STATE of North Carolina
v.
David Earl HOWARD and Joe Howard.
No. 4.
Supreme Court of North Carolina.
August 23, 1968.*501 T. W. Bruton, Atty. Gen., and Harry W. McGalliard, Deputy Atty. Gen., for the State.
L. H. Ross, Washington, D.C., for David Earl Howard, defendant appellant.
Junius D. Grimes, Jr., Washington, D.C., for Joe Howard, defendant appellant.
*502 SHARP, Justice.
Each defendant assigns as error the court's refusal to grant his motions of nonsuit. The theory of the State's case is that the defendants murdered Lewis in the perpetration of a robbery (G.S. § 14-17), and that each was present aiding and abetting the other in the commission of that felony. Each defendant contends that the other killed and robbed Lewis without his assistance or connivance; that he was merely present, took no part in the assault and robbery, and did not share in the proceeds.
Had either defendant rested at the close of the State's case, he would have been entitled to have his motion of nonsuit considered solely upon the State's evidence and without reference to the testimony and evidence of the other defendant. State v. Frazier and State v. Givens, 268 N.C. 249, 150 S.E.2d 431. Since, however, each offered evidence, in passing upon the motions for nonsuit, we must consider all the evidence in the case. G.S. § 15-173; State v. Prince, 270 N.C. 769, 154 S.E.2d 897. Thus, each defendant's motion must be finally considerednot only in the light of the State's evidence but in the light of that offered by his codefendant. State v. Norton, 222 N.C. 418, 23 S.E.2d 301. The preliminary statement of facts manifests the sufficiency of the evidence to overcome each defendant's motion of nonsuit.
Both defendants also assign as error the ruling of the court which permitted the coroner, Bonner Paul, to testify that in his opinion Lewis' death resulted from "the laceration of the brain caused by a fractured skull." When the State tendered Paul as an expert "in the cause of death when there is evidence of violence," defendants objected. The court overruled the objection and found Paul to be "expert in the field of coroner's work and in the examining of bodies to determine cause of death when there is some evidence of violence." Defendants did not except to this finding. They did, however, object and except to Paul's opinion testimony as to the cause of Lewis' death.
The State's evidence with reference to the witness' training in "coroner's work" tended to show: Paul graduated from a college of mortuary science in 1936, and since then has attended seminars at North Carolina Memorial Hospital in Chapel Hill and Bowman Gray School of Medicine in Winston-Salem. During the last five years he has regularly attended coroner's schools. While on duty in the Navy he graduated from the Hospital Corps School at Portsmouth, Virginia. In the last twenty years, he has "examined approximately a thousand questionable deaths."
Paul's qualifications and experience clearly qualify him as an expert mortician. Notwithstanding, defendants contend that he lacked sufficient medical training to give an opinion as to the cause of Lewis' death, and that his testimony was highly prejudicial to them.
The authorities differ as to when an undertaker, or other witness who is not a medical expert, may express an opinion as to the cause of death. 23 C.J.S. Criminal Law § 878(2), pp. 458-459 (1961); 32 C.J.S. Evidence § 546(92) (1964); 31 Am.Jur.2d Expert and Opinion Evidence § 105 (1967); Annot., Admissibility of opinion evidence as to cause of death, disease, or injury, 136 A.L.R. 965 (1942), and Supplementary Annot. in 66 A.L.R. 2d 1082 (1959). See the discussion of the problem in State v. Smith, 221 N.C. 278, 20 S.E.2d 313. The general rule, however, is that the opinion of a nonmedical witness as to the cause of death is admissible if the witness is qualified by experience and observation to give an opinion, and the facts to be interpreted are not of such a nature as to render valueless any opinion but that of an expert in a particular field. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753; 31 Am.Jur.2d Expert and Opinion Evidence § 99 (1967). In Jordan v. Glickman, 219 N.C. 388, 14 S.E.2d 40, this Court said:
*503 "We do not subscribe to the doctrine that the cause of death can be proven only by the opinion of a physician, or other expert witness." Id. at 391, 14 S.E.2d at 42. In Gillikin v. Burbage, supra, 263 N.C. at 325, 139 S.E.2d at 760, it is said: "There are many instances in which the facts in evidence are such that any layman of average intelligence and experience would know what caused the injuries complained of." In such case, evidence is admitted upon the ground that it "is more in the nature of a fact than an opinion." Annot., 136 A.L.R. 965, 1005 (1942).
