State v. Swift, 24

• Decision Date: 14 July 1976
• Docket Number: No. 24,24
• Parties: STATE of North Carolina v. Tamarcus SWIFT, alias Poison Ivy.
• Court: North Carolina Supreme Court

Page 652

226 S.E.2d 652

290 N.C. 383

STATE of North Carolina v. Tamarcus SWIFT, alias Poison Ivy.

No. 24.

Supreme Court of North Carolina.

July 14, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey and Associate Atty. Henry H. Burgwyn, Raleigh, for the State.

W. Dortch Langston, Jr. and Phillip A. Baddour, Jr., Goldsboro, for defendant-appellant.

COPELAND, Justice.

Counsel for defendant makes a total of 63 assignments of error, based on 333 exceptions. 12 assignments have been abandoned.

(1) Assignment of Error No. 1 contends it was error to deny defendant's motion to quash the bills of indictment because defendant's name is set out in both bills as 'Tamarcus Swift (Alias Poison Ivy).'

The word 'alias' is defined in Webster's Third New International Dictionary 52, 53 (1971) as 'used esp. in legal proceedings to connect the different names of anyone who has gone by or been known by two or more names.' The record in this case indicates that defendant was known to his friends and acquaintances as 'Poison Ivy.'

Quashal of indictments is not favored where they do not affect the merits of the case. State v. Beach, 283 N.C. 261, 196 S.E.2d 214 (1973); 4 Strong, N.C. Index 2d, Indictment and Warrants, § 7 and cases therein cited; G.S. 15--153. Here defendant contends that he was denied a fair trial because the use of the alias might create in the minds of the jury an implication that he was a criminal. To support this position, defendant cites two federal cases in which there was no reversible error found on account of the use of the aliases involved. Language in these cases stands for the proposition that loading indictments with unnecessary aliases is or may be inherently prejudicial. United States v. Monroe, 164 F.2d 471 (2 Cir. 1947); D'Allessandro v. United States, 90 F.2d 640 (3 Cir. 1937). There was no such loading of the indictments in our case. The indictments included only one alias or nickname. Apparently this was defendant's only alias. At least two witnesses who knew defendant well used this alias when testifying.

Also, we note that the trial court sustained objections as to the use of the alias by the District Attorney. Additionally, in the final instruction to the jury they were told:

'Now, members of the jury, the fact that he stands indicted . . . is no evidence of his guilt and you will not consider it against him. Likewise the fact, ladies and gentlemen, the fact that the bills of indictment--they were read to you--were read to you in the form--in the name of the defendant as Tamarcus Swift, alias Poison Ivy, are not to be considered by you to his detriment in any respect.'

This instruction substantially conforms to the instruction approved in United States v. Monroe, supra.

Defendant has failed to show any prejudicial error. There is no merit to this assignment, and it is overruled.

(2) In Assignment of Error No. 12, defendant in a related manner maintains the court erred in overruling defendant's objections and motions to strike relative to his name being referred to by witnesses for the State as 'Poison Ivy' and 'Poison' for that it prejudiced the jury against him. He contends that referring to him by his nickname prevented him from getting a fair trial.

The record indicates that the District Attorney used the nickname twice when examining witnesses. The court sustained objection each time. It is noted from the record that defendant offered testimony in which the nickname 'Poison Ivy' was used and there was no objection or motion to strike. Thus, there was no prejudicial error from the admission of similar testimony by the State. State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971); State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); 1 Stansbury's N.C. Evidence, § 30 (Brandis Rev.1973). Frankly, we do not believe it would have been error to refer to defendant by the name by which he was generally known. The fact that his nickname may have been demeaning does not create error per se. Defendant had an opportunity to explain his nickname. In fact, he testified that he got the nickname 'Ivey' from his grandmother when he was 4 or 5 years old.

The assignment of error is without merit and overruled.

(3) Assignments 3 and 62 argue that the language of the bill of indictment did not identify the crime charged and was ambiguous and confusing.

The bill of indictment reads as follows:

'THE JURORS FOR THE STATE UPON THEIR OATH PRESENT, That Tamarcus Swift (Alias Poison Ivy) late of the County of Wayne on the 3rd day of June, 1975, with force and arms, at and in said County, feloniously, wilfully, and of his malice aforethought, did kill and murder Thelma Jean Jones, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.'

