State v. Frazier
| Decision Date | 14 January 1972 |
| Docket Number | No. 114,114 |
| Citation | 280 N.C. 181,185 S.E.2d 652 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Johnnie FRAZIER. |
Atty. Gen. Robert Morgan and Special Counsel Ralph Moody, Raleigh, for the State.
Lila Bellar, Charlotte, for defendant.
The defendant assigns as error the denial of his plea in amnesty and asserts that if this was not error the State should have arraigned him for second degree murder only, by reason of an alleged agreement to accept a plea of guilty thereof.
Amnesty is an exercise of the sovereign power by which immunity to prosecution is granted by wiping out the offense supposed to have been committed by a group or class of persons prior to their being brought to trial. It is related to the granting of a pardon, which is the forgiveness by the sovereign of an offense, granted to an individual after his conviction thereof. 59 Am.Jur.2d, Pardon and Parole, §§ 5 and 9. Amnesty has been granted in this State by acts of the Legislature. See: State v. Blalock, 61 N.C. 242, and State v. Applewhite, 75 N.C. 229, relating to the Amnesty Acts of 1866, 1872 and 1874. See also: State v. Bowman, 145 N.C. 452, 59 S.E. 74, and State v. Love and West, 229 N.C. 99, 47 S.E.2d 712, wherein statutes provided immunity to the witness for the State with reference to a specific type of crime. Federal grants of amnesty have been proclaimed by the President on a number of occasions beginning with an amnesty proclamation by President Washington in 1795. See United States v. Burdick, 211 F. 492 (S.D.N.Y., 1914). Neither the solicitor nor the judge of the superior court has authority under the law of this State to grant amnesty.
Actions of the solicitor in the prosecution of a specific criminal case may result in a bar to further prosecution for the commission of an offense, as where the solicitor enters a Nolle prosequi or his actions give rise to a proper plea of former jeopardy or, perhaps, where they are so basically unfair as to make further prosecution a denial of due process of law, or as where the State, with the approval of the trial court, accepts a plea of guilty of a lesser offense, or the solicitor announces in open court, when the defendant is brought to trial, that the State seeks only a verdict of guilty upon a lesser degree of, or a lesser offense included within, the offense charged in the indictment. None of these situations is disclosed by this record.
The basis of the defendant's contention upon this point is that he testified when called as a witness by the State at the trial of his alleged accomplice Westbrook. Prior to and throughout that testimony this defendant, Frazier, was represented by competent, experienced trial counsel, who was present in that capacity when Frazier testified. The present record makes it abundantly clear that the decision so to testify was the decision of this defendant after his conferences with his then counsel. Following those conferences, this defendant's then counsel approached the solicitor with the suggestion that this defendant testify for the State against Westbrook. Nothing whatever in this record suggests any promise or suggestion by the solicitor, or by counsel for the private prosecution of Westbrook, that the defendant would receive and benefit of reward by reason of his proposed testimony. His reason for so testifying was his belief that Westbrook intended, by his own testimony at that trial, to place the blame for the killing of Miss Underwood upon this defendant, Frazier. Nothing in the use of that testimony by the State precludes the State from now prosecuting this defendant. State v. Lyon, 81 N.C. 600; State v. Newell, 172 N.C. 933, 90 S.E. 594.
The record on this appeal discloses that, following Frazier's testimony in the trial of Westbrook, his then counsel conferred with him and advised him that 'by virtue of the admissions which he had made in his testimony' it was such counsel's opinion that he, Frazier, should think seriously about entering a plea to the charges pending against him. No one was present at that conference except the defendant, his then counsel and his parents. Thereupon, the defendant's then counsel conferred with the then solicitor and the counsel for the private prosecution and ascertained that the solicitor would be willing to accept a plea of guilty to murder in the second degree by this defendant upon the murder charge and a plea of guilty to kidnapping. The defendant's then counsel so advised the defendant. Defendant's then counsel testified that at no time did the judge make any suggestion as to the type of sentence he would impose in the event of such pleas. The defendant's then counsel so informed the defendant.
