State v. Noell

202 S.E.2d 750 (1974) 284 N.C. 670

STATE of North Carolina
v.
Tommy NOELL.

No. 10.

Supreme Court of North Carolina.

February 25, 1974.

Atty. Gen. Robert Morgan and Asst. Atty. Gen., John R. B. Matthis, Raleigh, for the State.

Robert Epting, Chapel Hill, for defendant appellant.

David E. Kendall, New York City, for the NAACP Legal Defense Fund.

MOORE, Justice.

Defendant first assigns as error the action of the trial court in excusing for cause three prospective jurors: Mr. Alston, Dorothy Stone, and Katherine Alston.

During the selection of the jury, several veniremen stated that they knew defendant and his family. The solicitor asked one of them, Mr. Alston, about the extent of his acquaintance with defendant. Mr. Alston replied, "Acquainted with the wole family." The solicitor then asked, "Well, let me ask you this, sir. As a result of your acquaintance with the family, would it be impossible for you to bring in a verdict of guilty against the defendant?" To which Mr. Alston replied, "I would think so." In reply to the solicitor's next question if he would find defendant guilty if the State satisfied him beyond a reasonable doubt of his guilt, Mr. Alston replied, "Very well acquainted with the family." The judge then stated, "That is not the point he's making. If the State satisfied you beyond a reasonable doubt, would you be able to find him guilty?" Mr. Alston replied, "With the connection of the family, no sir." The judge then excused him for cause.

Venireman Dorothy Stone stated that she knew defendant, had worked with him in the city schools, was well acquainted with his mother, and was a good friend of the family. In reply to the solicitor's question, "Would the fact that you're acquainted with and a friend of the family of Mr. Noell make it impossible for you to bring in a verdict of guilty, even if the State satisfied you of his guilt, beyond a reasonable doubt?" She replied, "It would." The judge then excused her for cause.

Venireman Katherine Alston stated that she knew defendant and his family and considered them good friends. In answer to the solicitor's question, "If the State satisfied you of Tommy Noell's guilt beyond a reasonable doubt, would it be impossible for you to bring in a verdict of guilty?" She replied, "Yes, it would." The judge then excused her for cause.

G. S. § 9-14 provides that "[T]he presiding judge shall decide all questions as to the competency of jurors." Decisions as to a juror's competency to serve rests in the trial judge's sound discretion. State v. Harris, 283 N.C. 46, 194 S.E.2d 796 (1973); State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1972). The trial judge's rulings on such questions are not subject to review on appeal unless accompanied by some imputed error of law. State v. Harris, supra; State v. Watson, 281 N.C. 221, 188 S.E.2d 289 (1972). "The ruling in respect of the impartiality of [a juror] presents no reviewable question of law." State v. DeGraffenreid, 224 N.C. 517, 31 S.E.2d 523 (1944). See also State v. Spencer, 239 N.C. 604, 80 S.E.2d 670 (1954).

In State v. Spence, 274 N.C. 536, 539, 164 S.E.2d 593, 595 (1968), Justice Higgins stated:

"According to the Federal Court decisions `the function of challenge is not only to eliminate extremes of partiality on both sides but to assure the parties that the jury before whom they try the case will decide on the basis of the evidence placed before them and not otherwise.' The purpose of challenge should be to guarantee `not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the State the scales are to be evenly held.' Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Turberville v. United States, 112 U.S.App.D.C. 400, 303 F.2d 411 (cert. den. 370 U.S. 946, 82 S.Ct. 1596, 8 L.Ed.2d 813); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L. Ed. 429; Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578."

The three prospective jurors in question stated unequivocally that they could not find defendant guilty even though the State had convinced them beyond a reasonable doubt of his guilt. Thus, they were not impartial jurors and were properly excused for cause.

In his next assignment of error defendant notes that the trial judge allowed the solicitor's challenges for cause of all the prospective Negro jurors who indicated some bias toward defendant because of their acquaintance with him or because of their feelings against the death penalty. Then defendant notes that the solicitor asked the last Negro venireman how long he had known defendant, to which the venireman replied either four or five years. The solicitor peremptorily challenged this venireman. Defendant complains that the trial judge's permitting the elimination of the last remaining Negro from the petit jury by a peremptory challenge after all the other Negroes had been excused for cause violated defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution and under Article I, section 26, of the North Carolina Constitution.

"In all capital cases the State may challenge peremptorily without cause nine jurors for each defendant and no more." G.S. § 9-21(b). (Emphasis added.) Peremptory challenges are challenges that may be made according to the judgment of the party entitled thereto without being required to assign a reason therefor, and the reason for challenging a juror peremptorily cannot be inquired into. State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969). A defendant has no right to be tried by a jury containing members of his own race or even to have a representative of his own race to serve on the jury. Defendant does have the right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded. The burden is upon the defendant, however, to establish racial discrimination in the composition of the jury. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972).

