State v. Squire

• Decision Date: 10 May 1977
• Docket Number: No. 3,3
• Citation: 292 N.C. 494,234 S.E.2d 563
• Parties: STATE of North Carolina v. Frankie Jerome SQUIRE et al.
• Court: North Carolina Supreme Court

Page 563

234 S.E.2d 563

292 N.C. 494

STATE of North Carolina v. Frankie Jerome SQUIRE et al.

No. 3.

Supreme Court of North Carolina.

May 10, 1977.

Rufus L. Edmisten, Atty. Gen., by James E. Magner, Jr., Asst. Atty. Gen., Raleigh, for the State.

James S. Livermon, Jr., Enfield, for defendant Squire.

Charles W. Ogletree, Columbia, for defendant Brown.

Milton E. Moore, Williamston, for defendant Seaborn.

W. Brian Howell, Raleigh, for defendants.

LAKE, Justice.

By virtue of the decision of the Supreme Court of the United States in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), the death sentence imposed upon each of these defendants must be, and is hereby, vacated and a sentence to life imprisonment substituted therefor as hereinafter provided.

There was no error in consolidating the three cases for trial. G.S. 15A-926(b)(2); State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. King, 287 N.C. 645, 215 S.E.2d 540 (1975). The three defendants were charged with and tried for a single, identical crime, the murder of Trooper Davis. The theory of the prosecution in each case was that the three defendants, jointly, and pursuant to a common plan, robbed the bank in Jamesville and, while fleeing from the scene of the robbery with its proceeds, shot and killed Trooper Davis. Nothing whatever in the record indicates the slightest prejudice to the right of any of the defendants to a fair trial by reason of the consolidation of the cases per se. We discuss below the contention that a new trial should be ordered because of the admission into evidence of testimony of an investigating officer concerning the extrajudicial statement by the defendant Squire to him.

Defendants next contend that the trial court erred in sustaining the State's challenges for cause to prospective jurors who expressed general opposition to capital punishment. This assignment of error fails for two reasons, each of which is independently sufficient. First, the record discloses that no juror was excused because of his or her expression of general opposition to capital punishment. Each juror excused, pursuant to the State's challenge in this area, stated unequivocally that he or she, by reason of opposition to capital punishment, would vote against a verdict of guilty regardless of the evidence. The sustaining of such challenge to such juror was proper under the rule established in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and would not be basis even for vacating a death sentence, otherwise properly imposed. Second, the Supreme Court of the United States in Witherspoon v. Illinois, supra, made it clear that its decision in that case was limited to the validity of a death sentence, imposed upon a verdict of a jury from which persons generally opposed to capital punishment had been excluded, and did not invalidate a conviction and the imposition of a proper sentence upon a verdict of guilty rendered by a jury so composed. Speaking through Justice Branch, in State v. Covington, supra, 290 N.C. at p. 348, 226 S.E.2d p. 652, this Court said:

"All defendants, relying upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, contend that their constitutional rights were violated by the exclusion of jurors because of their views concerning capital punishment. Their contention requires little discussion in light of the holding in Woodson v. North Carolina (supra). In Witherspoon, the Supreme Court made it clear that the decision did not invalidate the conviction of a defendant as opposed to a sentence of death. * * * We hold that defendants' constitutional rights were not violated by the exclusion of jurors because of their views concerning capital punishment."

Except with reference to the portion of the statement by the defendant Squire tending to implicate his codefendant Seaborn as the one who shot Trooper Davis, which we discuss below, there was no error in admitting, over objection, testimony of investigating officers as to extrajudicial admissions made to them by the several defendants. As to each such statement, the court, upon objection being interposed, conducted a voir dire in the absence of the jury. The defendant Squire and the defendant Brown offered no evidence at such voir dire. The defendant Seaborn did offer evidence tending to contradict the evidence offered by the State with reference to his having been properly advised of his constitutional rights, his waiver of counsel and the voluntariness of his statement.

