State v. Crump , 277 N.C. 573 ( 1971 )

178 S.E.2d 366 (1971) 277 N.C. 573

STATE of North Carolina
v.
Douglas CRUMP.

No. 98.

Supreme Court of North Carolina.

January 20, 1971.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Andrew A. Vanore, for the State.

Hollis M. Owens, Jr., Rutherfordton, for defendant-appellant.

BOBBITT, Chief Justice.

Assignments of error based on exceptions to the denial of defendant's motion(s) for judgment as in case of nonsuit are without merit. The evidence offered by the State was amply sufficient to support a finding that defendant intentionally shot Ben and that the shotgun wound so inflicted proximately caused Ben's death. If the jury so found from the evidence beyond a reasonable doubt, two presumptions arose: (1) That the killing was unlawful, and (2) that it was done with malice; and, nothing else appearing, defendant would be guilty of murder in the second degree. State v. Propst, 274 N.C. 62, 71, 161 S.E.2d 560, 567, and cases cited. If and when these presumptions arise, it is incumbent upon the defendant to satisfy the jury of facts which justified or mitigated the killing in accordance with legal principles too well settled to warrant reiteration.

It is noted that all admitted evidence is for consideration when passing upon a motion to dismiss as in case of nonsuit. State v. Walker, 266 N.C. 269, 272, 145 S.E.2d 833, 835. Questions raised by defendant as to the competency of portions of admitted State's evidence are discussed below.

Defendant assigns as error the admission of Sue Toney's testimony that, during their travel towards the hospital in Rutherfordton, Ben told her that Douglas had shot him. Upon objection to the admission of this testimony, the court, in the absence of the jury, conducted a voir dire hearing at which Sue Toney and Patrolman Davis testified. At the conclusion of the evidence, the court made the following factual findings: "1. The statement was made after Ben Crump had sustained a gunshot wound in his upper thigh and was en route to a hospital. 2. The deceased was, at the time, in actual danger of death. 3. The deceased stated that he knew he was dying and told the witness, Sue Toney, to take care of their children. He also stated to Patrolman L. D. Davis of the Highway Patrol that he was dying. 4. The deceased had full apprehension of his danger. 5. Death, thereafter, ensued from the gunshot wound, the deceased being dead upon arrival at the Rutherford Hospital, as testified to by Dr. Hendricks." The evidence fully supports the quoted findings. Hence, the court properly admitted as dying declarations the testimony of Sue Toney as to statements made to her by Ben. State v. Brown, 263 N.C. 327, 332-333, 139 S.E.2d 609, 612, and cases cited.

It is noted that, after Sue's testimony as to Ben's declaration had been admitted, Patrolman Davis testified, without objection, that when he stopped the Toney car, Ben was in the back seat, lying face up with his head in Sue's lap, at which time Ben said: "I'm dying, I'm dying, my brother shot me."

Defendant assigns as error the admission of the testimony of Patrolman Davis that, when he stopped the pickup truck operated by Dale in which defendant and others were riding, defendant stated in substance he had shot Ben and identified the shotgun and the shell with which he had shot him. Upon defendant's objection to the admission of the testimony, the court, in the absence of the jury, conducted a voir dire hearing at which the only testimony was that of Patrolman Davis. At the conclusion of the evidence, the court made the following factual findings: "Before making any statement, the defendant was advised that he had a right to remain silent; that anything he said might be used against him; that he had a right to have a lawyer present before answering any questions; that if he could not afford a lawyer, one would be appointed for him; and if he started answering questions, he might stop at any time. He was then asked (if) he wanted a lawyer and stated that he understood his rights and he thereafter freely, voluntarily, without coercion made a statement to Trooper Davis." The sole ground on which defendant bases this assignment is that the evidence on voir dire did not support the court's finding that defendant "was advised that if he could not afford a lawyer, one would be appointed for him. * * *"

Unquestionably, the evidence at the voir dire hearing supports fully all of the court's factual findings other than the particular finding now challenged by defendant. With reference to the challenged finding, the record discloses: Defendant was advised of his constitutional rights by Sheriff Huskey. Huskey so advised defendant by reading to him the statement of constitutional rights set forth on a card handed to him by Patrolman Davis. The court asked Davis, "Do you still have that same copy with you?" Davis answered, "Yes." The record is silent as to whether this card was shown to the court. When Davis was asked to "tell His Honor what Sheriff Huskey read to Mr. Douglas Crump on the morning of November 30th, 1969," the narration by Davis did not include a statement by Huskey to the effect that "if he (defendant) could not afford a lawyer, one would be appointed for him." According to Davis, defendant stated he understood his constitutional rights and proceeded voluntarily to make the statements attributed to him by Davis in his testimony before the jury.

