State v. Cameron

• Decision Date: 14 November 1973
• Docket Number: No. 21,21
• Citation: 284 N.C. 165,200 S.E.2d 186
• Parties: STATE of North Carolina v. James Woodrow CAMERON, Jr.
• Court: North Carolina Supreme Court

Page 186

200 S.E.2d 186

284 N.C. 165

STATE of North Carolina v. James Woodrow CAMERON, Jr.

No. 21.

Supreme Court of North Carolina.

Nov. 14, 1973.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. James E. Magner, Jr., Raleigh for the State.

Richard C. Erwin, Winston-Salem, for defendant.

BRANCH, Justice.

Defendant first contends that the trial judge erred by allowing the witness Enscroe to testify as to how he intended to plead to a pending charge growing out of the same events.

Glenn Wallace Enscore, Jr., the State's witness, testified that he was with John Henry Hemrick, David Pennell, Darrell Eugene Hicks and defendant on the night of 28 August 1971 and the early morning of 29 August 1971. They went to a building occupied by Clinard and Baynes, Inc., and he and Hemrick remained with the automobile while the others went to the rear of the building. Enscore and Hemrick were later summoned to bring the automobile to the rear of the building where they all loaded a safe into the car. After he and his companions had transported the safe to a place near a fish camp off Interstate 40, they 'beat the safe open.' The money taken from the safe was divided and his share amounted to $225 or $250.

On redirect examination of Enscore by the Solicotor, the record discloses the following:

'I have been charged in this case and I have not been tried. This is the only charge that is against me. I am represented by Mr. Fred Crumpler.

Q. What is your plea going to be in this case?

MR. COFER: Objection.

A. Guilty.

COURT: Overruled.

EXCEPTION NO. 2'

Defendant contends that the above-quoted question and answer constituted prejudicial error.

This Court has not addressed itself to the precise question here presented. However, we think that the Effect of the admission of the evidence that the witness Intended to thereafter enter a plea of guilty is equivalent to allowing the Solicitor to elicit evidence that a co-participant, in fact, had entered a plea of guilty.

There is considerable authority to the effect that when two or more persons are separately indicted for the same offense and are tried separately, the guilty plea of one defendant is inadmissible against the other. The rationale of this rule is that every person charged with the commission of a criminal offense must be tried upon evidence Against him. Evidence competent and satisfactory against one person is not necessarily competent against another charged with the same crime. The introduction of such a plea when the witness has not testified against the defendant would also deprive a defendant of his constitutional rights of confrontation and cross-examination. See Annot. 48 A.L.R.2d 1016; Wharton's Criminal Evidence 12th Ed. § 439; State v. Kerley, 246 N.C. 157, 97 S.E.2d 876.

In the case of State v. Kerley, Supra, the defendants Kerley and Powell were charged in a single bill of indictment with armed robbery. During the course of the trial, the defendant Powell, through his counsel, withdrew his plea of not guilty and entered a plea of Nolo contendere. Powell was not called as a State's witness. The Solicitor, in his argument, referred several times to the fact that the defendant Kerley's 'friend' and co-defendant had entered a plea of Nolo contendere. He referred to Powell as the 'confessed robber.' The Court, holding the Solicitor's argument to be reversible error stated:

'None of the cited cases supports the view that the codefendant's plea of guilty is competent for consideration as evidence against the defendant then on trial.

'When request therefor is made, it is the duty of the trial judge to instruct the jury that a codefendant's plea of guilty is not to be considered as evidence bearing upon the guilt of the defendant then on trial and that the latter's guilt must be determined solely on the basis of the evidence Against him and without reference to the codefendant's plea. Babb v. United States, 218 F.2d 538 (C.C.A.5th); United States v. Toner, (173 F.2d 140 (C.C.A.3rd)); United States v. Hall, (178 F.2d 853 (C.C.A.2nd)); O'Shaughnessy v. United States, 17 F.2d 225 (C.C.A.5th).

