State v. Spicer

204 S.E.2d 641 (1974)

285 N.C. 274

STATE of North Carolina v. Christopher SPICER.

No. 25.

Supreme Court of North Carolina.

May 15, 1974.

*646 Robert Morgan, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen. and C. Diederich Heidgerd, Associate Atty., Raleigh, for the State.

Adam Stein, Chambers, Stein, Ferguson & Lanning, Chapel Hill, for defendant appellant.

HIGGINS, Justice.

When this Court reverses a conviction on account of the insufficiency of the evidence, the custom is to recite the full substance of the testimony and point out why, in its totality, it is insufficient to support a verdict. However, when a new trial is ordered on account of the erroneous admission or exclusion of evidence, the custom is to recite only so much of the testimony as is necessary to disclose the legal basis for the decision, leaving the trial court at the new trial uninhibited as to other matters.

In this case the trial judge sustained the State's objection to the repeated efforts of defense counsel to find out who was paying the living expenses of the defense witness Pennington and his wife with whom he lived. Pennington testified that the defendant admitted "We did it." He testified the admission was made while he and Spicer were cell mates in the bull pen of the jail. Two inmates testified Spicer and Pennington were never cell mates during Pennington's four day stay in the prison. Someone had procured a bond for Pennington which was reduced from $5,000.00 to $400.00. Pennington claimed not to know who made the arrangements for the reduction. Defense counsel, by cross-examination, sought to find out who was supporting State's witness Pennington and his wife, neither of whom was working. The purpose was to discover to whom the witness was indebted for such favors and to ascertain to what extent the favors colored his testimony against Spicer.

"The cross-examiner is allowed great latitude in questioning a witness to ascertain his motive for testifying. This is particularly true where the defendant is cross-examining a witness for the prosecution who is a codefendant or accomplice, or who is a person threatened with criminal prosecution for an independent crime, whose testimony against the defendant may be motivated by a promise or hope of immunity or leniency. "A witness for the prosecution may also be cross-examined to ascertain whether his testimony was motivated by an expectation or hope of pecuniary gain; ..." Wharton's Criminal Evidence, Vol. 2, 13th Ed., § 435, 352-354.

*647 This Court's language in State v. Roberson, 215 N.C. 784, 3 S.E.2d 277, is pertinent: "Cross-examination would be of little value if a witness could not be freely interrogated as to his motives, bias and interest, or as to his conduct as connected with the parties or the cause of action.... The defendant had a right to have the jury informed as to these matters and to debate before the jury the effect of such circumstances upon the credibility of the witness."

By Assignment of Error XIII, Exception No. 94, the defendant challenges the court's failure to instruct the jury concerning its duty to evaluate accomplice's testimony. The purpose of reciting the full discussion on this question is to disclose the circumstances under which the defendant finally agreed to withdraw the request. The withdrawal occurred only after the court made the inquiry and was assured by counsel that he desired the instruction as to Brailford's testimony. "THE COURT: Now wait a minute. An accompliceActually Brailford is no accomplice in this case." True Brailford was not charged as an accomplice in the murder case, but his evidence permitted the jury to make a finding that he was an accomplice either in the robbery or the murder or both. Then the court should have instructed the jury as to such accomplice's testimony. The court should have, but failed to charge that if the jury found that Brailford was an accomplice, the jury should scrutinize his testimony with care and caution.

"While the court is not required to give the instruction in the exact language of the request, if request be made for a specific instruction, which is correct in itself and supported by evidence, the court must give the instruction at least in substance." State v. Hooker, 243 N.C. 429, 90 S.E.2d 690; State v. Pennell, 232 N.C. 573, 61 S.E.2d 593; State v. Booker, 123 N.C. 713, 31 S.E. 376.

"It bears against a witness that he is an accomplice in the crime and he is generally regarded as interested in the event." State v. Hale, 231 N.C. 412, 57 S.E.2d 322. State v. Roberson, supra.

Failure to give the requested instructions when justified is reversible error. State v. Bailey, 254 N.C. 380, 119 S.E.2d 165.

