State v. Finch

• Decision Date: 14 July 1977
• Docket Number: No. 8,8
• Citation: 293 N.C. 132,235 S.E.2d 819
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles Ray FINCH.

Page 819

235 S.E.2d 819

293 N.C. 132

STATE of North Carolina v. Charles Ray FINCH.

No. 8.

Supreme Court of North Carolina.

July 14, 1977.

Rufus L. Edmisten, Atty. Gen., by David S. Crump, Asst. Atty. Gen., Raleigh, for the State of North Carolina.

Vernon F. Daughtridge, Wilson, for defendant-appellant.

HUSKINS, Justice:

Prior to the call of the case the court spoke briefly to the jurors present in the courtroom. These remarks by Judge Crissman included the following statement:

"Now as I said, you are supposed to listen well and observe and remember the evidence as well as you can, and evaluate it, but then you are supposed to take your instructions from the Court, and that is the law that is applicable in the case give to you then by the Court, and you are supposed to take what the Court says the law is and not what you think the law ought to be, or not what you would like for the law to be, but you take what the court says about the law, and what it is in the case. If the Court is wrong, then the Court of Appeals will let that be known. Somebody will straighten that out, but you take your instructions from the Court." (Emphasis added.)

Defendant contends the court thereby impermissibly informed the jury that the case would be reviewed by an appellate court in the event a guilty verdict was returned. This, defendant argues, "lightened the burden" of the jury in violation of the rule discussed in State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975), and State v. Hines, 286 N.C. 377, 211 S.E.2d 201 (1975). We think defendant misconstrues the holding in those decisions.

In Hines, the district attorney made the following statement to a juror in response to her expressed hesitation about returning a guilty verdict knowing it would result in a death sentence:

"Well, everybody feels that way but this is the punishment that is provided at this point. And to ease your feelings, I might say to you that no one has been put to death in North Carolina since 1961."

Thus the district attorney suggested to the jury that even though they might return a verdict requiring the defendant to be put to death, such punishment in all probability would never be imposed. In light of this suggestion we held:

"It is the province of a juror to return a verdict which speaks the truth. This duty is his sole responsibility. We cannot allow this solemn obligation to be diluted by statements aliunde the record and foreign to his single duty. In these volatile and bitterly contested cases, in which three human lives hung in the balance, we think the solicitor's statement was intended to, and in all probability did, lighten the solemn burden of the jurors in returning their verdict." (Emphasis added.)

In White, the private prosecutor said:

"You will answer the question whether this defendant is guilty of first degree murder. If found guilty, he gets an automatic appeal to the Supreme Court of North Carolina it is necessary. If any error is made in this court, that Court will say."

By this statement the jury was informed that there was a further review of the case, including the verdict, and this Court held that argument "which suggests to the jury that they can depend upon either judicial or executive review to correct any error in their verdict, and to share responsibility for it, is an abuse of privilege and prejudicial to the defendant." State v. White, supra.

The contested remark of Judge Crissman, while perhaps unnecessary, in no way "shares the burden" of the jury by intimating that its verdict will be reviewed or that the mandated punishment will be withheld. Rather, it merely informs the jurors that the law, as stated by the trial judge, will be subject to review by an appellate court. There is therefore no suggestion to the jury that its verdict is somehow less binding because of later opportunities for review. We fail to see how defendant has been prejudiced by the judge's remarks. Defendant's first assignment is overruled.

Relying on Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), defendant next contends that his constitutional rights were violated by the exclusion of jurors who expressed scruples against the death penalty. We note, however, that the United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), invalidated the death penalty provision of G.S. 14-17, the statute under which defendant was sentenced. As the Witherspoon decision affected only the death sentence and not the conviction, defendant's contention is groundless. State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). This assignment is overruled.

