State v. CoxAnnotate this Case
222 S.E.2d 246 (1976)
289 N.C. 414
STATE of North Carolina v. Marion COX and Rudolph Nolly.
Supreme Court of North Carolina.
March 2, 1976.
*250 Lawrence W. Hewitt, Charlotte, for defendant-appellant Cox.
Michael J. Blackford and Donald M. Tepper, Charlotte, for defendant-appellant Nolly.
Rufus L. Edmisten, Atty. Gen., Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State of North Carolina.
Both defendants objected to the introduction of a photograph of the deceased Donald Hendrix as he appeared in the hospital on the day he died. However, the assignment of error based on this exception is brought forward and discussed in the brief of defendant Cox only. Accordingly, under Rule 28, Rules of Appellate Procedure, this assignment is deemed abandoned by defendant Nolly. Our discussion relates only to the appeal of Marion Cox.
State's witness Willie Lee Henry testified that the deceased Donald Hendrix was his brother; that he saw his brother at the hospital on the night he died, and that State's Exhibit 2 was a photograph of his brother "the way I saw him over at the hospital." Defendant Cox argues (1) the photograph was not properly identified and authenticated, (2) it was irrelevant because it was made after the body had been removed to the hospital and (3) the trial court failed to instruct the jury that it was admitted for illustrative purposes only. These are the bases for Cox's first assignment of error.
We find no prejudicial error in any of these respects. The photograph was identified by the witness as a photograph of his brother which depicted the way he looked at the hospital the night he died. Photographs are not inadmissible because they were not made at the time of the event, State v. Lester, N.C., 221 S.E.2d 268 (filed 29 Jan. 1976); State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969), or because they are gory or gruesome, State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972). See 1 Stansbury, North Carolina Evidence § 34 (Brandis rev. 1973). While it is true that the trial judge gave no limiting instruction, this was not error because there was no request for such instruction. State v. McKissick, 271 N.C. 500, 157 S.E.2d 112 (1967); State v. Cade, 215 N.C. 393, 2 S.E.2d 7 (1939). In any event, no possible prejudice resulted from the introduction of this photograph because Cox never really contested *251 the fact that Hendrix died as the result of an assault made upon him at the rooming house on 27 March 1975. His defense was alibi. This assignment is overruled.
Willie Camp, a State's witness, testified over objection that after the four intruders had entered the rooming house, one of them named Theodore Teeter said, "Watch the door, Buck," referring to Marion Cox who was known by that nickname. Over objection Camp further testified that during the robbery and assault on the deceased Donald Hendrix, Rudolph Nolly "drawed back" to hit him with the ax and Theodore Teeter said, "Rudy, don't kill him right now." Admission of this evidence constitutes Cox's third and Nolly's fourth assignments of error.
There is no merit in these assignments. This testimony was competent as part of the res gestae. "Exclamations or declarations spontaneously evolved by the event and relevant to the inquiry are a part of the res gestae, and testimony thereof is competent as an exception to the hearsay rule." 3 Strong, N.C. Index 2d, Evidence § 35 (1967), and cases there cited.
Declarations are competent as part of the res gestae if the declaration (1) is of such spontaneous character as to preclude the likelihood of reflection and fabrication, (2) is made contemporaneously with the transaction, or so closely connected with the main fact as to be practically inseparable therefrom, and (3) has some relevancy to the fact sought to be proved. Hargett v. Ins. Co., 258 N.C. 10, 128 S.E.2d 26 (1962); Little v. Brake Co., 255 N.C. 451, 121 S.E.2d 889 (1961); Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757 (1944); 1 Stansbury's North Carolina Evidence, Hearsay § 164 (Brandis rev. 1973).
In State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968), the prosecuting witness testified over objection that during defendant's assault upon her with intent to commit rape, the occupants of the nearby Vance Apartments "up to the third floor had raised their window and was yelling for him to . . . turn that woman aloose." Held: This testimony was competent as part of the res gestae. So it is here.
Defendants rely on legal principles enunciated in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), followed and applied by this Court in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968), that the extrajudicial confession of one defendant who does not testify, implicating the other defendant, cannot be admitted into evidence. Those principles are not relevant in the factual context of this case. Here, Teeter's statement is not a confession. Moreover, Teeter is not on trial as codefendant. In Bruton the confession made by a codefendant was the result of an in-custody interrogation long after the crime was committed. The same distinctions were present in the Fox case. Thus Bruton and Fox are not authority for excluding the evidence challenged here. These assignments are therefore overruled.
Defendants contend their in-court identification by State's witnesses Willie Camp and Leon Caldwell should have been suppressed. They argue that these witnesses had no adequate opportunity to observe defendants, thus rendering their testimony so weak and unreliable that it should have been excluded. Cox's fourth and Nolly's third and fifth assignments of error are based on these contentions.
Before admitting the evidence challenged by these assignments, the trial judge conducted an examination of the witnesses in the absence of the jury. On that voir dire Leon Caldwell, speaking with reference to his opportunity to observe defendant Nolly, testified that when he opened the door there was a man in the hall with a tan jacket on; that the man rushed in and commenced beating him; that he saw the man's face then and "that man was Rudolph Nolly"; that initially Nolly had a stocking mask over his face but later changed to a black plastic bag; that when *252 Nolly was swinging the ax in the assault upon Donald Hendrix, "the bag completely slid off his face"; that he noticed sideburns and a slight moustache; and that downstairs, while sitting on the sofa, he saw Nolly beating Hendrix on the well lighted back porch. Leon Caldwell also testified that he later identified a photograph of Nolly at the law enforcement center. (This part of his testimony was contradicted by the investigating officer.)