In a homicide case it is, of course, always best to have testimony of medical experts "as to the fatal character of wounds" if such evidence is available. Revels v. State, 64 Fla. 432, 59 So. 951. Where, however, such evidence is not accessible, a nonexpert who saw the wounds upon the body of the deceased may describe them to the jury. If his training and experience convince the court that he is qualified to do so, he may express an opinion as to whether the wounds caused the death unless they are "of such a nature as to render valueless any opinion except that of an expert." In any event, where the injuries are of such a character that any person of ordinary intelligence would know that they caused the death, the witness' expressed opinion cannot be held for prejudicial error. In Foley v. Crawford, 125 Kan. 252, 264 P. 59, an ambulance driver, who found a body at the bottom of an elevator shaft, testified over objection that the deceased died of a broken neck. The court said: "It did not take an expert to testify that the boy's death had been caused by his neck being broken. Any intelligent person who examined the body could have testified to that fact." Id. at 255, 264 P. at 61.
In this case, all the evidence tends to show: Prior to the time he alighted from Joe's automobile at Dody's place, Lewis was uninjured. Although he had been drinking, he was still able to make the rounds of places where liquor could be bought. At Dody's, he was knocked down by one of the defendants, dragged for an appreciable distance, and left beside an abandoned parsonage. There he was found dead the next morning, his skull fractured and his brain lacerated. A bloody cinder block was beside his head.
It did not take a doctor to determine that he had died from the visible head injuries. Paul's evidence was competent, but the State's case did not depend upon it. State v. French, 225 N.C. 276, 34 S.E.2d 157. Without the benefit of his opinion, the jury would undoubtedly have arrived at the same conclusion he did. Defendants' assignments of error based on exceptions to the admission of this evidence are overruled.
David Earl took no exception to the judge's charge to the jury. Joe assigns as error the following portion of the charge: "* * * The court further instructs you that the injury inflicted by the defendants, or either of them, must be the proximate cause of the deceased's death."
Taken out of context, as it is in the assignment of error, the foregoing statement might be interpreted as an assumption by the trial judge (a) that one or both of the defendants fractured Lewis' skull and (b) that the fracture caused his death. Considered in its relation to the entire charge, however, it is inconceivable that the jury understood the judge to be telling them that he thought these were facts which had been proven. Throughout the charge, he made it quite clear that, in order to convict either defendant of murder, the State must satisfy the jury beyond a reasonable doubt either that the particular defendant had inflicted injuries on the deceased which proximately resulted in his death or that the injuries had been inflicted by the other pursuant to a conspiracy between the two defendants to rob Lewis. This assignment of error is not sustained.
Joe's other assignment of error to the charge is that, when he concluded, the *504 judge inquired of counsel, "Anything further gentlemen?" The solicitor, Mr. Ross and Mr. Grimes, all responded, "No." Joe now argues that counsel were compelled to answer, "No"; that this answer caused the jury to assume that there was no error in the charge and that this assumption prejudiced defendant. We are unable to follow this reasoning. Although it is better practice for the court to make such an inquiry of counsel at the bench, where the jury cannot hear any colloquy which might result, we can imagine no prejudice to either of these defendants from the court's question.
Joe's remaining assignment of error to the charge is that the court did not give the following requested instructions:
(a) "That it was not the duty of or legal obligation of defendant Joe Howard to take any overt action or come to the rescue or defense of the deceased Major Wright Lewis.
(b) "That if the jury believes all of the facts in these cases to be as testified to by the defendant, Joe Howard, then it shall be their duty to return a verdict of not guilty on all counts."
