State v. Thomas

240 S.E.2d 426 (1978)

294 N.C. 105

STATE of North Carolina v. Johnny Lowell THOMAS.

No. 104.

Supreme Court of North Carolina.

January 24, 1978.

*430 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

Stephen G. Royster, Mount Airy, for defendant-appellant.

MOORE, Justice.

Defendant's first assignment of error is based on the contention that the trial judge erred in denying his motion for continuance for purposes of obtaining further psychiatric examination to determine his sanity.

Defendant was arrested on 4 October 1976. On 26 October 1976 counsel for defendant filed a motion requesting that defendant be committed to Dorothea Dix Hospital for evaluation to determine defendant's capacity to proceed to trial as well as *431 his sanity at the time of the commission of the crime. This motion was granted and defendant underwent examination for two weeks at Dix Hospital. In a Diagnostic Conference Report filed by Billy W. Royal, M.D., dated 16 November 1976, the physician determined that the defendant was mentally capable of proceeding to trial. The defendant was also found to have reduced responsibility at the time of the crime, this being related to significant alcoholic ingestion.

On 22 December 1976 counsel for the defendant moved that defendant be recommitted to Dorothea Dix Hospital for further examination due to the initial examining physician's failure to give his opinion as to defendant's ability to distinguish between right and wrong. This motion was granted and defendant was recommitted to Dix Hospital. In a Diagnostic Conference Report filed 21 January 1977 by Bob Rollins, M.D., that physician stated that the defendant was able to plan and carry out goal-directed activity even though intoxicated, and that defendant met the minimum criteria for premeditation and deliberation. In his opinion the defendant did have diminished responsibility at the time of the offense, this being due to intoxication.

On 15 February 1977 defendant filed a motion for continuance on the ground that he had an appointment on 27 March 1977 to be examined by a private psychiatrist. At the March Term of Surry Superior Court defendant's case was continued until the May Term.

On 28 March 1977 defendant was examined by a private psychiatrist, J. Ray Isreal, M.D., and by a psychologist, Dr. David A. Hill, of the Bowman Gray School of Medicine. Dr. Hill administered certain uniform tests to defendant and submitted his findings to Dr. Isreal on 4 April 1977. The psychologist found that defendant's test scores were within normal limits and were above average in terms of intellectual functioning. The defendant was found to be impulsive and hostile. The psychologist suggested that an electroencephalogram test (EEG), or brain wave test, might possibly resolve questions as to whether or not defendant had suffered cerebral insult, but added that even if such condition were found it would not necessarily interfere with defendant's ordinary daily functioning.

For reasons not apparent from the record, Dr. Isreal did not submit a written evaluation to defendant's counsel until 25 April 1977. In Dr. Isreal's opinion the defendant had sufficient mental capacity to stand trial. He also found no evidence that the defendant suffered from a thought disorder. The defendant was found, however, to suffer from alcoholism, and was found likely to act impulsively, especially when intoxicated. Pursuant to the suggestion by Dr. Hill, Dr. Isreal recommended that the defendant have an electroencephalogram to determine if there had been ". . . prior cerebral insult which may have affected areas of the brain which might reduce impulse control and further contribute to his loss of impulse control when under the influence of alcohol. It is conceded that electroencephalographic examination probably would not help clarify this question. . ."

On 28 April 1977 defendant moved for a continuance so that he might have an EEG examination as recommended by Dr. Isreal. This motion was denied by Seay, J., and defendant proceeded to trial at the 2 May 1977 Term of Surry Superior Court.

A motion for continuance is ordinarily addressed to the sound discretion of the trial court and its ruling is not subject to review absent abuse of discretion. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975); State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). However, if the motion is based on a right guaranteed by the federal and State constitutions, the question presented is one of law and not of discretion, and the ruling of the trial court is reviewable on appeal. State v. Brower, supra; State v. Harrill, 289 N.C. 186, 221 S.E.2d 325 (1975); State v. Smathers, supra. Whether a defendant bases his appeal upon an abuse of judicial discretion or a denial of his constitutional rights, he must show both *432 that there was error in the denial of the motion and that he was prejudiced thereby before he will be granted a new trial. State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973); State v. Moses, 272 N.C. 509, 158 S.E.2d 617 (1967). Defendant urges both abuse of discretion and denial of his constitutional rights as error.

