State v. Welch

• Decision Date: 06 May 1986
• Docket Number: No. 112A84,112A84
• Parties: STATE of North Carolina v. Donnie Ray WELCH.
• Court: North Carolina Supreme Court

Page 789

342 S.E.2d 789

316 N.C. 578

STATE of North Carolina v. Donnie Ray WELCH.

No. 112A84.

Supreme Court of North Carolina.

May 6, 1986.

Lacy H. Thornburg, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for State.

Ann B. Petersen, Chapel Hill, for defendant-appellant.

MITCHELL, Justice.

The defendant brings forward assignments of error in which he contends (1) that joinder of his case with that of his codefendant Allison for trial deprived the defendant of his right to confrontation and to a fair trial, (2) that a nontestimonial identification order was unlawfully issued, (3) that taking a sample of defendant's blood without a search warrant violated rights guaranteed by the fourth amendment, (4) that the evidence presented was insufficient to support his conviction, and (5) that "death qualifying" the jury was a violation of his right to due process and to a trial by jury. We conclude that the defendant received a fair trial free of reversible error.

The State's evidence tended to show that on 30 June 1983, the defendant Donnie Ray Welch and his codefendant Joe Allison, an informant for the Gaston County Police Department, drove to Clemmer's Superette which they intended to rob. The defendant had obtained a sawed-off shotgun from William Caudell before the robbery. Caudell testified that he told the defendant that the shotgun was not loaded and would not fire.

Sheila Mullins testified that on 30 June 1983, at about 10:00 p.m., she was straightening up the counter in Clemmer's Superette while Paul Clemmer was at the far end of the counter. A man with a stocking over his head and carrying a gun burst through the door. The man pointed the gun at them and told them to be quiet and to give him all the money. Mullins bent down to get a money bag she thought was under the counter. The man ordered her to get up. As Mullins raised her hands, Clemmer walked toward the cash register with his hands outstretched. When Clemmer reached for a gun that was hidden beside the cash register, the robber cocked and pointed the gun at him and told him to stop. Mullins ducked and ran down the aisle to the back of the store. As she was running, she heard a gunshot and then a moan. The resulting wound to Clemmer's midsection proved fatal.

Joe Allison's wife Barbara had informed the police that the defendant Donnie Ray Welch planned to rob a store that night. A car that was seen at Clemmer's Superette was later stopped by the police. Allison was driving the car with the defendant as a passenger. Before the car was stopped, the defendant leaned out of the car and threw an object into the weeds on the side of the road. A sawed-off shotgun was later found about ten feet from the road. The defendant and his codefendant Allison were taken into custody. Spots of human blood were found on the jeans that the defendant Welch was wearing. The State's forensic pathologist testified that the blood on the defendant's jeans was consistent with Clemmer's blood type and not consistent with the blood types of the defendant Welch or the codefendant Allison.

The State filed a written motion to consolidate the charges against the defendant for trial with those against Allison. The defendant objected to the consolidation on the ground that testimony about extrajudicial statements which had been made by Allison would implicate the defendant. The State asserted that it would not offer into evidence any inculpatory statements made by Allison. The trial court granted the State's motion to consolidate.

At trial, the codefendant's wife, Barbara Allison, said that the defendant came to the Allison home around 6:00 p.m. on 30 June 1983. She testified that, out of the defendant's presence, Allison told her on that occasion that the defendant wanted to commit a robbery in a store at the edge of Belmont around 10:00 p.m. The defendant objected and the trial court instructed the jury not to consider that testimony against the defendant.

Barbara Allison also testified that the defendant requested a pair of stockings which he later cut. She said that he stated that they had to pick up a gun and get to the store by 10:00 p.m. Joe Allison and the defendant left in Allison's automobile. Barbara Allison testified that she then talked to Detective Ivey and told him about the plans for the robbery. The defendant objected to the testimony regarding Barbara Allison's conversation with Detective Ivey.

At the close of the State's evidence, the defendant filed written motions for severance and for mistrial under N.C.G.S. § 15A-927(c)(2)(b). The motions were denied.