Since the record does not disclose the contents of the card from which Sheriff Huskey read, it must be conceded the evidence was insufficient to support the challenged finding. Even so, for reasons stated below, error in that respect was insufficient to render incompetent the testimony of Davis as to statements made by defendant to the effect he had shot Ben with the identified shotgun and (spent) shell. Nor does it appear that such error was prejudicial to defendant.

It does not appear that defendant was then an indigent and unable to compensate counsel of his choice. In fact, at the preliminary hearing on December 11, 1969, defendant was represented by privately-retained counsel. If, in fact, defendant was able to select and compensate counsel, it was unnecessary to advise defendant in respect of the rights of an indigent. State v. Gray, 268 N.C. 69, 81-83, 150 S.E.2d 1, 10-12.

Defendant was not under arrest or in custody when the statements attributed to him were made. Having been advised of the shooting and presumably of Ben's death, the officers, as was their duty, proceeded to investigate whether a crime had been committed and, if so, by whom. In their investigation, they undertook to find out what they could from the persons who were present when the shooting occurred. Obviously, they had reason to suspect that defendant had shot Ben. However, they knew nothing of the circumstances under which the shooting had occurred. The record does not indicate any question asked by any officer. Rather, it indicates that, after being advised of his constitutional rights, defendant voluntarily made the statements attributed to him. When the statements were made, defendant's two older brothers, Howard and Dale, and Dale's wife and defendant's wife were present. The evidence is unclear as to whether defendant was under restraint when his statements were made. Nothing occurred that could be considered an "incommunicado interrogation of individuals in a police-dominated atmosphere." There is strong basis for the contention that, under the circumstances, it was not necessary to give any of the warnings listed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Cf. State v. Meadows, 272 N.C. 327, 336-339, 158 S.E.2d 638, 644-646.

Conceding, arguendo, that the circumstances required that defendant be warned of his constitutional rights in strict compliance with the specific warnings set forth in Miranda, the fact that the warnings given defendant were incomplete was not prejudicial to defendant. At trial, defendant testified that he shot Ben and testified to the circumstances under which he did so. His contention and testimony was that he did so in self-defense.

"Exceptions by the defendant to evidence of a State's witness will not be sustained where the defendant or his witness testifies, without objection, to substantially the same facts. State v. Matheson, 225 N.C. 109, 33 S.E.2d 590. Likewise, the admission of evidence as to facts which the defendant admitted in his own testimony, cannot be held prejudicial. State v. Merritt, 231 N.C. 59, 55 S.E.2d 804." State v. Adams, 245 N.C. 344, 349, 95 S.E.2d 902, 906; State v. McDaniel, 272 N.C. 556, 563, 158 S.E.2d 874, 881, vacated 392 U.S. 665, 88 S.Ct. 2310, 20 L.Ed.2d 1359, on remand 274 N.C. 574, 164 S.E.2d 469.

It is noteworthy that, independent of the statements attributed to defendant on the occasion of his arrest, the State's evidence was sufficient to support a finding that defendant intentionally shot Ben and thereby proximately caused his death.