In Swain v. Alabama, 380 U.S. 202, 222, 85 S.Ct. 824, 837, 13 L.Ed.2d 759, 773 (1965), the United States Supreme Court in discussing this question stated:

"In the light of the purpose of the peremptory system . . . we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

* * * * * *

". . . There is no allegation or explanation, and hence no opportunity for the State to rebut, as to when, why and under what circumstances in cases previous to this one the prosecutor used his strikes to remove Negroes. In short, petitioner has not laid the proper predicate for attacking the peremptory strikes as they were used in this case. Petitioner has the burden of proof and he has failed to carry it."

Defendant's mere showing that all Negroes in this case were challenged by the solicitor is not sufficient to establish a prima facie case of an arbitrary and systematic exclusion of Negroes. The record is silent about any prior instances in which the solicitor challenged Negroes from the jury. The defendant has the burden of proof of showing such arbitrary and systematic exclusion, and he has failed to carry that burden. This assignment is without merit.

Defendant next assigns as error the refusal of the trial court to grant defendant's motion to excuse for cause a juror who expressed the view that defendant's interracial marriage would adversely affect her deliberations in the cause. The record pertaining to this juror shows the following occurred:

"MR. EPTING [counsel for defendant]: Now, Mrs. Carver, would you let the fact that this man is from an interracial marriage affect your consideration of the testimony in this case?

JUROR CARVER: No.

MR. EPTING: Do you have any personal feelings about interracial marriages?

JUROR CARVER: Not especially.

MR. EPTING: Well, I take it from your answer that you mean that they are not especially strong feelings?

JUROR CARVER: Yes, sir.

MR. EPTING: Do you have any feelings for or against interracial marriages, or are you telling me that your feelings are neutral?

JUROR CARVER: Mine would be against.

MR. EPTING: Do you feel that your feelings against interracial marriage could affect your consideration of the testimony in this case?

JUROR CARVER: It probably could.

MR. EPTING: Your Honor, I would ask that Mrs. Carver be excused.

COURT: The challenge for cause is overruled. You may examine her further, if you would like to."

Defendant cites Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931), in support of his contention that the court should have excused Mrs. Carver for cause. In that case the United States Supreme Court held that the refusal of a lower court to accede to a request that jurors be interrogated about racial prejudice was reversible error in a trial where a Negro was charged with killing a white man. This holding was reaffirmed in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). In the present case, however, defendant was allowed to question Mrs. Carver about any prejudice she might have because defendant, a Negro, had married a white woman, and, after overruling defendant's motion to excuse her for cause, the trial court again told defendant's counsel, "You may examine her further, if you would like to." Counsel chose not to do so and excused her peremptorily. Under these circumstances, neither Aldridge nor Ham apply.

The question of a juror's competency rests in the sound discretion of the trial judge and his ruling is not subject to review on appeal unless accompanied by some imputed error of law. State v. Harris, supra; State v. Watson, supra. No such error appears in connection with the challenge to the prospective juror Mrs. Carver, and no request for additional peremptory challenges was made by defendant as was done in State v. Allred, supra. Hence, this assignment is overruled.

Defendant next asserts that "the trial court erred in permitting the State to excuse for cause several jurors who expressed death penalty reservations in form other than as required by the principles of Witherspoon v. Illinois, 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 766] (1968)."

In Witherspoon the United States Supreme Court held that the sentence of death may not be carried out if the jury that imposed it was chosen by excluding veniremen for cause simply because they had general objections to the death penalty or expressed conscientious or religious scruples against infliction of the death penalty. But in footnote 21 of that opinion it is stated:

"We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt."

Since Witherspoon this Court has held that if a prospective juror states that under no circumstances could he vote for a verdict that would result in the imposition of the death penalty no matter how aggravated the case and regardless of the evidence shown, the trial court can properly dismiss the juror upon a challenge for cause. State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972); State v. Watson, 281 N.C. 221, 188 S.E.2d 289 (1972); State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Dickens, 278 N.C. 537, 180 S.E.2d 844 (1971); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969).

The three jurors to which this assignment pertains were Rogers, Dennis, and Beaver. The record as to Rogers reads:

"MR. PIERCE [the solicitor]: And Mrs. Rogers, let me ask you the same question, that I have been asking. Would it be impossible for you to bring in a verdict requiring the imposition of the death penalty, under any circumstances, no matter—even though the State proved to you the defendant's guilt beyond a reasonable doubt?

JUROR ROGERS: I do not believe in capital punishment.