We first take up the issue whether there was an abuse of the trial judge's discretion in denying defendant's motion. At the pretrial hearing on defendant's motion on 2 May, the following occurred:

"COURT: That motion is denied. In denying the motion I make the finding that the record reflects and the statement of counsel reflects that the defendant was arrested on October 1976, and had counsel appointed October of 1976, and that at the January Session of the Superior Court of Surry County, the defendant moved to continue the case, requesting that the accused or the defendant be sent for a second examination at the Dorothea Dix Hospital, that the request to the trial judge that the defendant be sent for an examination was denied and that counsel then contacted the resident judge, James Long, who agreed to sign the order sending the defendant for the second examination and motion for the defendant to continue the case was then granted, this event having occurred January 5, 1977. And the defendant has had more than an adequate time and opportunity to secure examination. "MR. ROYSTER: Your Honor, if I may say this, I might have misled your Honor, my client was sent twice to Dorothea Dix and this is a private psychiatrist that examined the defendant March the 21st, or 22nd. "COURT: Well, I will find that you have had an opportunity to have it done since that time. That motion is denied."

Defendant argues that the trial judge erred in finding that defendant had an opportunity to have the desired examination, since he did not receive the report from Dr. Isreal recommending the examination until 25 April 1977, and his case was called for trial on 2 May 1977. Defendant argues that this alleged error constitutes abuse of discretion. We do not agree.

The trial court found that the defendant had been arrested in October 1976. He was sent to Dix Hospital for psychiatric examination in November 1976. At the January Session of Surry Superior Court defendant moved for, and was granted, a continuance of his trial so that he could be examined a second time by a different physician at Dix Hospital. The results of this examination were similar to those of the initial examinationa finding that defendant was capable of proceeding to trial and capable of premeditation and deliberation. A second motion for continuance was made in February 1977 so that defendant might be examined a third time, and defendant's case was again continued and set for the May Term. Defendant was examined by Drs. Isreal and Hill the last week in March, and as early as 4 April 1977 Dr. Hill made his recommendation to Dr. Isreal that the defendant undergo an EEG examination. Defendant's counsel apparently did nothing between the date of examination and 25 April (the date he alleges he first heard from Dr. Isreal) to find out if further examinations would be necessary before the trial in May.

Clearly, on these facts, the trial judge would be justified in his discretionary denial of a last minute motion for continuance. The defendant had had two prior continuances; had undergone four psychiatric examinations by four different doctors, all of whom had similar opinions regarding defendant's mental condition; and those doctors who recommended the EEG examination stated that it probably would yield no new information. No abuse of discretion has been shown.

We now turn to the contention that the denial of the motion for a continuance was a denial of defendant's constitutional rights. In State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975), this Court, quoting from State v. Farrell, 223 N.C. 321, 26 S.E.2d 322 (1943), said:

*433 "The authority to rule a defendant to trial in a criminal prosecution attaches only after the constitutional right of confrontation has been satisfied. The question is not one of guilt. Nor does it involve the merits of the defense he may be able to produce. It is whether the defendant has had an opportunity fairly to prepare his defense and present it. . . . "`The rule undoubtedly is, that the right of confrontation carries with it, not only the right to face one's "accuser and witnesses with other testimony" [N.C. Const. art. I, sec. 23 (1971)], but also the opportunity fairly to present one's defense.. . .'"

See State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962). And, as we said in State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970): "Due process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony. [Citations omitted.]"

The specific question presented here is whether the denial of defendant's motion for a continuance in order to obtain an EEG examination deprived defendant of his right of confrontation and his right to due process under the federal and State constitutions. We think not. Had the EEG test been administered to determine whether defendant suffered from reduced impulse control, and had such reduced impulse control been discovered, such findings would not have established an insanity defense.

