State v. Phifer, 11

• Decision Date: 17 June 1976
• Docket Number: No. 11,11
• Citation: 225 S.E.2d 786,290 N.C. 203
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. George W. PHIFER et al.

Page 786

225 S.E.2d 786

290 N.C. 203

STATE of North Carolina v. George W. PHIFER et al.

No. 11.

Supreme Court of North Carolina.

June 17, 1976.

Atty. Gen. Rufus L. Edmisten, Senior Deputy Atty. Gen. James F. Bullock, and Associate Atty. William H. Guy, Raleigh, for the State.

Charles W. Ogletree, Columbia, for defendant Lawrence; Thomas E. Archie, Washington, for defendant Wharton, also known as Hillary Boyce; and William R. Peel, Williamston, for defendant Phifer, appellants.

MOORE, Justice.

Before defendants were arraigned, the State moved to consolidate the cases for trial. Defendants objected, and in the absence of the jury arguments were made on the motion. The motion was then allowed. Defendants assign this as error. The State's motion was addressed to the sound discretion of the trial judge. Consolidation of cases for trial is generally proper when the offenses charged are of the same class and are so connected in time and place that evidence at trial upon one indictment would be competent and admissible on the other. State v. Taylor, 289 N.C. 223, 221 S.E.2d 359 (1976); State v. King, 287 N.C. 645, 215 S.E.2d 540 (1975); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); G.S. 15A--926(b)(2). The exercise of discretion by the trial judge will not be disturbed absent a showing that defendant has been denied a fair trial by the order of consolidation. State v. Taylor, supra; State v. Jones, 280 N.C. 322, 185 S.E.2d 858 (1972).

Defendants first contend that their cases should not have been consolidated because some of the testimony of certain witnesses refers to defendants as a group rather than singling out particular defendants. However, an examination of the record discloses that when referring to defendants as 'they,' the witnesses were using the term to include each of the defendants. Hence, there was no need to point out each defendant individually. In further support of their objections to consolidation, defendants cite Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In interpreting BRUTON, Justice Sharp (now Chief Justice), speaking for the Court in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968), said:

'. . . (I)n joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately.

The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see State v. Bryant, supra) (250 N.C. 113, 108 S.E.2d 128 (1959)), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra at 160, 97 S.E.2d at 879 (246 N.C. 157, 97 S.E.2d 876 (1957)).'

In instant case, witness Peterson testified without objection that when the three defendants returned around 9:20 a.m. she met them at the door of the trailer and asked defendant Phifer, 'What happened?' Phifer replied that they had robbed a bank and further stated, 'That dumb woman picked the phone up and screamed.' Since Phifer did not take the stand, neither Lawrence nor Boyce was able to cross-examine him about his statements. However, under the circumstances in which the statement was made, we hold that it was properly admissible against defendants Boyce and Lawrence and that BRUTON does not apply. The record reveals that the three defendants were together and were entering the trailer when Mary Peterson asked Phifer what had happened. Both Lawrence and Boyce were in a position to hear the statement and said nothing in denial. Thus, the statement by Phifer is admissible against Lawrence and Boyce as an implied admission.

The general rule concerning implied admissions was aptly stated by Justice Branch in State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975), as follows:

'Implied admissions are received with great caution. However, if the statement is made in a person's presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement were untrue and it is shown that he was in position to hear and understand what was said and had the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission. 2 Stansbury's N.C. Evidence, § 179, p. 50 (Brandis Rev.1973). State v. Moore, 262 N.C. 431, 137 S.E.2d 812; State v. Guffey, 261 N.C. 322, 134 S.E.2d 638; State v. Bryant, 235 N.C. 420, 70 S.E.2d 186; and State v. Wilson, 205 N.C. 376, 171 S.E.2d 338. . . .'

Defendants also cite State v. Bonner, 222 N.C. 344, 23 S.E.2d 45 (1942), and State v. Cotton, 218 N.C. 577, 12 S.E.2d 246 (1940), in support of their position that the cases should not have been consolidated. Both of these cases are factually distinguishable from the cases here. State v. Bonner, supra, involved a situation in which the codefendant's statement did not incriminate himself but included a full account of all the circumstances pertaining to the robbery-murder of the victim of his codefendants. State v. Cotton, supra, involved the testimony of a wife against her husband which, under C.S. 1802 (now G.S. 8--57), was not competent. For a discussion of these two cases as bearing upon the question of consolidation, See State v. Jones, supra. Absent a showing that defendants have been denied a fair trial by the order of consolidation, the cases were properly consolidated for trial. This assignment of error is overruled.

It is stipulated that fifty-seven prospective jurors were excused by the court upon challenge of the State for their answers to the following questions:

'1. 'Would it be impossible for you under any circumstances, even though the State satisfied you beyond a reasonable doubt of the defendants' guilt of the charge, would it be impossible for you no matter what the evidence was, to bring in a verdict of guilty when you knew it carried the death penalty?'

'2. 'Would it be impossible for you under any circumstances, where even though you were convinced beyond a reasonable doubt of the defendants' guilt, for you to return a verdict of guilty, where you knew the death penalty would be imposed?"

Defendants first contend that the prospective jurors should not have been questioned concerning their beliefs about capital punishment and should not have been advised that death is the penalty in first degree murder convictions.

In State v. Britt, 285 N.C. 256, 267, 204 S.E.2d 817, 825 (1974), Justice Branch, speaking for the Court, said:

'It is well established by our decisions and the decisions of the federal courts that in a capital case both the State and the defendant may, on the voir dire examination of prospective jurors, make inquiry concerning a prospective juror's moral or religious scruples, his beliefs and attitudes toward capital punishment, to the end that both the defendant and the State may be insured a fair trial before an unbiased jury. (Citations omitted.) A prospective juror's response to such inquiry by counsel may disclose basis for a challenge for cause or the exercise of a peremptory challenge. The extent of the inquiries, of course, remains under the control and supervision of the trial judge.'

See also G.S. 15--176.3 which expressly provides that in a capital case the court, the defense, or the State may inform any person called to serve as a potential juror that the death penalty will be imposed upon the return of a verdict of guilty of that crime.

Defendants further contend that the exclusion of these jurors because of their views on capital punishment deprived defendants of their Sixth Amendment right to a jury which reflects a fair and representative cross-section of the community, in that jurors with scruples against the imposition of the death penalty form a coherent and sizeable group in most communities from which juries are selected. Defendants cite Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and other federal cases in support of their position.

Counsel for defendants, in their brief, state that they are not inadvertent to State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), and numerous similar decisions. Defendants contend, however, that these decisions are wrong and should be overruled.

As stated in defendants' brief, numerous decisions of this Court have established that a juror may be successfully challenged for cause when before the trial has begun he is irreparably committed to vote against the penalty of death. See State v. Bock, 288 N.C. 145, 217 S.E.2d 513 (1975); State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974). See also Witherspoon v. Illinois, supra. We adhere to these decisions.

It is impossible to determine from the record in the case at bar why the jurors excluded for cause were in fact excluded. The record does not reveal what the answers to the stipulated questions actually were nor does it show any systematic exclusion of prospective jurors who voiced only general objections to the death penalty. The record simply disclosed that fifty-seven jurors were excluded for cause as a result of their answers to these questions. On the record before us, we must assume that the trial judge excused only those jurors who answered the stipulated questions in the affirmative. State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970); State v. Dew, 240 N.C. 595, 83 S.E.2d 482 (1954). There is a presumption of regularity in the trial. In order to overcome that presumption, it is necessary for matters constituting material and reversible error to be made to appear in the case on appeal. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Sanders, 280 N.C. 67, ...