Defendant assigns as error the responses of the court to the solicitor's objection to defendant's testimony that Dale hollered to him, saying, "run, Doug, Ben is going to kill us." This testimony was competent for consideration as to whether defendant shot Ben in self-defense under circumstances when it was or reasonably appeared to be necessary to do so to protect and defend himself from death or great bodily harm. The reasonable effect of Dale's statement upon defendant's apprehension of danger of death or great bodily harm rather than the truthfulness of what Dale said is the basis upon which the testimony as to Dale's statement was competent. "If a statement is offered for any purpose other than that of proving the truth of the matter stated, it is not objectionable as hearsay." Stansbury, North Carolina Evidence § 141 (2d ed. 1963). The plea of self-defense rests upon necessity, real or apparent. In passing upon whether defendant, when he shot Ben, believed it was necessary to do so to protect and defend himself from death or great bodily harm and had reasonable grounds for that belief, the reasonableness of defendant's belief or apprehension must be judged by the facts and circumstances as they appeared to him when the shooting occurred. State v. Kirby, 273 N.C. 306, 310-311, 160 S.E.2d 24, 27. As stated by Justice Branch in State v. Johnson, 270 N.C. 215, 219, 154 S.E.2d 48, 52: "(A) jury should, as far as is possible, be placed in defendant's situation and possess the same knowledge of danger and the same necessity for action, in order to decide if defendant acted under reasonable apprehension of danger to his person or his life." Dale's outcry was one of the circumstances for consideration by the jury in order to place them as far as possible in the position of defendant when the shooting occurred.

The record of the direct testimony of defendant includes the following:

"* * * When we got back to the house, Howard was sitting on the front porch and I went in the house and told my brother Dale `Dale, I am leaving.'

(THE FOLLOWING IS GIVEN IN TRANSCRIPT FORM:)

"THE COURT: What brother are you talking about?

"A. Dale. He said, `well—

"MR. LOWE: Objection to what Dale said now.

"THE COURT: Don't say what anybody else said.

"A. I told my brother,—well, I just told him and I went out the door and before I got out the door, my brother Ben picked up a .22 rifle and hit Howard over the head with it and him and Howard was wrestling in the yard, fighting. So I went out to the truck and I reckon—

"MR. LOWE: Objection to what he reckons.

"THE COURT: Just tell what you did.

"A. I went out to the truck and before I got to the truck, Dale hollered and told me—

"MR LOWE: Objection to what Dale said.

"THE COURT: Don't say what Dale said.

"DEFENDANT'S EXCEPTION AND ASSIGNMENT OF ERROR NUMBER FIVE: Defendant excepts to and assigns as error the sustaining of the objection by the State to the testimony of the defendant that his brother Dale hollered and told him, `run, Doug, Ben is going to kill us.' This is defendant's exception and assignment of error number 5.

"A. He said, `run, Doug, Ben is going to kill us.'

"MR. LOWE: Objection.

"THE COURT: Ask him questions.

(RESUME NARRATIVE FORM:)

"I heard somebody say something to me. As a result of what I heard I started running. I ran out the road toward the truck. * * * I was running from Ben Crump, my brother. * * *"

The record indicates that each time Solicitor Lowe objected the court's response was to direct the witness (defendant) not to tell what Dale had said. In disregard of the court's instruction, defendant proceeded to testify that Dale had said, "run, Doug, Ben is going to kill us." Again, when Solicitor Lowe objected, the court's response was a direction (presumably to defendant's counsel) to ask questions. So far as the record shows, Solicitor Lowe made no motion to strike the answer given by defendant. Nor does it appear that the court instructed the jury to disregard defendant's testimony with reference to what Dale had said. Moreover, the record leaves in doubt whether defendant's trial counsel interposed any objection whatever to the attempt by the court to prevent defendant from testifying to what Dale had said. The quoted language indicates that "DEFENDANT'S EXCEPTION AND ASSIGNMENT OF ERROR NUMBER FIVE" were incorporated simultaneously in the record when the case on appeal was prepared.

It seems probable the trial judge when he cautioned defendant not to tell what Dale had said was then unaware of the nature and content of any particular statement made by Dale. This would seem to explain why, after the testimony as to Dale's statement was given, the court took no action to strike the statement and to instruct the jury to disregard it in their deliberations.

Since the testimony was given in the presence of the jury, and since the jury was given no instruction to disregard it, it seems clear that defendant was not prejudiced by the general cautions of the court to defendant to tell what happened rather than what somebody else said.

Defendant assigns as error the court's failure to include involuntary manslaughter as a permissible verdict and to instruct the jury with reference to the distinction between manslaughter and involuntary manslaughter. This assignment is insubstantial. None of the evidence affords a basis for a verdict of guilty of involuntary manslaughter.

