State v. Moore, 4

• Decision Date: 04 November 1980
• Docket Number: No. 4,4
• Citation: 271 S.E.2d 242,301 N.C. 262
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dharlene Frances MOORE.

Page 242

271 S.E.2d 242

301 N.C. 262

STATE of North Carolina v. Dharlene Frances MOORE.

No. 4.

Supreme Court of North Carolina.

Nov. 4, 1980.

W. Joseph Burns, Winston-Salem, for defendant-appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., J. Michael Carpenter, Raleigh, for the State.

COPELAND, Justice.

Jackie Richard Weimer was convicted after a separate trial of first degree murder and conspiracy to commit armed robbery. The judgment of the trial court was affirmed by this Court in State v. Weimer, 300 N.C. 642, 268 S.E.2d 216 (1980). The opinion by Chief Justice Branch in Weimer is cited below where dispositive of identical assignments of error raised by defendant. We have carefully considered each of defendant's assignments of error and, for the reasons stated below, we find no error justifying a new trial.

Defendant first contends that the State violated G.S. 15A-907 by not disclosing to defendant prior to trial the fact that Betty Ballard had seen a photograph of defendant in the district attorney's office. Defendant claims she was prejudiced by this nondisclosure in that she was unprepared to fully cross-examine Ms. Ballard. Defendant further alleges that the trial court erred in not imposing sanctions pursuant to G.S. 15A-910 for the State's failure to disclose.

Defendant made a timely motion for discovery in accordance with G.S. 15A-902(a), requesting the State to supply, among other information, any photographs in its possession. This motion gave rise to the State's duty under G.S. 15A-907 to disclose any additional, relevant evidence discovered prior to or during the trial. State v. Jones, 296 N.C. 75, 248 S.E.2d 858 (1978). The record clearly shows that during discovery, which took place prior to 16 October 1979, defendant's attorney was aware that the State possessed a photograph of defendant. When the district attorney was asked during discovery if he had shown the photograph to anyone, he replied that he had not. This was a truthful statement at the time. In ruling on defendant's motion to suppress Ms. Ballard's in-court identification of defendant, the trial court found as facts that on 16 October 1979 Ms. Ballard was in the district attorney's office and for the first time asked to see a picture of defendant. The district attorney handed her the picture in question and she looked at it for a short period. He did not ask Ms. Ballard if the person photographed resembled the individual she had seen and Ms. Ballard never indicated that she recognized the person in the picture. Ms. Ballard never told anyone that she was able to identify defendant. These findings of fact are supported by competent evidence and are therefore binding on this Court. State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980); State v. Small, 293 N.C. 646, 239 S.E.2d 429 (1977). It appears, then, that the district attorney first became aware that Ms. Ballard recognized and could identify defendant during her testimony at trial. Thus, the only fact he failed to disclose to defendant prior to Ms. Ballard's testimony was that he had shown the witness the picture for a short time. He may well have considered this an irrelevant matter outside his statutory duty to disclose. Even if there was a duty to disclose pursuant to G.S. 15A-907, there is no evidence of bad faith on the part of the district attorney nor is there any indication that he misrepresented the facts to defendant. Defense attorney had the opportunity to conduct a complete and searching cross- examination of Ms. Ballard. We therefore hold that defendant was not prejudiced by the district attorney's failure to disclose that Ms. Ballard had seen the photograph, and defendant's contention that she was too surprised to adequately cross-examine the witness is without merit. State v. Jones, supra; State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978). We also find no merit in defendant's argument that the trial court erred in not imposing sanctions under G.S. 15A-910. The decision to employ one of the remedies available under G.S. 15A-910 is a matter within the discretion of the trial judge and, absent abuse, is not reviewable on appeal. State v. Hill, supra; State v. Thomas, 291 N.C. 687, 231 S.E.2d 585 (1977). Defendant did not request the imposition of sanctions at the time the facts were revealed. Furthermore, defendant showed no evidence of bad faith by the State and defendant was not prejudiced by the State's nondisclosure. For these reasons the trial judge did not abuse his discretion in refusing to impose sanctions.

