authority for its competency.

Accordingly, for the reasons stated herein, these assignments are overruled.

Defendant next contends that he was denied a fair and impartial trial due to the remarks, actions, and arguments made to the jury by the district attorney. During the cross-examination of Pamela Carey, she indicated that she had signed State's Exhibits Nos. 11, 12 and 13, but stated that she did not remember making any of those statements. At this time, the following occurred:

"MR. HASTY: If it please the Court, I would like for you to instruct the Solicitor to stop making facial expressions.

"COURT: Speak up, Mr. Hasty.

"MR. HASTY: I would like for you to instruct the Solicitor to stop making facial expressions to the jury in reply to the witness's question.

"COURT: I haven't observed him.

"MR. HASTY: Well, sir, I did.

"COURT: Well, I have not.

"MR. HASTY: All right, sir."

If defendant had wished to preserve this exception on appeal, then the should have attempted to place in the record what he complained were the facial expressions of the solicitor and how such expressions were prejudicial to him. There is nothing in the record to indicate what they were, and therefore, there is nothing for us to decide. For this reason, this contention is dismissed.

Defendant's second contention under this general heading relates to the comments of the district attorney in his argument to the jury. The district attorney was discussing the alleged confession to Officer Holmberg in the presence of Officers Starnes and Whiteside when he said: "And he was brought in a list of armed robberies and said `check these things off and put your name, put your initials by the ones that you were involved in,' and that one was checked." (Emphasis supplied.) We find nothing objectionable in this statement. It seems to be only a reasonable comment on the evidence. State's Exhibit 8-A, as limited by the trial judge, had previously been offered into evidence as part of defendant's purported confession. This assignment is overruled. See, e. g., State v. Stegmann, supra; State v. Monk, 286 N.C. 509, 212 S.E.2d 125.

Defendant next contends that the solicitor engaged in impermissible jury argument when he told the jury that the "trigger" man was "Peanut" Mitchell, who was fifteen-years-old at the time, as compared to the defendant who was twenty-three-years-old. The district attorney further argued that it was not justice for a fifteen-year-old to carry the burden alone for the murder of Mr. Sloop; that the responsibility of the crime lay upon the shoulders of defendant Carey; that defendant Carey had been picking up "Peanut" Mitchell from time to time from May until July 1973; and that as a result of the planning of the defendant, a man was killed. This argument is certainly legitimate under all the evidence presented in this case. The district attorney did not venture into an area forbidden by this Court. He in no way created an atmosphere which prohibited the jury from arriving at the truth based upon the evidence. "In this jurisdiction wide latitude is given to counsel in the argument of contested cases. Moreover, what constitutes an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge." State v. Williams, 276 N.C. 703, 712, 174 S.E.2d 503, 509 (1970). Accord, State v. Stegmann, supra; State v. Monk, supra; State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971).

Defendant next contends that the trial court committed prejudicial error in refusing to give defendant's requested instructions to the jury. In his brief, counsel for defendant states he understands that it is well within the trial court's province to select the manner and wording of the charge to the jury and that the court has discretion so long as it presents to the jury an accurate explanation of the law which applies in each case. Defendant argues that the instructions which were requested present the law applicable in a light which is neither more favorable to the State nor to the defendant. Defendant fails to state a proper cause for relief in this instance and his objections are all overruled.

Defendant next contends that the trial court committed prejudicial error in certain other portions of his charge to the jury. We have closely examined all of the instructions complained of and find them to be free from any prejudicial error. Therefore, these assignments are all overruled.

Finally, defendant complains that it was error for the trial judge to enter the judgment of death. Defendant contends that the death penalty is not authorized under the Constitution and the statutes of North Carolina. This Court has heretofore considered and a majority has consistently rejected all of the arguments on this point and does so here. See, e. g., State v. Gordon, 287 N.C. 118, 213 S.E.2d 708 (1975); State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Burns, 287 N.C. 102, 214 S.E.2d 56 (1975); State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975); State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). No useful purpose would be served in reiterating the reasons for the above decisions. The death sentence was the only one that the court below could impose upon a conviction of first-degree murder under authority of State v. Waddell, supra.

The defendant, age twenty-three, used James Calvin "Peanut" Mitchell, age fifteen, to accomplish the murder. He has been twice convicted by a jury. We have carefully considered the entire record and all of defendant's assignments of error. In his trial and conviction we find no error. The majority of this Court also holds that the sentence of death should be sustained. However, for the reasons stated in the dissenting opinions to State v. Williams, supra, 286 N.C. at 434-441, 212 S.E.2d at 121-125, Chief Justice Sharp, Justices Copeland and Exum, dissent from that portion of this opinion affirming the imposition of the death sentence and vote to remand for the imposition of a sentence of life imprisonment.