Defendant excepted to and assigned as error the denial of his motion at May 1970 Session for a continuance until the August 1970 Session. According to the record before us, the motion and affidavit discussed below constitute the only matters before the court when the motion for continuance was under consideration.

The unverified motion by Mr. Walden, "(t)he undersigned attorney of record for the defendant," set forth inter alia that defendant's defense to the pending murder charge against him was "expected to be self-defense"; that defendant had recently told him that Dale Crump, defendant's brother, was an eyewitness; that defendant told him he did not know what Dale would testify but expected him to testify "that the deceased was advancing on the defendant with a knife"; that he (Walden) had not seen or heard from defendant since the March 1970 Session; that defendant had furnished him "no forwarding address or other information" as to how to contact him and prepare his defense; and that he (Walden) believed that Dale Crump was "a necessary witness to properly conduct the trial of this case in behalf of the defendant."

An affidavit of defendant set forth inter alia that his brother, Dale Crump, was an eyewitness to the shooting; that he had lived at 232 Putnam Street, Shelby, N. C., but had moved; that he did not know Dale's new address but believed he lived in Shelby and worked in Charlotte; that he had not contacted Mr. Walden since the March 1970 Session and did not inform him that Dale "was desired for his defense until approximately 3:30 p. m. on Tuesday, May 19, 1970"; that he expected Dale to testify that, "on the date of the alleged slaying," he heard Ben say "that he was going to kill this defendant"; that since the March 1970 Session he had resided at Linville Falls, North Carolina; and that he had not furnished Mr. Walden "any facts or other evidence about his defense since said time (March 1970 Session) and (had) not contacted him in any manner until the present session of this court commenced."

These additional facts are noted: (1) The May 1970 Session convened on May 11, 1970; and (2) it does not appear that a subpoena was issued for Dale Crump.

As stated by Justice Sharp in State v. Phillip, 261 N.C. 263, 267, 134 S.E.2d 386, 390: "Employment of counsel does not excuse an accused from giving proper attention to his case; he has the duty to be diligent in his own behalf." Evidence of an unexplained failure to communicate with his counsel or to locate Dale Crump and arrange for him to be present for the trial shows an utter lack of diligence on the part of defendant.

"A motion for a continuance is addressed to the sound discretion of the trial judge and his ruling thereon is not reviewable in the absence of manifest abuse of discretion." 7 Strong, N.C. Index 2d, Trial § 3. Under the circumstances stated, there is no evidence that the denial of the motion for a continuance constituted an abuse of discretion.

Lastly, defendant assigns as error the denial as a matter of law of his "MOTION FOR NEW TRIAL."

The verdict was returned, the judgment was pronounced and the appeal entries were made on May 21, 1970. On the same date, defendant was adjudged an indigent. On May 22, 1970, Mr. Owens, his present counsel, was appointed to represent defendant in perfecting his appeal.

On June 3, 1970, defendant, represented by Mr. Owens, filed in the Superior Court of Rutherford County a "MOTION FOR NEW TRIAL," supported by affidavits of Dale Crump and of Russell Duncan. The affidavit of Dale Crump sets forth with particularity the events preceding, at the time of and subsequent to the shooting. Suffice to say, the facts set forth, if accepted, were quite favorable to defendant. Russell Duncan, in his affidavit, states: "That he is a deputy sheriff of Rutherford County, North Carolina; that on November 30, 1969, he went to a house located on the Duncan's Creek Road in Duncan's Creek Township, Rutherford County, North Carolina, about a quarter of a mile from Tom Toney's house, along with other officers and made an investigation of the shooting of Ben Crump; that he found a.22 automatic rifle near the steps of the house; that said rifle was twisted and bent; that there was blood on the porch of the house; and that there was blood on the rifle barrel and on the rifle stock. That the affiant has said rifle in his custody; that the said affiant was not called to testify on behalf of the defendant Douglas Crump when said defendant was tried at the May 1970 Term of Rutherford County Superior Court Division of the General Court of Justice." This affidavit of a deputy sheriff tends to corroborate strongly the testimony of defendant and of Howard Crump at trial and of Dale Crump's affidavit to the effect that Ben Crump, the deceased, a short time before the shooting occurred, had beaten Howard Crump with a rifle at or near the porch with such force as to leave a trail of blood on the porch and blood on the rifle barrel and rifle stock.

