State v. Crowder

• Decision Date: 13 March 1974
• Docket Number: No. 7,7
• Citation: 285 N.C. 42,203 S.E.2d 38
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Albert CROWDER, Jr.

Page 38

203 S.E.2d 38

285 N.C. 42

STATE of North Carolina v. Albert CROWDER, Jr.

No. 7.

Supreme Court of North Carolina.

March 13, 1974.

Robert Morgan, Atty. Gen., T. Buie Costen and Rafford E. Jones, Asst. Attys. Gen., Raleigh, for the State of North Carolina.

Gerald L. Bass, Raleigh, David E. Kendall of the NAACP Legal Defense Fund, New York City, for defendant-appellant.

HUSKINS, Justice:

Over defendant's objection the solicitor was permitted to ask each prospective juror the following question: 'Do you have any moral or religious scruples or beliefs against capital punishment?' Ten jurors answered no, one answered yes but said that after hearing all the evidence and listening to the case she could consider a verdict of guilty in a capital case, and one said it would depend upon the circumstances. The record shows that no juror was excused for cause by either the solicitor or defense counsel. Defendant contends the trial court erred in allowing the jurors to be questioned concerning their views on capital punishment. This constitutes defendant's first assignment of error.

With respect to jury selections in capital cases, Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.E.2d 776 (1968), establishes two things: (1) veniremen may not be challenged for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction; and (2) veniremen who are unwilling to consider all of the penalties provided by law and who are irrevocably committed, before the trial has begun, to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the trial may be challenged for cause on that ground.

Since the decision in Witherspoon this Court has held in many cases that prospective jurors in a capital case may be asked whether they have moral or religious scruples against capital punishment; if so, whether they are willing to consider all of the penalties provided by law, or are irrevocably committed to vote against the death penalty regardless of the facts and circumstances that might be revealed by the evidence. See e.g., State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968).

In order to insure a fair trial before an unbiased jury, it is entirely proper in a capital case for both the State and the defendant to make appropriate inquiry concerning a prospective juror's moral or religious scruples, beliefs, and attitudes toward capital punishment. Defendant's first assignment of error is overruled.

A .38 Smith and Wesson pistol was identified as State's Exhibit 2 and admitted into evidence over defendant's objection. Defendant contends the pistol was improperly admitted since it was never identified as the murder weapon. This constitutes defendant's second assignment of error.

As a general rule weapons may be admitted in evidence 'where there is evidence tending to show that they were used in the commission of a crime.' State v. Wilson, 280 N.C. 674, 187 S.E.2d 22 (1972). Any article shown by the evidence to have been used in connection with the commission of the crime charged is competent and properly admitted into evidence. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968). 'So far as the North Carolina decisions go, any object which has a relevant connection with the case is admissible in evidence, in both civil and criminal trials. Thus, weapons may be admitted where there is evidence tending to show that they were used in the commission of a crime or in defense against an assault.' 1 Stansbury's North Carolina Evidence § 118 (Brandis rev. 1973).

Applying these legal principles to the evidence in this case, we hold that State's Exhibit 2 was properly admitted. Sergeant Hinton identified State's Exhibit 2 as the pistol he found in the parking lot at King's Lounge about one and one-half hours after the shooting. Officer Holder testified that the entire parking area was not searched immediately after the shooting due to crowd control problems and the large number of vehicles in the area. The pistol, which contained four full rounds and one empty cartridge, was found approximately four to six parking spaces from the spot where the deceased was shot. Milton Hunter, an eyewitness to the shooting, testified that defendant told deceased he had 'a .38' for her just before the shot was fired; that he didn't see what happened to the gun afterwards; and that State's Exhibit 2 resembles the gun he saw defendant use. Deborah Bryant, when shown State's Exhibit 2, testified: 'I have seen defendant Albert Crowder with a pistol before. It was similar to that one over at his house one night. It looked like that one to me. It was about a week before March 4.' All this evidence tends to show a relevant connection between State's Exhibit 2 and the murder of Peggy Ann Bryant. The weapon was properly admitted. Defendant's second assignment of error is overruled.

Jacquelyn Otelie Bryant, sister of the deceased, testified that defendant had been dating the deceased from July or August 1972 until the date she was shot. The solicitor then asked the witness if she knew of her own knowledge where defendant and deceased met. Defendant's objection to that question was overruled and the witness replied: 'She met him in Caledonia in prison.' Objection was then sustained and the jury was instructed not to consider the answer. At defendant's request the jury was excused and defendant moved for mistrial on the ground that the answer was so highly prejudicial the error could not be cured by the court's instructions. Denial of this motion constitutes defendant's third assignment of error.

Defendant relies on State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967), in support of his motion for mistrial. There, Aycoth and his co-defendant John Shadrick were on trial for armed robbery. Deputy Sheriff Fowler was asked if he knew who owned the automobile which was in Aycoth's possession at the time of his arrest. The deputy replied that at the time Aycoth had been arrested on another charge he had said it was his car, and then added: 'His wife asked me to go search the car and see if I could find some articles that was left in the car sitting in the yard When he was indicted for murder.' (Emphasis added) Defendant's objection and motion to strike were allowed, and the court instructed the jury not to consider what defendant's wife had said. Defendant's motion for a mistrial was denied. This Court awarded a new trial, saying: 'The unresponsive statement of Fowler informed the jury that Aycoth had been Indicted for murder. . . . Subsequent incidents tend to emphasize rather than dispel the prejudicial effect of Fowler's testimony. Shadrick testified the arresting officer answered his inquiry as to why he was being arrested by saying, 'Running around with Aycoth is enough.' Too, the solicitor, in cross-examining Shadrick, asked (1) whether Shadrick had become acquainted with Aycoth in prison, and (2) whether Shadrick knew Aycoth while Shadrick was in prison. . . . Being of the opinion the incompetent evidence to the effect Aycoth had been or was under indictment for murder was of such serious nature that its prejudicial effect was not erased by the court's quoted instruction, we are constrained to hold that Aycoth's motion for a mistrial should have been granted.' (Emphasis added)

Ordinarily, where objectionable evidence is withdrawn and the jury instructed not to consider it no error is committed State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947). The rule is aptly stated in State v. Strickland, 229 N.C. 201, 49 S.E.2d 469 (1948), as follows: 'In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed.' (Citations omitted)

It is readily apparent that substantial differences distinguish this case from Aycoth. In the latter, the objectionable statement was that Aycoth had been Indicted for murder. Here, the statement was only that defendant had met deceased in Caledonia in prison. While the statement does suggest that defendant may have been in prison, it has other connotations as well: Who was in prison--defendant, deceased, or both? Furthermore, no Subsequent events tended to emphasize this aspect of the matter. In fact, the subject was not mentioned again. This evidence, therefore, may not be deemed so inherently prejudicial that its initial impact could not be erased by the judge's prompt instruction: 'Ladies and gentlemen of the jury, do not consider the answer to that question.'

"(O)our system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so.' State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938). We hold that the prejudicial effect, if any, of the evidence under discussion was removed when that evidence was withdrawn and the jury instructed not to consider it. This accords with recent decisions of this Court,...