State v. Washington

• Decision Date: 11 April 1973
• Docket Number: No. 46,46
• Parties: STATE of North Carolina v. Junior Lee WASHINGTON.
• Court: North Carolina Supreme Court

Page 534

195 S.E.2d 534

283 N.C. 175

STATE of North Carolina v. Junior Lee WASHINGTON.

No. 46.

Supreme Court of North Carolina.

April 11, 1973.

Atty. Gen. Robert Morgan, and Asst. Atty. Gen. Thomas B. Wood, for the State.

Barrington, Smith & Jones, P.A. by Carl A. Barrington, Jr., and Henry W. Witcover, Fayetteville, for defendant-appellant.

BOBBITT, Chief Justice.

Defendant was convicted at the 13 November 1972 Session of felonies committed on 2 August 1972. Both events occurred After the decision of 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), and Before the decision of this Court in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973).

With reference to the indictment for rape, the court instructed the jury: 'You may find the defendant guilty of rape or not guilty,' and 'if you return a verdict of guilty of rape, the law provides that the defendant will be put to death in the gas chamber.' The jury was not instructed in accordance with this portion of G.S. § 14--21: 'Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.' Presumably, it was Judge Brewer's opinion that Furman had invalidated the proviso in G.S. § 14--21 and that, absent the proviso, G.S. § 14--21 made the death sentence mandatory upon a conviction of rape. It was so held by this Court in Waddell in respect of rapes committed After the date (18 January 1973) of that decision but that 'North Carolina's mandatory death sentence for rape . . . may not be constitutionally applied to any offense committed prior to the date' of the decision in Waddell. Hence, even if defendant has failed to show prejudicial error in respect of guilt, the death sentence in the rape case must be vacated and the cause remanded for proper judgment(s).

Assignments of Error Nos. 1, 2 and 3 may be considered together. Based thereon, defendant contends that (1) the constitutional right to due process was violated by the court's submission of the rape charge to the jury 'as a capital issue'; (2) that the court erroneously failed to instruct the jury that life imprisonment was the maximum punishment for rape; and (3) that the court erroneously failed to instruct the jury that if they found defendant guilty of rape they could in their sole discretion return a verdict of 'guilty, with the recommendation of life imprisonment.'

In the light of Waddell, Judge Brewer should have submitted this case for jury determination solely in respect of whether defendant was guilty or not guilty of rape without referring to the punishment in the event of conviction; and, if convicted, defendant should have been sentenced to imprisonment for life. This is the appropriate procedure in respect of trials for the crimes of murder in the first degree, rape, burglary in the first degree and arson committed Prior to 18 January 1973. However, the indicated errors were not prejudicial to the defendant. Certainly jurors would be more reluctant to return a verdict of guilty if advised that the punishment upon conviction would be death rather than life imprisonment. Moreover, we find no merit in the suggestion that the fact that defendant ostensibly was being tried for his life rather than for life imprisonment tended to emphasize or aggravate the seriousness of the crime. In either event, the seriousness of the crime depended upon the evidence as to what happened, not on whether the punishment therefor would be death or life imprisonment. Either of these punishments would suffice to indicate the seriousness of the crime of rape.

The jurors were selected under instructions that a verdict of guilty of rape would require the imposition of a death sentence. In State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969), this Court rejected the idea that jurors are biased in favor of conviction simply because they do not have conscientious or religious scruples against capital punishment. Our Decision in Williams was based largely on the decisions of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), and in our prior decision of State v. Peele, 274 N.C. 106, 113--114, 161 S.E.2d 568, 573--574 (1968), cert. den. 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 590 (1969).

Nothing in the record before us indicates that any member of the jury which tried defendant was biased in favor of conviction or otherwise prejudiced against defendant on account of his views on capital punishment or otherwise. Nor does it appear that the jury included any juror who was challenged by defendant.

