State v. RobbinsAnnotate this Case
214 S.E.2d 756 (1975)
STATE of North Carolina v. Timothy Wesley ROBBINS.
Supreme Court of North Carolina.
June 6, 1975.
*760 Rufus L. Edmisten, Atty. Gen., William W. Melvin and William B. Ray, Asst. Attys. Gen., Raleigh, for the State of North Carolina.
Wallace C. Harrelson, Public Defender, Greensboro, Eighteenth Judicial District, for defendant appellant.
Captain W. H. Jackson, one of the investigating police officers, testified that upon his arrival in Charlotte he went to the Charlotte police to obtain, if possible, the address of Timothy Wesley Robbins. He then stated that the address was obtained "from an arrest record of Timothy Robbins." At this point defendant objected and the court, sustaining the objection, instructed the jury "to disregard anything about an arrest record." Denial of defendant's motion for a mistrial is assigned as error, defendant contending that the officer's statement impeached his character prejudicially in violation of the rule proscribing such evidence when a defendant has not taken the stand.
We said in State v. Jarrette, 284 N.C. 625, 646, 202 S.E.2d 721, 735 (1974):"It is, of course, the general rule that upon the trial of a criminal charge, the defendant not having taken the stand as a witness, evidence of his bad character is not competent and, for this reason, the State may not introduce evidence showing that he committed an unrelated criminal offense. [Citations omitted]. However, Agent Phelps' statement inferring that the defendant had escaped from prison was not responsive to the question propounded to him by the Solicitor. Immediately, upon motion of the defendant's counsel, the court properly instructed the jury not to consider this statement. We find in this circumstance no ground for a mistrial."
In State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967), defendant was on trial for rape and kidnapping. Defense counsel asked a State's witness if he knew the defendant prior to this incident. The witness replied, "Yes, sir. I have had David for other sex offenses." Upon defendant's objection and motion to strike, the court instructed the jurors not to consider the statement, to erase it from their minds and not to let it influence their verdict in any way. We held the occurrence afforded no grounds for a mistrial.
Captain Jackson's inadvertent reference to defendant's arrest record was incompetent. We hold, however, that the action of the court in sustaining defendant's objection and prompt instruction to the jury to disregard the statement sufficed to remove any possibility of prejudice to defendant. "[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." State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938); accord, State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972); State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970). "Ordinarily where the evidence is withdrawn *761 no error is committed." State v. Strickland, 229 N.C. 201, 49 S.E.2d 469 (1948).
A look at the record reveals that defendant's guilt of kidnapping and murder is overwhelmingly shown by competent, untainted evidence. All the evidence and every surrounding circumstance points unerringly to his guilt, and there is no reason to believe that another trial would produce a different result. In some cases, and this is one of them, the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of an erroneous statement is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper evidence is harmless error. Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972); State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974). Substantial factual differences distinguish State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967), relied on by defendant. In our view, the minds of the jurors in this case would not have found the State's case significantly less persuasive had Officer Jackson never referred to an arrest record. Hence, no prejudice resulted. This accords with consistent decisions of this Court that technically incompetent evidence is harmless unless it is made to appear that defendant was prejudiced thereby and that a different result likely would have ensued had the evidence been excluded. State v. Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971), cert. denied 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673 (1972); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969). "Verdicts and judgments are not to be lightly set aside, nor for any improper ruling which did not materially and adversely affect the result of the trial." State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951). This assignment of error is overruled.
Defendant's second assignment of error relates to the introduction, over objection, of a portion of a check (State's Exhibit 16). Captain Jackson of the Greensboro Police Department testified without objection that State's Exhibit 16 was removed from the pocket of the defendant Timothy Robbins in the police department in Charlotte on the night of January 24. This check, or portion of a check, is dated January 18, 1974, has the word "Osborne" showing on the payee line followed by the sum "$35.00." Only the word "five" shows on the line below followed by the printed word "Dollars." The check apparently was drawn on The Stage Door Set and bears the purported signatures of Thomas M. Vance and Donald Martin. No first name or initial of the payee is visible on this portion of the check, and there is no indication that the check was endorsed by the deceased or anyone else. Defendant contends that this paper writing was never authenticated and its genuineness and its execution were never proven prior to its introduction. He asserts the check was therefore erroneously received into evidence and that its reception was highly prejudicial.
Every circumstance calculated to throw any light upon the crime charged is admissible in criminal cases. State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965), cert. denied 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044 (1966); State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938). Articles shown by the evidence to have been used in the commission of a crime are competent and properly admitted into evidence. State v. Stroud, 254 N.C. 765, 119 S.E.2d 907 (1961). "So far as the North Carolina decisions go, any object which has a relevant connection with the case is admissible in evidence, in both civil and criminal trials." 1 Stansbury, North Carolina Evidence § 118 (Brandis rev. 1973). Accord, State v. Bass, 249 N.C. 209, 105 S.E.2d 645 (1958); State v. Harris, 222 N.C. 157, 22 S.E.2d 229 (1942).
