State v. Shuler

• Decision Date: 13 June 1977
• Docket Number: No. 107,107
• Citation: 235 S.E.2d 226,293 N.C. 34
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Curtis Donnie SHULER.

Page 226

235 S.E.2d 226

293 N.C. 34

STATE of North Carolina v. Curtis Donnie SHULER.

No. 107.

Supreme Court of North Carolina.

June 13, 1977.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. George J. Oliver, Raleigh, for the State.

Harold D. Downing, Fayetteville, for defendant.

BRANCH, Justice.

Defendant assigns as error the denial of his motion for judgment as of nonsuit.

Pertinent portions of our often stated rule concerning a trial judge's consideration of a motion for judgment as of nonsuit are as follows: The question presented by a motion for judgment as of nonsuit is whether upon consideration of admitted evidence, both competent and incompetent, in the light most favorable to the State, there is substantial evidence to support a jury finding that the offense charged in the bill of indictment has been committed and that the defendant is the person who committed it. State v. Cutler, 271 N.C. 379, 156 S.E.2d 679; State v. Rowland, 263 N.C. 353, 139 S.E.2d 661. The credibility of the witnesses is for the jury even when their character is questionable. 2 N.C.Index 2d, Criminal Law § 106.

Here the deceased's body was found on the shoulder of a road with a fatal wound in the chest and three other bullet wounds in the head. His pocketbook and automobile were missing. Several persons saw defendant in possession of deceased's automobile shortly after the crime was committed. On the morning following decedent's death, defendant told an acquaintance that on the night before he had shot a man while attempting to rob him and had taken his money and automobile. Deceased's death was caused by bullets from a .25 caliber pistol and there was evidence that defendant had a .25 caliber pistol in his possession on the morning after the deceased met his death.

We hold that the State offered ample evidence to support reasonable inferences that the deceased met his death as the result of a homicide committed during an armed robbery and that defendant was the person who committed the crime.

This assignment of error is overruled.

Defendant next contends that the trial court erred by permitting the witness Terry Blackwelder to testify, over objection, as to defendant's prior criminal acts.

Defendant testified that he had never had a .25 caliber pistol in his possession. He further stated that he knew "a white female by the name of Terry," but denied that he had ever had a .25 automatic pistol in her presence. The State, in rebuttal, offered Terry Blackwelder who testified that during the month of November 1975 defendant possessed a gun. She stated:

. . . I don't know what kind of gun, all I know it was little and it was black and it was at my head. . . .

The general rule is that in a prosecution for a particular crime the State cannot offer evidence tending to show that the defendant has committed another distinct, independent or separate offense. State v. Hunter, 290 N.C. 556, 227 S.E.2d 535.

The landmark case of State v. McClain, 240 N.C. 171, 81 S.E.2d 364, contains this language:

". . . The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. . . ."

The testimony of the witness Blackwelder tended to prove that less than a month before Lilly met his death by wounds inflicted by a .25 caliber pistol, defendant had a similar weapon in his possession. The challenged evidence was therefore admissible as substantive evidence to prove a material fact at issue. We recently considered a similar question in State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574. There defendants were charged with first-degree murder. The State's evidence disclosed that the deceased was killed by a shotgun owned by defendant Ham. The State offered evidence that less than a month before the charged crime occurred, defendant Ham's furniture was being removed from a rented mobile home by his landlord's son and Ham, by the use of a shotgun, forced the boy to return his possessions to the mobile home. We there held that this evidence was relevant and properly admitted to show possession of a shotgun by defendant Ham shortly before the charged crime took place.

The evidence here challenged was also admissible to contradict defendant's testimony. In State v. Lewis, 177 N.C. 555, 98 S.C. 309, the defendant was charged with the crime of rape. He offered testimony tending to show that he was sick and in bed during the week before and the week after the date that the alleged crime occurred. In rebuttal the State offered evidence that defendant had chased a Mrs. Loftin and tried to grab her and that three nights thereafter he was seen peeping in her home. Finding no error in the admission of this evidence, this Court, speaking through Justice Walker, stated:

The evidence admitted by the court was manifestly competent for the single purpose of contradicting the prisoner's statement and the testimony of his witnesses that he was sick for two weeks, including 17 January, 1918, as one of the days, and it was thus restricted by the judge. This assignment also must be disallowed.

