State v. Doss

• Decision Date: 13 October 1971
• Docket Number: No. 1,1
• Citation: 183 S.E.2d 671,279 N.C. 413
• Parties: STATE of North Carolina v. Owen Swanson DOSS.
• Court: North Carolina Supreme Court

Page 671

183 S.E.2d 671

279 N.C. 413

STATE of North Carolina v. Owen Swanson DOSS.

No. 1.

Supreme Court of North Carolina.

Oct. 13, 1971.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.

M. E. Cavendish and James T. Cheatham, Greenville, for defendant appellant.

MOORE, Justice.

The record in this case contains 101 exceptions. Defendant, however, in his brief states that the appeal presents 10 questions. These questions will be discussed separately.

Defendant's first assignment of error is the overruling of his motion to quash the bill of indictment. He does not assert that the indictment is insufficient in form or allegation. His contentions are that to subject him to trial under this indictment on the capital offense of first degree murder violates his rights in that punishment by death is a cruel and unusual punishment and in violation of the Constitution of North Carolina and the Constitution of the United States; that the statute under which this defendant is charged with the capital felony of murder is unconstitutional as the same denies the defendant the right to plead guilty to the charges against him and to offer evidence in mitigation thereof; that the statute under which this defendant is charged in the bill of indictment has been declared unconstitutional by the United States Supreme Court; that the present procedural practice of the State of North Carolina in allowing the jury unbridled discretion in sentencing procedures is a violation of the defendant's constitutional rights under the Constitution of North Carolina and the Constitution of the United States; and that the defendant's constitutional rights under the North Carolina Single Verdict Procedure are denied him, both under the Constitution of North Carolina and the Constitution of the United States.

G.S. § 14--17 provides:

'Murder in the first and second degree defined; punishment.--A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury. All other kinds of murder shall be deemed murder in the second degree, and shall be punished with imprisonment of not less than two nor more than thirty years in the State's prison.'

Defendant concedes that the two issues raised by him in his motion to quash the bill of indictment as to the jury having unbridled discretion in death sentence procedures and as to his unitary trial have been decided against him. McGautha v. State of California and Crampton v. State of Ohio, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971).

Defendant also concedes that as the law presently stands the imposition of the death penalty in North Carolina is not Per se unconstitutional. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971). This Court in numerous cases has rejected the attacks on constitutional grounds upon judgments imposing death sentences pursuant to the procedure followed in the present case. State v. Westbrook, supra; State v. Atkinson, supra; State v. Sanders, 276 N.C. 598, 174 S.E.2d 487 (1970); State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886 (1970); State v. Spence, 274 N.C. 536, 164 S.E.2d 593 (1968).

