State v. Lampkins, 11

• Decision Date: 12 March 1975
• Docket Number: No. 11,11
• Citation: 212 S.E.2d 106,286 N.C. 497
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Reginald Renard LAMPKINS.

Page 106

212 S.E.2d 106

286 N.C. 497

STATE of North Carolina v. Reginald Renard LAMPKINS.

No. 11.

Supreme Court of North Carolina.

March 12, 1975.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Annie Brown Kennedy, Winston-Salem, for defendant.

LAKE, Justice.

The defendant's Assignment of Error No. 1 is to the allowance of the State's challenges for cause to two prospective jurors on account of their views concerning the imposition of the death penalty. The record discloses that of the 31 prospective jurors examined, only seven expressed opposition to the imposition of the death penalty. Of these, three were passed by the State and served on the jury which convicted the defendant. Two were challenged peremptorily by the State. Two, Mr. Godfrey and Mrs. Edwards, were challenged by the State for cause.

Mrs. Edwards stated on voir dire that she does not believe in capital punishment, that her opposition thereto would 'affect' her verdict in this particular case and that if the State presented evidence which, in her opinion, proved beyond a reasonable doubt that the defendant did commit the crime of rape, 'capital punishment would have a bearing even in the face of that.' The Solicitor having challenged Mrs. Edwards for cause, defendant's counsel stated to the court that counsel did not 'make any point about it.' Thereupon, the court excused this prospective juror and the record shows no exception to that ruling.

Mr. Godfrey stated, in response to a question by the Court, after the Solicitor challenged him for cause, that he 'would not return a verdict of guilty of rape, which would carry the death penalty, regardless of what the evidence was.' The Solicitor's challenge for cause was thereupon allowed and the record shows no exception to the ruling.

Both of the foregoing challenges for cause, were properly sustained under the ruling of the Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The sustaining of these two challenges for cause was in accord with our decisions in numerous cases decided since the Witherpoon case. State v. Jarrette, 284 N.C. 625, 639, 202 S.E.2d 721; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Watson, 281 N.C. 221, 188 S.E.2d 289; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652; State v. Doss, 279 N.C. 413, 183 S.E.2d 671; State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572; State v. Sanders, 276 N.C. 598, 174 S.E.2d 487.

The State challenged peremptorily six prospective jurors who stated they had no objection to the death penalty and challenged, for a different cause, one other prospective juror. The defendant challenged peremptorily seven prosective jurors and challenged no juror or prospective juror for cause.

There is no merit in this assignment of error.

The defendant's Assignments of Error No. 2 and No. 9 are directed to the overruling of the defendant's motions for judgment of nonsuit at the close of the State's evidence and at the close of all the evidence. It is elementary that, upon a motion for judgment of nonsuit, the evidence for the State is taken to be true and the State is entitled to every reasonable inference which may be drawn therefrom, contradictions and discrepancies in the State's evidence are disregarded and the evidence of the defendant in conflict with that of the State is not taken into consideration. Strong, N.C. Index 2d, Criminal Law, § 104, and the numerous cases there cited. So considered, the evidence for the State is sufficient to carry to the jury the question of the defendant's guilt or innocence on the charge of rape. These assignments of error are without merit.

The defendant's Assignment of Error No. 3 is to the ruling of the Court permitting the State to call Oliver Montgomery as its witness, in rebuttal. The basis of this assignment of error is that the name of this witness was not given to the defendant's counsel by the Solicitor as a prospective witness for the State. Trial of this case began 15 January 1974 and was concluded 18 January 1974. Montgomery testified just prior to the end of the presentation of evidence. Obviously, he could not have testified prior to 17 January, the third day of the trial. The testimony of this witness, as summarized in the foregoing statement of facts, shows that the Solicitor was not aware that this witness had knowledge of any matter material to this case until a conversation between the witness and his wife was overheard in the hall of the courthouse the day before the witness was called to the stand; that is, aftter the trial of the case commenced. The defendant does not contend that the Solicitor withheld the name of this witness from the defendant's counsel in bad faith and there is nothing whatever to indicate that such was the case. In State v. Hoffman, 281 N.C. 727, 734, 190 S.E.2d 842, 847, Justice Sharp, now Chief Justice, said:

"The common law recognized no right of discovery in criminal cases.' State v. Goldberg, 261 N.C. 181, 191, 134 S.E.2d 334, 340 (1964). In the absence of a statute requiring the State to furnish it, the defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. (Citations omitted.) There is no such statute in this State.'

