State v. WarrenAnnotate this Case
232 S.E.2d 419 (1977)
292 N.C. 235
STATE of North Carolina v. Willard WARREN, Jr.
Supreme Court of North Carolina.
March 7, 1977.
*421 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James Wallace, Jr., Raleigh, for the State.
Creighton W. Sossomon, Sylva, for defendant appellant.
Under his first assignment of error, defendant asserts the court erred in admitting into evidence the knife found on defendant's person when he was arrested.
Defendant maintains that the knife seized from him at the time of his arrest was irrelevant to the jury's consideration of this case because, while the State crime laboratory examination revealed blood stains on the knife, the stains could not definitely be identified as human blood or grouped. Defendant points out that the *422 State's own expert witness, the pathologist who examined the body, testified that, in his opinion, none of the wounds were stab wounds. Thus, defendant says introduction of the knife served no probative purpose and was calculated to arouse prejudice against him. We disagree.
In a criminal case, any circumstance that is calculated to throw light upon the alleged crime is admissible. The weight of circumstantial evidence is for the jury. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); 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. Any object which has a relevant connection is admissible in evidence. A weapon may be admitted where there is evidence tending to show that it was used in the commission of the crime charged. State v. Sneeden, supra; 1 Stansbury's N.C. Evidence, § 118 (Brandis Rev. 1973).
Two of the State's witnesses, Wyatt and Shattles, testified that the defendant told them he and his brother had stabbed the deceased and beaten him with a two by four. Dr. Boatwright's testimony revealed the body of the deceased was badly mutilated. Under these circumstances, whether or not this knife, or any knife, was used in connection with the alleged murder was a question for the jury.
This assignment of error is without merit and overruled.
Defendant contends his motion for nonsuit and his motion to set aside the verdict should have been sustained.
According to the evidence, defendant told at least three people of his participation in a murder around 4 February 1975 (to two of these witnesses he indicated that he helped kill the deceased using a knife). In addition, the State's evidence tended to show: (1) that the deceased and the defendant were both in the vicinity of the bulk plant at around 4:00 p.m. on 4 February 1975; (2) that the deceased failed to report for the evening meal at the rest home, served between 4:00 and 5:00 p.m. (he had never missed before); (3) that soon thereafter, the defendant left the vicinity of the bulk plant without the deceased; (4) that the deceased's body was discovered in the bulk plant, the next day; (5) that when defendant was arrested some three weeks later, he had in his possession a knife bearing blood stains.
On a motion for nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Finney, 290 N.C. 755, 228 S.E.2d 433 (1976); State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976). When this is done, we conclude the motion for nonsuit was properly overruled.
A motion to set aside the verdict is discretionary and not reviewable on appeal absent an abuse of discretion. State v. Lindley, 286 N.C. 255, 210 S.E.2d 207 (1974); State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). We find no abuse in this case in view of the State's evidence. These assignments are overruled.
Defendant claims Judge Martin committed error in stating to the jury that the defendant had presented evidence when in fact he had presented none on direct examination.
After recapitulating the State's evidence, Judge Martin said:"The defendant, members of the jury, on the other hand, has produced evidence tending to show, and what it shows is entirely for you to determine, that no one in this case has taken the stand and testified that they saw the defendant assault Mr. Clark in any way at all; that there were no fingerprints found at the scene of this location which tied the defendant, Warren; that the defendant, Warren, was seen in the home of Mrs. Mercer some time around 4:00 or 4:30 in the afternoon of February the 4th, and that he was taken to his home by Mrs. Mercer's son; that any statement that might have been made should not be believed by the jury because the witnesses testified *423 that the defendant was a person who drank a lot of wine and whiskey, and that he was given to bragging and talking about things that were not so."
In stating "[t]he defendant . . has produced evidence," the trial judge was clearly referring to evidence elicited on cross-examination. Facts favorable to the defendant produced on cross-examination are his evidence. See 5 Wigmore, Evidence § 1368. The judge's instruction was correct, although it might have been clearer. If defendant desired further clarification, he should have asked for it.
Defendant also complains that this portion of the judge's charge prejudicially assumed a material fact controverted by his plea of not guilty, that he had made statements acknowledging his guilt. The court's charge simply instructed that, whether the statements were made or not, if made, they should not be believed because of defendant's intemperance and tendency to brag. Only by referring to "any statement that might have been made" could the court remind the jury of the testimony elicited on cross-examination supporting this theory of defendant's innocence.