Defendant next assigns as error the denial of his motion for a mistrial made during jury selection. The motion is grounded on statements made by two prospective jurors, Kenneth Wood and Aaron Lewis. Wood, in response to a question as to whether he had formed an opinion as to defendant's guilt or innocence, responded that he thought defendant would be guilty. Lewis, when asked if he could reach a verdict based on the evidence, stated that from what he read he felt the defendant was guilty. Defendant contends that since these remarks were heard by the other jurors, he was prejudiced and the trial judge should have declared a mistrial. We think not.

The granting of a mistrial rests largely in the discretion of the trial judge. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974). Here, Judge Crissman promptly excused jurors Wood and Lewis and immediately instructed the other jurors not to consider the remarks. This sufficed to cure any prejudice. See State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970).

Defendant next assigns as error the admission of evidence identifying the defendant as the man wielding the shotgun.

Under this assignment defendant contends first that his constitutional rights were violated in that the lineup was conducted while defendant was under an unlawful arrest. Apparently defendant argues that his in-court identification by Lester Floyd Jones and evidence of the lineup identification stemmed directly from the alleged unlawful arrest and, as such, were tainted as "fruits of the poison tree." For the reasons which follow we find no merit in this assignment.

Defendant contends that his arrest was not only "illegal," i. e., in violation of G.S. 15A-401, but also "unconstitutional." Assuming, for the moment, that the arrest was both "illegal" and "unconstitutional," there is no merit in defendant's contention that this compels the exclusion of identification evidence obtained thereby.

Clearly a finding that an arrest is "illegal" is not sufficient ground to exclude the controverted testimony. As we said in State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706 (1973):

"The issue then is this: When an arrest is constitutionally valid but illegal under the law of North Carolina, must the facts discovered or the evidence obtained as a result of the arrest be excluded as evidence in the trial of the action? The answer is no. An unlawful arrest may not be equated, as defendant seeks to do, to an unlawful search and seizure. All evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a state court. Mapp v. Ohio, (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). Such evidence is also inadmissible by statute in North Carolina. G.S. 15-27(a). But there is no such rule and no such statute in this State with respect to facts discovered or evidence obtained following an illegal arrest. Neither reason nor logic supports the suggestion.

We hold that nothing in our law requires the exclusion of evidence obtained following an arrest which is constitutionally valid but illegal for failure to first obtain an arrest warrant. Defendant may, if so advised, redress his grievance for the warrantless arrest by a civil action for damages. (Citations omitted.) But the competency of the evidence obtained following his illegal arrest remains unimpaired."

We find nothing in the law of North Carolina which requires that identification evidence, obtained subsequent to an illegal arrest, be excluded.

Similarly, we find no merit in defendant's contention that an "unconstitutional" arrest requires the exclusion of identification testimony that is otherwise competent. In a recent decision dealing with a similar situation, the Fourth Circuit stated:

"There is no constitutional right not to be viewed. United States v. Quarles, 4 Cir., 387 F.2d 551 (1967). It is only when the arrest itself produces such pressure as to compel admissions or the production of contraband or the seizing of evidence that would not otherwise have been detected that the poisonous tree can be said to produce fruit. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We hold that an unlawful arrest does not per se make inadmissible positive identification testimony that is otherwise competent. See Vance v. State of North Carolina, 4 Cir., 432 F.2d 984, 990 (1970). Whether such testimony is admissible does not depend upon the validity of the arrest but upon whether the confrontation was 'so unnecessarily suggestive and conducive to irreparable mistaken identification that (appellants were) denied due process of law,' Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967)."

United States v. Young, 512 F.2d 321 (4th Cir. 1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976); accord, People v. Love, 24 Ill.App.3d 477, 321 N.E.2d 419 (1974); Metallo v. State, 10 Md.App. 76, 267 A.2d 804 (1970); State v. Timley, 541 S.W.2d 6 (Mo.Ct.App.1976); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972).

We see no chance that defendant's arrest created a likelihood that the pretrial confrontation was so "conducive to irreparable mistaken identification as to offend fundamental standards of decency,...