MR. PIERCE: Let me ask you this question, again, with your answer in mind, please. Would it be impossible to bring in a verdict that required the imposition of the death penalty, no matter what the State showed you, by way of the evidence?

JUROR ROGERS: I think so."

As to Dennis the following transpired:

"MR. PIERCE: Mr. Dennis and Mr. Snipes, let me go ahead and get to this question. Let me ask you, would either one of you find it impossible, under any circumstances, to bring in a verdict which resulted in the imposition of the death penalty, even though the State satisfied you beyond a reasonable doubt of the defendant's guilt, from the evidence in this case?

[Mr. Snipes' answers omitted.]

JUROR DENNIS: I really don't know.

MR. PIERCE: Let me put the question to you the same way, would it be impossible, under any circumstances, even though the State had satisfied you beyond a reasonable doubt, from the evidence in the case, as to the defendant's guilt, to bring in a verdict which resulted in the death penalty?

JUROR DENNIS: Well, for what this is, I'd have to say yes.

MR. PIERCE: In a rape case, you couldn't do it?

JUROR DENNIS: Right."

Concerning Beaver the record discloses:

"MR. PIERCE: Okay, let me ask you this question now. Would it be impossible for you, Mr. Beaver, to bring in a verdict that required the imposition of the death penalty in this rape case, would it be impossible for you to bring in such a verdict, even though the State had proven by evidence and beyond a reasonable doubt that the defendant Tommy Noell is guilty? Now, think about that right carefully, please, sir.

JUROR BEAVER: I believe it would.

MR. PIERCE: Well, could you listen to his Honor, and the charge of the court, as to the law in this case, on the law after listening to the evidence, and then if you are satisfied beyond a reasonable doubt that he is guilty, can you bring in a verdict, knowing that it carries the death penalty?

JUROR BEAVER: No sir, I would not.

MR. PIERCE: You would not, under any circumstances, do it?

JUROR BEAVER: No, sir."

It is clear from their answers in the record upon voir dire examination that each of these prospective jurors, before hearing any of the evidence, had already made up his mind that he would not return a verdict in this rape case pursuant to which the defendant might lawfully be executed, whatever the evidence might be. Under Witherspoon and the decisions of this Court cited above, we hold that these three jurors were properly excused for cause.

Defendant also included prospective juror Goyer in the above assignment. This juror, contrary to the argument in defendant's brief, was excused by the State by a peremptory challenge. Hence, defendant's argument as to the challenge for cause is not pertinent.

Defendant next contends that "the trial court erred in refusing to excuse for cause a juror who indicated an unwillingness to return a verdict of not guilty even if after hearing the evidence, he should have a reasonable doubt about defendant's guilt."

During the jury selection defendant's counsel inquired of Juror Morgan, "If there was any reasonable doubt in your mind, regardless of the balance of the evidence, you couldn't at this time say that you would return a verdict of not guilty?" Juror Morgan replied, "I am not too sure." Counsel moved that this juror be removed for cause. After this exchange, the court instructed the juror that if he had a reasonable doubt about defendant's guilt, it would be his duty to return a verdict of not guilty, and then inquired, "Would you do so, or would you find him guilty, even though you had a reasonable doubt about his guilt?" The juror replied that if he had a reasonable doubt, he would not find him guilty, if it was strong enough. Thereafter the juror told the court that he would not hesitate to return a verdict of not guilty if he had a reasonable doubt as to his guilt. The court then told defendant's counsel that he could examine the juror further and that his challenge for cause was overruled for the time being. Defendant's counsel asked no further questions and later excused this juror peremptorily. No abuse of discretion is shown in the trial court's refusal to excuse this juror for cause. This assignment is overruled.

Defendant next contends that the trial court committed prejudicial error in not further instructing the jury to disregard certain hearsay testimony. This testimony resulted from an examination of the prosecuting witness and appears in the record as follows:

"Q. MR. PIERCE: What was the purpose of you going to the hospital, if you will tell the members of the jury?

A. MISS DiCENZO: Because at that time, I intended to prosecute the man that I had identified as assaulting me, and it's necessary in these cases to have a medical examiner confirm this, and I also wanted a little medical treatment for some other things. After that I looked in a mirror and saw that I had hemorrhages in my eyes, some bruises on my arms and a bruised area on my back. There were some ruptured blood vessels in my face. I had my face rubbed in the rug. So, I was a mess.

Q. MR. PIERCE: Now, what was that you said about your eyes?

A. MISS DiCENZO: Subcutaneous hemorrhages, surgical nurse told me that they result from screaming, and I don't know whether that's a pressure thing or not.

MR. EPTING: Objection.

COURT: Sustained.

MR. EPTING: Move to strike.

