State v. Grant, CR--1180

Decision Date19 September 1973
Docket NumberCR--1180,No. 7326SC631,7326SC631
PartiesSTATE of North Carolina v. James Earl GRANT, Jr., 72--, et al.
CourtNorth Carolina Court of Appeals

Atty. Gen. Robert Morgan by Asst. Atty. Gen. James E. Magner and Associate Atty. C. Diedrich Heidgerd, Raleigh, for the State.

Chambers, Stein, Ferguson & Lanning by James E. Ferguson, II, Charlotte, and William H. Allison, Jr., Louisville, Ky., for defendant appellants.

BALEY, Judge.

Defendants have filed numerous exceptions and assignments of error in a voluminous record. Their dissatisfaction with their trial falls generally into the following categories:

1. In the selection of the jury including the method of securing the jury list from which both the grand jury and petit jury are chosen and challenges for cause during the Voir dire.

2. Violation of constitutional rights by securing an indictment without first granting a preliminary hearing.

3. Rulings concerning admission or exclusion of evidence.

4. Objections to the charge.

5. Improper sentencing procedure.

6. General hostility of the trial court during conduct of the trial.

First, selection of the jury. The trial court made a through investigation of the procedure employed in compiling the jury list in Mecklenburg County and concluded that it represented a fair cross-section of the population in the county. No evidence was presented by the defendants which demonstrated any discrimination against them by reason of race, economic status, or age group, and there was no evidence of any arbitrary or systematic exclusion from the jury of any segment of the citizenship of the county.

There appears to be no violation of any of the constitutional rights of the defendants. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768.

Defendants Grant and Reddy maintain that on two occasions on Voir dire the trial court erroneously refused to permit them to challenge jurors for cause. G.S. § 9--14 provides: 'The presiding judge shall decide all questions as to the competency of jurors.'

This statute has been interpreted to mean that the decision of the judge is final and not subject to review on appeal unless accompanied by some imputed error of law which does not here appear. State v. Suddreth, 230 N.C. 239, 52 S.E.2d 924; State v. Gibbs, 5 N.C.App. 457, 168 S.E.2d 507.

Both of the jurors challenged for cause were eventually excused by peremptory challenges and did not serve. While Grant and Reddy had exhausted their peremptory challenges, the defendant Parker still had peremptory challenges remaining when the jury had been selected. Under the evidence in this case, we can perceive no prejudicial error.

The argument advanced by defendants that a preliminary hearing is an essential constitutional step in the criminal process before there can be prosecution under a valid bill of indictment has been rejected in a long line of North Carolina cases the most recent of which are State v. Harrington, 283 N.C. 527, 196 S.E.2d 742 (1973); and State v. Thornton, 283 N.C. 513, 196 S.E.2d 701 (1973). See also Gasque v. State, 271 N.C. 323, 156 S.E.2d 740, cert. denied, 390 U.S. 1030, 88 S.Ct. 1423, 20 L.Ed.2d 288. This assignment of error is overruled.

The third category relates to a wide variety of rulings concerning the introduction of evidence. Defendants strenuously object to any testimony concerning prior meetings of the 'United Souls' and any discussions indicating the temperament and intent of the membership of this group of young black men. State's witnesses were permitted to testify that defendant met together in the Tenth Street Recreation Center and discussed the problems of black people in Charlotte and the use of 'revolutionary tactics' to deal with these problems; that at these meetings defendants smoked marijuana and conducted instruction sessions in the use of firearms and firebombs commonly identified as 'Molotov Cocktails.' This evidence was properly admitted because it shows motive and intent. It indicates that defendants were so concerned about racil prejudice that they were willing to consider violent methods of retaliating against it. 'The existence of a motive is . . . a circumstance tending to make it more probable that the person in question did the act, hence evidence of motive is always admissible where the doing of the act is in dispute.' 1 Stansbury, N.C. Evidence (Brandis rev.) § 83, at 254; Accord, State v. Church, 231 N.C. 39, 55 S.E.2d 792; State v. Walker, 6 N.C.App. 740, 171 S.E.2d 91; See State v. Wilcox, 132 N.C. 1120, 1144, 44 S.E. 625, 633.