No error.

LAKE, J., concurs in result.

SHARP, Chief Justice (dissenting).

According to the State's evidence, Mr. Sloop died 3 July 1973 from wounds inflicted by a sawed-off-shotgun discharged by James Calvin "Peanut" Mitchell on 19 June 1973.

Defendant testified he did not know Mitchell prior to his arrest on 10 July 1973 on charges relating to the attempted robbery of 19 June 1973.

Pamela Carey, defendant's wife, testified she first met Mitchell on 10 July 1973 when she and her mother went to the Mecklenburg jail.

The court admitted in evidence, over defendant's objections, State's Exhibits 12 and 13, statements purporting to have been made by Pamela on 10 July 1973. At trial, under cross-examination, Pamela admitted she had signed these exhibits but testified the statements therein were not true.

Exhibit 12 shows that the statement first quoted in the court's opinion was made with reference to "Complaint # 73-50216; Re: U-Drive It Rental Company; 1501 South Boulevard; Armed Robbery 6/8/73." Exhibit 13 shows that the statement last quoted in the court's opinion was made with reference to, "Complaint # 73-50268; Re: Wyatt's Spur Station; 2815 Rozzells Ferry Road; Armed Robbery; 6-9-73."

When Exhibits 12 and 13 were admitted, the court instructed the jury they were for consideration only as bearing upon the credibility of Pamela's testimony not as bearing upon the guilt of the defendant.

The statements in these exhibits indicate that Pamela had testified falsely when she said she had not known Mitchell prior to 10 July 1973. However, they go far beyond the purpose for which they were purportedly offered, that is, to discredit Pamela's testimony by prior inconsistent statements. They are to the effect that defendant also testified falsely when he said he had not known Mitchell until after his arrest in connection with the attempted robbery of 19 June 1973. Further, although they fall far short of charging defendant, Mitchell, and others, with robberies on South Boulevard and on Rozzells Ferry Road the statements strongly suggest that defendant was involved in these robberies with Mitchell and others.

In State v. Reid, 178 N.C. 745, 747, 101 S.E. 104, 105 (1919), Justice (later Chief Justice) Hoke, speaking for the Court said: "Under our statute, (Revisal, §§ 1634, 1635) [G.S. 8-57, 1974 Supp.] the wife was neither competent nor compellable to testify to her husband's hurt in a proceeding of this character, and a fortiori her declarations against him should not be received when not made in his presence nor by his authority." Also, see State v. Warren, 236 N.C. 358, 360, 72 S.E.2d 763, 764 (1952); State v. Dillahunt, 244 N.C. 524, 94 S.E.2d 479 (1956); 1 Stansbury's North Carolina Evidence (Brandis Rev. 1972) § 59. Since the introduction or use of such evidence is forbidden by statute, in the furtherance of public policy, it is the duty of the trial judge, on his own motion, to disallow the evidence. State v. Warren, supra, 236 N.C. at 360, 72 S.E.2d at 764.

Assuming arguendo that whether Pamela knew "Peanut" Mitchell on June 8th and 9th was material and not collateral to the issue whether defendant participated with him in the robbery on June 19th, the sole purpose for which these exhibits were admissible might have been attained by exercising all portions of the statements except those to the effect that Pamela knew Mitchell and was with him and others on June 8th and June 9th of 1973. The instructions that the jury exclude from their consideration the prejudicial effect of these exhibits upon the credibility of defendant and upon his guilt was a futile gesture. See State v. Gardner, 226 N.C. 310, 37 S.E.2d 913 (1946).

The Court holds applicable to the present factual situation the rule that "[e]vidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission," this being the sixth exception to the exclusionary rule as stated by Justice Ervin in State v. McClain, 240 N.C. 171, 176, 81 S.E.2d 364, 367 (1954). I disagree. When this exception is applicable the other crimes must be proven by competent substantive evidence, not by declarations admissible solely to impeach the credibility of the testimony of a defense witness. See 1 Stansbury's North Carolina Evidence (Brandis Rev. 1972) § 46.

For the reasons stated I vote to remand the case to the Superior Court for a trial de novo.

BRANCH, J., concurs in this dissenting opinion.