We further note that defense counsel elicited testimony similar to that challenged during his cross-examination of the witness Blackwelder. The admission of testimony over objection is ordinarily harmless when defendant elicits similar testimony on cross-examination. State v. Brown, 272 N.C. 512, 158 S.E.2d 354; State v. Humbles, 241 N.C. 47, 84 S.E.2d 264.

For the reasons stated, this assignment of error is overruled.

Finally, defendant argues that the trial court erred in denying his motion for dismissal on grounds of former jeopardy.

Defendant was originally put on trial for first-degree murder before Judge James H. Pou Bailey at the 11 May 1976 Session of Cumberland Superior Court. On the third day of that trial, after the presentation of the State's case in chief, Judge Bailey allowed the State's motion to reopen its case for the purpose of introducing the testimony of Thomas Bernard Richardson, who was to be flown in from Texas. The trial judge allowed the State until 2:00 p. m. to produce this witness and recessed court at about 10:00 a. m. During this time Judge Bailey was informed by an attorney not appearing in the case that an unidentified woman had been observed talking loudly outside the courthouse in the presence of persons wearing juror badges. She had stated that it would be a shame to put anyone to death on the evidence in the case. Upon reconvening court at 2:00 p. m., Judge Bailey inquired of the jury whether anyone had overheard any comment regarding the possible penalties involved in this trial. Receiving no affirmative response, he again recessed court until the arrival of the State's additional witness, Thomas Bernard Richardson.

The witness Richardson arrived at 2:58 p. m. and the trial was resumed. After Richardson had testified, the following colloquy occurred:

COURT: Ladies and Gentlemen of the Jury, what I am about to say is in no way intended to be a criticism of you or anyone of you. We are trying this case in a very crowded setup. The toilet facilities for you and anybody else are obviously inadequate. Witnesses and people involved in this case, mingling up and down the halls, and I think talking fairly freely. Have any of you heard any comment from anybody, whether it was directed to you or just in passing, concerning this case or anybody in it?

JUROR D. H. POWELL: Yes sir.

The remaining jurors were sent to the Jury Room and the Juror Powell was taken into the Judge's Chambers where the following transpired:

COURT: What was the comment?

POWELL: The comment was, quote: Unless there is more evidence produced than there has been, that man will never be found guilty by this jury.

COURT: Did he make any comment to whether the man was or was not guilty?

POWELL: No, Sir, he only made this comment that I told you at that time.

COURT: This afternoon session?

MR. BYRD: I believe it was between two and three o'clock, if it's the same time I remember.

POWELL: I think it was at the time when we was hanging loose, waiting for the State man to come, and that's why we were out in the hall, and this was when the statement was made.

COURT: And since that time, there has been additional evidence?

POWELL: Yes sir, since that time.

COURT: My effort is to make sure the trial is fair to both sides.

POWELL: I was hoping that you would ask that question again. I didn't know what I was going to do if you were going to turn it over to the jury.

COURT: Let me ask you this. Do you feel, I don't want to know the details, but do you feel that you were influenced one way or the other by that comment?

POWELL: No Sir, but I want you to know that it was made.

COURT: I need to know it, because that's why I asked. I despise trying a case up here in this area, because it's so crowded, everybody pushed in together, and folks do talk. It's a very unsatisfactory situation.

Deputy Sheriff Charles Musselwhite, who had transported defendant to the courtroom that day, admitted that he had commented on the sufficiency of the State's evidence directly to the juror Powell. Although not in uniform at the time, he was wearing an identification badge on his shirt collar.

Following his conference with juror Powell and counsel, Judge Bailey entered the following findings and order:

COURT: Upon the resumption of the court at 2:00 on Wednesday, May 12, the presiding Judge was informed by an attorney of Fayetteville that during the lunch recess he had observed a person whose name is unknown to him, in front of the courthouse in the presence of some persons wearing juror badges, commenting on the possibility of a death penalty in this case. That upon questioning the jurors, none engaged to try this case acknowledged having heard...