Judge Martin was obviously trying to present the evidence in the light most favorable to the defendant, even though defendant had offered no witnesses. The judge gave him the benefit of each favorable fact revealed on cross-examination and defendant was not prejudiced by this recapitulation. The assignment is overruled.
In his next assignment of error, defendant contends the trial court erred in failing to instruct the jury regarding his failure to testify.
Absent a special request, the trial court is not required to instruct the jury that defendant's failure to testify creates no presumption against him. State v. Rankin, 282 N.C. 572, 193 S.E.2d 740 (1973); State v. Kelly, 216 N.C. 627, 6 S.E.2d 533 (1940); see 1 Stansbury's N.C. Evidence, § 56 (Brandis Rev. 1973).
Furthermore, the record discloses that at the conclusion of his charge, Judge Martin invited counsel for the State and the defendant to approach the bench and, out of hearing of the jury, inquired if either had any additions or corrections to the charge. Both counsel answered, "No."
The assignment of error is meritless and overruled.
Defendant maintains the trial judge should have submitted the lesser offense of second-degree murder to the jury.
In his instruction to the jury, the trial judge restricted their consideration to felony-murder. "It is a well established rule that when the law and evidence justify the use of the felony-murder rule, then the State is not required to prove premeditation and deliberation, and neither is the court required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it." State v. Swift, 290 N.C. 383, 407, 226 S.E.2d 652, 669 (1976); accord, State v. Doss, 279 N.C. 413, 183 S.E.2d 671 (1971).
Defendant contends the evidence given by State's witness Verner London was sufficient to require submission of the issue of second-degree murder. London testified that sometime around the date of Clark's death, defendant told him that he "had killed a man down about the railroad tracks." Such evidence standing alone is clearly insufficient to require submission of the issue of second-degree murder. All the other evidence in the case pointed to a felony-murder.
The assignment of error is overruled.
Finally, defendant contends Judge Martin committed error in allowing the jury to consider a verdict of first-degree murder and in sentencing the defendant to life imprisonment.
Defendant argues that at the time of his second trial in this case, Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) had declared G.S. 14-17 unconstitutional and thus, the crime of first degree murder did not exist. Defendant practically concedes this argument is spurious because Woodson, supra, *424 declared only the death penalty imposed by G.S. 14-17 unconstitutional and the penalty section of that statute was severable. See State v. Talbert, 282 N.C. 718, 194 S.E.2d 822 (1973).
Defendant next takes the novel position that Woodson v. North Carolina supra, did not bring into play Section 7 of Chapter 1201 of the 1973 Session Laws (1974 Sess.) which was enacted in response to Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). The North Carolina legislature passed Chapter 1201 after Furman, supra, in effect struck down our former law permitting juries unbridled discretion to either grant death or life imprisonment in a capital case. Chapter 1201 instead provided a mandatory death sentence for capital offenses. In its wisdom the General Assembly added Section 7 to Chapter 1201, providing for punishment of life imprisonment "in the event it is determined by the North Carolina Supreme Court or the United States Supreme Court that a sentence of death may not be constitutionally imposed for any capital offense for which the death penalty is provided by this Act . . .."
Defendant interprets the General Assembly's language to mean that the alternative punishment, life imprisonment, applies only if the death penalty for firstdegree murder is held to be per se unconstitutional. The United States Supreme Court has not so held, Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), so defendant argues Section 7 of Chapter 1201 is inapplicable and he cannot be sentenced to life imprisonment. This position is untenable. In enacting Section 7, obviously the legislature was concerned that an alternative punishment be provided if the North Carolina death penalty was ever again overturned, regardless of the state of the death penalty generally.
When the United States Supreme Court in Woodson, supra, held that the death penalty provided under Chapter 1201 could not be constitutionally imposed, it triggered the alternative provision for life imprisonment. State v. Cousin, 291 N.C. 413, 230 S.E.2d 518 (1976). Judge Martin properly allowed the jury to consider a verdict of first-degree murder and, upon conviction, properly sentenced the defendant to life imprisonment.
The assignment of error is without merit and overruled.
Because of the serious nature of the case, we have examined the record for other errors and have found none.
The defendant has again been tried and found guilty of a very brutal murder, and in his second trial we find