COURT: Motion is allowed. Do not consider what someone told this witness; dismiss that from your minds." (Emphasis added.)

Defendant now claims that "the Court's instruction to the jury was so short and without force that defendant's rights were not protected and in fact were prejudiced thereby." Miss DiCenzo had previously testified that she had subcutaneous hemorrhages about her eyes and that she did a lot of screaming during the attack. Mrs. Mary Ford, a nurse at North Carolina Memorial Hospital who helped examine Miss DiCenzo, had also previously testified that Miss DiCenzo had subcutaneous hemorrhages about her eyes. This fact was then amply established. In State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967), this Court held that where hearsay evidence that is of minor importance and relates to matters amply established by other competent evidence is immediately withdrawn by the court upon defendant's objection, and the jury is instructed to disregard it, any prejudice in the admission of such evidence is cured. It is presumed that the jurors followed the court's instructions in this case to disregard this evidence and to dismiss it from their minds. Justice Sharp in State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970), quoted with approval from State v. Ray, 212 N.C. 725, 194 S.E.2d 482 (1938), wherein it was stated:

". . . [O]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so. Wilson v. [Branning] Mfg. Co., 120 N.C. 94, 26 S.E. 629."

In the present case the court's prompt action in sustaining defendant's objection, allowing his motion to strike, and instructing the jury not to consider what the surgical nurse told her—and to dismiss that from their minds—was sufficient to eliminate any possible prejudice to defendant. This is particularly true since defendant's counsel did not request any more specific instruction to the jury. State v. Childs, supra. This assignment of error is overruled.

Mrs. Mary Ford, the nurse at the hospital where the prosecutrix was examined, testified as follows:

"Q. MR. PIERCE: Now Miss Ford, Mrs. Ford, were any tests conducted there at the hospital on Miss DiCenzo?

A. MRS. FORD: Yes; there were.

Q. MR. PIERCE: What were they, if you know of your own knowledge?

A. MRS. FORD: There were slides done, surgical secretion, bubble secretion, which is normal procedure in any normal rape case.

MR. EPTING: Objection.

COURT: Sustained.

MR. EPTING: Move to strike.

COURT: The motion is allowed. Do not consider that last statement.

Q. MR. PIERCE: Were you present when a vaginal examination was done on this lady?

A. MRS. FORD: Yes, I was.

Q. MR. PIERCE: Since you're not a physician, don't undertake to give your opinion, but were you there during the entire time that the examination took place?

A. MRS. FORD: Yes, sir; I was.

Q. MR. PIERCE: Where is the doctor?

A. MRS. FORD: At the present?

Q. MR. PIERCE: Yes.

A. MRS. FORD: I don't know.

Q. MR. PIERCE: Is he on vacation?

MR. EPTING: Objection.

COURT: Overruled, if she knows.

A. MRS. FORD: I don't know.

COURT: Sustained. Don't consider that."

Again defendant contends that the court's instruction to the jury was so meager as to be ineffective in calling the attention of the jurors to the fact that her statement, "which is normal procedure in any normal rape case," should in no way be taken as evidence of rape in this case. The nurse did not attempt to testify as to the results of the examination or the tests conducted on Miss DiCenzo, and in reply to questions concerning the whereabouts of the doctor who performed these tests, she stated that she did not know. In both instances the court instructed the jurors not to consider the answers by the witness. Again we see no merit to this contention. State v. Moore, supra; State v. Childs, supra.

Captain Blackwood, while testifying for the State, indicated that he talked with Miss DiCenzo on the day of the alleged rape. Then the solicitor inquired, "And as a result of that conversation, and what transpired there, did you make an arrest later?" Defendant properly contends that the question was leading. But defendant also contends that the phrase "and what transpired there" prejudiced defendant in his right to have only sworn witnesses whom he could cross-examine give evidence against him. This, defendant contends, required reversal. We are not persuaded by defendant's arguments. Generally, the rulings by the trial judge on the use of leading questions are discretionary and are reversible only for abuse of discretion. State v. Staten, 271 N.C. 600, 157 S.E.2d 225 (1967); 1 Stansbury's N.C. Evidence, Brandis Rev. § 31 (1973), and cases therein cited. Absent a showing of abuse of descretion by the judge and prejudice to the defendant, the rulings of the trial judge will not ordinarily be disturbed. State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965); State v. Cranfield, 238 N.C. 110, 73 S.E.2d 353 (1953). Captain Blackwood simply testified that as a result of his investigation he made an arrest later. No abuse of discretion and no prejudice to defendant is shown by this statement. This assignment is without merit.