Even if a defendant is entitled to requested instructions, the court is not required to give them verbatim. It is sufficient if they are given in substance. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, 96 A.L.R. 2d 1422, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49. The judge gave the substance of requested instruction (a) when he charged the jury that "mere presence" at the scene of the crime "would place no legal obligation on either of the defendants * * * to take any overt action or come to the rescue of the deceased Major Wright Lewis." The fact that the court included both defendants in the same instruction was not prejudicial to either.
Requested instruction (b), although not given ipsissimis verbis, was implicit in the entire charge. Had it been given as requested, it would not have enhanced Joe's position. His testimony exculpated him, and had the jury believed it or had it raised in their minds a reasonable doubt of his guiltunder the charge, they would necessarily have acquitted him. The court instructed the jury that unless they were satisfied beyond a reasonable doubt (1) that Joe, while perpetrating or attempting to perpetrate a robbery, inflicted injuries on Lewis which proximately caused his death; or (2) that he and David Earl had conspired to rob Lewis, and while both were actively participating in robbing or attempting to rob Lewis, one or both of them inflicted injuries upon him thereby causing his death, they would acquit Joe Howard. Had the instruction been given as requested, the jury might have been led to believe that unless they believed all of defendant's testimony, they should find him guilty. The failure to give the requested instruction cannot be held to be prejudicial error. State v. Faust, supra.
David Earl's brief makes it clear that his appeal is based upon the contention that the State obtained the shirt, which he was wearing on the evening of 5 November 1967 (Exhibit 9), by an unlawful search and seizure, and that its admission into evidence was error entitling him to a new trial.
G.S. § 15-27 provides in pertinent part that "* * * no facts discovered * * or evidence obtained without a legal search warrant in the course of any search, made under conditions requiring the issuance of a search warrant, shall be competent as evidence in the trial of any action." (Emphasis added.) Since Deputy Sheriff Davis, who took the shirt from David Earl's room in his absence, had no search warrant, the question is whether one was required. A precis of the facts surrounding the seizure of the shirt follows:
Sheriff Harris, Davis' principal, first learned of the death of Lewis about 1:20 p.m. on Monday, 6 November 1967. Harris arrived at the parsonage, where Tripp had discovered the body, about 1:40 p.m. Harris *505 learned from Tripp the facts about which Tripp testified at the trial, that is: Between 6:00 and 7:00 p.m. on the preceding evening, Tripp, who lives across Gray Road from the abandoned parsonage, went to his car, which he had parked at the parsonage. He heard "leaves scuffling" and heard David Earl, whom he had known for 14 years, say, "Don't come this way; I'll shoot." Then he saw David Earl standing beside a black Ford, and, sticking out in front of that car, he saw a pair of shoes, toes pointed skyward, and "two pants legs up to about midway the calf." He asked David Earl what was wrong with him. When he got no reply, Tripp left. Upon his return, between 10:00 and 11:00 p.m., he found David Earl and the black Ford gone. The next day, between 12:00 noon and 1:00 p.m., when he went back to his car, he discovered the body of Lewis lying by the parsonage. He left in his automobile to notify Sheriff Harris, who came to the scene and observed Lewis' body, the pulpy face, fractured skull, and the bloody cinder block nearby. Harris also saw the pool of blood and the line of disturbed leaves between it and the body.
Obviously Lewis had met a violent death. Sheriff Harris had probable cause to believe that he had been murdered and that David Earl was implicated in the murder. By telephone and radio, he instructed his deputy, Davis, "to pick up" David Earl and bring him to the sheriff's office. Davis went to defendant's place of employment, Moss Planing Mill, where he learned that David Earl had been there that day but was no longer there. At 3:40 p.m., he left Moss Planing Mill and went to defendant's place of residence, arriving there about 4:00 p.m. The landlady accompanied him to David Earl's room, the door to which was open. From the hall, Davis could not see the entire room, but he could see a bloody shirt on the bed. He entered the room, saw that David Earl was not there, picked up the shirt, and departed at once. He "got up with the defendant about four thirty. The warrant was sworn out * * * in the neighborhood of five or five thirty or later."