By her fourth assignment of error, defendant contends that the trial court erred in allowing Betty Ballard to give an in-court identification of defendant. Defendant claims that showing Ms. Ballard a picture of defendant in the district attorney's office constituted an impermissibly suggestive pretrial identification procedure which tainted Ms. Ballard's in-court identification and rendered it inadmissible. We addressed and overruled the identical assignment of error in State v. Weimer, supra. Our decision in that case is dispositive of defendant's argument in this case and we likewise find no error. Ms. Ballard's in-court identification was properly allowed both because it was based solely on her personal observation of defendant immediately after the shooting and because the observation of one photograph was not a pretrial identification procedure sufficiently suggestive to deny defendant due process of law. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977).

In her second assignment of error defendant contends that the trial court erred in denying her motion for pretrial discovery of the names of the State's witnesses, any statement made by defendant to a third party, and any statement of a codefendant.

It is well settled that a defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. G.S. 15A-903, which lists the information the State must disclose upon defendant's proper discovery motion, does not alter this rule. State v. Sledge, 297 N.C. 227, 254 S.E.2d 579 (1979); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977).

Nor is the State required to disclose the substance of defendant's statements to third parties which the State intends to use as evidence against him. G.S. 15A-903(a)(2) provides that the State, upon defendant's motion, must "... divulge, in written or recorded form, the substance of any oral statement made by the defendant which the State intends to offer in evidence at the trial." This provision has been interpreted to require the State to disclose defendant's statements to third parties only when the third party is an agent of the State. State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979). Defendant gave no indication that the statements she sought to discover were statements she had made to an agent of the State, therefore her motion to discover was properly denied.

Likewise, the State was not obliged to divulge any statement of a codefendant. G.S. 15A-903(b) entitles defendant to discover any written, recorded, or oral statement by a codefendant "... which the State intends to offer in evidence at their joint trial." Defendant's motion to sever her case from codefendant Weimer's for separate trial was granted on 19 October 1979, prior to the commencement of this trial. Since there was no joint trial, defendant had no right under G.S. 15A-903(b) to discover statements made by a codefendant. We find defendant's assignment of error without merit.

By her fifth and thirteenth assignments of error defendant alleges that the trial court erred in denying her motion to sequester several of the State's witnesses. After two Food World employees had testified for the State, defendant moved to sequester the remaining witnesses who were Food World employees or customers in the store at the time of the shooting. The one employee witness remaining was sequestered by the court, but defendant's motion as to the customers was denied. Defendant claims that allowing the customer witnesses to testify in the presence of each other created a risk of collusion among the witnesses which prevented her obtaining a fair trial. The sequestration of witnesses is a matter within the trial judge's discretion, and his ruling thereon is not reviewable absent a showing of abuse of that discretion. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); State v. Cross, 293 N.C. 296, 237 S.E.2d 734 (1977). In this case, defendant had filed a pretrial motion for sequestration of witnesses which she later abandoned. She offered no reason to the court for her renewal of the motion. We have carefully reviewed the testimony of each witness defendant sought to sequester and found that nearly all the witnesses testified to different facts and circumstances surrounding the incident. The testimony of each witness is sufficiently different from the others so as to indicate an absence of collusion or the parroting of another's testimony. Under these circumstances, the failure of the trial court to sequester witnesses did not prejudice defendant and we find no abuse of discretion. See State v. Mason, 295 N.C. 584, 248 S.E.2d 241 (1978).

Defendant also contends that the trial court abused its discretion in denying her motion to sequester the witnesses Wallace Alverin Turner and his wife, Viola Mae Turner during the testimony of the other. Defendant claims that she could not effectively cross-examine either of the Turners in the presence of the other, in that there were certain lines of questioning defendant wished to pursue which would be harmful to the marriage and which either spouse would be reluctant to discuss...