The test of insanity as a defense to a criminal charge was stated by Ervin, J., in State v. Swink, 229 N.C. 123, 47 S.E.2d 852 (1948), as follows:

"[A]n accused is legally insane and exempt from criminal responsibility by reason thereof if he commits an act which would otherwise be punishable as a crime, and at the time of so doing is laboring under such a defect of reason, from disease of the mind, as to be incapable of knowing the nature and quality of the act he is doing, or, if he does know this, incapable of distinguishing between right and wrong in relation to such act. [Citations omitted.]"

Subsequent decisions of this Court are in strict accord: See State v. Potter, 285 N.C. 238, 249, 204 S.E.2d 649, 656-57 (1974), and cases cited therein. And, as Justice Branch, speaking for the Court, said in State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516 (1973): ". . . North Carolina, as well as many other jurisdictions, has steadfastly refused to recognize the `irresistible impulse doctrine' as a test of criminal responsibility. [Citations omitted.]" See State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975); State v. Spence, 271 N.C. 23, 155 S.E.2d 802 (1967), rev'd on other grounds, 392 U.S. 649, 88 S. Ct. 2290, 20 L. Ed. 2d 1350 (1968); State v. Creech, 229 N.C. 662, 51 S.E.2d 348 (1948); State v. Brandon, 53 N.C. 463 (1862).

Since the so-called "irresistible impulse doctrine" is not recognized in North Carolina as a valid defense, the denial of the motion for continuance in order to take an EEG examination could not have infringed on defendant's constitutional rights. As stated in State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1976), a similar case on its facts: ". . . Due process does not include the right to fish in psychiatric ponds for immaterial evidence." Defendant has shown no error in the denial of his motion for continuance. This assignment of error is overruled.

On 18 April 1977 defendant filed a motion requesting that he be permitted to examine each venireman privately before accepting or rejecting such prospective juror. On 22 April 1977 defendant filed an amendment to this earlier motion, and on 29 April 1977 he filed a supplement to the motion. Attached to the motion and supplement were three newspaper clippings from a local paper, all of which revealed that defendant was charged with the crime for which he was tried, and which also revealed that defendant was convicted of second degree murder in 1957 for the shooting death of one Sammy Belton. Defendant's *434 motion to examine each prospective juror privately was denied in a pretrial hearing before the trial judge. The trial court found that such pretrial publicity ". . . would not prevent the defendant from having a fair trial under the law and wouldn't prevent counsel for the defendant from making inquiry of the jurors as to their fitness and competency to serve as jurors. . . ."

Each defendant is entitled to full opportunity to face the prospective jurors, make diligent inquiry into their fitness to serve, and to exercise his right to challenge those who are objectionable to him. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976); State v. Perry, 277 N.C. 174, 176 S.E.2d 729 (1970). See also G.S. 9-15(a). However, ". . . The actual conduct of the trial must be left largely to the sound discretion of the trial judge so long as the defendant's rights are scrupulously afforded him." State v. Perry, supra. Therefore, a motion to examine jurors individually, rather than collectively, is directed to the sound discretion which the trial court possesses for regulating the jury selection process. State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974); State v. Perry, supra. See also 47 Am.Jur.2d, Jury § 197; Annot., Voir DirePersonal Examination, 73 A.L.R.2d 1187, 1203 (1960). Contrary to defendant's contentions, the suggestion contained in State v. Boykin, supra (viz, that the lawyer in that case should have requested that prospective jurors be examined separately to determine if any had heard certain rumors about that defendant), does not give a defendant a right to separately examine each prospective juror for reasons of pretrial publicity. In fact, the Court in Boykin reaffirmed the trial judge's discretion in regulating the manner and extent of inquiry at the voir dire. 291 N.C. at 272, 229 S.E.2d at 919.

