State v. Conrad, 30

• Decision Date: 18 June 1969
• Docket Number: No. 30,30
• Citation: 275 N.C. 342,168 S.E.2d 39
• Parties: STATE of North Carolina v. Dermont Jarrell CONRAD, Talton Gallimore, Jr., and Terry James Davis.
• Court: North Carolina Supreme Court

Page 39

168 S.E.2d 39

275 N.C. 342

STATE of North Carolina v. Dermont Jarrell CONRAD, Talton Gallimore, Jr., and Terry James Davis.

No. 30.

Supreme Court of North Carolina.

June 18, 1969.

Robert Morgan, Atty. Gen., Andrew A. Vanore, Jr., Staff Atty., Raleigh, for the State.

Barnes & Grimes, by Jerry B. Grimes, Lexington, for defendants Gallimore and Davis.

HIGGINS, Justice.

The indictment in Case No. 13,678 charged that Dermont Jarrell Conrad, Talton Gallimore, Jr. and Terry James Davis 'unlawfully, willfully, feloniously, wickedly * * * did conspire, confederate, agree and scheme among themselves, with each other and diverse others * * *' feloniously, wilfully, and deliberately to kill and to murder one Fred C. Sink.

In Case No. 13,664 Terry James Davis was indicted for the wilful, malicious and felonious damage, by the use of dynamite, to the dwelling house of Fred C. Sink, located at 318 Spruce Street in Lexington and occupied at the time by Fred C. Sink, his wife, and four daughters. In Case No. 13,665 Talton Gallimore, Jr. was separately indicted on the same charge. Both indictments were drawn under G.S. § 14--49.1.

In Case No. 13,679, the defendant Gallimore was indicted for the wilful, malicious and felonious damage by the use of dynamite to the 1966 Mercury Comet automobile, the property of Fred C, Sink, and located at 318 Spruce Street in Lexington. In Case No. 13,680, the defendant Davis was separately indicted on the same charge. The indictments were drawn under G.S. § 14--49. All indictments were returned by the Grand Jury on January 22, 1968.

After a long trial, the jury returned guilty verdicts against Gallimore and Davis on all charges. The jury failed to agree as to Conrad. The court ordered a new trial as to him. In the conspiracy The decision of the Court of Appeals finding no error in the trial is reported in 4 N.C.App. 50, 165 S.E.2d 771. In their petition for the review here, the defendants allege the trial court committed four prejudicial errors sufficient to require a new trial. The petitioners pray that the decision of the Court of Appeals be reversed. We discuss the four alleged errors in the order in which they are stated in the petition for certiorari.

case, the court imposed on Gallimore and Davis sentences of 10 years in prison, to run concurrently with other sentences they were then serving. On the charges of malicious injury to the automobile, the court [275 N.C. 346] imposed prison sentences of 20 years, to begin at the expiration of the sentences for conspiracy. On the charge of malicious damage to the occupied dwelling house of Fred C. Sink by the use of dynamite, the court imposed on each defendant a prison sentence of 40 years, to begin at the expiration of the sentence for malicious damage to the automobile.

The petitioners allege the trial court erroneously, and in violation of their constitutional rights, denied their motion for a change of venue based upon the ground the pre-trial publicity in the area was so general and so adverse as to prevent the selection of a fair and impartial jury from Davidson County. The record discloses that the presiding judge conducted a full inquiry, examined the newspaper articles, other news releases, and the affidavits presented in support of the motion. The court also considered voluminous affidavits of representative citizens who expressed the opinion the defendants could receive a fair trial from a Davidson County jury. After careful review, the court concluded an impartial jury could be selected from Davidson County and denied the motion.

The record fails to show that any juror, objectionable to either defendant, was permitted to sit on the trial panel, or that either had exhausted his peremptory challenges before he passed the jury. Error in denying the motion for change of venue is not disclosed. State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Childs, 269 N.C. 307, 152 S.E.2d 453; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; State v. McKethan, 269 N.C. 81, 152 S.E.2d 341; State v. Scales, 242 N.C. 400, 87 S.E.2d 916; Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.

As a second ground for a new trial, the petitioners allege the trial court committed error in denying their motion for a bill of particulars in the conspiracy case. The indictment charged that the defendants and one Dermont Jarrell Conrad conspired 'among themselves, with each other, and Diverse others' to murder Fred C. Sink. The petitioners contend they were entitled to know the identity of 'diverse others' in order to make adequate trial preparations. In response to the motion, the solicitor stated: 'At the present time we do not know any others.' Thereafter, the State did not offer evidence involving anyone except those charged by name in the bill. Obviously the solicitor could not disclose the identity of persons unknown to him.

