State v. Bush

• Decision Date: 29 January 1976
• Docket Number: No. 95,95
• Citation: 289 N.C. 159,221 S.E.2d 333
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James A. BUSH.

Page 333

221 S.E.2d 333

289 N.C. 159

STATE of North Carolina v. James A. BUSH.

No. 95.

Supreme Court of North Carolina.

Jan. 29, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. Lester V. Chalmers, Jr., and William B. Ray, Raleigh, for the State.

William J. Morgan and Grady Mercer, Jr., Jacksonville, for defendant.

BRANCH, Justice.

Defendant's first assignment of error is as follows:

I. WAS THE ENTRY OF THE JUDGMENT AND SENTENCE OF DEATH UNCONSTITUTIONAL IN VIOLATION OF THE RIGHTS GUARANTEED THE DEFENDANT UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES?

The questions presented by this assignment of error were considered and answered by this Court in the case of State v. Woodson, 287 N.C. 578, 215 S.E.2d 607. There Chief Justice Sharp, in part, wrote:

G.S. § 14--17, as rewritten on 8 April 1974 by the enactment of N.C.Sess.Laws, ch. 1201, § 1 provides that murder in the first degree 'shall be punished with death.' Defendants contend, however, that capital punishment 'under the laws of North Carolina (would) violate U.S.Const. amend. VIII and amend. XIV, § 1, and N.C.Const. art. 1, §§ 19, 27.' In the last three years this Court has several times rejected these contentions. They have been thoroughly considered and further discussion would be merely repetitious. See State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975).

Defendant's specific argument that he was denied due process because the District Attorney had the absolute discretion to charge and prosecute for a capital offense or to bring an accused to trial upon a lesser included offense has also been considered and rejected by this Court in a number of cases. See State v. Young, 287 N.C. 377, 214 S.E.2d 763; State v. Woods, 286 N.C. 612, 213 S.E.2d 214; State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721.

Defendant next contends that the trial judge erred by allowing the witness, Eva A. Marshburn, to respond to a question of the District Attorney about a matter which was not within her knowledge.

The District Attorney asked Mrs. Marshburn if her husband usually carried money in his pocket and she replied, 'Usually not a whole lot, but just a little.' Defendant takes the position that this evidence prejudiced defendant 'by allowing speculation of a robbery to creep into evidence.'

A murder committed in the perpetration Or attempted perpetration of robbery is murder in the first degree. G.S. 14--17; State v. Bailey, 254 N.C. 380, 119 S.E.2d 165; State v. Biggs, 224 N.C. 722, 32 S.E.2d 352.

We must concede that the evidence was of little relevance since it is not necessary for property to be actually taken in order to support a conviction of murder in the first degree when the homicide occurs during an attempted robbery. However, in light of the evidence admitted without objection to the effect that the witness found her husband's body lying in a pool of blood beside a knife and his wallet and that the dwelling had been 'ransacked' we can find little prejudice in the admission of this evidence. The evidence admitted without objection was sufficient to support an inference that a robbery had been committed. This assignment of error is overruled.

Defendant assigns as error Judge Fountain's ruling sustaining the State's objection to Deputy Woodward's testimony which would have shown that the officer's investigation tended to corroborate portions of defendant's statement to the officer.

The State takes the position that the proffered evidence was conclusory in nature and invaded the province of the jury.

Officer Woodward testified as to a statement made to him by defendant. The officer's testimony, in essence, corroborated the testimony later given by defendant. On cross-examination, Officer Woodward, in part, stated The defendant proved to be very cooperative . . .. At the barracks he showed us where he had placed the car keys and he also voluntarily showed us where he had put the clothes that he had worn. He gave us permission to go in his locker and cooperated totally with us after his initial denial.

We checked out his remarks concerning going to a bar and that resulted in Mr. Papenfuse being located. The little details about getting cigarettes checked out to be truthful.

This assignment of error is based upon the following question and ruling:

Q. Mr. Woodward, so far as you have been able to personally check in attempt to verify things that were told you by the defendant, have you found these things to be accurate and truthful insofar as you have been able to ascertain?

MR. ANDREWS: Objection.

COURT: Sustained.