In the present case the jury was selected in the manner approved by this Court in State v. Perry, supra, and in numerous other cases. See State v. Young, supra; State v. Dawson, 281 N.C. 645, 190 S.E.2d 196 (1972); State v. Cutshall, 281 N.C. 588, 189 S.E.2d 176 (1972); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971), rev'd as to death penalty, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971). Prior to the voir dire examination the trial judge asked the prospective jurors the following: "[A]re any of you familiar with the alleged events of October the 4th, 1976, involving a Johnny Lowell Thomas or Clara Chandler Thomas; do any of you have personal knowledge about those events; have any of you formed or expressed an opinion concerning this case? . . . Then I take it that the twelve of you sitting there have not formed or expressed an opinion about the guilt or innocence of this defendant in this case. . ." Counsel for defendant and the district attorney stipulated that they asked each and every juror whether they knew of anything which would prevent them from giving the defendant or the State a fair trial, and each of those jurors who served on the jury answered that he did not know of any reason why he could not. Furthermore, there was nothing inflammatory or biased about the three news reports of this crime. Based on these facts, we hold that there was no abuse of discretion by the trial judge in denying defendant's motion to examine the prospective jurors separately. See State v. Young, supra; State v. Perry, supra; State v. Jarrette, supra. The precautions taken by the trial judge were sufficient to safeguard defendant's right to a fair and impartial jury.

Neither did the trial judge err in denying defendant's post-trial motion to ask jurors concerning their knowledge of defendant's previous conviction of murder, and the effect, if any, it may have had on their deliberations. Defendant had the opportunity to examine each juror on voir dire regarding his or her exposure to any pretrial publicity concerning the case. This opportunity, coupled with defendant's failure to exhaust his peremptory challenges, operates as a waiver of any right to object to the trial court's denial of his post-trial motion. Cf. State v. Boykin, supra. Denial *435 of this motion also was in the sound discretion of the trial judge.

Defendant's sixth assignment of error addresses a related point. He contends that the trial court failed to give due consideration to his pretrial motion to examine each prospective juror separately, and that this alleged failure to duly consider his written motion is prejudicial error. Since we have held, supra, that the trial judge did not err in refusing to grant defendant's pretrial motion to question each prospective juror separately, and that the trial judge took precautions to insure that no juror had prior knowledge of defendant's crime, any alleged failure to consider the facts underlying defendant's pretrial motion could not have been prejudicial to the defendant. Additionally, the record shows that the trial judge did in fact consider the evidence presented with defendant's pretrial motion. This assignment of error is overruled.

During the trial the State introduced a number of photographs for the purpose of illustrating the testimony of witnesses concerning the location of wounds on the body of the deceased and the presence of bloodstains in various places within the house. Defendant contends it was prejudicial error to introduce so many photographs (a total of twelve), especially so many showing bloodstains. Six of the photographs showed the bloodstained interior of the house where deceased was allegedly stabbed. These photographs were offered for the purpose of illustrating the testimony of Ralph Chandler, who described the location of the stabbing and his mother's actions and movements after the stabbing, and the testimony of witnesses who described the interior of the house and bloodstains found therein shortly after the stabbing. Three other photographs depict the exterior of the house and the street. These photographs illustrate testimony concerning Mrs. Chandler's movements after she exited the house, and the spot where she was stabbed a second time. Only four of the photographs were of the deceased. Two of these showed the bruises on either side of deceased's face; a third, the chest wound; and the fourth, the wound in the abdomen. These photographs illustrated the testimony of the witness Ralph Emerson Chandler and that of the pathologist who examined the body of the deceased. Only one photograph of each severe wound was introduced. There was nothing gory or gruesome about any of these.

Photographs are admissible in this State to illustrate the testimony of a witness and their admission for that purpose under proper limiting instructions is not error. State v. Crowder, 285 N.C. 42, 203 S.E.2d 38 (1974); State v. Duncan, 282 N.C. 412, 193 S.E.2d 65 (1972); State v. Cutshall, 278 N.C. 334, 180 S.E.2d 745 (1971). See generally 1 Stansbury, North Carolina Evidence § 34 (Brandis rev. 1973). When a photograph is properly authenticated as a correct portrayal of conditions observed and related by the witness who uses it to illustrate his testimony, it is admissible for that purpose. State v. Crowder, supra; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967). The photographs in this case were used in accordance with the rule, and defendant's assignment of error is overruled.

