State v. Lowery

213 S.E.2d 255 (1975)

286 N.C. 698

STATE of North Carolina v. Crawford Dean LOWERY.

No. 36.

Supreme Court of North Carolina.

April 14, 1975.

*259 Atty. Gen. James H. Carson, Jr. and Asst. Atty. Gen. Claude W. Harris, Raleigh, for the State.

Donnell S. Kelly, Graham, for defendant appellant.

MOORE, Justice.

Defendant first assigns as error the admission into evidence, over objection, testimony that defendant engaged in a separate and distinct criminal offense against the person of Miss Lynn Snyder by participating in the crime against nature perpetrated upon her.

On direct examination, Miss Snyder testified that after defendant raped her Danny Cox arrived and defendant told Cox he could do anything he wanted to do with her. She stated further that five other males appeared and defendant again disrobed her. All of this was without objection and appears in narrative form.

The following then appears:

"ANSWER BY MISS SNYDER: `He (defendant) held my arms while another boy held my arm and he gave the boys permission to . . .' "MR. KELLY: OBJECTION. "THE COURT: `THE OBJECTION IS OVERRULED.'"

The record does not set out the question asked nor does it disclose any objection to the question.

After this there is another narrative paragraph where Miss Snyder testified that the defendant held one of her arms and told the other boys that they could do anything they wanted to do with her and that one of the boys put his mouth on her vagina. No objection or motion to strike appears.

1 Stansbury's N.C. Evidence § 27, pp. 69-70 (Brandis Rev.1973), states:

". . .In case of a specific question, objection should be made as soon as the question is asked and before the witness has time to answer. Sometimes, however, inadmissibility is not indicated by the question, but becomes apparent by some feature of the answer. In such cases the objection should be made as soon as the inadmissibility becomes known, and should be in the form of a motion to strike out the answer or the objectionable part of it. . . ."

This was not done. The record further discloses that the same evidence complained of came in without objection many times during the course of the trial, and on some occasions in response to questions by defendant's counsel.

On cross-examination, Miss Snyder stated that defendant and another boy held her arms while the other boys kissed and fondled her and while one of them committed the unnatural sex act on her.

Without objection, Officer Helm and Investigator Frick, in corroboration, testified as to Miss Snyder's statements to them regarding the unnatural sex act.

Mark Steven Woods, an eyewitness, told the same story without objection.

Defendant himself told of this act but claimed that Miss Snyder was falling to the ground and that all he did was push her up.

*260 The well established rule is that when evidence is admitted over objection, but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost. 1 Stansbury's, supra, § 30; State v. Little, 278 N.C. 484, 180 S.E.2d 17 (1971); State v. Owens, 277 N.C. 697,178 S.E.2d 442 (1971); State v. Jarrett, 271 N.C. 576, 157 S.E.2d 4 (1967). Defendant here allowed similar evidence without objection and therefore lost the benefit of the objection.

Further, under the facts of this case we think the evidence was admissible even if defendant had promptly objected at each opportunity. Ordinarily, the State cannot offer proof of another crime independent of and distinct from the crime for which the defendant is being prosecuted even though the separate offense is of the same nature as the crime charged. 1 Stansbury's, supra, § 91; State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516 (1973); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Such evidence is competent, however, to show "`. . . the quo animo, intent, design, guilty knowledge, or scienter, or to make out the res gestae, or to exhibit a chain of circumstances in respect of the matter on trial, when such crimes are so connected with the offense charged as to throw light upon one or more of these questions. [Citations omitted.]'" State v. Jenerett, 281 N.C. 81, 89, 187 S.E.2d 735, 740 (1972), quoting from State v. Atkinson, supra. See 1 Stansbury's, supra, § 92.

The evidence tends to show that when the defendant left the footsball place with Miss Snyder, he turned to several other males, smiled, and said, "Sawdust pile." Several other males arrived at the sawdust pile shortly after the alleged rape, and Lee "Hoss" Somers, with the aid of defendant, committed the unnatural sex act on Miss Snyder. We think the evidence of commission of the unnatural sex act, when viewed with other evidence, tended to exhibit a chain of circumstances in respect to the rape charge, and was a part of the res gestae. The evidence was properly admitted. This assignment is overruled.

Defendant next contends that the trial court erred in failing to declare a mistrial on its own motion when the State's witness, Mr. Darlington, testified as follows:

"QUESTION BY MR. PIERCE: What was your interest in the matter? "ANSWER BY MR. DARLINGTON: I have a daughter myself and they are close friends of mine and I felt if the girl had been raped, the guilty person should be prosecuted. "MR. KELLY: Your Honor, we OBJECT and move the answer be stricken. "THE COURT: SUSTAINED, MOTION ALLOWED, and I instruct the jury not to consider that."