Defendant contends his rights to obtain and preserve evidence and his rights to a fair trial were violated when the police did not take immediate action following his arrest in the following respects: (1) Interview defendant's alibi witness; (2) place the watch found in Miss DiCenzo's apartment on defendant's wrist to see if it matched the impression that Captain Blackwood stated he observed on defendant's wrist; (3) check defendant's outer garments, underwear, fingernails and other body parts; (4) seize the shirt that officers testified they saw hanging on a line at defendant's home; (5) search the vehicle allegedly driven by the attacker; and (6) obtain a search warrant to search the premises occupied or used by defendant.

Defendant has grouped together these possible investigative techniques and claims that the failure to do them prejudiced his substantial right to a fair trial. In support of this contention, he cites a number of cases including United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, (1971); Dickey v. Florida, 398 U.S. 30, 26 L.Ed.2d 26, 90 S.Ct. 1564 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L. Ed.2d 607 (1969), all of which, however, relate either to a delay in arresting a defendant or bringing his case to trial. As stated by defendant in his brief, "The gist of this line of cases is well summarized by United States v. Marion, which holds that if defendant at trial can demonstrate actual prejudice resulting from such delay, then his prosecution will be barred." In the present case defendant was arrested the day of the alleged offense, and no contention is made about any delay in bringing the case to trial. The record reveals that the alleged offense was committed 23 May 1973 and defendant's trial began on 30 July 1973.

Moreover, the record does not disclose that defendant asked the police to take any action concerning checking his alibi, securing search warrants, or making other investigations. Defendant also assumes that if the police officers had taken the action about which he complains, the results of such action would have proved him innocent. Such reasoning is, of course, purely speculative and furthermore is not supported by the evidence in this case. In State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970), cert. den. 400 U.S. 841, 27 L.Ed.2d 75, 91 S.Ct. 82 (1970), it was held that even though the police officers threw away certain articles found at the scene of a bedroom homicide, this would not be sufficient to overturn a murder conviction where the officers apparently acted in good faith and the probative effect of laboratory examination of these items was speculative. In so holding that Court quoted with approval the following language from People v. Tuthill, 31 Cal.2d 92, 187 P.2d 16 (1947): "There is no compulsion on the prosecutor to call any particular witness or to make any particular tests so long as there is fairly presented to the court the material evidence bearing upon the charge for which the defendant is on trial." Here, no deliberate destruction of evidence or deliberate failure to obtain evidence to prevent its use has been demonstrated or even argued.

Defendant contends that the failure of the Carrboro Police Department to interview his alibi witness for approximately six days violated his constitutional rights and prevented him from getting a fair trial because the witness, when interviewed could not remember what day he saw defendant.

This contention assumes that had the Carrboro Police Department checked out his alibi immediately, Bill Austin of Bronson's Tire Company would have testified that he talked to defendant on 23 May, the day of the alleged assault on Miss DiCenzo. This, however, in addition to being mere speculation, is also contrary to other evidence presented in the case. Another witness, Roy Locke of Snelling and Snelling employment service, testified that he talked with defendant in his office in Chapel Hill about eight o'clock in the morning on 22 May, the morning defendant was supposed to go to Durham for the interview with Bronson's Tire Company. Locke further testified that the interview with Bronson's Tire Company had been arranged on 21 May, that it was scheduled for 22 May, and that he did not make any change in the interview time. The case for the interview having been on 22 May rather than 23 May is also supported by the appointment card introduced by the State which provided: "Mr. Bill Austin, Service Manager, Bronson's Tire Company, 1014 North Main Street, Durham, 5-22-73; time 9:00 a.m." Further, the witness from Bronson's Tire Company, Bill Austin, testified that he received a call from Snelling and Snelling on what he believed was 21 May informing him that defendant would be coming over, and this tends to corroborate Locke's testimony about the interview being set up on 21 May for 22 May. No evidence was presented to the court below that indicated the interview time had been changed from 22 May to 23 May. Additionally, the testimony of Mrs. Barbara Noell, wife of defendant, that she was with her husband from 7:50 in the morning until noon on 22 May—and that consequently defendant could not have gone to Durham on that day—was contradicted not only by the witness Roy Locke but also by defendant himself when he took the stand the second time.