Had the officer been permitted to answer he would have stated:

A. Yes, sir, everything that he has told he that took place we have confirmed except the car keys to Mrs. Marshburn's vehicle. We were unable to find those. . . .

Our research reveals some cases which tend to support the State's position.

In State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322, the defendants were charged with a criminal conspiracy to commit robbery and with aiding and abetting in robbery. Three of the defendants entered pleas of guilty to the conspiracy charge and another defendant entered a plea of guilty to the charge of aiding and abetting. Two of the defendants, Stroud and Summerlin, entered pleas of not guilty to both charges. The jury returned verdicts of guilty as charged as to Stroud and Summerlin. Defendant Summerlin appealed. One of the co-conspirators testified for the State. A police officer, without objection, also gave inculpatory testimony against Summerlin. Summerlin admitted that he received some of the stolen property and tried to dispose of it. Thereafter the Sheriff of Wayne County testified concerning the arrest of the defendant Chappell. He stated that Chappell then told him about his part in the robbery. The Solicitor then inquired, 'What did he tell you?' The Sheriff, over objection, replied, 'Just what you have heard, practically verbatim.' In deciding this assignment of error, the Court stated:

The defendant contends the answer was a conclusion on the part of the witness, and violated the general hearsay rule, and invaded the province of the jury, citing State v. McLaughlin, 126 N.C. 1080, 35 S.E. 1037, and Stansbury, N.C. Evidence, Sec. 126.

If the solicitor had pursued his inquiry no further as to what Chappell told him, this exception would be well taken. However, the answer of the witness was not accepted and he was requested by the solicitor to repeat as nearly as he could the conversation between him and Chappell. The Sheriff then testified in detail, without objection, as to what Chappell had told him. The exception will not be upheld.

The defendant was convicted of rape in the case of State v. McLaughlin, 126 N.C. 1080, 35 S.E. 1037. There defense counsel examined the committing Justice of Peace who recited the evidence given by prosecutrix at the preliminary hearing. On cross-examination, the solicitor asked the witness, 'if the testimony of Harriet McMillan, the prosecutrix, in this court was substantially the same as it was on the hearing before him in the justice's court.' Over objection the witness said 'she testified to about the same on both trials.' Holding the admission of this evidence to be error, this Court stated:

. . . The general rule of law is that the jury (or the judge, as the case may be) are the triers of matters of dispute, and form their conclusions from the facts before them, and not upon the opinions of others on the subject. So that, facts and not opinions are to be listened to by the jury.

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Whether the two statements by the prosecutrix were substantially the same, is a fact to be determined by the jury, and not the witness. That would in effect make the witness the jury as to that fact. It was competent for the witness to state what the prosecutrix said on the former trial, and the jury would then determine whether the two statements were the same or not.

The rule that opinion evidence is not admissible because it invades the province of the jury has been criticized in several treatises on evidence because: (1) The reasons justifying its use are unconvincing, (2) its meaning is obscure, and (3) the many exceptions to the rule severely restrict its application. Stansbury's North Carolina Evidence (Brandis Rev.) § 126. See also Professor Morgan's review of King & Pillinger, Opinion Evidence in Illinois, in 29 Va.L.Rev. 970 (1943). Some of the exceptions to the rule are considered in 1 Stansbury's North Carolina Evidence (Brandis Rev.) § 125:

Opinion evidence is always admissible when the facts on which the opinion or conclusion is based cannot be so described that the jury will understand them sufficiently to be able to draw their own inferences. Even when it might be Possible to describe the facts in detail, it may still be Impracticable to do so because of the limitations of customary speech, or the relative unimportance of the subject testified about, or the difficulty of analyzing the thought processes by which the witness reaches his conclusion, or Because the inference drawn is such a natural and well understood one that it would be a waste of time for him to elaborate the facts, or perhaps for some other reason.

It is neither possible nor desirable to lay down a hard and fast rule to cover the infinite variety of situations that may arise, but the admissibility of opinion evidence under the circumstances suggested above is thoroughly established. The idea is variously expressed by saying that 'instantaneous conclusions of the mind,' or 'natural and instinctive inferences,' Or the 'evidence of common observers testifying to the results of their observation' are admissible, or by characterizing the witness's Statement as a...