STATE of North Carolina
v.
Dwain Edward WRIGHT and Cecil Leon Glenn.
No. 50.
Supreme Court of North Carolina.
December 13, 1972.*821 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.
Tharrington & Smith by Roger W. Smith, Raleigh, for defendant Wright, appellant.
Robert P. Gruber, Raleigh, for defendant Glenn, appellant.
MOORE, Justice.
Detective J. O. Stoudenmire testified without objection that after his arrest Wright told him that he overheard a conversation at the bus station between Chavis and Glenn in which they discussed robbing a taxi driver. On cross-examination Stoudenmire testified over Glenn's objection that Wright said Glenn and Chavis had talked about robbing a cab driver. Glenn contends that it was error to allow this testimony since it relates to a statement by a codefendant which implicates Glenn in the crime, citing Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968); and State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968).
In Bruton one Evans and Bruton were tried jointly for armed postal robbery. Evans did not testify but a postal inspector was allowed to testify to Evans' oral confession that Evans and Bruton had committed the robbery. The Supreme Court of the United States held that since Evans did not testify and was not subject to cross-examination, Bruton's right of confrontation on cross-examination under the Sixth Amendment was violated even though the trial court instructed the jury not to consider the confession against Bruton. In Roberts, under substantially similar facts, the Court in a per curiam opinion followed the rule as stated in Bruton. In Fox this Court, with reference to the holding in Bruton and Roberts, stated:
"The result is that in joint trials of defendants it is necessary to exclude extra judicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see State v. Bryant, supra [250 N.C. 113, 108 S.E.2d 128]), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra [246 N.C. 157, 97 S.E.2d 876] at 160, 97 S.E.2d at 879." (Emphasis added.)
See also State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1971).
Bruton, Roberts, and Fox are factually distinguishable from the present case, since Wright testified and was subject to cross-examination. Although Stoudenmire's testimony concerning Wright's statement came during his rebuttal testimony after Wright had testified, Glenn had the rightwhich he did not pursueto ask the court's permission to recall Wright for further cross-examination. In the absence of such request, Glenn waived his right to further cross-examine Wright. Furthermore, Stoudenmire had previously testified, without objection, that Wright told him "Mike and Cecil discussed robbing the cab driver." An exception is waived when other evidence of the same import is admitted without objection. State v. Hairston and State v. Howard and State v. McIntyre, 280 N.C. 220, 185 S.E.2d 633 (1971); Glace v. Pilot Mountain, 265 N.C. 181, 143 S.E.2d 78 (1965); Adams v. Godwin, 254 N.C. 632, 119 S.E.2d 484 (1961); 1 Strong, N.C. Index 2d, Appeal and Error § 43, p. 196. This assignment is without merit.
Defendants contend that the evidence in this case did not warrant an instruction on the felony-murder rule. G.S. *822 § 14-17 provides in pertinent part that "a murder which . . . shall be committed in the perpetration or attempt to perpetrate. . . robbery . . . shall be deemed to be murder in the first degree. . . ." See State v. Hairston and State v. Howard and State v. McIntyre, supra; State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1971); State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970); State v. Haynes, 276 N.C. 150, 171 S.E.2d 435 (1969). In such cases the law presumes premeditation and deliberation, and the State is not put to further proof of either. State v. Bunton, 247 N.C. 510, 101 S.E.2d 454 (1957); State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945). The State's evidence in the instant case tends to show that the two defendants and Chavis, armed with a pistol belonging to Wright, left Wright's home on the evening of 8 February 1972 with a common intent to commit robbery against an undetermined person. During the course of the evening, defendants contemplated robbing an elderly man and a young boy. Wright actually stole an overnight case which was sitting in the bus station. The evidence further shows that in the presence of Wright, Glenn and Chavis discussed robbing a cab driver, following which the three engaged a cab to take them to Chavis Heights, and that after arriving there Glenn or Wright shot and killed the deceased with Wright's pistol.
In State v. Smith, 221 N.C. 400, 405, 20 S.E.2d 360, 363-364 (1942), it is said:
". . . If many engage in an unlawful conspiracy, to be executed in a given manner, and some of them execute it in another manner, yet their act, though different in the manner, is the act of all who conspired. [Citations omitted.]
"And the liability also extends to acts not intended or contemplated as a part of the original design, but which are a natural or probable consequence of the unlawful combination or undertaking. [Citations omitted.] The general rule is, that if a number of persons combine or conspire to commit a crime, or to engage in an unlawful enterprise, each is responsible for all acts committed by the others in the execution of the common purpose which are a natural or probable consequence of the unlawful combination or undertaking, even though such acts are not intended or contemplated as a part of the original design. [Citations omitted.]"
The evidence was sufficient to support a finding by the jury that defendants and Chavis had formed a conspiracy to rob the taxi driver Moore, and that in attempting to perpetrate this crime Glenn or Wright shot and killed Moore. Under these facts, each of the defendants is guilty of murder in the first degree. On this evidence Wright and Glenn were not only coconspirators but both were actually present, aiding and abetting in the crime charged, and were therefore principals. State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. Johnson, 272 N.C. 239, 158 S.E.2d 95 (1967). This assignment is overruled.