'Reference is made to the cases cited in two Annotations: 48 A.L.R.2d 1004; 48 A.L.R.2d 1016. In the latter, the annotator after noting that a mere reference to a codefendant's plea or conviction may not be deemed sufficiently prejudicial under the circumstances of a particular case to warrant a new trial, states: 'Where, however, a prosecuting attorney urges such other conviction as justification for the jury to find the accused guilty or urges or implies that it is evidence of the accused's guilt, real prejudice results and requires not only prompt but forceful action by the trial court to eliminate the harmful effect; under some circumstances, even curative instructions to the jury will not eradicate the prejudice to the accused.' The cases cited support this statement of the prevailing rule.

'The practical force and prejudicial effect of the solicitor's said argument is apparent. Powell's plea being incompetent as evidence against Kerley, the sanctioned use thereof as the evidential basis for said argument constitutes reversible error for which Kerley is entitled to a new trial.'

This Court considered a similar question in the case of State v. Bryant, 236 N.C. 745, 73 S.E.2d 791. There defendant was charged with felonious breaking and entering and larceny. The State's evidence tended to show that defendant and W. H. Ransom were police officers in the City of Charlotte. On 5 March 1951, at some time aftet midnight, Ransom at the request of defendant, drove a police car to a warehouse where defendant broke out a window, entered the warehouse, and returned with a T.V. set. They took the T.V. set to defendant's car. At defendant's trial Ransom testified to these facts. When the trial judge had completed the charge in defendant's case, the Solicitor announced that W. H. Ransom waived the finding of a bill of indictment and entered a plea of guilty in the prosecution against him. Defendant's counsel moved for a mistrial. The trial judge instructed the jury not to consider the Solicitor's announcement if, in fact, they had heard it, and thereupon denied defendant's motion for a new trial. This Court held that the trial judge correctly denied defendant's motion for a new trial and stated:

'Ransom had just been on the witness stand and testified to facts which clearly disclosed his participation in the crime for the commission of which the defendant was then on trial. The jury was already fully apprized of his guilt. For us to hold that his submission to the charge in the presence of the jury was prejudicial to the defendant would disrupt accepted procedure in criminal courts and materially hamper the orderly administration of the law. We can perceive no reason why we should place our stamp of disapproval upon it.'

See also: State v. Sutherland, 123 N.J.L. 513, 9 A.2d 807; Richards v. United States, 193 F.2d 554 (10th Cir. 1951); Graff v. People, 208 Ill. 312, 70 N.E. 299; Commonwealth v. Biddle, 200 Pa. 640, 50 A. 262; United States v. Rollnick, 91 F.2d 911 (2d Cir. 1937).

Bryant and Kerley are factually distinguishable. In Kerley the co- defendant's plea was strongly argued to the jury by the Solicotor; no such argument was made in Bryant. In Kerley, the person entering the plea did not testify. In Bryant, the person who entered the plea testified to facts which disclosed Bryant's guilt as well as his own.

In instant case, defendant was not deprived of his constitutional rights of confrontation and cross-examination. The record does not reflect any argument to the jury by the Solicitor concerning the witness's intent to enter a plea of guilty. Further, in view of the witness' sworn testimony, which amounted to a detailed and unequivocal admission of his guilt, we are unable to perceive how a statement of his intention to confirm this sworn, public confession by a subsequent plea of guilty could be prejudicial error.

Defendant next contends that the trial judge committed prejudicial error in his charge to the jury.

The trial judge completed his charge to the jury and recessed for lunch at 12:20 p.m. When court reconvened, the following additional instruction was given to the jury:

'COURT: Members of the jury, so there will not be any question about it--a question was raised during the lunch hour that you may not understand exactly how the law applies--I shall instruct you further. For a person to be guilty of a crime, it is not necessary that he himself do all the acts necessary to constitute the crime. If two or more persons act together for the common purpose to commit the crime of safecracking, each of them is held responsible for the acts of the others done in the commission of safecracking--to clarify that in case there is any question in your mind about that particular aspect of the case.

You may now retire and begin your deliberation.'

Defendant contends that the above-quoted instruction was erroneous in that (1) when considered with the other portions of the charge it is inconsistent and confusing, (2) the further charge omits the burden of proof necessary for conviction, (3) the instruction does not relate the law to the facts in evidence.

G.S. § 1--180 requires the trial judge to clarify and explain the law arising on the evidence and a trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial. State v. Jennings, 276 N.C. 157, 171 S.E.2d 447; State v. Wilson, 104 N.C. 868...