The record discloses that the State's witness Brailford made the admission to the officers, "I stated that I initiated the proposition concerning the hit of Christian Brothers Poultry. It was my idea." He again stated he expected his cut. Surely this participation would warrant the jury in finding Brailford was an accomplice in the robbery. The charge is required when requested if the accomplice is indicted as, or found by the jury to be, an accomplice. State v. Booker, supra. A witness is an accomplice within the rules relating to accomplice's testimony if he is "a principal, as an aider and abettor, or as an accessory before the fact." State v. Bailey, supra.

An accessory before the fact is defined by this Court in State v. Bass, 255 N.C. 42, 120 S.E.2d 580, in this way: "`The concept of accessary before the fact has been held to presuppose some arrangement with respect to the commission of the crime in question .... To render one guilty as an accessary before the fact to a felony he must counsel, incite, induce, procure or encourage the commission of the crime, so as to, in some way, participate therein by word or act.... It is not necessary that he shall be the originator of the design to commit the crime; it is sufficient if, with knowledge that another intends to commit a crime, he encourages and incites him to carry out his design....'"

The evidence discloses that the witness Brailford originated the plan to rob his employer and explained the setup at the plant. Brailford testified the defendant *648 came by his house "the last of the week preceding the robbery" and talked to him out on the porch. "He asked me if things were still set up the same way as before at the plant. I told him that they were and he told me that he was going to hit the dude." (Brailford claimed he was joking. He neglected to explain the joke in time to save the life of the man for whom he worked.)

The record discloses evidence sufficient to permit a finding that Brailford was an accessory before the fact to the offense of robbery and murder. At least the evidence was sufficient to require the court to comply with the defendant's request to charge the jury that upon a finding Brailford was an accomplice, the law required the jury to scrutinize his testimony.

The able and painstaking trial judge in this case, with the best of intentions no doubt, succeeded in pressuring the defendant and his counsel into withdrawing the request for an appropriate instruction with respect to the testimony of the accomplice Brailford. Obviously the judge held the mistaken view that one must be charged by indictment as an accomplice in order to give the accused the benefit of the rule. When requested, the instruction must be given if the jury should find from the evidence that the witness was an accomplice. The trial judge obtained the withdrawal of the request by explaining to the defendant and his counsel that the defendant Brailford was not an accomplice. We think the trial judge, because of his mistaken view of the law, exercised too much pressure to make the withdrawal of the request voluntary on the part of the defendant and his counsel.

We conclude the able trial judge should have permitted defense counsel more latitude in finding out by cross-examination how the witness Pennington and his family maintained themselves. The answer might disclose the advantage the witness expected in return for his testimony.

In State v. Hart, 239 N.C. 709, 80 S.E.2d 901, this Court said: "As a consequence, the law decrees that `any evidence is competent which tends to show the feeling or bias of a witness in respect to the party or the cause,' and that jurors are to consider and weigh evidence of this character in determining the credibility of the witness to whom it relates." If a witness has an interest which may cause bias, the source of the interest is a proper subject of inquiry on cross-examination.

The evidence disclosed that at the time of his death Donnie P. Christian was twenty-seven years of age, six feet tall and weighed one hundred and eighty pounds. His resistance to robbery could not be unexpected. Brailford originated the plan for the robbery. He explained the layout and immediately before the hit, gave assurance the setup at the plant was unchanged.

We conclude the trial court committed error, (1) by sustaining the State's objection to the cross-examination of the witness Pennington as challenged by Assignment of Error III(A), Exceptions Nos. 62, 63, and 64; and (2) by failing to caution the jury to scrutinize the testimony of the State's witness Brailford if the jury found him to be an accomplice. Assignment of Error XIII, based on Exceptions Nos. 90, 91, 92, and 93.

The perpetrator of this brutal killing and robbery deserves the maximum punishment authorized by law. As a corollary the courts must see to it that the legal rights are accorded to the accused before a conviction is permitted to stand.

For the errors assigned, the defendant is entitled to go before another jury.

New trial.