As to the defendants Seaborn and Squire, the State offered, on voir dire, signed waivers of counsel and acknowledgments of the reading to them and understanding by them of their said constitutional rights. At the conclusion of the voir dire, the court made findings of fact to the effect that each defendant had been fully advised of his or her said rights, that defendants Seaborn and Squire had each, with full understanding of those rights, knowingly, voluntarily and understandingly waived his right to counsel and his right to remain silent and that the defendant Brown, having been so advised of her rights and understanding them, knowingly, voluntarily and understandingly waived her right to remain silent. Upon these findings, the court concluded that the statements of the several defendants were admissible in evidence. The investigating officers were thereupon permitted to testify concerning those statements in the presence of the jury.

It is well established that such findings of fact by the trial court upon the voir dire hearing, if supported by evidence, as these findings were, are conclusive on appeal. State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970); State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). It will be observed that, as to the defendant Brown, the court did not expressly find that she waived her right to counsel prior to making a statement to the interrogating officer. However, this finding is implicit in the court's conclusion that her statement to the officer was admissible following the court's finding that the officer fully advised her of her right to counsel. That finding is fully supported by the evidence on the voir dire hearing which also showed an express oral waiver by the defendant Brown of her right to counsel. There was no evidence to the contrary. That being true, it was not error for the judge to admit testimony as to the statement by the defendant Brown without making the specific finding that she had waived her right to counsel, State v. Lynch, 279 N.C. 1, 15, 181 S.E.2d 561 (1971); State v. Bishop, supra, 272 N.C. at p. 291, 158 S.E.2d 511 (1968); State v. Keith, 266 N.C. 263, 145 S.E.2d 841 (1966). There was, therefore, no error in the admission of the evidence of the statements by the several defendants to the investigating officers, except to the extend hereinafter set forth.

The defendants Squire and Brown requested the court to submit to the jury, with proper instructions, the question of their guilt as accessories before the fact and as accessories after the fact. This request was denied and in this there was no error. State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). Assuming, for the sake of argument, that the offense of being an accessory before the fact, or the offense of being an accessory after the fact, is a lesser included offense within the charge of murder, as to which see the several opinions of our predecessors on this Court in State v. Jones, 254 N.C. 450, 119 S.E.2d 213 (1961), it is well established that the trial court is under a duty to instruct the jury upon, and to submit for its consideration, a lesser included offense only when there is evidence tending to show the commission of such lesser offense. State v. Phifer, supra; State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Foster, 284 N.C. 259, 277, 200 S.E.2d 782 (1973); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).

All persons present, actually or constructively, and participating in a criminal offense are principals therein, either in the first or second degree, and not accessories. State v. Phifer, supra, 290 N.C. at p. 217, 225 S.E.2d 786; State v. Overman, 284 N.C. 335, 200 S.E.2d 604 (1973); State v. Benton, 276 N.C. 641, 174 S.E.2d 793 (1970). "An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it." (Emphasis added.) State v. Benton, supra. "An accessory after the fact under G.S. 14-7 'is one who, knowing that a felony has been committed by another, receives, relieves, comforts, or assists such other, the felon, or in any manner aids him to escape arrest or punishment.' State v. Potter, 221 N.C. 153, 19 S.E.2d 257 (1942)." State v. Overman, supra, 284 N.C. at p. 341, 200 S.E.2d at p. 608. In the present case, all of the evidence is to the effect that the three defendants participated in the robbery of the bank in Jamesville, Squire being the driver of the get-away car parked during the robbery immediately outside the bank, and all the evidence is to the effect that the three defendants, while fleeing from the scene of the robbery, were present at the shooting of Trooper Davis.

Likewise, there was no error in the failure of the court to submit to the jury the guilt of the defendants Squire and Brown of the offense of armed robbery. The jury was properly instructed as to the elements of armed robbery as the felony underlying the alleged murder. The argument of these defendants upon this contention is to this effect: The evidence was overwhelming that these defendants had participated in the robbery of the bank; if the jury determined that the robbery was...