In Assignment of Error No. 6 defendant asserts that the court erroneously admitted the portion of Mrs. Adams's testimony which relates to what defendant calls 'an alleged second, uncharged, rape of the prosecuting witness by the defendant outside the car in the woods some time after the alleged first charged rape in the home.' He bases this contention on the general rule 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 ofense.' State v. Long, 280 N.C. 633, 641, 187 S.E.2d 47, 51 (1972). This general rule does not apply to the testimony challenged by defendant. The indictment charged that defendant raped Mrs. Adams on 2 August 1972. It was sufficient to support a conviction for rape committed in the home or in the woods or in the home and in the woods. The evidence is to the effect that from defendant's initial assault on Mrs. Adams in her home until he left her in the woods (clothed only in her panties), Mrs. Adams was defendant's captive. Defendant's actions constituted one continuous course of confuct. It makes no difference that the second act of rape took place in the woods rather than in Mrs. Adams's home.

In Assignment of Error No. 7 defendant asserts that the court erroneously admitted testimony of Mrs. Adams which included statements by defendant that up north 'a white woman would let a black lay them' and that he had picked Mrs. Adams as his victim because she was 'an uppity white chick.' Mrs. Adams testified that the quoted statements were made by defendant after the second act of rape had been completed and while she and defendant were in the woods. Defendant asserts that this testimony 'gratuitously injected into the proceeding tones of racial conflict'; that it was 'highly racial and antiwhite in tone'; and that it 'was irrelevant, immaterial and highly prejudicial to the defendant in its effect upon the jury.' True, the statements made by defendant were 'highly racial and anti-white in tone.' But they were injected into the case gratuitously by defendant, not by Mrs. Adams. We hold that the evidence was competent and properly admitted notwithstanding prejudice, if any, to the defendant. The testimony refers to statements made by defendant to a woman whom he had forcibly removed from her home and children, whom he had raped twice, and whose ultimate fate as his captive victim was unknown when the statements were made. Moreover, the quoted statements bear significantly upon the intent with which defendant entered the adams home and upon his motivation in selecting an utter stranger as the object of his lust.

In Assignment of Error No. 13 defendant asserts that the court erred 'in failing to grant the defendant's pre-trial motion for psychiatric examination on November 3, 1972.'

Defendant was arrested 2 August 1972. He was indicted at the 14 August 1972 Session. We take judicial notice that a special (Criminal) session was held 2 October 1972. On 27 October 1972 a petition was filed which prayed that defendant be committed to the Dorothea Dix Hospital, Raleigh, North Carolina, for observation, evaluation and treatment as provided in G.S. § 122--91. Petition was signed and verified by Carl A. Barrington, Jr., defendant's retained private counsel. A hearing on the petition was conducted by Judge Brewer, the presiding Judge of the Twelfth Judicial District. By Order dated 1 November 1972, Judge Brewer denied the petition. Apparently, no evidence was presented other than the verified petition. Judge Brewer based his order upon findings of fact that 'the defendant ha(d) been confined in the Hoke County Jail since August 2nd, 1972'; that the cases were 'scheduled for trial on Monday, November 13, 1972'; that 'the information provided to the court is not sufficient grounds for a commitment to Dorothea Dix Hospital'; and that 'no reasonable grounds for the defendant being committed to Dorothea Dix Hospital has been shown by competent evidence, affidavits or otherwise.'

Although defendant assigns as error the denial of this petition, the record does not show that an exception thereto was noted. 'The Rules of Practice (19 and 21) of both this Court and the Court of Appeals require any error asserted on appeal to be supported by an exception duly taken and shown in the record.' State v. Jacobs, 278 N.C. 693, 696, 180 S.E.2d 832, 834 (1971). We note that G.S. § 122--91 provides that commitment to a State hospital for a period of not exceeding sixty days for observation and treatment May be entered. Defendant was not entitled to such order as a matter of right and has failed to show that the failure to grant his belated motion was an abuse of discretion. We note further that, upon arraignment at the 13 November 1972 Session, he pleaded not guilty, not insufficiency of mental capacity to plead to the indictment and conduct a rational defense. See State v. Propst, 274 N.C. 62, 68, 161 S.E.2d 560, 565 (1968).

Defendant's brief states no reason or argument and cites no authority in support of his Assignments of Error Nos. 4, 5, 8, 9, 10, 11 and 12....