Here, there is evidence tending to show that the last name of the deceased is "Osborne"; that this partially mutilated check with the name "Osborne" on the payee line was found in defendant's pocket when he was arrested; that defendant was also wearing a gold Timex watch (State's Exhibit 4) which he showed to Allen Junior *762 Stimpson and stated that he took it "off the boy" together with a billfold containing $30.00 in money. Thus there is evidence tending to show that State's Exhibit 16 has a relevant connection with the case and is competent evidence. It tends to show some contact between the defendant and the deceased and to identify the defendant as the perpetrator of the crime charged. Moreover, it corroborates the testimony of the police officers. Rules of law relating to authentication, genuineness and execution of paper writings have no pertinence in this context. This assignment of error is overruled.
Defendant's next assignment of error is based on Exceptions Nos. 15 through 29. One of these exceptions appears in each instance where the court in its charge, following recapitulation of the testimony of each State's witness, stated: "That is what the evidence of this witness tends to show for the State and for the defendant. What it does show is for you, the jury, to say and to determine." (Emphasis added.) Defendant argues that since he offered no evidence the charge "in effect held the defendant out to the jury as ratifying and confirming almost the entire evidence put on by the State." Moreover, he contends that repetition of the phrase fifteen times "unavoidably and unalterably invaded the province of the jury, and in effect amounted to an expression of opinion on the part of the judge, for which a new trial must be ordered." We now examine the validity of this assignment.
The main purpose of the court's charge to the jury is to clarify the issues, eliminate extraneous matters, and apply the law to the different factual aspects arising upon the evidence. State v. Jackson, 228 N.C. 656, 46 S.E.2d 858 (1948). So long as the judge charges correctly on the applicable principles of law and states the evidence plainly and fairly without expressing an opinion thereon, he has wide discretion in presenting the issues to the jury and is not bound by any stereotyped forms of instruction in doing so. State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965); State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944); State v. Howard, 222 N.C. 291, 22 S.E.2d 917 (1942).
Here, defendant offered no evidence but relied upon the legal presumption of innocence and the weakness of the State's case. The presumption of innocence goes with him throughout the trial and is not overcome by his failure to testify in his own behalf. "He is not required to show his innocence. The burden is on the state to prove his guilt beyond a reasonable doubt." State v. Spivey, 198 N.C. 655, 153 S.E. 255 (1930). And a reasonable doubt may arise from the evidence offered against him, or from a lack of evidence, or from its deficiency. State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954); State v. Braxton, 230 N.C. 312, 52 S.E.2d 895 (1949); State v. Tyndall, 230 N.C. 174, 52 S.E.2d 272 (1949).
When the foregoing legal principles are applied to the words in the charge assigned as error, it is apparent that the language complained of is not prejudicial and did not amount to an expression of an opinion in violation of G.S. § 1-180. "The charge of the court must be read as a whole . . ., in the same connected way that the judge is supposed to have intended it and the jury to have considered it . . .." State v. Wilson, 176 N.C. 751, 97 S.E. 496 (1918). Although the instruction in question here is not a model to be followed, we perceive nothing in it which would prejudice a mind of ordinary firmness and intelligence. When construed contextually, the charge as a whole is correct. It presents the law fairly and clearly to the jury and applies it correctly to the different factual aspects of the evidence. Furthermore, "it is a general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal." State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973). This assignment lacks merit and is overruled.
*763 Finally, defendant contends that imposition of the death penalty is cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States.
This assignment has been the subject of final judicial determination in this State unless further review is required by legislative enactment or by the Supreme Court of the United States. State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975); State v. Honeycutt, 285 N.C. 174, 203 S.E.2d 844 (1974); State v. Dillard, 285 N.C. 72, 203 S.E.2d 6 (1974); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (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).
Assignments relating to nonsuit and to the signing of the judgments are formal, requiring no discussion, and are overruled.
Examination of the entire record discloses a senseless killing without provocation and a fair trial free from prejudicial error. The verdicts and judgments must therefore be upheld.
COPELAND, J., did not participate in the hearing or decision of this case.
Justice EXUM 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, 439, 212 S.E.2d 113, 121 (1975), other than those relating to the effect of Section 8 of Chapter 1201 of the 1973 Session Laws.
SHARP, Chief Justice (dissenting as to the death penalty):
The murder for which defendant was convicted occurred on 19 January 1974, a date between 18 January 1973, the day of the decision in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19, and 8 April 1974, the day on which the General Assembly rewrote G.S. § 14-21 by the enactment of Chapter 1201 of the Session Laws of 1973. For the reasons stated by Chief Justice Bobbitt in his dissenting opinion 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 imposed upon defendant by the court below and vote to remand for the imposition of a sentence of life imprisonment. See also the dissenting opinion of Chief Justice Bobbitt, and my concurrence therein, in State v. Waddell, supra 282 N.C. at 453 and 476, 194 S.E.2d at 30 and 47.