With respect to his opportunity to observe defendant Cox, Leon Caldwell testified on voir dire that he was forced to sit on the sofa with the other captives for more than thirty minutes during which he observed Cox while Cox held a rifle on them. The room was well lighted by a 75-watt bulb. Cox was wearing a bandana and a dark blue scarf with dots on it that covered only his mouth and nose. He had on tennis shoes and a dark coat and was about 5 feet 8 inches tall. Caldwell further testified that he picked out a photograph of Cox from ten to twenty photographs he observed in the law enforcement center. (The investigating officer had no record or recollection of such identification.)
The witness Willie Camp testified on voir dire that he had known defendant Nolly for seven or eight years"we were brought up in Brooklyn together"; that he had been around Nolly long enough to know Nolly's voice and to recognize it; that on the night in question Nolly was dressed in jeans and a long-sleeved shirt and had a stocking mask over his face which he later replaced with a black plastic bag; and that he observed Nolly's face when the plastic bag fell off while he was beating Hendrix. With respect to defendant Cox, Willie Camp testified, "I have seen him on Seventh Street standing around. . . . I saw him that night about 45 minutes," and pointed to Cox as the man he saw in the rooming house the night Donald Hendrix was killed. He said Cox was known by the name of "Buck" on the street.
The trial judge made detailed findings of fact and concluded that the identification of defendants by Leon Caldwell and Willie Camp was independent in origin and based on personal observation of defendants for thirty to forty-five minutes during the robbery and assault on Donald Hendrix. The evidence was therefore admitted over objection.
Defendants concede that ordinarily the credibility of witnesses and the weight to be given their testimony is exclusively a matter for the jury. Even so, they argue that this rule does not apply when the only testimony justifying submission of the case to the jury is inherently incredible and in conflict with the physical conditions established by the State's own evidence. Defendants contend the testimony of Caldwell and Camp falls in that category and rely on State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), as authority for their position. This requires an examination of the Miller case.
In Miller the State's evidence was ample to show that the building of the Hall Oil Company in Charlotte was broken and entered by two or more men on the night of 28 September 1966 and that its safe, containing money and other valuables, was then damaged in an effort to force it open. The exterior of the building and surrounding grounds were well lighted by nearby street lights, floodlights at the front and back, and spotlights attached to the eaves. The building was 286 feet from a Texaco service station with a vacant lot between. The only evidence tending to identify defendant as one of the perpetrators of the offense was the testimony of a sixteen-year-old witness who identified defendant in a lineup as one of the persons he had seen at the scene of the crime. The witness was never closer than 286 feet to a man he saw running along the Hall Oil Company building. The witness had never seen the man theretofore and testified he saw this man run once in each direction, stop at the front of the building, peep around it and look in the witness's direction. The witness could not describe the color of the man's hair or eyes, or the color of his clothing, *253 except that his clothes were dark. We held that the uncontradicted testimony as to the physical facts disclosed that the witness's observation of defendant was insufficient to support the subsequent identification of defendant with that degree of certainty which would justify submission of the case to the jury. Our holding was based on the general rule that evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury. Jones v. Schaffer, 252 N.C. 368, 114 S.E.2d 105 (1960).
The holding in Miller is sound and we reaffirm it. But it has no application where, as here, "there is a reasonable possibility of observation sufficient to permit subsequent identification." State v. Miller, supra. In such event, the credibility of the witness and the weight of his identification testimony is for the jury.
Here, the witness Caldwell had an opportunity to view Nolly with his mask on and with it off. He observed Nolly while the attack was being made upon Hendrix. He observed Cox in a well lighted room for more than thirty minutes while Cox held a rifle on him and others. Although Cox's mouth and nose were covered, his eyes, forehead, ears, head shape and hair were readily visible. The witness Camp had known Nolly for seven or eight years and recognized his voice. He also saw Nolly's face when the plastic bag fell off. Thus the record discloses plenary, competent evidence corroborated by the physical facts and attendant circumstances, and by other State's witnesses as well, to support the findings of the trial judge. Such findings are conclusive when supported by competent evidence, and no reviewing court may set aside or modify them. State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966), cert. denied, 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967).
When viewed correctly, the assignments of error under discussion and the arguments supporting them go only to the weight of the identification testimony of Caldwell and Camp and not to its competency. Contradictions and discrepancies, even in the State's evidence, are for the jury to resolve and do not warrant nonsuit. State v. Mabry, 269 N.C. 293, 152 S.E.2d 112 (1967); 2 Strong, N.C. Index 2d, Criminal Law, § 104 (1967), and cases there cited. The identification testimony of Caldwell and Camp was competent and properly admitted. The assignments challenging its competency are overruled.
The bills of indictment upon which defendants were tried charge murder in the first degree. G.S. 14-17; G.S. 15-144. The State's evidence is sufficient to show murder committed in the perpetration of a robbery and support a felony murder conviction. For reasons not appearing in the record, the capital charge was not submitted to the jury. In light of the vicious and brutal manner in which Donald Hendrix was beaten to death, it would appear that justice has been tempered with mercy and defendants have no just cause to complain of the verdicts rendered or the sentences pronounced thereon.
In the trial below we find