State v. Davis

• Decision Date: 18 August 1976
• Docket Number: No. 68,68
• Citation: 227 S.E.2d 97,290 N.C. 511
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Tharoy DAVIS and Joseph C. Foster.

Page 97

227 S.E.2d 97

290 N.C. 511

STATE of North Carolina v. Tharoy DAVIS and Joseph C. Foster.

No. 68.

Supreme Court of North Carolina.

Aug. 18, 1976.

Rufus L. Edmisten, Atty. Gen., and Lester V. Chalmers, Asst. Atty. Gen., Raleigh, for the State.

John E. Duke, Goldsboro, for Tharoy Davis, defendant-appellant.

Page 110

William D. Spence, Kinston, for Joseph C. Foster, defendant-appellant.

SHARP, Chief Justice.

In the record on appeal defendant Foster lists 103 assignments of error. Of these he brings forward 19, setting them out in his brief in the manner required by Rule 28, Rules of Practice in the Supreme Court, N.C.G.S. Vol. 4A, Append. I (1970). Defendant Davis lists 104 assignments, all except No. 104, being identical in number and content with those of Foster. Davis has attempted to bring forward all but three of his assignments. In general disregard of Rule 28, Rules of Practice in the Supreme Court, he has attempted to correlate all 101 of them within seven groups. He essayed an impossible task--as would we, were we to undertake to accommodate this opinion to any such categorization. Our consideration of the record and briefs, however, reveals that relatively few require consideration. In the beginning, we dispose of the 12 assignments (abandoned by Foster) which Davis marshals in his Groups I and II.

Group I assignments, all but one of which involve pretrial motions, are that the court erred (A) in refusing to quash the bill of indictment; (B) in refusing to allow defendants' motion for discovery 'in its entirety'; (C) in hearing defendants' discovery motions without the presence of Davis; (D) in failing 'to hold a preliminary hearing until after defendant had been in jail several weeks'; (E) 'in refusing to dismiss for lack of a speedy trial'; (F) in granting the State's motion to consolidate Davis's trial with that of Foster; and (G) in refusing defendants' motion to sequester the witnesses.

Neither error in the court's rulings on these motions nor prejudice resulting therefrom had been made to appear.

(A) The bill of indictment was drawn in the words of G.S. 15--144. It was, therefore, sufficient to support a conviction of murder in the first degree. State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972), Modified, 283 N.C. 99, 195 S.E.2d 33 (1973).

(B) The court's order upon defendants' motions for discovery entered under the then applicable statute, G.S. 15--155.4 (N.C.G.S. Vol. 1C, Cum.Supp. 1974) (repealed by 1973 N.C.Sess. Laws c. 1286, § 26) made available to them all information to which they were entitled. Had the court allowed either of the defendants' motions 'in its entirety' he would have had to require every law enforcement officer who worked on this case to compile a daily log of his activities throughout his investigation and the State to surrender, without discrimination, its entire work product. For instance, Davis demanded 'any and all statements made by any persons to the investigating officers'; and Foster demanded 'a list of the names and addresses of all persons interviewed by agents of the State which the State (did) not intend to produce as witnesses at the time of trial, and the specific reasons why the State (would) not call said witnesses.' A defendant is not entitled to the granting of a 'motion for a fishing expedition nor to receive the work product of police of State investigators.' State v. Davis, 282 N.C. 107, 111--12, 191 S.E.2d 664, 667 (1972). See State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972).

[C] The record discloses that the order entered upon defendant Foster's motion for discovery was made applicable to Davis by consent of his counsel. Further, the following statement appears in Davis's brief: 'Although defendant's attorney admittedly made no request that the defendant be allowed to be present at the hearing before Judge Browning . . . it is submitted that the Court erred in not requiring the defendant's physical presence.' Not so. The strict rule that an accused cannot waive his right to be present at every stage of his trial upon an indictment charging a capital felony, State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969), is not extended to require his presence at the hearing of a pretrial motion for discovery when he is represented by counsel who consented to his absence, and when no prejudice resulted from his absence. See Brown v. State, 225

Page 111

Md. 349, 170 A.2d 300 (1960); Annot., 'Presence at Trial--Law Argument,' 85 A.L.R.2d 1111 (1962).