The defendant testified that he did plan and had attempted to commit the robbery at Clemmer's Superette. He said that he had not intended to shoot Mr. Clemmer and had not realized that the gun was loaded. At the close of all evidence, the defendant renewed his previous motions which were again denied by the trial court. The codefendant Allison did not present any evidence.

By his first assignment of error, the defendant contends that the joinder of his case for trial with Allison's resulted in the violation of the dictates of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and N.C.G.S. § 15A-927(c)(1), and that the trial court committed prejudicial error in denying his motions for severance and a mistrial. In Bruton, the Supreme Court held that in joint trials, limiting instructions directing the jury to disregard extrajudicial statements of a non-testifying defendant to the extent they tend to inculpate a nondeclarant codefendant are inadequate protection of that codefendant's sixth amendment right to confrontation. The result is that in joint trials such an extrajudicial statement must be excluded unless the portions that implicate the nondeclarant codefendant can be deleted. If deletion of those portions is not possible, the State must choose between not admitting the statement or trying the defendants separately. State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502 (1968). "If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation." Id. If the inculpatory statement for any reason is admissible against the non-declarant codefendant, the Bruton choice does not apply. State v. Hardy, 293 N.C. 105, 118, 235 S.E.2d 828, 836 (1977). See State v. Maynard, 311 N.C. 1, 316 S.E.2d 197 (1984).

Additionally, N.C.G.S. § 15A-927 provides in pertinent part:

(c) Objection to Joinder of Charges against Multiple Defendants for Trial; Severance.--

(1) When a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court must require the prosecutor to select one of the following courses:

a. A joint trial at which the statement is not admitted into evidence; or

b. A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him; or

c. A separate trial of the objecting defendant.

N.C.G.S. § 15A-927(c)(1) codifies the Bruton decision. State v. Hayes, 314 N.C. 460, 334 S.E.2d 741 (1985).

In the joint trial of the defendant and Joe Allison, Barbara Allison testified about extrajudicial statements her husband had made to her regarding the defendant Welch's plans to commit a robbery. Upon objection, the trial court gave limiting instructions directing the jury to disregard the statements as to Welch. If these statements were inadmissible against Welch, N.C.G.S. § 15A-927(c)(1) and Bruton required the State to select to either not admit the statements, delete all references to Welch, or try the defendants separately. The State did not make any such choice.

Assuming arguendo that the hearsay statements were inadmissible as to the defendant Welch and that admitting them violated N.C.G.S. § 15A-927(c)(1) and Bruton, we turn to the question of whether the trial court's error in admitting them without proper deletions was prejudicial to Welch. State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983). Bruton involves the defendant's constitutional rights to confrontation and cross-examination. Errors affecting a constitutional right of a defendant are presumed to be prejudicial. State v. Brown, 306 N.C. 151, 293 S.E.2d 569 (1982). Therefore, the defendant will be entitled to a new trial unless the State demonstrates that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Brown, 306 N.C. 151, 293 S.E.2d 569 (1982); N.C.G.S. § 15A-1443(b).

Overwhelming evidence of guilt will render even a constitutional error harmless. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (Bruton violation held harmless beyond a reasonable doubt where overwhelming evidence of guilt); State v. Brown, 306 N.C. at 164, 293 S.E.2d at 578. In the present case, the defendant Welch himself testified that he did in fact plan and attempt to commit the robbery at Clemmer's Superette. Under cross-examination the defendant admitted that he went to his codefendant Allison's house and told the codefendant that he "had something set up and it was a store." Welch testified that his codefendant Allison drove him to Clemmer's Superette. Welch entered the store wearing the stocking over his head. His testimony regarding the attempted robbery corroborated the facts stated by Sheila Mullins, the store's employee.

Barbara Allison's testimony concerning her husband's extrajudicial statements inculpating the defendant Welch added nothing of significance to Welch's own testimony. The defendant's own testimony was overwhelming untainted evidence in this regard. We conclude that any error by the trial court in overruling Welch's objections to such testimony by Barbara Allison or in denying Welch's motion to sever was...