State v. Harding

• Decision Date: 07 December 1976
• Docket Number: No. 58,58
• Citation: 291 N.C. 223,230 S.E.2d 397
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Donald Lee HARDING.

Page 397

230 S.E.2d 397

291 N.C. 223

STATE of North Carolina v. Donald Lee HARDING.

No. 58.

Supreme Court of North Carolina.

Dec. 7, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

Warren A. Winthrop, Statesville, for defendant-appellant.

COPELAND, Justice.

Under Assignment of Error No. 1, defendant contends that the trial court erroneously denied his motion requesting a change of venue on the ground that unfavorable and inflammatory pretrial publicity would prevent him from receiving a fair and impartial trial in Iredell County.

In support of his motion, argued about one month before trial, defendant's attorney offered seven newspaper clippings concerning the murders and an affidavit to the effect that he, defense counsel, had talked with fifteen to twenty people in the county about the murders, all of whom indicated that they had formed opinions as to defendant's guilt. In addition, it was stipulated that the Statesville Record and Landmark in which accounts of the crimes had appeared had a circulation of approximately 17,000 in Iredell County and that the county had a population of between 70,500 and 75,000.

On 2 February 1976, the date the trial commenced, defendant renewed his motion and introduced an article describing the crimes which appeared in the February 1976 issue of 'Inside Detective' magazine. However, no showing was made of the number of issues of this magazine circulated in the county. Defense counsel also pointed out that news accounts of the crimes were broadcast over local radio and television stations.

On both occasions, the court concluded that the defendant could receive a fair and impartial trial in Iredell County and denied the motion for change of venue. Defendant did not bring forward on appeal the newspaper and magazine articles.

Defendant's motion for a change of venue was addressed to the sound discretion of the trial court. State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967); State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955); G.S. § 1--84 (Cum.Supp.1967); Where the record discloses, as it does in the instant case, that the presiding judge conducted a full inquiry, examined the press releases and the affidavits in support of the motion, and where the record fails to show that any juror objectionable to the defendant was permitted to sit on the trial panel, or that defendant had exhausted his peremptory challenges before he passed the jury, denial of the motion for change of venue was not error. State v. Conrad, 275 N.C. 342, 168 S.E.2d 39 (1969); See State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967).

Under Assignment of Error No. 2, defendant maintains the trial court erred in consolidating the three cases for trial.

Defendant argues that it was improper to consolidate these cases in light of our decision in State v. Puett, 210 N.C. 633, 188 S.E. 75 (1936), holding that dying declarations are admissible only where the death of the declarant 'is the subject of the trial, and the circumstances of the death are the subject of the declarations.' State v. Puett, supra at 636, 188 S.E. at 76. In Puett, the defendant was not permitted to introduce into evidence the dying declaration of his son who was mortally injured in the same fight in which the person for whose death the defendant was being prosecuted was killed. The son's death was not the subject of the trial.

In the present case, the homicide of the declarant, Clyde Ray Englebert, was at issue and the declarations admitted into evidence related to the circumstances surrounding his death. Nevertheless, defendant argues that the consolidation allowed the State to put into evidence otherwise inadmissible statements because if the defendant had been tried separately for the three murders, the statements could not have been introduced, under the Puett rule, in separate trials for the deaths of Douglas Harding and Mary Bowen Englebert.

While the defendant presents a tenable argument for severance of the cases under prior law, we note that the passage of G.S. 8--51.1 (Cum.Supp.1975) eliminated the need for our resolution of this issue. Since the enactment of G.S. 8--51.1 (effective 1 October 1973) the 'dying declarations of a deceased person regarding the cause or circumstances of his death' have been admissible in evidence in all civil and criminal trials and other judicial and administrative proceedings. The statute effectively overruled this Court's holding in Puett and thus the declarations of Englebert were admissible against the defendant on all three murder charges, regardless of whether the cases were tried separately or were consolidated. For one commentator's view of the effect of G.S. 8--51.1, see 1 Stansbury' N.C. Evidence, § 146 (Brandis Rev.Supp.1976) at 151, 152 n. 12.

