State v. Dozier

178 S.E.2d 412 (1971)

277 N.C. 615

STATE of North Carolina v. John Raymond DOZIER.

No. 73.

Supreme Court of North Carolina.

January 20, 1971.

*415 Chambers, Stein, Ferguson & Lanning, by James E. Ferguson, II, and Charles Becton, Charlotte, for defendant-appellant.

Robert Morgan, Atty. Gen., William W. Melvin, T. Buie Costen, Asst. Attys., Gen., for the State.

HIGGINS, Justice.

The capable and experienced counsel who represented the defendant in the trial and now represents him on this appeal argues the convictions of his client should be reversed on three grounds: (1) the State failed to establish the county or venue in which the alleged offenses took place; (2) the trial court committed error in overruling the defendant's pleas in abatement and motions to quash the indictments upon these grounds, (a) the trial jury in capital cases is given absolute, uncontrolled and standardless discretion to decide between death and life imprisonment, (b) the same jury is required to determine the issues of guilt and of punishment; and (3) the defendant conditionally contends if the convictions are not reversed for the reasons assigned, the defendant is entitled to a new trial because of the court's error in permitting the State to introduce the defendant's incriminating admissions made to the investigating officers subsequent to his arrest.

It must be inferred from the record that the defendant's objection to the trial on the ground the evidence failed to show the county in which the offenses occurred was not made until after the plea of not guilty was entered. The motion appears in the record after the conclusion of the evidence, the argument of counsel, the charge of the court, and the return of the verdicts.

The indictments were returned by the grand jury in Onslow County. The incidents described in the evidence had their origin in Onslow County and continued on Highway 17 through Jones County and into Craven County. Miss Canady was kidnapped and transported by the defendant and his companion on Highway 17 beginning in Onslow, through Jones and into Craven where she was permitted to escape from their automobile about 3 o'clock on the morning of September 3rd.

According to Miss Canady's story, and according to the defendant's confession, she was forced into their automobile, kept many hours during which four acts of rape were committed against her before she was released. If the defendant desired to question Onslow County as the proper venue, he should have raised the objection before plea and as part of the plea he should have designated the proper venue. (G.S. § 15-134) "Indeed, the offense if proven, `shall be deemed and taken' as having been committed in the county laid in the charge, unless the defendant, by plea in abatement, under oath, shall allege the transaction took place in another county, whereupon the case may be removed thither for trial." State v. Allen, 107 N.C. 805, 11 S.E.2d 1016. "An offense is deemed to have been committed in the county in which it is laid in the indictment unless the defendant shall deny the same by plea in abatement, which ordinarily must be filed not later than the arraignment." State v. Ray, 209 N.C. 772, 184 S.E. 836; State v. Holder, 133 N.C. 709, 45 S.E. 862; State v. McKeon, 223 *416 N.C. 404, 26 S.E.2d 914; State v. Overman, 269 N.C. 453, 153 S.E.2d 44.

If a defendant questions the venue, he must designate the proper county before the jury is empaneled. This is so because after that important event, jeopardy has attached and by keeping quiet on a matter in which he has superior knowledge, he could escape conviction and punishment altogether. The defendant did not challenge the venue at a time when he was entitled to be heard. The defendant's first assignment of error is not sustained.

This court has repeatedly upheld the procedure which permits the trial jury in a capital case to decide guilt and at the same time and as a part of the verdict fix the punishment at life imprisonment. State v. Peele, 274 N.C. 106, 161 S.E.2d 568; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886. Failure to set up standards to govern the jury in the exercise of its discretion to reduce the punishment from death to life imprisonment is by no means prejudicial to the prisoner. Standards would tend to restrict the exercise of discretion. Without standards, the jury is left free to fix life imprisonment for any reason satisfactory to the jury. "A statute mitigating capital punishment is not essentially unfair to the wrongdoer for failure to specify standards for the exercise of that discretion." In re Anderson, 69 Cal. 2d 613, 73 Cal. Rptr. 21, 447 P.2d 117. The motion to quash and the plea in abatement were properly overruled.

Although the defendant did not testify on the voir dire which Judge Fountain carefully conducted in the absence of the jury, he did call for "adverse examination" Mr. W. C. Jarman, investigating officer in the Onslow County sheriff's office. Mr. Jarman testified the Miranda warnings were given and the defendant signed a written consent to the interrogation which was conducted in the office of the Camp LeJeune Provost Marshal and at a time when the defendant was in the custody of Marine Corps authorities and before his release to the Onslow County sheriff. The witness testified the interrogation began about 11 p.m. on September 3, 1969 and continued "for about an hour or a little over". Further investigation occurred the following morning. Mr. Jarman testified the defendant was alert, sober and stated he was willing to tell the truth and gave a story of events which closely followed and corroborated the evidence Miss Canady gave before the jury. At the conclusion of the hearing Judge Fountain made detailed findings of fact which were fully supported by the evidence, ruled the defendant's admissions were freely and voluntarily made, and admitted them in evidence before the jury.

The defendant did not testify on the voir dire; nevertheless, he did testify before the jury after the State had concluded its evidence. He argues the reviewing court must determine from the entire record whether incriminating admissions were voluntary, citing State v. Fox, 274 N.C. 277, 163 S.E.2d 492. However, in Fox the new trial was awarded upon the ground that the incriminating admissions were made by the defendant after inducements were offered by the officers which tainted them as involuntary. In this case the defendant offered nothing on the voir dire which tended to impeach his admissions. His testimony before the jury failed utterly to disclose any facts or permit any findings that his statements in the Provost Marshal's office were other than knowingly, voluntarily and responsibly made. If we assume the defendant had a right to remain silent on the voir dire, permit the court to pass on the voluntariness of his confession and admitted in evidence and by his later testimony again challenge admissibility, even so the later testimony falls far short of impeaching the confession. In passing on his claim that his admissions were involuntary, it should be noted that he was a high school graduate, he had spent one year in college and four *417 years in the Marines. It is worthy of note also that the defendant did not include in the record and permit this court to see Judge Fountain's charge. We have a right to assume therefore, that his Honor omitted nothing from the charge which would have helped the defendant. The decisions of this court fully sustain the findings that the defendant's admissions were voluntary and were properly admissible in evidence. State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Outing, 255 N.C. 468, 121 S.E.2d 847; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68. The defendant abandoned his challenge to the indictments on the ground the grand jury was improperly constituted.

A careful review of the record fails to disclose any error in the trial.

No error.