State v. Lowery
| Decision Date | 29 August 1986 |
| Docket Number | No. 513PA84,513PA84 |
| Citation | 347 S.E.2d 729,318 N.C. 54 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Paul LOWERY. |
Lacy H. Thornburg, Atty. Gen. by Tiare B. Smiley, Asst. Atty. Gen., for State.
Wayne Eads and David H. Rogers for defendant-appellant.
Both the defendant and his co-defendant, James Small, testified at their joint trial. The State's evidence tended to show that James Small solicited numerous people to kill his estranged wife, Evelyn Small, and that Vincent Johnson and the defendant agreed to kill Mrs. Small and accomplished the murder following Small's instructions. State's witness Vincent Johnson testified that after several unsuccessful attempts, he and the defendant went to Mrs. Small's house on the evening of 14 November 1978 and entered the back door with a key supplied by Small. While the two children of Mr. and Mrs. Small were asleep and Johnson kept watch, the defendant first tried to smother Mrs. Small and then strangled her to death. At the trial, Mr. Small denied that he had asked or hired anyone to kill his wife. The defendant presented two alibi witnesses and denied having been asked to kill or having killed the victim. The State presented several witnesses in its case in chief and over 15 more in its rebuttal case to establish the conspiracy and subsequent murder.
Small was convicted of first-degree murder and conspiracy to commit murder. Judgment was arrested on the conspiracy conviction and he was sentenced to death on the murder conviction. However, in State v. Small, 301 N.C. 407, 272 S.E.2d 128 (1980), this Court remanded the case to the Superior Court of Robeson County for the entry of a verdict of guilty of accessory before the fact to murder and imposition of a life sentence. The Court found no other errors in Small's trial. 1
The defendant contends that his conviction should be reversed because (1) the charges against the defendant and James Small were improperly joined for trial, (2) the State failed to disclose promises or inducements offered to the State's witnesses (3) he was denied effective assistance of counsel, (4) the State was allowed to introduce non-rebuttal evidence on rebuttal, (5) the evidence was insufficient to support his conviction, and (6) the introduction into evidence of certain real and demonstrative evidence was prejudicial error. Additionally, the defendant contends that his conviction for conspiracy should have been merged with his murder conviction. We find no error in defendant's trial or sentence.
Defendant's first assignment of error is that the trial judge erred in granting the State's motion for joinder of him with Small for trial and refusing to grant his motions for severance.
On 12 March 1979, the District Attorney moved pursuant to N.C.G.S. § 15A-926 for a joint trial of James Small and Paul Lowery. On 19 March 1979, Small's attorney filed an objection to joinder. On 2 April 1979, the day of trial, Small's attorney filed a motion to sever and Lowery's attorney filed a motion objecting to joinder, asking for separate trials on the grounds
That a separate trial of the charges against the defendant is necessary to achieve a fair determination of the guilt or innocence of the defendant in that the defenses of the defendants in this case are antagonistic, that defendant Lowery will be deprived of corroborative evidence in an alibi defense, and that his defense will be less persuasive.
When the case was called for trial, Judge Smith conducted a hearing on these motions.
Mr. Donald Bullard, the defendant's attorney at trial, argued that the defendant and Small had antagonistic defenses. Mr. Bullard said that, in an effort to show that someone other than the defendant committed the murder, he wanted to call Small as a witness to question him about the eight solicitations to commit murder with which he had been charged. He contended that without evidence that others were solicited, the defendant's alibi defense would be less persuasive.
Judge Smith denied the motions for severance but said that "based on the statement that you made to me this morning, we might get down the road and I might decide at that point that they should be severed and-- ... If that be the case, I wouldn't hesitate to declare a mistrial as to one Defendant, and proceed on the other."
During jury selection the District Attorney asked to have the record reflect that in spite of the allegations of antagonistic defenses and antagonism between Small and Lowery, the attorneys were coordinating their challenges to prospective jurors. The following exchange took place:
On 13 April 1979, after presentation of the State's and Small's cases, the defendant's attorney moved for a mistrial on the basis that the jury
cannot separate the defendant Lowery from the defendant Small any longer because of these statements which tend to involve indictment of solicitation. I think the jury at this time is highly prejudiced. I feel that they would convict Paul Lowery if they also would convict Mr. Small, on the basis of guilt by association, and part of this association is the fact that they are being tried together, Your Honor.
The judge noted that Small had so far denied the other solicitations and that the testimony was not prejudicial to Lowery.
Joinder of defendants for trial is statutorily authorized a. When each of the defendants is charged with accountability for each defense; or
b. When, even if all of the defendants are not charged with accountability for each offense, the several offenses charged:
1. Were part of a common scheme or plan; or
2. Were part of the same act or transaction; or
3. Were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.
N.C.G.S. § 15A-926(b)(2) (1983).
Both Small and the defendant were charged with conspiracy to murder Mrs. Small, and all of the offenses arose out of the scheme or plan to effectuate her murder; thus joinder was proper. See State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).
Even though properly joinable for trial pursuant to N.C.G.S. § 15A-926, charges against two or more defendants should not be joined or should be severed if "it is found necessary to promote a fair determination of the guilt or innocence of one or more defendants," N.C.G.S. § 15A-927(c)(2)a (1983), or "it is found necessary to achieve a fair determination of the guilt or innocence of [a] defendant," N.C.G.S. § 15A-927(c)(2)b (1983). The ruling of a trial judge joining defendants for trial as authorized by N.C.G.S. § 15A-926 or denying severance is discretionary and is reversible on appeal only upon a showing that joinder denied the appealing defendant a fair trial. State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982); State v. Lake, 305 N.C. 143, 286 S.E.2d 541 (1982); State v. Porter, 303 N.C. 680, 281 S.E.2d 377 (1981). Even though the defendants in a joint trial may offer antagonistic or conflicting defenses, that fact alone does not necessarily warrant severance. "The test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial." State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979), cert. denied sub nom. Jolly v. North Carolina, 446 U.S. 929, 100 S.Ct. 1867, 64 L.Ed.2d 282 (1980).
The defendant contended at trial 2 and contends on appeal that he and Small had antagonistic defenses and that a joint trial deprived him of a fair trial. We disagree.
Both Small and the defendant denied any complicity in or knowledge of the offenses. The defendant presented evidence of alibi which was discredited and rebutted by the State.
It is true that one strategy employed by the attorney for Small was to suggest that the defendant killed Mrs. Small in retaliation against Small for reporting to the police that the defendant had, a few days before the murder, stolen approximately $3,000 from Small. There are two reasons why we are convinced that joint trial with Small resulted in no unfair prejudice to this defendant by reason of Small's trial strategy. First, the jury obviously rejected Small's theory, for it convicted both defendants, thus finding that Small solicited Lowery to commit the murder and that the murder was not committed in retaliation against Small. Second, a portion of the argument made by Small was actually favorable to the defendant Lowery, for the theory was that because Small and the defendant were at odds with each other, the defendant was not a person whom Small would have solicited to kill his wife.
As we said in State v. Nelson, 298 N.C. at 588, 260 S.E.2d at 641:
We conclude that defendants here were not denied a fair trial by the joinder notwithstanding the conflicts in their testimony. This is not a case where the state simply stood by and relied on the testimony of the respective defendants to convict them. The state itself offered plenary evidence of both defendants' guilt. Neither defendant testified directly to the other's guilt. Both denied any participation in the crime. Each defendant was subject to cross-examination by the other. Had separate trials been granted, Jolly could have testified to the same matters tending to implicate Nelson at Nelson's separate trial. The conflict between each defendant's respective testimony was not of such magnitude when considered in the context...
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