State v. Hill, 2
| Decision Date | 10 December 1969 |
| Docket Number | No. 2,2 |
| Citation | 170 S.E.2d 885,276 N.C. 1 |
| Parties | STATE of North Carolina v. Marie HILL. |
| Court | North Carolina Supreme Court |
Robert Morgan, Atty. Gen., Ralph Moody, Deputy Atty. Gen., Carlos W Murray, Jr., Raleigh, Staff Attorney, for the State.
J. LeVonne Chambers, Chambers, Stein, Ferguson & Lanning, Charlotte, Roy C. Boddie, Rocky Mount, for defendant.
North Carolina Civil Liberties Union, Norman B. Smith, Greensboro, Charles E. Lambeth, Jr., Thomasville, Kenneth S. Broun, Kenneth S. Penegar, Chapel Hill, amicus curiae.
Article XI, Section 2, North Carolina Constitution, provides: '* * * murder, arson, burglary, and rape, and these only, may be punishable with death, if the General Assembly shall so enact.'
The General Assembly, by G.S. § 14--17, provided:
The proviso was inserted in the section by Chapter 299, Session Laws of 1949. At the same time, similar provisions where inserted in the other capital felony statutes, pertaining particularly to arson, first degree burglary, and rape. By Chapter 16, Session Laws of 1953, the General Assembly enacted G.S. § 15-- 162.1, which provided:
However, by Chapter 117, Session Laws of 1969, the General Assembly repealed G.S. § 15--162.1 effective March 25, 1969. The crime here involved was committed before the repeal. The effect of the section has been discussed in a number of our cases. State v. Peele, 274 N.C. 106, 161 S.E.2d 568; State v. Spence and Williams, 274 N.C. 536, 164 S.E.2d 593, and more recently State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241.
To become applicable or operative, a defendant and his counsel were required to file a written plea of guilty which the prosecution and the court might or might not approve. If the tender of the plea is not approved 'the trial shall be upon the defendant's plea of not guilty and such tender shall have no legal significance whatever.' It seems the defendant might avail himself of the right to tender a written plea of guilty but a failure to tender such plea leaves the section inoperative. The absence of the written plea left the terms of G.S. § 14--17 in full force and effect. The repeal of G.S. § 15--162.1 did not modify, change, add to, or take from G.S. § 14--17, under which the indictment here involved was drawn. The verdict of the jury as returned without a recommendation that the punishment be imprisonment for life required the court to impose the death sentence. State v. Atkinson, Supra; State v. Spence and Williams, Supra; State v. Forcella, 52 N.J. 263, 245 A.2d 181.
The defendant challenges the sufficiency of the verdict to support the judgment imposed. After its deliberation, the jury returned to the courtroom and announced agreement on a verdict and designated Juror Williams as foreman to speak for the jury. Juror Williams: 'Your honor, we, the jury, find the defendant guilty of murder in the first degree.' The court asked the jury: 'With that verdict do you make any recommendation?' The foreman replied: 'We did not come to that agreement'. This means that the jury did not agree to make any recommendation. After further discussion and question whether they made any recommendation, the foreman replied: 'We did not'. The clerk then said: By the Jury: 'Yes.' If defendant or counsel had any doubt concerning the unanimity of the jurors in the announced verdict, they should have had the jury polled. State v. Cephus, 241 N.C. 562, 86 S.E.2d 70.
Review discloses that the court charged fully and correctly with respect to the right of a jury as a part of its verdict to make the recommendation that punishment should be imprisonment for life. Such recommendation would require the court to impose that sentence and no other. In the absence of the recommendation, the court had before it a verdict of guilty of murder in the first degree. The verdict required the court to impose the death sentence. State v. Atkinson, Supra, and cases therein cited.
In this case the evidence of guilt is overwhelming. The defendant was advised of the charge against her--murder--a serious crime; that she had the right to counsel, to remain silent; and that any admissions she made would be used against her in court. She voluntarily made the admissions heretofore detailed and later, upon the prompting of Virginia Staton, denied them. The following day, when asked by the officers which of her stories was correct, she again admitted the robbery and killing and voluntarily went with the officers to the Strum store and re-enacted the happening as they occurred on the morning of October 7, 1968.
In response to this question by her attorney, 'Did he (Detective Winstead) force you to tell him anything?', she answered,
From the witness stand, however, she denied the truthfulness of her confession or that she was even in the City of Rocky Mount at the time Mr. Strum was robbed and murdered. The witnesses by whom she sought to prove an alibi did not impress the jury. In fact, the elaborate and exhaustive briefs filed by counsel for the defendant and, on her behalf by the North Carolina Civil Liberties Union as amicus curiae, do not discuss guilt or innocence. Counsel do argue, however, the court committed error in permitting the prosecution to introduce in evidence the defendant's confession made to the officers in Kingstree, South Carolina and, after a denial suggested by her friend Virginia Staton at police headquarters in Rocky Mount, but thereafter confirmed by the defendant who voluntarily went to the Strum store and, in the presence of the officers, re-enacted the robbery and shooting of Mr. Strum. The confession and the re-enactment fitted into the picture in such manner that the only logical conclusions is that the narrator must have been present at the time of the holdup. In fact, she pointed out one of the weapons she had used (a bottle) which the officers had failed to discover in their search.
Counsel contend, because of the defendant's age and immaturity, her confession made in the absence of counsel should have been excluded. It would seem that one who has arrived at the age and condition of accountability for crime may make a valid waiver of counsel, and make a voluntary confession. Defense counsel cite, Contra, State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171. In Thorpe, this Court decided the evidence on the voir dire was insufficient to support a finding Thorpe knowingly and understandably waived his right to counsel at his in custody interrogation which produced the incriminating admissions. This Court ordered a new trial because the admissions were introduced in evidence without a finding (based on evidence) that Thorpe had waived the right to counsel at his in custody interrogation.
Defense counsel argue the defendant's waiver of a preliminary hearing without counsel was prejudicial. Nothing done or said at the...
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