During the course of his cross-examination of Wright, the solicitor asked him about his prior convictions. Defendant's counsel objected; the jury was excused, and all counsel approached the bench. The court was shown a card held by the solicitor which showed various charges against Wright. The solicitor stated to the court, however, that he did not care to ask about any of the charges if in fact defendant had not been convicted, and that he would confine his examination to the charges on which defendant had been convicted. After a conference between counsel for Wright and the solicitor, the jury returned and Wright was only questioned about his actual convictions. This assignment is without merit. For impeachment purposes a witness, including the defendant in a criminal action, may be asked on cross-examination whether he has been convicted of unrelated criminal offenses. State *823 v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971).
An employee of a local pawnshop, Jessie Murchison, testified that he made a record of a sale of 380 ammunition on 4 February 1972 to one D. E. Wright of Raleigh, North Carolina, whose Social Security number was XXX-XX-XXXX and whose date of birth was 7 August 1951. This ammunition was the same caliber as defendant Wright's pistol. On cross-examination Murchison testified that he did not recognize Wright and that he had no independent recollection of the transaction apart from his records. Defendant contends that it was error to admit this testimony. Murchison's record was admissible as a "recorded past recollection." Stansbury, North Carolina Evidence § 33 (2d Ed. 1963), and cases therein cited. Moreover, this testimony in no way prejudiced Wright since Wright himself testified later in the trial that he did buy this ammunition from Murchison. State v. McDaniel, 274 N.C. 574, 164 S.E.2d 469 (1968).
Wright assigns as error the court's overruling his motion for judgment as of nonsuit. In testing its sufficiency the evidence must be considered in the light most favorable to the State. Contradictions and discrepancies even in the State's evidence are matters for the jury. State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1972). Here the evidence for the State tends to show that the two defendants and Chavis were at the bus station armed with a pistol belonging to Wright, and that after some discussion concerning the robbery of a cab driver, Wright engaged a cab and told the driver where to go. There was also evidence that the bullets found in the body of the deceased and the empty shell cases found in the cab were fired from Wright's pistol, and that Wright led the police officers to the place where the gun was hidden after the crime. Without objection, Glenn testified that he told Officer Heath: "I did not shoot the man. Dwain [defendant Wright] shot the man." This evidence, together with other offered for the State, was sufficient to withstand defendant Wright's motion for judgment as of nonsuit.
Defendants assign as error several portions of the trial judge's instructions to the jury. They contend that it was improper for the trial judge (1) to caution the jurors against taking strong individual positions from the outset of their deliberations, and (2) to define "reasonable doubt" as a possibility of innocence.
The trial judge's caution against strong individual positions is taken from California Jury Instructions Criminal (CALJIC, 3d Ed.), a publication of West Publishing Company. The California courts have approved substantially the same instruction as the one given in this case. People v. Moraga, 244 Cal. App. 2d 565, 53 Cal. Rptr. 563 (1966); People v. Selby, 198 Cal. 426, 245 P. 426 (1926). In State v. Bryant, Holloman and White, 282 N.C. 92, 191 S.E.2d 745 (1972), this Court specifically held that this instruction did not constitute prejudicial error. See also State v. Pugh, 183 N.C. 800, 111 S.E. 849 (1922). In Bryant, Holloman and White this Court also held that defining "reasonable doubt" as a possibility of innocence not only was not reversible error but constituted an instruction more favorable to the defendant than the usual definitions such as "fully satisfied," "entirely convinced," or "satisfied to a moral certainty." These contentions, therefore, are without merit.
The defendants assign as error the failure of the court to grant their motion to quash the bill of indictment asserting that the statute, G.S. § 14-17, supporting the indictment is unconstitutional. They also contend that it was error for the court to instruct the jury that one of the possible verdicts was first degree murder, resulting in punishment of death. In disposing of a contention similar to these in State v. Davis, *824 282 N.C. 107, 191 S.E.2d 664 (1972), this Court said:
"The Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), held that the imposition of the death penalty, under certain state statutes and in the application thereof, was unconstitutional. That decision did not affect the conviction but only the death sentence. State v. Westbrook, 281 N.C. 748, 191 S.E.2d 68 (1972); State v. Doss, 281 N.C. 751, 191 S.E.2d 70 (1972); State v. Chance, 281 N.C. 746, 191 S.E.2d 65 (1972); State v. Miller, 281 N.C. 740, 190 S.E.2d 841 (1972); State v. Hamby and Chandler, 281 N.C. 743, 191 S.E.2d 66 (1972)."
Furthermore, the Furman case is without significance when the jury returns a verdict recommending life imprisonment. In that situation the defendant has no standing to raise the constitutionality of the death penalty or of a statute because it provides for that punishment. State v. Bryant, Holloman and White, supra. These assignments are without merit.
Defendant Wright in his assignments of error Nos. 7 and 11 asserts that the trial judge in his recapitulation of the evidence to the jury made material misstatements of the facts in the case. Two such misstatements are alleged by the defendant. The first is as follows: ". . . that at that time the defendant Wright was by the left rear fender or left rear door, which was at that time open." Secondly: "There is evidence which tends to show from the defendant Glenn that it was the defendant Wright who fired the shot at the taxicab driver, Willard Pearson Moore." A review of the record of this case indicates that in both instances the statements complained of were fully supported by the evidence. These assignments are, therefore, overruled.
Other assignments of error have been carefully considered but are without merit.
For the reasons indicated, the verdicts and judgments will not be disturbed.
No Error.