State v. Swaney

• Decision Date: 20 January 1971
• Docket Number: No. 81,81
• Citation: 277 N.C. 602,178 S.E.2d 399
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James Preston SWANEY, Defendant Appellant Herein. STATE of North Carolina v. Wesley ST. ARNOLD. STATE of North Carolina v. William Dallas FLETCHER.

Page 399

178 S.E.2d 399

277 N.C. 602

STATE of North Carolina v. James Preston SWANEY, Defendant Appellant Herein.

STATE of North Carolina v. Wesley ST. ARNOLD.

STATE of North Carolina v. William Dallas FLETCHER.

No. 81.

Supreme Court of North Carolina.

Jan. 20, 1971.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody for the State.

Ned A. Beeker, Lexington, for defendant appellant.

MOORE, Justice.

Defendant in his brief states the questions involved in the appeal in a somewhat general manner as follows:

'The many questions to be determined in this Appeal are set out under each of the Exceptions hereinafter, and Appellant contends that there is no one question to be determined unless same would be the ultimate questions of whether or not the evidence of the State was insufficient to support the conviction of the defendant, and whether or not the Bill of Indictment upon which the Appellant was tried was insufficient and invalid as a matter of law, and whether or not prejudicial error was present in the trial of the case which would warrant a new trial for this appealing defendant.'

Defendant does make numerous assignments of error, the first of which is that the trial court erred in failing to grant his motion to disclose the identity of the informer in this case, thus denying him the right to assert the defense of entrapment. All the evidence for the State indicates that some of the police officers received their information about the robbery in question from an unidentified informer. The State contends, however, that the motion to which Swaney referred, as the record shows, was submitted to the court by Jerry B. Grimes, court-appointed counsel for William Dallas Fletcher, and was not joined in by defendant Swaney or his attorney. Hence, the State contends Swaney cannot avail himself of this motion on appeal.

Conceding Arguendo that the motion does apply to Swaney, none of the defendants have testified that any police officer or any other person at any time sought to induce, procure, or incite the defendants, or any of them, to commit a crime. The evidence to the contrary discloses that the officers only knew that there was a possibility that there would be a robbery. They did not know the exact time it would take place or the identity of the persons who might attempt it. Defendant Swaney testified at great length at the trial, but did not say that any officer or any other person tried to induce, incite, or procure the commission of this crime. His defense is not entrapment, but that he committed no crime. Under these circumstances, we hold that the trial court correctly denied the motion to require the officers to disclose the identity of the informer.

'It is the general rule, subject to certain exceptions and limitations * * * that the prosecution is privileged to withhold from an accused disclosure of the identity of an informer.' Annot., 76 A.L.R.2d 262, 271. 'The privilege is founded upon public policy, and seeks to further and protect the public interest in effective law enforcement. It recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officers, and by preserving their anonymity, encourages them to perform that obligation. The privilege is designed to protect the public interest, and not to protect the informer.' Id. at 275; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The propriety of disclosing the identity of an informer depends on the circumstances of the case. Roviaro v. United States, supra; State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Boles, 246 N.C. 83, 97 S.E.2d 476.

Justice Higgins, in State v. Caldwell, 249 N.C. 56, 105 S.E.2d 189, states:

'* * * The courts generally hold that a verdict of not guilty should be returned if an officer or his agent, for the purpose of prosecution, procures, induces or incites one to commit a crime he otherwise would not commit but for the persuasion, encouragement, inducement, and importunity of the officer or agent. If the officer or agent does nothing more than afford to the person charged an opportunity to commit the offense, such is not entrapment. The courts do not attempt to draw a definite line of demarcation between what is and what is not entrapment. Each case must be decided on its own facts. This Court, in two recent cases, has stated the rule as it prevails in this jurisdiction: State v. Jackson, 243 N.C. 216, 90 S.E.2d 507; State v. Burnette, 242 N.C. 164, 87 S.E.2d 191, 52 A.L.R.2d 1181. See also, State v. Kilgore, 246 N.C. 455, 98 S.E.2d 346; State v. Wallace, 246 N.C. 445, 98 S.E.2d 473; State v. Boles, 246 N.C. 83, 97 S.E.2d 476; State v. Nelson, 232 N.C. 602, 61 S.E.2d 626; State v. Love, 229 N.C. 99, 47 S.E.2d 712; State v. Godwin, 227 N.C. 449, 42 S.E.2d 617.'

According to the defendant's evidence in the case at bar, he knew nothing about the robbery and did not participate in it. Therefore, the question of entrapment does not arise. State v. Boles, supra. See 36 N.C.L.Rev. 413; Annot., 61 A.L.R.2d 677; 2 Strong's N.C. Index 2d, Criminal Law § 7.

The defendant next contends that the court erred in not submitting to the jury on its own motion the lesser included offenses of common law robbery and assault. The evidence for the State clearly shows an armed robbery; there is no evidence of a lesser offense. The defendant is guilty of armed robbery or not guilty. The trial court is not required to submit to the jury the question of a lesser offense, included in that charged in the indictment, where there is no evidence to support such a verdict. State v. Williams, 275 N.C. 77, 165 S.E.2d 481; State v. Bridges, 266 N.C. 354, 146 S.E.2d 107; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545. This assignment is without merit.

Some hours after the robbery, Myers was allowed to go to the jail and in the presence of a Thomasville police officer asked the defendant St. Arnold, 'What did they have against me to rob me?' Over objection, Myers was allowed to testify that St. Arnold replied, 'We have nothing against you; we were broke and needed some money.' The trial court sustained the objection as to defendants Swaney and Fletcher but admitted the statement as to St. Arnold. St. Arnold did not testify at the trial. Defendant contends that under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and State v. Fox, 274 N.C. 277, 163 S.E.2d 492, this was error. Prior to Bruton, limiting the statement to the defendant who made it would have been insufficient. However, Justice Sharp in State v. Fox, supra, states the post-Bruton rule to be as follows:

'The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless will 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)), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a co-defendant has been accorded his right to confrontation. See State v. Kerley, supra, 246 N.C. 157, at 160, 97 S.E.2d 876, at 879.'

Applying that rule to the facts here, it was error to admit that portion of St. Arnold's statement which, by the use of the word 'we,' might have implicated Swaney. Swaney was thereby denied his constitutional right of confrontation on cross-examination guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. Nevertheless, as stated by Justice Huskins in State v. Brinson, 277 N.C. 286, 295, 177 S.E.2d 398, 404:

'* * * (A)ll federal constitutional errors are not prejudicial. Some constitutional errors in the setting of a particular case 'are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction * * * (B)efore a federal constitutional error can be held harmless, the Court must be able to declare a belief that it was harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In deciding what constituted harmless error in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), the Court said: 'The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction."

Accord, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

The State's evidence as to the robbery itself is overwhelming and is not denied. The evidence as to Swaney's participation was from independent testimony not connected with the statement itself, and from the testimony of Swaney himself. The statement does not involve evidence in any sense 'crucial' or 'devastating.' We therefore hold that the admission of St. Arnold's statement was harmless error beyond a reasonable doubt. Harrington v. California, supra; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Brinson, supra. See also Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (decided December 15, 1970). This assignment is overruled.

The next assignment of error relates to the sufficiency of the evidence to prove the offense charged. The portion of the indictment involved reads, '* * * with the use and threatened use of a certain firearm, to-wit: a certain pistol, whereby the life of Dalton Myers was endangered and threatened. * * *' The defendant contends that since Myers testified, 'They didn't threaten me in any way,' that the State has failed to prove an essential element of armed robbery as charged in the indictment and as required by G.S. § 14--87; and...