Defendant's contentions regarding the failure of the police officers to place the watch found at the scene of the attack on defendant's wrist to see if it matched the impression observed, to check defendant's clothing, and to search his car and premises for other items are grouped together for the purpose of discussion. Defendant contends that had this evidence been obtained, there is a strong possibility it would have shown him innocent. This does not necessarily follow. Even had the clothing been obtained and subjected to examination and found not to contain any evidence connecting defendant with the attack, this would not prove him innocent. Such evidence would have been neutral in character and would not have shown guilt or innocence. This is also true concerning any items which might have been found in the car or in his home. There is no showing that the investigation wanted by defendant would have produced evidence that had any bearing whatsoever on the outcome of this case. Here, Miss DiCenzo positively identified defendant as her attacker. She testified that she saw him on three occasions before he entered her room —the first time on Highway 54 Bypass, the second time when he drove to the curb and she passed him in the apartment complex, and the third time when he drove by her after she had parked her car and just prior to her entering her apartment. This was during daylight hours. She further testified that when defendant entered her room she talked to him for a few minutes prior to the attack, that she saw him during the attack, that in all he was in the apartment for about thirty minutes, that it was daylight and she could see his face, and that she had no doubts whatsoever that defendant was the man who attacked her.

Police officers are under no duty to take any particular course of action when investigating a crime. Of course, they cannot suppress evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963). They are not required, however, to follow all investigative leads and to secure every possible bit of evidence, and their failure to do so is not prejudicial error. In People v. Baber, 31 Mich.App. 106, 187 N.W.2d 508 (1971), the failure of the police to check footprints in the snow, to test a gun found at the scene of the crime for fingerprints, to check a broken window and screen for fibers of clothing, or otherwise take fingerprints in the house was held not to give rise to a valid claim of a constitutional denial of due process.

We hold that these assignments are without merit.

During cross-examination of defendant by the solicitor, the following exchange occurred:

"Q. MR. PIERCE: Now Mr. Noell, you testified in details about the times on May 23 [1973]. Tell us about May 23, 1972; what did you do that morning?

MR. EPTING: Objection.

THE COURT: Overruled.

A. MR. NOELL: I do not know where I was on May 23, 1972."

In his brief defendant states that the solicitor "obviously intended to imply to the jury by the defendant's inability to remember where he was on May 23 one year before the assault that his memory as to where he was on May 23, 1973, was also not to be believed." For this reason, defendant argues, the court committed prejudicial error in allowing the question to be asked.

While defendant in a criminal action may not be required to become a witness unless he voluntarily does so, G.S. § 8-54, once he does so he becomes subject to cross-examination and may be required to answer questions designed to impeach or discredit him as a witness. State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971); State v. Wilson, 217 N.C. 123, 7 S.E.2d 11 (1940).

Defendant also argues that the question should not have been admitted because it was not relevant to the case. "Strictly speaking, evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. Evidence which has no such tendency is inadmissible, although its admission will not constitute reversible error unless it is of such a nature as to mislead the jury or prejudice the opponent." 1 Stansbury's N. C. Evidence, Brandis Rev. § 77 (1973). Assuming the question was not relevant, defendant in this case has made no showing that the jury was misled or that defendant was prejudiced. Therefore this assignment is overruled.

Defendant next contends that the solicitor argued improperly and outside the record when he commented on the contention of the defense during the trial that the Carrboro Police Department had not done all they could to preserve the evidence concerning the crime. During the trial and the closing jury argument the defense had repeatedly contended that the police should have taken immediate steps to obtain search warrants and gather evidence that, as the defendant contends, would have tended to prove that defendant did not commit the offense charged. In response to this contention, the solicitor in his closing argument stated:

"But gentlemen, is it reasonable to believe that the Carrboro Police should throw aside all their other cases, look, we can't mess with this, any of this stuff, we have this rape case and we have to proceed and concentrate all efforts for days on one thing, while other people who break the law, go wild in all other matters. Is it reasonable to expect that the Carrboro Police Department would do that?"

It is well settled that counsel are entitled to argue to the jury all the law and facts that are in evidence and all reasonable inferences that may be drawn therefrom. But it is also the rule that counsel may not "travel outside the record" and inject into his arguments facts of his own knowledge or other facts not included in the evidence. Crutcher v. Noel, 284 N. C. 568, 201 S.E.2d 855 (1974); Cuthrell v. Greene, 229 N.C. 475, 50 S.E.2d 525 (1948); State v. Little, 228 N.C. 417, 45 S.E.2d 542 (1947); Perry v. R. R., 128 N. C. 471, 39 S.E. 27 (1901). However, as stated in 2 Strong, N.C. Index 2d, Criminal Law § 102 (1967):

"The control of the argument of the solicitor and counsel must be left largely to the discretion of the trial court, and an impropriety must be sufficiently grave to be prejudicial in order to entitle defendant to a new trial. It is only in extreme cases of abuse of the privilege of counsel, and when the trial court does not intervene or correct an impropriety, that a new trial may be allowed."

No such case of abuse is presented here, and under the circumstances in this case, this portion of the solicitor's argument does not represent an impropriety so sufficiently grave as to be prejudicial.

