State v. Wortham

215 S.E.2d 131 (1975)

STATE of North Carolina v. Colonel Lee WORTHAM.

No. 101.

Supreme Court of North Carolina.

June 6, 1975.

*132 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

C. W. Wilkinson, Jr., Oxford, for defendant.

BRANCH, Justice.

Defendant contends that the trial judge erred in allowing the State's witness, S.B.I. Agent Momier, to testify on rebuttal as to a statement made to him by a codefendant, Dan Moss, which statement was not made in defendant's presence. We quote the portion of the record pertinent to this assignment of error:

Mr. Momier said he was present when they arrested Dan Moss. He stated that Mr. Moss was warned of his constitutional rights. He stated that Dan Moss made the statement that he was on the car with Colonel Wortham and the two Roysters on the night before the robbery and that he did not commit the robbery. At this point, the solicitor asked the following question: "Mr. Momier, this was on the night before the robbery, or on the night of the robbery?" *133 Both the defendant Wortham and the defendant Moss objected. The objection was overruled by the Court. The defendant Wortham excepted. EXCEPTION NO. 7 Answer to this question, "It was on the night of the robbery." Momier stated that Dan Moss admitted that he was on the car with them.

In finding no error in the admission of this evidence, the Court of Appeals stated that the record indicated that the witness Momier was allowed to answer several questions concerning the Moss statement before objection was made and that defense counsel's failure to make timely objection waived the objection. The Court of Appeals further held that the admission of the evidence, if error, was harmless error beyond any reasonable doubt.

Without hearing the inflection of the witness's voice, it is impossible for us to decide from the cold record whether the witness Momier meant to state that Moss said he was with defendant and the Roysters on the preceding night or at an earlier time on the night of the robbery. Under these circumstances we think that it would be unfair for us to interpret this ambiguous statement so as to presume error on the part of defense counsel in not properly lodging his objection. We, therefore, do not agree with the conclusion of the Court of Appeals that defendant waived his objection.

Since the codefendant Moss did not testify, the evidence as to his extrajudicial statement should have been excluded. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476; State v. Fox, 274 N.C. 277, 163 S.E.2d 492. Thus, there only remains the question of whether the improperly admitted evidence was sufficiently prejudicial to warrant a new trial. The challenged evidence contributed nothing toward proving defendant's guilt of any element of the crime of armed robbery. It did tend to impeach his credibility by contradicting his statement that codefendant Moss was not in the car during the night of the robbery. All of the evidence in this case places defendant at the store at the time of the armed robbery. The uncontradicted evidence also reveals that he transported two of the confessed robbers to the scene of the robbery and afterwards carried them away from the scene. The Roysters, the one who actually used the pistol in the armed robbery and the other who took the money from the cash register, each testified that in addition to being the driver of the automobile, defendant took part in the plan to rob and received a part of the proceeds of the robbery.

The test of harmless error is "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." State v. Brinson, 277 N.C. 286, 177 S.E.2d 398. Here the competent evidence against defendant Colonel Lee Wortham so positively established his guilt in the participation of the armed robbery that the incompetent evidence admitted was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284; State v. Davis and State v. Fish, 284 N.C. 701, 202 S.E.2d 770, cert. denied, 419 U.S. 857, 95 S. Ct. 104, 42 L. Ed. 2d 91; State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405.

Defendant next argues that he is entitled to a new trial because of improper remarks by the District Attorney during his argument to the jury.

The record contained only this fragmentary excerpt concerning the District Attorney's argument: "During the course of Mr. Allen's argument to the jury, Mr. Allen stated `they are thieves, they are rogues, they are scoundrels.'" The record does not show the context in which there remarks were made; neither do we know for a certainty that the word "they" included defendant. Nor do we know whether the remarks of the District Attorney were in *134 answer to an argument made by defense counsel.

We find language very similar to that here objected to in State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572, vacated and remanded as to death penalty only, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761. There the District Attorney characterized the defendants as "two robbers, two thieves, two gunmen and [`killers.']" The Court found no prejudicial error in the remarks of the District Attorney and, inter alia, stated:

This Court has said that the argument of counsel must be left largely to the control and discretion of the presiding judge and that counsel must be allowed wide latitude in the argument of hotly contested cases. State v. Seipel, 252 N.C. 335, 113 S.E.2d 432; State v. Barefoot, 241 N.C. 650, 86 S.E.2d 424; State v. Bowen, 230 N.C. 710, 55 S.E.2d 466; State v. Little, 228 N.C. 417, 45 S.E.2d 542. He may not, however, by argument, insinuating questions, or other means, place before the jury incompetent and prejudicial matters not legally admissible in evidence, and may not "travel outside of the record" or inject into his argument facts of his own knowledge or other facts not included in the evidence. State v. Phillips, 240 N.C. 516, 82 S.E.2d 762; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664; State v. Little, supra. On the other hand, when the prosecuting attorney does not go outside of the record and his characterizations of the defendant are supported by evidence, the defendant is not entitled to a new trial by reason of being characterized in uncomplimentary terms in the argument. State v. Bowen, supra. The prosecuting attorney may use "appropriate epithets which are warranted by the evidence," . . . . In State v. Bowen, supra, the epithet, "these two thieves," was not approved by this Court but was held not to be ground for a new trial because it was "a conclusion drawn from the evidence." . . . . . . The defendant being charged on this trial with murder in the first degree, it was not improper for the prosecuting attorney to characterize him and his companion as "killers." . . .

In instant case defendant was charged with armed robbery, and there was ample evidence to support the charge. An armed robber is a thief, a robber, and certainly a thief and a robber may be aptly characterized as a scoundrel. Thus, it appears that the District Attorney did not travel outside the record and that his characterization of defendant, if directed to him, did not demand that the trial judge exercise his discretion and limit the argument.

We think it only proper to observe that the District Attorney was perilously near crossing the line from allowable denunciation into the forbidden territory of abuse which would have required reversal. In any event, we agree with the Court of Appeals that, in light of the stated circumstances, reversible error does not appear.

Our further consideration of this case convinces us that certiorari was improvidently allowed and that the action of the Court of Appeals in finding no prejudicial error was correct.

The decision of the Court of Appeals is

Affirmed.