Under the same assignment of error defendant objects to the introduction of a photograph of the butcher knife found in the yard of a nearby home. This photograph was introduced to illustrate the testimony of David Beal, the S.B.I. agent investigating the homicide, who testified concerning the location of the knife when found, and also described the knife itself. It was competent for that purpose. State v. Crowder, supra; State v. Atkinson, supra; State v. Porth, supra.

Defendant next assigns as error the introduction of the butcher knife into evidence. The evidence of the witness Ralph Emerson Chandler describing the knife used by defendant, and evidence that a freshly bloodstained knife answering this description was found nearby, were sufficient identification to allow its introduction into evidence. In State v. King, 287 N.C. *436 645, 215 S.E.2d 540 (1975), a murder case in which a hammer was found some 385 feet from the scene of the murder, we stated: "Any object which has a relevant connection with the case is admissible in evidence and weapons may be admitted when there is evidence tending to show that they were used in the commission of the crime. [Citations omitted.] . . ." The fact that the knife in question was found some distance from the scene of the crime would not render the evidence incompetent but would only affect its probative force. State v. King, supra; State v. Brown, 280 N.C. 588, 187 S.E.2d 85 (1972); State v. Payne, 213 N.C. 719, 197 S.E. 573 (1938).

Finally, defendant assigns as error the failure of the trial judge to sustain his motion to dismiss on the charge of first degree murder at the close of the State's evidence and at the close of all the evidence. Defendant contends that there was not sufficient evidence of premeditation and deliberation to go to the jury on the question of first degree murder, and that his motion, therefore, should have been allowed.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971); G.S. 14-17.

Premeditation may be defined as thought beforehand for some length of time. "`Deliberation means . . . an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design . . . or to accomplish some unlawful purpose . . . .' State v. Faust, 254 N.C. 101, 118 S.E.2d 769." State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970). See State v. Davis, supra. Ordinarily, premeditation and deliberation are not susceptible of proof by direct evidence, and therefore must usually be proved by circumstantial evidence. Among the circumstances to be considered in determining whether a killing is done with premeditation and deliberation are: (1) the want of provocation on the part of deceased; (2) the conduct of defendant before and after the killing; (3) the vicious and brutal manner of the killing; and (4) the number of blows inflicted or shots fired. State v. Sparks, 285 N.C. 631, 207 S.E.2d 712 (1974); State v. Perry, supra.

When there is a motion for judgment as of nonsuit in a criminal case, the evidence is to be considered in the light most favorable to the State, and the State is entitled to every reasonable inference of fact deducible from the evidence. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). If there is substantial evidence, whether direct, circumstantial or both, to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made out and nonsuit should be denied. State v. McKinney, supra; State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968).

In present case the State offered evidence tending to show that defendant broke into the house occupied by his wife, the victim, and her son after he had been refused admittance. Defendant approached his wife with arms outstretched as if to embrace her, pulled a concealed butcher knife from underneath his shirt and stabbed her, inflicting a wound which subsequently caused her death. Not content with this defendant followed his wife into the yard, and, as she was lying upon the ground, knelt beside her and without provocation plunged the knife into her abdomen. These two wounds caused her death almost immediately. In our opinion, when taken in the light most favorable to the State, this evidence was sufficient to permit the jury to reasonably infer that defendant, with malice, after premeditation and deliberation, formed a fixed purpose to kill his wife and thereafter accomplished that purpose. We hold, therefore, that the evidence was sufficient to be submitted to the jury on the charge of first degree murder. This assignment of error is overruled.

*437 We have carefully examined the entire record and find no error that would justify disturbing the verdict or judgment.

No Error.