Defendant also contends that the trial court erred in overruling an objection to the following statement made by the solicitor during his final argument to the jury: "Mr. Epting did a good job for the client he had. It's his job to defend the man. I'm talking about the witnesses who took the stand. I submit to you, that they have lied to you."

In State v. Miller, 271 N.C. 646, 157 S. E.2d 335 (1967), this Court held that it was improper for the solicitor to argue, "I knew he was lying the minute he said that." (Emphasis added.) In that case this Court stated: "It is improper for a lawyer in his argument to assert his opinion that a witness is lying. He can argue to the jury that they should not believe a witness, but he should not call him a liar." (Emphasis added.)

In the present case the solicitor did not call the defense witnesses liars. He submitted that question to the jury for its determination when it made its findings and returned its verdict. The State had presented to the jury direct evidence that defendant was the individual who committed the assault upon the prosecutrix. The State had also presented evidence that showed that defendant's wife and defendant himself had given different stories concerning the whereabouts of defendant on 22 May. All of this evidence was contrary to the testimony of the witnesses for defendant concerning his whereabouts on that date. Therefore, the remarks of the solicitor represented a reasonable comment on the evidence.

Defendant further contends that the solicitor injected defense counsel's personality into the jury's consideration when he stated, "I certainly don't intend to be critical of Mr. Epting, as I said he's done a fine job in defending his client. When you don't have a defense, you do the best you can." It was the solicitor's contention that the evidence for the State overwhelmingly showed defendant's guilt, and the evidence for defendant was at best self-serving and contradictory. In State v. Williams, 276 N.C. 703, 712, 174 S.E.2d 503, 509 (1970), it is stated:

"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. Bowen, 230 N.C. 710, 55 S.E.2d 466. . . ."

Defendant further contends that prejudicial error was committed when the solicitor in his argument stated, "You know when your defense is mighty weak, it is common to employ—" Defendant immediately interrupted by objecting before the statement was completed, and the court sustained the objection. Defendant contends, however, that since no instruction to disregard the remark was given that this was prejudicial error. This remark could hardly be prejudicial to defendant because nothing was really said. The objection was made to what the defense counsel anticipated the solicitor would say and the objection was sustained by the court.

The solicitor during his final argument to the jury also made the following comments:

"Now, the [prosecutrix] says that the man who came in was Mr. Noell, and who she positively identified as Mr. Noell over there. And let me add, at this point, by his own admission, he had two strikes already. So, remember that in evaluating his testimony, gentlemen. You were listening to a man that admitted he had plead guilty one time to willful and wanton injury to real property, and he had pled guilty to assault and battery by his own admission.

"Two strikes. Now, gentlemen, three and you're out. That's the way the game goes. I don't mean this is a game, this is justice. This is not a game, in the sense that we're talking about sports."

Defendant contends that by these remarks the solicitor improperly argued that defendant's character as evidenced by his previous criminal convictions could be considered as substantive evidence of his guilt rather than as just impeachment evidence going to defendant's credibility. Furthermore, defendant contends that the trial judge on his own initiative should have corrected the solicitor at the time the alleged improper argument was made or at least have charged the jury later on the law of character evidence.

Defendant made no objection to what he now contends was improper argument by the solicitor, nor did he request an instruction to the jury about the significance of character evidence. An objection to argument comes too late after verdict. State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970); State v. Lea, 203 N.C. 13, 164 S.E. 737 (1932), cert. den. 287 U.S. 649, 53 S.Ct. 95, 77 L.Ed. 561 (1932). ". . . [T]he comment of counsel upon the testimony and conduct of parties and witnesses `must ordinarily be left to the [sound] discretion of the judge who tries the cause; and this court will not review his discretion, unless it is apparent that the impropriety of counsel was gross and well calculated to prejudice the jury.' Jenkins v. Ore. Co., 65 N.C. 563; State v. Tyson, 133 N.C. 692, 45 S.E. 838; State v. Davenport, 156 N.C. 596, 72 S.E. 7; Maney v. Greenwood, 182 N.C. 579, 109 S.E. 576." Lamborn v. Hollingsworth, 195 N.C. 350, 142 S.E. 19 (1928). There is nothing in this record that indicates an abuse of that sound legal discretion committed by law to the trial judge.

In the absence of a request, the trial judge is not required to charge the jury as to the significance of character evidence. 1 Stansbury's N.C. Evidence, Brandis Rev. § 108 (1973). See State v. Goodson, 273 N.C. 128, 159 S.E.2d 310 (1968); State v. Norkett, 269 N.C. 679, 153 S.E.2d 362 (1967); State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606 (1943). No such request was made in this case.

Defendant by his next assignment of error attacks the charge on the ground that the court in reviewing what defendant's evidence tended to show did not refer specifically to certain portions of defendant's testimony, and that defendant was prejudiced by these omissions.

