State v. Barnwell

194 S.E.2d 63 (1973)

17 N.C. App. 299

STATE of North Carolina v. James Everett BARNWELL.

No. 7230SC671.

Court of Appeals of North Carolina.

January 24, 1973.

Certiorari Denied March 6, 1973.

*68 Atty. Gen. Robert Morgan by Associate Attys. Thomas Maddox, Jr., and Benjamin H. Baxter, Jr., for the State.

*69 Coward, Coward & Jones by Thomas W. Jones, Sylvia, and Riddle & Shackelford by Robert E. Riddle, Asheville, for defendant appellant.

Certiorari Denied by Supreme Court March 6, 1973.

GRAHAM, Judge.

On 9 February 1972, eight days before the beginning of the trial, Judge Ervin ordered that a special venire of three hundred jurymen be drawn from Cherokee County. The order recited that attorneys for defendant and the solicitor agreed ". . . that because of the widespread publicity and discussion of said case in Jackson County and because the alleged victim was a resident of Jackson County, and the accused is a resident of Jackson County, that it would be virtually impossible to select a jury from within Jackson County." The order was consented to by defendant and the State and provided that the proper authorities of Cherokee County furnish defendant's counsel a copy of the venire selected as soon as it was drawn.

At the opening of court, defendant, through counsel, challenged the jury array. No grounds were stated for the challenge and the only evidence offered in support thereof was testimony by the sheriff of Cherokee County. Defendant's counsel examined the sheriff concerning the method used to summons the jurors, but did not question him about the source of the names of the prospective jurors, or about the method used to compile the jury list in Cherokee County. In response to a question concerning 18 year olds, however, the sheriff expressed an opinion that "[t]hey just haven't had time to comply with the new law . . . there is no young people in there." Defendant says that this statement by the sheriff required the trial judge to quash the array for the reason that it did not contain persons in the age group of 18 to 21. We disagree.

In 1971 the General Assembly amended G.S. § 9-3, effective 21 July 1971, reducing the minimum age for persons qualified to serve as jurors from 21 to 18. However, an absence from jury lists of the names of persons between the ages of 18 and 21 for a short period of time after the effective date of the amendment is not unreasonable, and does not constitute systematic and arbitrary exclusion of this age group from jury service. State v. Cornell, 281 N.C. 20, 187 S.E.2d 768; State v. Harris, 281 N.C. 542, 189 S.E.2d 249; State v. Kirby, 15 N.C.App. 480, 190 S.E.2d 320; State v. Long, 14 N.C.App. 508, 188 S.E.2d 690. Conceding arguendo that the time involved here was reasonable sufficient to permit the jury commission to restructure its lists so as not to improperly exclude any group of eligible persons, we are of the opinion that the evidence offered was insufficient to show that the commission failed to do so. Under G.S. § 9-2, the jury commission was required, at least 30 days before 1 January 1972, to prepare a list of prospective jurors qualified to serve in the ensuing biennium. The casual opinion expressed by the sheriff is insufficient to show that the jury commission failed to perform this statutory duty, or that in doing so, it systematically excluded persons of any age group. Unless there has been a systematic exclusion, defendant has no right to complain. See State v. Spencer, 276 N.C. 535, 173 S.E.2d 765, and the cases cited therein.

After the jury was selected the sheriff of Cherokee County was questioned by defendant's counsel about having assisted the solicitor during the selection process. The sheriff admitted that he and his chief deputy sat near the solicitor while the jury was being selected and conferred with him about individual jurors. Defendant contends this constitutes a fatal defect in the jury selection process. However, it is not alleged, nor does the record show, that the activity of the sheriff and his deputy resulted in the selection of any juror who was biased or prejudiced against defendant. In State v. Perry, 277 N.C. 174, 176 S.E.2d 729, the defendant complained about the method of jury selection. In rejecting *70 his complaint, the Supreme Court noted that the panel did not contain any juror to which defendant had objection. The same is true here. Defendant does not allege that he exhausted his preemptory challenges. This assignment of error is overruled.