In State v. Gallimore, 272 N.C. 528, 158 S.E.2d 505, this Court indicated that an indictment charging conspiracy should name the conspirators if known to the solicitor at the time the bill is drawn. If unknown at the time the bill is submitted to the Grand Jury, the solicitor, upon demand, should disclose the identity of others when ascertained and the disclosure should be made in time for counsel to complete trial preparations. In the instant case, however, the defendants were in no wise prejudiced by the inclusion of 'diverse others' in the indictment. The evidence involved only the two petitioners and Conrad, the third defendant, as to whose guilt the jury was unable to agree. The trial court did not commit error either in denying the motion for particulars or in refusing to quash the indictment. G.S. § 15--143; State v. Banks, 263 N.C. 784, 140 S.E.2d 318; State v. Barnes, 253 N.C. 711, 117 S.E.2d 849; State As a third ground for a new trial, each appellant contends evidence of the acts and declarations of the other defendants were introduced in evidence over his objection. Actually the court cautioned the jury to consider acts and declarations of one as evidence against him only, unless the other was actually present and participating. Due to the nature of the charge, the limitation was more favorable to the defendants than they had any right to expect. The charge is conspiracy--a partnership in crime. Generally, an unlawful agreement is made in secret and known only to the guilty parties. They conceal and cover up their unlawful activities. The more reprehensible the objective, the more carefully they plan to prevent detection and exposure. 'Even though the offense of conspiracy is complete upon the formation of the illegal agreement, the offense continues until the conspiracy is consummated or abandoned.' State v. Brewer, 258 N.C. 533, 129 S.E.2d 262, 1 A.L.R.3d 1323; United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168. Because of the nature of the offense courts have recognized the inherent difficulty in proving the formation and activities of the criminal plan and have allowed wide latitude in the order in which pertinent facts are offered in evidence. '(A)nd if at the close of the evidence every constituent of the offense charged is proved the verdict rested thereon will not be disturbed * * *.' State v. Thomas, 244 N.C. 212, 93 S.E.2d 63; State v. Jackson, 82 N.C. 565.

v. Thornton, 251 N.C. 658, 111 S.E.2d 901; State v. Van Pelt, 136 N.C. 633, 49 S.E. 177, 68 L.R.A. 760.

'It (conspiracy) may be, and generally is, established by a number of indefinite acts, each of which, standing alone, might have little weight, but, taken collectively, they point unerringly to the existence of a conspiracy.' State v. Whiteside, 204 N.C. 710, 169 S.E. 711. 'A declaration or act of one consirator, to be admitted against his co-conspirators, must have been made when the conspiracy was still in existence and in progress.' 16 Am.Jur.2d, Conspiracy, § 40, p. 148, citing many decisions.

The general rule is that when evidence of a prima facie case of conspiracy has been introduced, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members. State v. Gibson, 233 N.C. 691, 65 S.E.2d 508; State v. Smith, 221 N.C. 400, 20 S.E.2d 360; 16 Am.Jur.2d, Conspiracy, §§ 35, 36, 37, 38, pp. 146, 147 (citing authorities). Consideration of the acts or declarations of one as evidence against the co-conspirators should be conditioned upon a finding: (1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended. State v. Dale, 218 N.C. 625, 12 S.E.2d 556; State v. Lea, 203 N.C. 13, 164 S.E. 737; 11 Am.Jur. 571. Of course a different rule applies to acts and declarations made before the conspiracy was formed or after it terminated. Prior or subsequent acts or declarations are admissible only against him who committed the acts or made the declarations.

In the instant case, however, Judge Collier, in each instance throughout the trial, limited the acts and declarations to those actually present and participating at the time. These declarations were made by a party to the conspiracy during its active existence and concerning its purposes. The admissions do not violate the 'right to confrontation rule' enunciated by the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Bruton and one Evans were indicted in the United States District Court for a postal robbery. During the interrogation, Evans confessed to the investigating officer, and implicated Bruton in the robbery. At the trial the officer was permitted to relate to the jury the statement made to him by Evans implicating both Bruton and himself. The Supreme Court granted Bruton a new trial on the As a fourth and final ground for a new trial, the appellants allege the court made a prejudicial remark in ruling on the...