On 23 July 1971 the Supreme Court of the United States entered memorandum decisions in six North Carolina cases reversing the death penalty imposed by the Superior Court and affirmed by the Supreme Court of North Carolina in Atkinson, Sanders, Roseboro, supra, and in State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970); State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), and remanded these cases to the Supreme Court of North Carolina for further proceedings. Atkinson v. North Carolina, 403 U.S. 948, 91 S.Ct. 2283, 29 L.Ed.2d 859 (1971); Hill v. North Carolina, 403 U.S. 948, 91 S.Ct. 2287, 29 L.Ed.2d 860 (1971); Roseboro v. North Carolina, 403 U.S. 948, 91 S.Ct. 2289, 29 L.Ed.2d 860 (1971); Williams v. North Carolina, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed.2d 860 (1971); Sanders v. North Carolina, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed.2d 860 (1971); Atkinson v. North Carolina, 403 U.S. 948, 91 S.Ct. 2292, 29 L.Ed.2d 861 (1971). This Court remanded each of said cases to the Superior Court where tried, with an order that, pursuant to the mandate of the Supreme Court of the United States, the Superior Court in each case enter judgment that the defendant be imprisoned for life in the State's prison. State v. Atkinson, 279 N.C. 386, 183 S.E.2d 106 (1971); State v. Hill, 279 N.C. 371, 183 S.E.2d 97 (1971); State v. Roseboro, 279 N.C. 391, 183 S.E.2d 108 (1971); State v. Williams, 279 N.C. 388, 183 S.E.2d 106 (1971); State v. Sanders, 279 N.C. 389, 183 S.E.2d 107 (1971); State v. Atkinson, 279 N.C. 385, 183 S.E.2d 105 (1971). In the decisions entered by the Supreme Court of the United States, but Court as authority for its decision in each case cited United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and Pope v. United States, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). Neither of these cases is controlling in the case at bar. Prior to the commission of the crime charged in this case and to the trial, G.S. § 15--162.1 was repealed. Under that statute any person accused of first degree murder could have tendered in writing a plea of guilty of said crime, and the State with the approval of the court could have accepted such plea, in which case punishment was life imprisonment. G.S. § 15--162.1 was similar to the Federal Kidnapping Act, 18 U.S.C. § 1201(a), the death penalty of which was condemned in Jackson, and the Federal Bank Robbery Act, 18 U.S.C. § 2113(e), the death penalty of which was condemned in Pope. With the repeal of G.S. § 15--162.1, this infirmity insofar as the death penalty in the felony of murder in the first degree, or burglary in the first degree, or arson, or rape in North Carolina was removed.

There is, therefore, no merit in defendant's first assignment of error.

Defendant's next assignment of error relates to the sustaining of the State's challenges for cause to 30 prospective jurors, the basis for each challenge being the prospective juror's statement on Voir dire concerning his or her inability to return a verdict in any case which would result in the imposition of the sentence of death. The Voir dire examination of each prospective juror is set forth in detail in the record. It discloses that no juror was excused because of his or her expression of a general objection to the death penalty or of moral or religious scruples against inflicting it. While there were variations in the answers of these prospective jurors, in each instance the answer indicated that in no case would the juror return a verdict that would result in the imposition of the death sentence. Here, as said in State v. Sanders, supra, 276 N.C. at 609, 174 S.E.2d at 495: 'It is perfectly clear from these answers that each of these prospective jurors, before hearing any of the evidence, had already made up his mind that he would not return a verdict pursuant to which the defendant might lawfully be executed whatever the evidence might be.'

Under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), a venireman should be willing to consider all the penalties provided by State law and he should not be irreparably committed before the trial has begun to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceeding. Accord: Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); State v. Westbrook, supra; State v. Sanders, supra. The record here indicates that the jurors excused were committed to vote against the death penalty. The assignment of error is overruled.

Defendant next contends that the trial court committed reversible error in permitting witnesses to testify that defendant was an escaped prisoner. The witness D. E. Smithey was allowed to testify, over objection, that both Manning and Doss were inmates of the Correctional Department, assigned to the work release program, and that on 3 June 1970 they went out on work release and did not return to the Sandy Ridge Camp where they were supposed to spend the night. Similar evidence was given without objection by Manning. Manning's evidence would have cured any error. 1 Strong, N.C. Index 2d, Appeal and Error § 48, and cases therein cited. Moreover, in State v. Williams, supra, 276 N.C. at 711--712, 174 S.E.2d at 509, this Court said:

'* * * The term 'work release' does not relate to any specific crime or the degree or nature of any crime. While it is undoubtedly the rule of law that evidence of a distinct substantive offense is inadmissible to prove another independent crime, this rule is subject to well-established exceptions where the two crimes are disconnected and not related to each other. Proof of the commission of other like offenses to show a chain of circumstantial evidence with respect to the matter on trial or to show the identity of the person charged is competent. State v. Christopher, 258 N.C. 249, 128 S.E.2d 667; State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; State v. Dail, 191 N.C. 231, 131 S.E. 573; State v. Simons, 178 N.C. 679, 100 S.E. 239; State v. Weaver, 104 N.C. 758, 10 S.E. 486. The testimony that defendant was on 'work release' was competent as proof of the identity of d...