No motion for a mistrial was made. Defendant elected to proceed with the trial and to take his chances with the jury then impaneled. Under these circumstances he may not successfully contend that the court, of its own motion, should have declared a mistrial. ". . . Indeed, without defendant's consent or a motion by him, had the court declared a mistrial, ex mero motu, at the onset of the next trial the judge would most certainly have been confronted with defendant's plea of former jeopardy. [Citations omitted.]" State v. Moore, 276 N.C. 142, 150, 171 S.E.2d 453, 458 (1970). ". . . It is only in cases of necessity in attaining the ends of justice that a mistrial may be ordered in a capital case without the consent of the accused. [Citations omitted.]" State v. Harris, 223 N.C. 697, 700, 28 S.E.2d 232, 235 (1943). Accord, State v. Moore, supra; State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954). Here, the court sustained the objection, allowed the motion to strike, and instructed the jury not to consider it. We do not believe that this generalized statement made by Mr. Darlington that "if the girl had been raped, the guilty party should be prosecuted" (emphasis added) *261 was so inherently prejudicial that its initial impact was not erased by the judge's prompt and emphatic instruction that the jury should not consider it. As Justice Devin (later Chief Justice) said in State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938):

"[O]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so. [Citation omitted.]"

Accord, N. C. State Highway Comm. v. Helderman, 285 N.C. 645, 207 S.E.2d 720 (1974); State v. Moore, supra. This assignment is overruled.

Defendant next assigns as error the admission into evidence the testimony of the witness Frick that the prosecuting witness in her statement to him said: ". . . [S]he had taken sociology in school and in taking this course they had studied the possibility of rape cases and so forth, and was advised to always stay calm and to attempt to talk the attacker out of causing her any harm and to try to save her life or from getting beat up or scarred for life." The record does not disclose that the defendant made any objection to the testimony of this witness.

It is well settled that with the exception of evidence precluded by statute in furtherance of public policy, which exception is not applicable to this assignment of error, the failure to object to the introduction of the evidence is a waiver of the right to do so, and its admission, even if incompetent, is not a proper basis for appeal. 1 Strong, N.C. Index 2d, Appeal and Error § 30 (1967); State v. Gurley, 283 N.C. 541, 196 S.E.2d 725 (1973); State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967); State v. Howell, 239 N.C. 78, 79 S.E.2d 235 (1953). ". . . It is too late after the trial to make exceptions to the evidence. [Citations omitted.]" State v. Howell, id. at 81-82, 79 S.E.2d at 237. We do not believe this innocuous statement prejudicial. This assignment is overruled.

Next, defendant assigns as error the failure of the trial court to declare upon its own motion a mistrial after the following question was asked by the district attorney of the defendant on cross-examination: "On April 5, 1974, didn't you insert your private parts into Kathy Cox?" The court then said, "When?" When told "April 5, 1974," the court sustained the objection. The trial court's ruling was error in favor of defendant. Defendant concedes that under the rule in State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971), the solicitor properly asked this question. In Williams, it is stated:

"It is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. [Citations omitted]. Such questions relate to matters within the knowledge of the witness, not to accusations of any kind made by others. We do not undertake here to mark the limits of such cross-examination except to say generally (1) the scope thereof is subject to the discretion of the trial judge, and (2) the questions must be asked in good faith." Id. at 675, 185 S.E.2d at 181.

A criminal defendant may not be asked if he has been arrested or indicted for a specific offense, but he may, for the purpose of impeachment, be asked if he has committed criminal acts or other specific acts of reprehensible conduct, provided the question is in good faith. State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972); State v. Williams, supra. The record shows that defendant was in fact indicted at the time of this trial for the rape of Kathy Cox on April 5, 1974; hence, there was ample basis for this question to be asked in good faith. This assignment is without merit.

*262 Finally, defendant contends that the judgment imposing the death penalty contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States.

The questions raised by the defendant have been raised in a number of recent cases before the Supreme Court of North Carolina. The answer in each is that the judgment of death does not contravene the Eighth and Fourteenth Amendments. See State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973). We adhere to our decisions in those cases.

It is noted that the court's charge was not brought forward in the record. Therefore, it is presumed that the jury was clearly charged as to the law arising upon the evidence as required by G.S. § 1-180. 3 Strong, N. C. Index 2d, Criminal Law § 158 (1967); State v. Moore, supra; State v. Cooper, 273 N.C. 51, 159 S.E.2d 305 (1968).

We have carefully reviewed the entire record in this case and have considered every contention and argument advanced by defendant. Our examination discloses that defendant received a fair trial, free from prejudicial error.

No error.

SHARP, Chief Justice, dissenting as to the death penalty:

The rape for which defendant was convicted occurred on 7 July 1973, a date between 18 January 1973, the day on which the opinion in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, was filed and 8 April 1974, the day on which the 1973 General Assembly rewrote G.S. § 14-21 at its second session by the enactment of Ch. 1201, Sec. 2, N.C. Sess. Laws (1973). For the reasons stated in the dissenting opinion of Chief Justice Bobbitt in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747 (1974), an opinion in which Justice Higgins and I joined, I dissent as to the death sentence and vote to remand for the imposition of a sentence of life imprisonment. See also the dissents in State v. Waddell, supra, 282 N.C. at 453 and 476, 194 S.E.2d at 30 and 47.

COPELAND, Justice, dissents as to death sentence and votes to remand for imposition of a sentence of life imprisonment for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422 at 437, 212 S.E.2d 113 (1975).

EXUM, Justice, dissents from that portion of the majority opinion which affirms the death sentence and votes to remand this case in order that a sentence of life imprisonment can be imposed for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975).