In State v. Green, 92 N.C. 779, 783, the court in a felonious burning case stated the rule:

'For 'where it is shown that a crime has been committed, and the circumstances point to the accused as the perpetrator, facts tending to show a motive, although remote, are admissible in evidence."

Evidence of prior meetings and conduct at such meetings of those accused of committing a crime has been held admissible, State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, even though such evidence may disclose the Commission of another offense. State v. Long, 280 N.C. 633, 187 S.E.2d 47. Any reference to marijuana in the present case was irrelevant and mentioned only in passing and could not have affected the outcome of the trial. State v. Rainey, 236 N.C. 738, 74 S.E.2d 39.

At one point in the trial a character witness for the defendant Grant was asked if he had ever known Grant to engage in any violent activity. The witness actually answered in the negative before the court ruled upon the State's objection. The court properly sustained objection to this inquiry about specific traits of character of defendant Grant and directed the jury to disregard the answer of the witness. State v. McKissick, 271 N.C. 500, 157 S.E.2d 112; State v. Sentelle, 212 N.C. 386, 193 S.E. 405. Upon another occasion a character witness for defendant Reddy was not permitted to elaborate at length upon his opportunities to observe Reddy and know his character; however, he and other witnesses were permitted to testify that Reddy's character was good. If the examination of this witness was improperly limited it could not have been prejudicial.

Defendants contend that the trial court should have sustained their objections to a number of questions which the Solicitor asked during cross-examination of their character witnesses. These questions were not repetitious or argumentative, and they were intended to point out the bias of the witnesses. A cross-examiner may ask a wide range of questions to demonstrate the bias of the witness or to test his memory. Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864; 1 Stansbury, Supra, § 42.

Before any testimony was heard the court granted defendants' motion that the State's witnesses, Hood and Washington, be sequestered. Defendants contend that the purpose of such sequestration was to prevent one witness from patterning his testimony after that of the other, and that purpose was defeated if the examining attorney for the State was permitted to suggest an answer to the witness by means of leading questions. This argument has some validity, and it may well be that a judge should be especially reluctant to allow leading questions when the witness has been sequestered. Nevertheless, the allowance of leading questions is a matter within the discretion of the trial court. State v. Painter, 265 N.C. 277, 144 S.E.2d 6. The use of occasional leading questions can save much time for the court without diminishing the accuracy of the witness's testimony. Therefore, instead of banning such questions entirely, the courts permit the trial judge to accept those which are harmless and exclude those which are dangerously suggestive. State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Clanton, 278 N.C. 502, 180 S.E.2d 5.

Defendants assign as error the admission of a motion picture of the burning stable. The owner of the stable testified that it fairly and accurately depicted the fire, but that it was not exactly identical to what he saw because it appeared to have been taken about two minutes before he arrived at the stable. This testimony was sufficient to authenticate the film. The admissibility of motion pictures is governed by the same rules that control the admission of photographs. State v. Strickland, 276 N.C. 253, 173 S.E.2d 129. A photograph 'will not necessarily be excluded because it is not an exact reproduction,' if it is a fair and accurate portrayal of the scene. 1 Stansbury, Supra, § 34, at 95--96; See State v. Shepherd, 220 N.C. 377, 17 S.E.2d 469.

Upon one occasion when the solicitor was examining the witness Hood, there was an objection by counsel for the defendants and a request to be permitted to present his argument in the absence of the witness, believing that if Hood heard the argument it would suggest answers to subsequent questions. The court denied counsel's request, and rather than educate Hood, defense counsel made no argument. The question to which objection was made concerned the definition of a 'Molotov Cocktail.' Defendants have not shown that the failure to permit argument of counsel upon this relatively minor point in the absence of the witness could have affected the result of the trial. State v. Rainey, Supra.

Defendants argue that the trial judge expressed an opinion in favor of the State, in violation of G.S. § 1--180 by several times sustaining objections to defendants' questions and saying to defense counsel, 'He has answered your question.' This argument is unconvincing. 'He has answered your question' was not in any way a disparaging or critical remark but merely a statement of fact. Every time the judge used this expression, defense counsel had been engaging in repetitious questioning.

The fourth major group of assigned errors concerns the charge of the court. Defendants contend that the instructions of the court with...

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