Defendant says this bill of indictment does not give him notice that the State intends to rely on the felony-murder rule as it is spelled out in General Statutes 14--17.

Defendant concedes that our Court has held for many years that a felony-murder may be proven by the State as alleged here under the statutory language of General Statutes 15--144. State v. Lee, 277 N.C. 205, 176 S.E.2d 765 (1970); State v. Scales, 242 N.C. 400, 87 S.E.2d 916 (1955); State v. Mays, 225 N.C. 486, 35 S.E.2d 494 (1945); State v. Smith, 223 N.C. 457, 27 S.E.2d 114 (1943); State v. Fogleman, 204 N.C. 401, 168 S.E. 536 (1933).

In addition to the murder indictment, defendant was also charged in another bill of indictment with the willful discharge of a firearm into occupied property in violation of General Statutes 14--34.1. Both bills refer to the deceased, Thelma Jean Jones. Defendant was certainly made aware of the fact that he would be called upon to answer for the murder of Thelma Jean Jones and also for shooting into an occupied dwelling where she was. These two indictments, when read together, informed defendant of the crimes with which he was charged. Our law is clear on the subject, and we adhere to our previous decisions. The assignment of error is without merit and overruled.

(4) Defendant's Assignment of Error No. 4 maintains the court erred in denying his motion for a bill of particulars, which requested the State to determine whether it was going to proceed on felony-murder or murder based on premeditation and deliberation.

The record discloses that this question was considered by the trial court and the District Attorney advised defendant that he would proceed in the case upon the theory of felony-murder and also premeditation and deliberation. A subsequent renewed motion of defendant requesting the State to elect under which theory it would proceed was overruled.

General Statutes 15--143, providing for a bill of particulars, was repealed 1 July 1975, and the present law on the subject is now included in General Statutes 15A--925. Justice Moore, speaking for our Court on this subject in terms still relevant under G.S. 15A--925, said:

'The function of such a bill of particulars is (1) to inform the defense of the specific occurrences intended to be investigated on the trial and (2) to limit the course of the evidence to the particular scope of inquiry.' (Citations omitted.)

'The granting or denial of motions for a bill of particulars is within the discretion of the court and is not subject to review except for palpable and gross abuse thereof.' (Citations omitted.) State v. McLaughlin, 286 N.C. 597, 603, 213 S.E.2d 238, 242 (1975).

Defendant was obviously aware that the trial was going to proceed on both theories, and there does not appear to be any evidence introduced which was beyond the knowledge of defendant and necessary to enable defendant adequately to prepare or conduct his defense. Certainly, the court did not abuse its discretion in denying the motion for a bill of particulars. State v. McLaughlin, supra; G.S. 15A--925.

We have held that the State is not required to elect prior to the introduction of evidence as to whether it will proceed under the felony-murder rule or on the basis of premeditation and deliberation. State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975).

We adhere to our previous decisions, and the assignment of error is overruled.

(5) Did the court commit error in excusing certain jurors for cause, as contended in assignments of error 6, 7, and 9?

These assignments of error generally relate to questions dealing with capital punishnment that were asked jurors during the jury selection process. On 2 July 1976 the Supreme Court of the United States in Woodson v. North Carolina, --- U.S. ---, 96 S.Ct. 2978, 49 L.Ed.2d ---, in a five-to-four decision invalidated the death penalty previsions of G.S. 14--17 (Cumm.Supp.1975), the statute, under which defendant was convicted and sentenced to death. For this reason, these assignments of error become academic and there can be no prejudicial error. State v. Covington, N.C., 226 S.E.2d 629 (1976), decided this same day. The assignments are overruled.

(6) By Assignment of Error No. 13, defendant argues the court erred in overruling defendant's objections to 58 leading questions asked by the State to its witnesses on direct examination.

It is generally held that leading questions may not be asked on direct examination but the rulings of the trial judge are discretionary. State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974); 1 Stansbury's N.C. Evidence, supra § 31.

Justice Branch speaking for our court in State v. Greene, supra at 492, 493, 206 S.E.2d at 236 said:

'The trial judge in ruling on leading questions is aided by certain guidelines which have evolved over the years to the effect that counsel should be allowed to lead his witness on direct examination when the witness is: (1) hostile or unwilling to testify, (2) has difficulty in understanding...