Thereafter, the defendant was brought into court for arraignment on the charges against him. The first case called was the kidnapping charge. The defendant's counsel entered a plea of guilty. Upon the court's interrogation of the defendant to ascertain that this plea was entered with his consent, voluntarily and understandingly, the defendant advised the court, 'I want to have a jury trial.' Thereupon, the court ordered the plea of guilty stricken. The defendant's then counsel thereupon requested to be relieved of his assignment. This was done and the defendant's present counsel was appointed to represent him. Arraignment proceedings were suspended and when the defendant was thereafter arraigned upon the three charges, he entered, through his present counsel, a plea of not guilty to each. In this record there is no basis whatever for a finding that the defendant was induced by the State to testify in the trial of Westbrook, or that by placing the defendant on trial on the charge of murder in the first degree the State has violated any agreement with the defendant, or has otherwise violated his legal rights.
The defendant next contends that the court erred in denying his motion to quash the indictment for murder on the grounds that G.S. § 14--17 is unconstitutional in that: (1) It permits the jury to return a verdict of guilty of murder in the first degree without more, or to return a verdict of guilty of murder in the first degree with a recommendation that the punishment shall be imprisonment for life, no standards or guide lines being provided for the guidance of the jury in this determination; (2) the statute provides for the determination of guilt and punishment by a single verdict trial; and (3) the death penalty constitutes cruel and unusual punishment. All of these contentions were considered and rejected by this Court in State v. Westbrook, 279 N.C. 18, 29, 181 S.E.2d 572. See also: McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630, 641.
The defendant next contends that there was prejudicial error in the consolidation for trial of the three charges against him. In this there was no error.
G.S. § 15--152 authorizes the consolidation of two or more indictments where the charges are for 'two or more acts or transactions connected together.' In State v. Old, 272 N.C. 42, 157 S.E.2d 651, this Court found no error in the consolidation for trial of a charge of murder and two charges of assault with a deadly weapon upon different individuals, saying, 'Ordinarily, and unless as here, the evidence showing guilt of a minor offense fits into the proof on the capital charge, the minor offenses should not be included.' In the present case, the State contends that the murder of Miss Underwood, the kidnapping of Mrs. Collins and the robbery of Mrs. Collins were all parts of a continuing program of action by the defendant and Westbrook, covering a period of approximately three hours. Under such circumstance, evidence of the whole affair is pertinent to the several charges and there is no error in consolidating them for trial. State v. Arsad, 269 N.C. 184, 152 S.E.2d 99; State v. Turner, 268 N.C. 225, 150 S.E.2d 406; State v. Morrow, 262 N.C. 592, 138 S.E.2d 245; State v. White, 256 N.C. 244, 123 S.E.2d 483; State v. Brown, 250 N.C. 209, 108 S.E.2d 233.
The defendant next contends that there was error in allowing challenges for cause by the State to prospective jurors who, on voir dire, stated that they were opposed to capital punishment. Each prospective juror, so excused, not only stated that he was opposed to capital punishment, but further, in response to questions by counsel for the private prosecution and in response to inquiries by the court, stated that, regardless of the evidence, he or she would not consider returning a verdict upon which the judge would have to impose a death sentence. The sustaining of the challenges to these jurors did not violate the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. State v. Westbrook, supra.
The record does not show that at each recess the court instructed the jury not to discuss the case among themselves or to let anyone talk to them about it. The defendant assigns this omission as error. The record indicates that the jury was kept together under the supervision of the sheriff throughout the trial. There is no suggestion of any improper conduct by any juror or of any effort by any other person to communicate with a juror. While it is the better practice for the court, at a recess of a trial, to instruct the jury that during such recess they are not to discuss the case among themselves or with any other person, no prejudicial error is shown in this case by the silence of the record upon this point. Nothing in the record indicates that the defendant requested the court so to instruct the jury at any time.
Following the selection and impaneling of the jury, the defendant, for the first time, advised the court that he wanted a psychiatric examination and treatment before the trial began. In presenting this request to the court, his counsel stated:
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