Defendant assigns as error the denial of his motion for nonsuit made at the conclusion of the State's evidence and renewed at the close of all of the evidence.

Defendant's own version of how the shooting occurred presents a question for the jury as to his guilt of involuntary manslaughter and nonsuit as to that lesser included offense was clearly not warranted. "It seems that, with few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon. . . and under circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter." State v. Foust, 258 N.C. 453, 459, 128 S.E.2d 889, 893.

The question of whether the evidence was sufficient to support a second degree murder charge presents more difficulty. An unlawful killing with malice is murder in the second degree, and when it is shown that a defendant intentionally shot the deceased with a deadly weapon and thereby caused his death, presumptions arise that the killing was unlawful and that it was done with malice. State v. Barrow, 276 N.C. 381, 172 S.E.2d 512. However, for the presumptions of malice and unlawfulness to arise from a killing with a deadly weapon, the defendant must admit or the State must prove beyond a reasonable doubt that the killing was intentional. State v. Woods, 278 N.C. 210, 179 S.E.2d 358. Defendant strenuously contends that the evidence here will not support a finding that he intentionally shot deceased. While there is no direct evidence of intent, we are of the opinion and so hold that the circumstances shown by the State, when considered together, were sufficient to take the case to the jury on this issue.

When considered in the light most favorable to the State, the evidence tends to show that deceased was killed by a shot from defendant's shotgun, while it was in defendant's hands. The shooting occurred in a remote mountain area. There were no eyewitnesses other than defendant. Defendant immediately rolled the body of deceased some 12 to 13 feet and off a steep embankment. He removed traces of blood from his car, denied repeatedly for nine days that he had been in deceased's presence on the night she was killed, and sought through various statements to remove suspicion that he might have some knowledge of the shooting. It was only after the investigation of law enforcement officers pointed convincingly to defendant as a suspect that he conceded any involvement in the tragedy. His exculpatory statement that the shooting was an accident was not a part of the State's evidence. Intent can seldom be proved by direct evidence, and only defendant knows beyond all doubt the condition of his mind when the shotgun discharged and ended the life of the girl he contends he planned to marry. But the circumstances surrounding the shooting, and defendant's conduct at that time and subsequently, will support a reasonable inference that the shooting was intentional. Ordinarily, intent must be shown, if at all, by circumstances from which it may be inferred. 2 Strong, N.C. Index 2d, Criminal Law, § 2, and cases cited.

Defendant assigns as error the precluding of questions asked the sheriff on cross-examination about the written statement of 27 September 1971. His position is that his oral admission to the sheriff on 30 September 1971 that the gun shown him was the gun with which he shot deceased was a connected and an integral part of his exculpatory written statement of 27 September 1971. Ordinarily, when *71 the prosecution introduces a part of a confession, the defendant may bring out on cross-examination all that was said, including any statements favorable to him. See State v. Fowler, 230 N.C. 470, 53 S.E.2d 853; State v. Patterson, 63 N.C. 520, Annot., 2 A.L.R. 1017 (1919), Annot., 26 A.L.R. 541 (1923).

A voir dire examination was held to determine the connection, if any, between defendant's written statement of 27 September 1971, and his concession regarding the gun, made on 30 September 1971. The court made extensive findings of fact, including findings that had the sheriff not received the statement of 27 September 1971, and had defendant's counsel not delivered the shotgun to him, the sheriff would have continued his efforts to find the gun which he had reasonable cause to believe was used in inflicting the fatal wound. From these and other findings, all of which are supported by evidence elicited on voir dire, the court concluded that the two statements were entirely separate and not connected in any way. This conclusion is supported by the findings, and we therefore hold that it was not error to permit the State to place in evidence defendant's statement of 30 September 1971 without also offering his written statement of 27 September 1971, or to prohibit defendant's various attempts to get his self-serving declarations of 27 September 1971 before the jury through cross-examination of the sheriff.

