State v. Alford

• Decision Date: 02 March 1976
• Docket Number: No. 4,4
• Citation: 222 S.E.2d 222,289 N.C. 372
• Parties: STATE v. North Carolina v. John Thomas ALFORD and Sherman Eugene Carter.
• Court: North Carolina Supreme Court

Page 222

222 S.E.2d 222

289 N.C. 372

STATE v. North Carolina v. John Thomas ALFORD and Sherman Eugene Carter.

No. 4.

Supreme Court of North Carolina.

March 2, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

James L. Roberts, Charlotte, for John Thomas Alford.

John G. Plumides, Charlotte, for Sherman Eugene Carter.

MOORE, Justice.

Defendants first challenge the constitutionality of North Carolina's death penalty. Questions raised by this assignment of error have been considered and found to be without merit in State v. Armstrong, 287 N.C. 60, 212 S.E.2d 894 (1975); State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Lowery, 286 N.C. 698, 213 S.E.2d 255 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975); State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975); State v. Lampkins, 286 N.C. 497, 212 S.E.2d 106 (1975); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975); State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974). We adhere to those decisions.

Defendants next contend that their rights under the Fourteenth Amendment to the United States Constitution were violated by the systematic exclusion of blacks from the trial jury. In State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972), we said:

'If the motion to quash alleges racial discrimination in the composition of the jury, the burden is upon the defendant to establish it. (Citations omitted.) . . .

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'A person has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury. He does have the constitutional right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded. (Citations omitted.)'

The basis for this assignment of error lies in the fact that all prospective black jurors were peremptorily challenged by the district attorney, and that both defendants were blacks. There is no suggestion in the record that the district attorney had previously followed practices which prevented blacks from serving on the juries in his district. The United States Supreme Court has squarely ruled against the contentions here urged by defendants. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Court, in part, stated:

'. . . 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. . . .

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'. . . But the defendant must, to pose the issue, show the prosecutor's systematic use of peremptory challenges against Negroes over a period of time. . . .'

Defendants have failed to make out a Prima facie case of arbitrary or systematic exclusion of blacks from the jury. This assignment of error is overruled.

Defendants moved for a change of venue under G.S. 15--135 (now G.S. 15A--957) due to adverse pretrial publicity in the news media. Defendants assign the denial of this motion as error. In support of the motion, defendants introduced as exhibits the following newspaper articles and television newscasts:

(1) A Tuesday, 11 March 1975, article in the Charlotte Observer discussing the trial of Larry Waddell for the murder of a dry cleaning store owner in which the widow's testimony accusing Waddell is recounted and in which Alford's name is mentioned as a defense witness and the fact that he was arrested with Waddell is noted.

(2) A Wednesday, 12 March 1975, article in the Charlotte Observer which stated that Waddell, after conviction, fled the jurisdiction.

(3) A 17 March 1975 editorial by Tom Wicker in the Charlotte Observe discussing the popularity of the death penalty.

(4) A Channel 9 broadcast on 19 November 1974 showing the capture of Waddell who had been declared an outlaw and the arrest of defendants Carter and Alford who were found in the same apartment and other broadcasts carrying ocverage of the crime.

(5) A general article in the Charlotte Observer discussing the toughening attitude of the North Carolina Senate toward armed robbery.

(6) A general article in the Charlotte Observer on 9 March 1975 discussing the effect of news publicity on the jurors' deliberations.

A motion for change of venue is addressed to the sound discretion of the trial judge and his ruling will not be overturned in the absence of an abuse of discretion. State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967). With the exception of the coverage of defendants' arrest, the articles are of a very general nature and likely to be found in any jurisdiction to which the trial might be moved. The coverage of the arrest only indicates that the defendants were charged with a crime. It in no way intimates that defendants were guilty. The record does not indicate that any prospective juror had read the newspaper articles or had seen or heard any other news releases pertaining to these cases. Nothing in the record shows that any juror had been influenced in any manner by this publicity. No abuse of discretion has been shown. This assignment is overruled.

Dr. Hobard Wood, a medical expert qualified to testify as to the cause of death, testified that he examined the body of Gregory Leonard on 7 November 1974 and performed an autopsy thereon. He further testified that the deceased had died as a result of a gunshot wound in the upper right lateral chest area and that there was powder residue around the wound indicative of a very close range of fire possibly down to near contact or contact range. Dr. Wood then identified two photographs of the deceased, one as being the person upon whom he performed the autopsy, and the other showing the location of the wound. Upon the introduction of these photographs, the court instructed the jury that the photographs were admitted for the sole purpose of illustrating or explaining the testimony of the witness.

Defendant assigns as error the introduction of these photographs. We find no merit in this assignment. The photographs were admissible to illustrate and explain the testimony of Dr. Wood, they were properly authenticated, and the jury was properly instructed that they were admitted for the sole purpose of illustrating and explaining the testimony of the witness. They were competent for that purpose. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972), Rev'd as to death penalty, 409 U.S. 1004, 93 S.Ct. 453, 34 L.Ed.2d 295 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971), Rev'd as to death penalty, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972).

Defendants contend that the trial court erred in permitting the in-court identifications of defendants since such in-court identifications were tainted by and were the product of impermissibly suggestive lineup procedures. This lineup took place two weeks after the Viking Imports robbery. At that time four of the eyewitnesses identified Alford and two identified Carter. Defendants, relying on State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), Cert. den., 396 U.S. 1024, 90 S.Ct. 599, 24 L.Ed.2d 518 (1970), claim that the two-week delay in itself invalidates the identifications. Rogers does not invalidate any lineup that occurs two weeks after the crime, but simply considers the time lapse as one of the factors in determining whether the lineup was impermissibly suggestive. Here, the court found, after Voir dire examination, that the lineup consisted of young black males of approximately the same height and build, all similarly dressed, and also found that there was no evidence of any suggestion on the part of the police officers or any other person that would taint or color the identification of the defendants. In addition to its approval of the lineup procedures, the court further concluded that the in-court identifications of the defendants were of independent origin, based solely on what the witnesses saw at Viking Imports on 6 November 1974. A brief review of the evidence fully supports this conclusion.

Johnny Rollins, one of the eyewitnesses, testified that the two men who came into Viking Imports on the afternoon of 6 November 1974 were defendants Carter and Alford. Carter had a .45-caliber pistol in his hand, and Alford had a smaller blue steel weapon in his hand. Alford was standing ten to twelve feet in front of Rollins and Carter was standing directly in front of him. He observed Carter for a period of two to four seconds and had a full look at Carter's face.

Bruce Wells, another eyewitness, testified that he had known Carter three and a half years and had been in school with him at South Mecklenburg High School. He saw Carter walk in through the front door and Alford walk in behind him. When they entered, Wells was some ten feet from Alford. The lighting was very good, he had 20--20 vision, he was able to see Alford, who came as close as five or six feet to him, for about fifteen seconds, and he observed Carter for about ten seconds.

Another eyewitness, Wayne Paul Perkins, testified that he was...