The charge of the court to the jury must be construed contextually, and segregated portions will not be held prejudicial error when the charge as a whole is free from objection. 3 Strong, N.C. Index 2d, Criminal Law § 168 (1967). The trial judge instructed the jury that he had not tried to refer to all the evidence and that they should be guided by their own recollection of the evidence and not what he said. "In instructing the jury the court is not required to recapitulate all of the evidence. The requirement of G.S. 1-180 that the judge state the evidence is met by presentation of the principal features of the evidence relied on respectively by the prosecution and defense. A party desiring further elaboration on a subordinate feature of the case must aptly tender request for further instructions." State v. Guffey, 265 N.C. 331, 144 S.E.2d 14 (1965). Nothing more is required than a clear instruction that applies the law to the evidence and gives the position taken by the parties as to the essential features of the case. State v. Thompson, 257 N.C. 452, 126 S.E.2d 58 (1962). The court's charge complies with the statutory requirement of G.S. § 1-180. This assignment of error is overruled.

By his next assignment of error defendant asserts that the trial court erred in failing to submit to the jury a charge of assault with intent to commit rape, defendant contending that the trial court should have submitted the lesser included offense because of the lack of concrete, independent proof of actual penetration in this case due to the prosecutrix's statement that she lost consciousness at various times while the actual assault was taking place.

"The trial court is not required to charge the jury upon the question of the defendant's guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees." 3 Strong, N.C. Index 2d, Criminal Law § 115 (1967). In the present case defendant's defense was that of an alibi—that he was not present when the alleged offense occurred. He, therefore, completely denies assaulting the prosecutrix or forcing her to have sexual intercourse with him. The prosecutrix testified positively that after defendant had choked her and threatened to kill her, he forcibly and against her will had sexual intercourse with her, and that he did in fact penetrate her. Thus, there was no evidence of an assault with intent to commit rape, and the trial court was not required to charge on the lesser included offense. "G.S. 15-169 and G.S. 15-170 [providing for convictions of lesser included offenses] are applicable only when there is evidence tending to show that the defendant may be guilty of a lesser offense." State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481, 488 (1969).

On direct examination counsel for defendant asked defendant's wife how long she and defendant had been married. She testified that they were married on 17 March 1973. On cross-examination, in response to a question from the solicitor, she stated that her child was due to be born on September 30. Defendant contends that this question sought to elicit information irrelevant to the issue in the case and that the solicitor's question should not have been allowed since it was highly prejudicial to the defendant in that its answer indicated to the jury that the baby had been conceived out of wedlock.

The record does not disclose that defendant objected to this question or moved to strike the answer. "Nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered." State v. Williams, 274 N.C. 328, 334, 163 S.E.2d 353, 357 (1968). See also State v. Mitchell, 276 N.C. 404, 172 S. E.2d 527 (1970). However, we do not see how this testimony could be prejudicial to defendant. The witness was pregnant and her baby was due to be born in September. Her condition at the trial in August must have been apparent to the jurors. This assignment is without merit.

Finally, defendant contends that the death sentence imposed upon him is legally unauthorized and constitutes cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution.

In State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), this Court declared that the death penalty is the sole and exclusive punishment for a rape under G.S. § 14-21 committed in North Carolina after 18 January 1973. The rape for which this defendant has been convicted was committed on 23 May 1973. The death sentence was, therefore, not only proper but was the only one that the court below could impose. For a full review of the law in North Carolina pertaining to capital punishment, see State v. Waddell, supra, and State v. Jarrette, ante, 284 N.C. 625, 202 S.E.2d 721 (1974).

In view of the seriousness of the charge and the gravity of the punishment imposed, we have carefully examined each of defendant's assignments of error. Examination of the entire record discloses that defendant has had a fair trial free from prejudicial error.

No Error.

BOBBITT, C. J., and HIGGINS and SHARP, JJ., dissent as to death sentence and vote to remand for imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747 (1974).

HIGGINS, Justice (dissenting as to death sentence).

In my opinion a valid death sentence cannot be imposed in this State unless the Supreme Court of the United States reverses the holding in Furman v. Georgia, or unless the North Carolina General Assembly repeals the proviso for jury recommendation of life imprisonment.

The reasons for my views are stated in my concurring in result opinion in State v. Waddell. In Waddell this Court reversed (in effect vacated) the death sentence and remanded for a sentence of life imprisonment.

Since the Supreme Court of the United States has not modified the holding in Furman and since the North Carolina General Assembly has not repealed the proviso for jury recommendation of life imprisonment, I vote to vacate the death sentence and to remand for a sentence of life imprisonment.