The shirt which the officer seized was not contraband nor was it an instrumentality or fruit of the crime for which the officer sought David Earl; it was "mere evidence." The present rules governing the application of the Fourth Amendment to the United States Constitution make no distinction between the seizure of these items. The Fourth Amendment secures "the same protection of privacy whether the search is for `mere evidence' or for fruits, instrumentalities or contraband. There must, of course, be a nexusautomatically provided in the case of fruits, instrumentalities or contrabandbetween the item to be seized and criminal behavior. Thus in the case of `mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required." Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 306-307, 87 S. Ct. 1642, 1650, 18 L. Ed. 2d 782, 792.
Before the officer saw David Earl's bloody shirt, he had probable cause to believe that defendant had murdered Lewis and that he would evade arrest if not immediately taken into custody. The sight of the bloody shirt strengthened that belief. Davis, therefore, had the right to arrest defendant without a warrant, G.S. § 15-41(2), and to enter his room for that purpose. Since the door was wide open and no forcible entry was made, the provisions of G.S. § 15-44 and the decision in State v. Covington, 273 N.C. 690, 161 S.E.2d 140, are inapplicable.
Davis entered the room, not for the purpose of making a general search for evidence of guilt, but in search of defendant himself. Indeed, he made no search at all. While lawfully in the room looking for his suspect, the officer could properly examine and seize "suspicious objects in plain sight." Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067. He *506 took the shirt with probable cause to believe that it would prove to be evidence of defendant's guilt. People v. Gilbert, 63 Cal. 2d 690, 47 Cal. Rptr. 909, 408 P.2d 365. See Appendix to the Opinion of the Court in Gilbert v. State of California, 388 U.S. 263, 274, 87 S. Ct. 1951, 1957, 18 L. Ed. 2d 1178, 1187. If the officer's presence was lawful, the observation and seizure of what was then and there apparent could not in itself be unlawful. Harris v. United States, supra; Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726; United States v. Horton, 328 F.2d 132 (3 Cir.).
Neither the Fourth Amendment nor G.S. § 15-27 is applicable where no search is made. The law does not prohibit a seizure without a warrant by an officer in the discharge of his official duties where the article seized is in plain view. State v. Craddock, 272 N.C. 160, 158 S.E.2d 25; State v. Kinley, 270 N.C. 296, 154 S.E.2d 95; State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Giles, 254 N.C. 499, 119 S.E.2d 394; Ker v. State of California, supra; Harris v. United States, supra. Of course, the limits of reasonableness which are placed upon searches are equally applicable to seizures, State v. Chinn, 231 Or. 259, 373 P.2d 392, and whether a search or seizure is reasonable is to be determined on the facts of the individual case. Cooper v. State of California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777.
In this case, we hold that the officer's seizure of the shirt was reasonable and that it was properly admitted in evidence. Harris v. United States, supra; Ker v. State of California, supra.
We note that, despite the solicitor's initial announcement that he was not asking for an unqualified verdict of murder in the first degree, the court charged the jury that they might return one of four verdicts as to each defendant: (1) guilty of murder in the first degree; (2) guilty of murder in the first degree accompanied by a recommendation of life imprisonment; (3) guilty of murder in the second degree; or (4) not guilty. Thus did the court avoid the error which caused a new trial in State v. Denny, 249 N.C. 113, 105 S.E.2d 446.
In the instant case, the court's instruction made it quite clear that the first issue in this case was whether a defendant was guilty of murder in the first degree, and, if convinced beyond a reasonable doubt that he was, that the second question for the jury's consideration was whether his punishment should be death or life imprisonment. After reading G.S. § 14-17 to the jury, the court charged that if they found a defendant guilty of murder in the first degree, the jury had an unbridled discretionary rightif exercised at the time of rendering their verdict in open courtto recommend that his punishment be imprisonment for life; that no conditions were attached to, and no qualifications or limitations imposed upon, that right; and, if they so recommended, that life imprisonment would be his punishment. He further charged the jury that "the solicitor for the State stated in open court at the beginning of the trial that he is not seeking the death penalty in this case and * * * (he and) private prosecution for the State have not contended in their arguments that you should return a verdict of guilty of murder in the first degree without the recommendation of life imprisonment. * * *"
In the trial below, as to each defendant,
No error.