There is no merit in this assignment of error.

The defendant's Assignment of Error No. 11 is to the failure of the Court to submit to the jury the question of the defendant's guilt or innocence of lesser offenses included within the charge of rape--assault with intent to commit rape and assault on a female.

The testimony of the prosecutrix, Rosa Mae Barr, was that the defendant, by force and against her will, seized her by the arm, pulled her to a place to which she did not want to go, threw her to the ground, choked her, bumped her head, removed her clothing and had sexual intercourse with her. This is evidence of rape, not of one of the lesser included offenses. The defendant's evidence is that he never had sexual intercourse with the prosecutrix and that he did not touch her after leaving the party; i.e., he did not touch her in a manner constituting an assault. This is evidence that the defendant committed neither the crime of rape nor any lesser offense included therein.

When, upon all the evidence, the jury could reasonably find the defendant committed the offense charged in the indictment, but could not reasonably find that (1) he did not commit the offense charged in the indictment and (2) he did commit a lesser offense included therein, it is not error to restrict the jury to a verdict of guilty of the offense charged in the indictment or a verdict of not guilty, thus withholding from their consideration a verdict of guilty of a lesser included offense. Under such circumstances, to instruct the jury that it may find the defendant guilty of a lesser offense included within that charged in the indictment is to invite a compromise verdict whereby the defendant would be found guilty of an offense, which he did not commit, for the sole reason that some of the jurors believe him guilty of the greater offense. The mere possibility that the jury might believe part but not all of the testimony of the prosecuting witness is not sufficient to require the Court to submit to the jury the issue of the defendant's guilt or innocence of a lesser offense than that which the prosecuting witness testified was committed.

In State v. Noell, 284 N.C. 670, 202 S.E.2d 750, as in the present case, the prosecuting witness testified that the defendant had raped her. The defendant testified that he had never seen her prior to the trial. In finding no error in the trial resulting in the defendant's conviction of rape, Justice Moore, speaking for the Court, at page 699, 202 S.E.2d at page 769 said:

"The trial court is not required to charge the jury upon the question of the defendant's guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees.' 3 Strong, N.C. Index 2d, Criminal Law § 115 (1967). In the present case defendant's defense was that of an alibi--that he was not present when the alleged offense occurred. He, therefore, completely denies assaulting the prosecutrix or forcing her to have sexual intercourse with himn. The prosecutrix testified positively that after the defendant had choked her and threatened to kill her, he forcibly and against her will had sexual intercourse with her, and that he did in fact penetrate her. Thus, there was no evidence of an assault with intent to commit rape, and the trial court was not required to charge on the lesser included offense. 'GS 15--169 and GS 15--170 (providing for convictions of lesser included offenses) are applicable Only when there is evidence tending to show that the defendant may be guilty of a lesser offense.' State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481, 488 (1969).'

To the same effect see: State v. Jarrette, supra, 284 N.C., at page 650, 202 S.E.2d 721; State v. Bryant, 280 N.C. 551, 556, 187 S.E.2d 111; State v. Carnes, 279 N.C. 549, 184 S.E.2d 235; State v. Murry, 277 N.C. 197, 176 S.E.2d 738; State v. Smith, 201 N.C. 494, 160 S.E. 577; Strong, N.C. Index 2d, Criminal Law, § 115.

In State v. Smith, supra, the defendant was indicted for first degree burglary and rape. The Court, sustaining the conviction of rape, said:

'There is no evidence in contradiction of the prosecutrix except that of an alibi. According to her testimony, which contains a full recital of the crime, the prisoner was guilty of rape; according to his own evidence, he was guilty of no offense. There is no aspect of the case that would justify a verdict merely of a simple assault or an assault with intent, and refusal to instruct the jury in reference to the lesser offense did not constitute reversible error. State v. White, 138 N.C. 704, 51 S.E. 44; State v. Kendall,...