Consolidation is a discretionary matter with the trial judge and where the offenses charged constitute a continuing criminal episode and are so related in time and circumstance as to permit the admission in evidence of each in the trial of the others, consolidation is appropriate. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Arsad, 269 N.C. 184, 152 S.E.2d 99 (1967); G.S. 15A--926 (Supp.1975). Two of the murders occurred in the same room within seconds of each other and the murder of the wife followed shortly thereafter. All were committed under similar circumstances and thus consolidation was unquestionably proper.

Next, under Assignment of Error No. 3, the defendant challenges the trial court's permitting David Henson to testify to an alleged dying declaration of Clyde Ray Englebert.

Henson was the first witness called to testify by the State and was also the first member of the Sheriff's Department to arrive at the murder scene. When it became apparent that Henson's testimony would involve alleged dying declarations, a voir dire was held. The district attorney wisely took this opportunity to examine on voir dire all prospective witnesses that he planned to use in connection with alleged dying declarations.

After the voir dire, the district attorney called to the witness stand, Detective Cecil Cook. Detective Cook indicated that he talked with Clyde Ray Englebert in the hospital on 23 September 1975 when Englebert was in the Intensive Care Unit. At that time, Englebert told Detective Cook that 'he didn't think he would pull through.' Detective Cook promptly took Englebert's full statement implicating the defendant in the shootings of Englebert and Douglas Harding. After this statement was given, Detective Cook asked Englebert if he would 'testify to what he had told me in Court.' Englebert replied 'I don't think I will be able to, but I hope I live to see that crazy S.O.B. behind bars.' Englebert 'was breathing very heavily and had a rattling noise from his chest and he was awful pale (in) color.' Clyde Ray Englebert died the next day.

Defendant did not object to the above testimony.

David Henson was then recalled and, upon objection by defense counsel to a statement he was about to make implicating the defendant in the murders, Judge Kivett instructed the jury 'that you may consider any statement this witness makes attributed to Clyde Ray Englebert solely for the purpose of corroborating the statement Clyde Ray Englebert allegedly made to Detective Cook who testified a moment ago.' The judge defined corroboration and reiterated his admonition to the jurors that the testimony was to be considered as corroboration only.

Assuming, without deciding, that the declarations of Clyde Ray Englebert to David Henson did not qualify as dying declarations under G.S. 8--51.1, this testimony was clearly competent to corroborate the statements made by Englebert to Detective Cook. State v. Cadell, 287 N.C. 266, 215 S.E.2d 348 (1975); 1 Stansbury's N.C. Evidence, §§ 51, 52 (Brandis Rev.1973).

Moreover, a statement by Englebert to Deputy Sheriff Henson, who was the first officer to arrive on the scene, may have been competent as a spontaneous utterance had it not been proffered for the purpose of corroboration. See state v. Deck, 285 N.C. 209, 203 S.E.2d 830 (1974); 1 Stansbury's N.C. Evidence, § 164 (Brandis Rev.1973).

The assignment of error is without merit and overruled.

Under Assignments of Error Nos. 4, 5, and 6, defendant asserts the trial court erred in allowing Detective Cecil Cook, Lettie Walker, and Steven Ray Englebert to testify concerning alleged dying declarations of Clyde Ray Englebert.

Counsel for the defendant in his brief appears to concede that Englebert's statements to these three witnesses were made when he was cognizant of imminent death, but argues that they were nevertheless inadmissible because earlier statements of the deceased admitted into evidence did not qualify as dying declarations. Defendant cites no authority to support his contention.

During the victim's conversations with these three witnesses, he expressed his apprehension of impending death. When he talked with Detective Cook on 23 September 1975, he told him he did not think he would be able to testify against the defendant, because he did not think he would pull through. When he discussed returning to work with Lettie Walker on 21 September 1975, he told her 'I doubt if I make it two more days.' When he spoke to his son, Steven Ray Englebert, on 22 September 1975, he said, 'No, I won't be able to come back (to the store). I don't believe I'll get better . . . Donald really messed me up.' Each of these statements indicated that the 'deceased was conscious of approaching death and believed there was no hope of recovery.' G.S. 8--51.1 (Cum.Supp.1975).

The mere fact that Clyde Ray Englebert had made earlier statements implicating the defendant in which he did not express a fear of death in no way invalidated later statements to the same effect which clearly qualified as dying declarations. Moreover, the earlier statements...