Defendant insists that the court erred in permitting testimony that he was seen in the presence of his attorney on the morning following the shooting. This evidence was relevant in view of defendant's position that his psychological reaction prevented his acceptance of the fact he was involved in the shooting. There is no suggestion in the record that any accusation had been made against defendant at the time he sought the attorney to accompany him to the area where a search was in progress for deceased. While certainly no inference of guilt should arise from the presence of the attorney, the fact defendant was mentally capable of seeking his attorney's assistance has some bearing on the question of whether his contentions regarding his mental state on that occasion are accurate.

Miss Barker's mother testified that her daughter was wearing a longsleeved blue shirt, blue jeans, and glasses with navy blue frames when she left home on the evening of 13 September 1971. She was permitted, over defendant's objection, to illustrate her testimony by reference to a photograph taken of deceased while alive and wearing the same shirt and glasses that she wore on the night of her death. The introduction of this photograph in evidence over defendant's objection is assigned as error. The glasses and shirt identified by the witness were later introduced in evidence. "As a general rule, photographs are competent to be used for the purpose of illustrating anything it is competent for the witness to describe in words." Smith v. Dean, 2 N.C.App. 553, 563, 163 S.E.2d 551, 557. There was no error in the admission of this photograph or in the admission of a photograph of the body of deceased, which is also the subject of an assignment of error. The photograph of deceased's body was used by physicians to illustrate their testimony as to the position of the gunshot wound on the body and was admissible for this purpose. See State v. Frazier, 280 N.C. 181, 185 S.E.2d 652, and cases cited.

Defendant brings forward and argues several assignments of error which challenge the admission of the testimony of various witnesses tending to place defendant at the scene of the shooting and connect him therewith. In view of defendant's defense which concedes that he was present at the scene but contends the shooting was an accident, it is difficult to see how he could be prejudiced by any of this *72 testimony. We have nevertheless examined each of these assignments of error and find them without merit.

The final three assignments of error brought forward, all having to do with the court's charge to the jury, are overruled.

Defendant says the court erred in refusing to instruct the jury, as requested in writing, that the State had failed to show a motive for the killing and that the absence of evidence of a motive is "a circumstance which you should consider bearing on the innocence of the defendant." Motive is not an essential element of murder, G.S. § 14-17. However, "[w]hile not necessary to be proven, motive or the absence of motive is a circumstance to be considered." State v. Coffey, 228 N.C. 119, 127, 44 S.E.2d 886, 892. The State undertook to show a motive with evidence that defendant, while engaged to be married to deceased, was closely associated with Maureen Gilligan for a period of five weeks shortly before the shooting, corresponded with her, and received a letter from her on the day deceased was killed. Defendant apparently considered his relationship with Miss Gilligan important enough to call it to the attention of deceased by showing her a letter from Miss Gilligan and telling her that they would "discuss it later." The letter, found stained with blood on the morning after the shooting, was admitted in evidence. Various inferences may be legitimately drawn from its contents, including an inference that Miss Gilligan was unaware defendant was planning to marry June Love Barker, and that the relationship between defendant and Miss Gilligan was much closer than defendant contended. Although evidence tending to establish motive was weak, we think it was sufficient to justify the court's refusal to charge the jury that there was no evidence at all of motive.

Secondly, defendant says there was no evidence to support certain portions of the court's charge on the issue of involuntary manslaughter. We disagree. Furthermore, the jury did not reach the issue of involuntary manslaughter.

Finally, defendant complains of the failure of the court to submit to the jury a possible verdict of voluntary manslaughter. There was no evidence that defendant killed deceased in the heat of passion or in self-defense. Indeed, he makes no contention that he did. Consequently, the issue of defendant's guilt of voluntary manslaughter does not arise. State v. Moore, 275 N.C. 198, 166 S.E.2d 652.

It is apparent from the record that defendant was ably represented at the trial by skillful counsel of his own choosing. His appeal has been well presented and ably argued. In our opinion he has had a fair trial free from prejudicial error.

No error.

HEDRICK and VAUGHN, JJ., concur.