(D)--(E) The record reveals Davis was arrested on 2 February 1974 and between then and February 12th (exact date undisclosed) his parents employed Mr. John E. Duke to represent him. As privately employed counsel, Mr. Duke represented Davis at his preliminary hearing on March 7th and at his trial during the week of June 10th. After Davis's conviction and upon his affidavit of indigency, on June 16th the court appointed Mr. Duke to represent him on appeal to this Court. Defendant Foster was arrested on 4 February 1974, and, on 6 February 1974, Mr. William D. Spence, his present counsel, who has represented him throughout, was appointed as his attorney. The record discloses no request or demand by either defendant for a preliminary hearing earlier than March 7th nor for a trial before June 10th. Further, it is not suggested that the State purposely delayed defendants' trial or that any prejudice resulted to either defendant by reason of any delay in the proceedings. See State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972). State v. Ball, 277 N.C. 714, 178 S.E.2d 377 (1971); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969); State v. Hollars, 266 N.C. 45, 145 S.E.2d 309 (1965).

(F) The State's motion to consolidate the trial of the two defendants was addressed to the sound discretion of the presiding judge, and there is no basis for a contention that he abused his discretion. 'Ordinarily, consolidation is appropriate when the offenses charged are of the same class and are so connected in time and place that evidence at the trial upon one of the indictments would be competent and admissible at the trial on the other(s).' State v. McVay and State v. Simmons, 277 N.C. 410, 414, 177 S.E.2d 874, 876 (1970). Obviously this is such a case.

(G) The sequestration of witnesses is likewise a matter in the trial judge's discretion and the record suggests no abuse. See State v. Clayton, 272 N.C. 377, 385--86, 158 S.E.2d 557, 563 (1968).

Included in Group I is Davis's assignment No. 3, that the court erred in permitting Clarence Jones, Jr., and Deputy Sheriff William E. Smith (witnesses for the State whose names were omitted from the list of potential witnesses furnished defendants prior to trial) to testify. It is apparent from the record that the omission of the names of these two witnesses neither deprived defendants of a fair trial nor resulted in any prejudice to them. The testimony of Clarence Jones in no way implicated either defendant in the robbery and murder at Grant's grocery. Deputy Sheriff Smith, Garris, and Pelletier, and SBI Agent Slaughter were the officers who made the preliminary investigation at the store on the night of the homicide. Smith was called as a witness to substitute for Pelletier, whose name was on the list but who had become unable to testify during the trial. Bad faith on the part of the State in omitting the names of Jones and Smith is not indicated. Permitting these witnesses to testify was a matter within the discretion of the trial judge, not reviewable in the absence of a showing of an abuse of discretion. State v. Carter, 289 N.C. 35, 220 S.E.2d 313 (1975). None has been shown. This misplaced assignment is without merit and is also overruled.

Defendant Davis's Group II assignment of errors challenge the court's ruling allowing the State to challenge four jurors for cause. One stated unequivocally that his mind was 'made up' with reference to defendants' guilt or innocence. As we interpret the answers of the other three challenged jurors to questions put to them by the solicitor on voir dire, each stated without equivocation that his opposition to capital punishment was such that he would refuse to return a verdict of guilty of murder in the first degree even though the evidence satisfied him beyond a reasonable doubt of defendants' guilt. The four challenges were properly allowed. See State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975); State v. Monk, 286 N.C. 509, 212

Page 112

S.E.2d 125 (1975); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974). See also State v. Smith, 290 N.C. ---, 226 S.E.2d 10 (1976).

Assignment No. 77 is that the judge erred in overruling defendants' motions of nonsuit. The State's evidence, which we have taken pains to set out in considerable detail in the preliminary statement, was clearly sufficient to withstand these motions. Measured by the applicable and oft-stated rule (see State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966)), the testimony of the following witnesses sufficed to take the case to the jury on the question of defendants' guilt of the felony murder for which they were convicted: (1) Mrs. Barwick's identification of defendants as two of the three men who were in Grant's store on the occasion of the robbery and homicide and her chronology of the events occurring while they were in the store, which tended to implicate all three in the robbery; (2) Lucinda Carol Kornegay's testimony tending to show that on Friday, 28 December 1973, from noon until 5:00 p.m. the defendants, John D. Foster, and Hodges were together at her home, five miles from Sparky Grant's store; (3) Jack Foster's testimony that defendants, John D. Foster, and Hodges left his home, located four and one-half miles from the store, about 8:00 p.m. on 28 December 1973; and (4) the testimony of John D. Foster that, after he, defendants, and...