It was agreed by the solicitor and by Mr. Owens that the motion would be heard by Judge Snepp, the trial judge, at the June 1970 Session of the McDowell Superior Court.

On June 10, 1970, Judge Snepp denied defendant's motion as a matter of law on the ground "that notice of appeal * * * having been duly given, the Superior Court is now without jurisdiction to entertain a motion for a new trial on the grounds of newly discovered evidence."

We take judicial notice of the fact that the two-week session of Rutherford Superior Court which commenced on May 11, 1970, had terminated by limitation prior to the filing of the "MOTION FOR NEW TRIAL."

"Motion for new trial for newly discovered evidence may be made in the trial court only at the trial term, or, in case of appeal, at the next succeeding term of the Superior Court after affirmance of the judgment by the Supreme Court." 3 Strong, N.C. Index 2d, Criminal Law § 131. Decisions cited in support of this well-established rule include the following: State v. Casey, 201 N.C. 620, 161 S.E. 81; State v. Edwards, 205 N.C. 661, 172 S.E. 399; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Morrow, 262 N.C. 592, 138 S.E.2d 245. Moreover, when the "MOTION FOR NEW TRIAL" was made, the May 1970 Session had expired by limitation; and defendant's appeal from the judgment on the verdict had removed the case from the superior court and had transferred jurisdiction to the Supreme Court. 1 Strong, N.C. Index 2d, Appeal and Error § 16, p. 138, and cases cited.

Under the circumstances, Judge Snepp rightly denied the "MOTION FOR NEW TRIAL" as a matter of law on the ground that jurisdiction then vested in the Appellate Division. Of course, the matters set forth in the affidavits of Dale Crump, of Russell Duncan and of Mr. Walden (referred to below) will be for consideration by the presiding judge if a motion for new trial on the ground of newly discovered evidence is made at the next session of the Superior Court of Rutherford County subsequent to the filing of this opinion.

We take notice of the fact that the record also contains an affidavit by Mr. Walden. Although not dated, the record indicates it was sworn to on August 6, 1970. This affidavit, although not pertinent to the question before us, sets forth inter alia the following. Walden was employed by defendant to represent him at the preliminary hearing on December 11, 1969; that he did so and, pursuant to their agreement, was paid one hundred dollars for this appearance, which included his successful effort to obtain a reduction in defendant's appearance bond; that, under their agreement, this ended Walden's employment by defendant; that defendant was advised by Walden that Walden would not represent him in the trial in the superior court unless and until he was paid a fee of one thousand dollars; that defendant did not reemploy Walden and Walden received no additional compensation; that Walden had not seen defendant from the return of the indictment at March 1970 Session until the May 1970 Session; that he appeared for defendant at the May 1970 Session because the court, in the absence of an order permitting him to withdraw as counsel, required that he do so; and that, on account of his lack of contact with defendant and the fact that he had not been reemployed, Walden went to trial without opportunity and information to prepare defendant's defense.

Pertinent to defendant's seeming lack of responsibility and diligence in arranging and preparing for the defense of his case, it is noted that defendant testified at trial that, although he "went to the 7th grade in school," he "cannot read and * * * cannot write."

In view of what appears now to have been a misunderstanding between attorney and client which resulted in inadequate preparation for trial, it seems appropriate to say: Independent of his obligations to his client, an attorney, having accepted employment by a defendant and having represented him before the court, is obligated to the court to continue to do so unless and until, after notice to the client, the court permits him to withdraw for cause or by reason of defendant's consent to the termination of his employment. If employment is accepted for a specific limited purpose, the facts in connection therewith should be fully disclosed (preferably in writing) to the court.

Since we find no legal error in the trial below, the verdict and judgment will not be disturbed. Whether defendant should be awarded a new trial on account of the facts set forth in the affidavits of Dale Crump, Russell Duncan and Mr. Walden, his original counsel, will be for consideration, together with all other evidence that may be adduced, by the presiding judge at the next session of superior court after the filing of this opinion if a motion therefor is made in apt time.

No error.