State v. Maynard

Justice Frye

concurring as to result in Guilt Phase and dissenting as to Sentencing Phase.

While I agree with the majority that the defendant has shown no prejudice by the admission of the testimony of Assistant District Attorney Jean Powell that the decedent, Stephen Henry, told her “that he would give truthful testimony . . . against Anson Maynard,” I find it unnecessary to further extend the rule enunciated in State v. Vestal, 278 N.C. 561 , 180 S.E. 2d 755 (1971), cert. denied, 414 U.S. 874 (1973), to the circumstances of this case. In my judgment, the circumstances under which Henry made this statement were not such as to give it a sufficient probability of truthfulness to justify its admission as an exception to the hearsay rule. Henry had been indicted by the grand jury for a serious offense and he was trying to get the best deal he could get from the State. The circumstances favored saying whatever Henry thought the State wanted him to say in exchange for guaranteed probation. These circumstances, in my opinion, tend to cast doubt rather than add credibility to Henry’s statement. Therefore, I would hold that the admission of the statement was error, but non-prejudicial since the jury had been fully apprised of the plea agreement.

*37 I concur in the result reached by the majority, nevertheless, which finds no error in the Guilt Phase of defendant’s trial. I dissent from the majority holding that there was no prejudicial error in the Sentencing Phase.

The majority holds that defendant is not entitled to a new sentencing hearing even though the trial court permitted a Deputy Clerk of Superior Court to read to the jury the complete contents of two judgments and two bills of indictment returned against defendant in earlier, unrelated cases. In so doing, the majority holds that where a judgment includes portions of an indictment for a felony, the entire judgment may be read to the jury even though the defendant only entered a plea of guilty to a lesser included misdemeanor. Having so held, the majority then holds that since the nature of the original felony charges are properly before the sentencing jury by way of the judgment, there is no prejudice to the defendant in reading the indictment to the jury. I disagree as to both of these rulings by the majority.

In the instant case, the State did not initially introduce any evidence at the sentencing hearing, instead choosing to rely upon the evidence which it had presented to the jury during the guilt-innocence phase of defendant’s trial. The evidence presented by the State during the guilt-innocence phase was sufficient to prove not only murder in the first degree, but also at least one of the statutory aggravating circumstances, which is a necessary finding before the death penalty can be imposed. If the State’s evidence was believed, the defendant committed a deliberate murder to prevent a witness from testifying against him in pending criminal cases, a circumstance which satisfies the aggravating factor specified in either G.S. § 15A-2000(e)(7) or G.S. § 15A-2000(e)(8). The State’s evidence at the guilt-innocence phase of the trial would also have permitted the State to argue that the murder was “especially heinous, atrocious or cruel,” a circumstance which satisfies the aggravating factor specified in G.S. § 15A-2000(e)(9). Thus it was unnecessary for the State to put on additional evidence at the sentencing phase in order for the District Attorney to argue for imposition of the death penalty.

In rebuttal of defendant’s evidence which tended to show his good character and lack of a “significant history of prior criminal activity,” the State presented Mrs. Linda Kerik, Deputy Clerk of *38 Superior Court, Cumberland County, who testified concerning defendant’s prior criminal activity in Cumberland County and the subsequent disposition of his cases. 1 Over the objections of defendant, the trial court permitted Mrs. Kerik to read to the jury not only that portion of the judgment which included defendant’s plea of guilty and the sentence imposed thereon, but also permitted her to read those portions of the judgment containing the original charges against him. Since these charges were based on ex parte statements, I believe that their admission against defendant was error.

A valid, properly authenticated judgment is generally admissible under North Carolina statutory law. See G.S. §§ 1-229, 1-236.1, 8-35, 15A-1340.4(e). However, where an otherwise admissible document contains irrelevant, incompetent and highly prejudicial material, the incompetent part of the document should be deleted and not read to the jury. See State v. Jackson, 287 N.C. 470, 481-82 , 215 S.E. 2d 123, 130-31 (1975); See also State v. Spillars, 280 N.C. 341 , 185 S.E. 2d 881 (1972) (which held that a search warrant and the affidavit filed in support of it are hearsay and their introduction into evidence deprived the defendant of his constitutional right to confrontation).

I note that the State was not required to introduce either of the judgments into evidence at the sentencing hearing because the defendant had already admitted his convictions of the misdemeanors during the guilt-innocence phase of the trial. Had the State been content to stop with the introduction into evidence of that portion of the judgments containing the guilty pleas, their acceptance by the court and the sentences entered thereon, there would have been no basis for an assignment of error based on the reading of the judgments. However, the trial court not only overruled defendant’s objections to the reading of the felony charges to the jury but then compounded the error by permitting the in *39 dictments in their entirety to be read to the jury! These indictments concerned past accusations of crimes against defendant which were not even remotely related to the charges for which defendant was standing trial. The indictments were not relevant to sentencing in this case. The reading of the indictments by Mrs. Kerik did not have any probative value, i.e., the indictments did not tend to prove or disprove any fact or factor relevant to a determination of the appropriate sentence (life imprisonment or death) to be imposed upon defendant. Furthermore, the indictments were not probative of a mitigating or aggravating factor, and, to the extent that they may have been considered probative, their probative value was outweighed by their potentially prejudicial effect. Therefore, the reading of the indictments to the jury was error.

I also note that the indictment in file No. 75-CR-9347 is factually inaccurate. It alleges that:

Anson A. Maynard, unlawfully and willfully did feloniously assault with intent to kill, Eugene Jacobs, with a deadly weapon, to wit: a small caliber pistol, inflicting serious bodily injury to wit: shotgun wounds to the head of the said Eugene Jacobs. . . . (Emphasis added.)

The indictment is factually inaccurate because it alleges that the defendant shot the victim with a small caliber pistol thereby inflicting shotgun wounds to the head of the victim. Shotgun wounds do not result from being shot with a small caliber pistol. This inaccurate statement in the indictment further illustrates why indictments, which are unreliable, ex parte hearsay statements should not be read to the jury.

Furthermore, this indictment alleged that the defendant intended to kill the victim and that defendant inflicted serious bodily injury to the victim. Were either of these allegations true, the defendant would have been guilty of a felony, G.S. § 14-32. However, defendant denied his guilt of the felony charged against him and entered a plea of guilty to a misdemeanor, G.S. § 14-33. This plea was accepted by the trial court. That court having accepted the guilty plea to misdemeanor assault with a deadly weapon (without intent to kill and without inflicting serious bodily injury), and having sentenced the defendant accordingly, it would be highly improper, reversible error and a violation of defendant’s *40 privilege against double jeopardy for a later court or jury to reconsider whether the defendant was in fact guilty of the felony of assault with a deadly weapon with intent to kill, inflicting serious bodily injury growing out of the same set of facts. Cf. Silhan, 302 N.C. at 266-72, 275 S.E. 2d at 480-83 (applying double jeopardy principles to capital sentencing proceedings); State v. Frazier, 280 N.C. 181 , 185 S.E. 2d 652 , vacated, 409 U.S. 1004 , 93 S.Ct. 453 , 34 L.Ed. 2d 295 (1972), on remand, 283 N.C. 99 , 195 S.E. 2d 33 , aff’d per curiam, 284 N.C. 120 , 199 S.E. 2d 283 (1973) (actions of prosecutor as barring further prosecution); State v. Birckhead, 256 N.C. 494 , 124 S.E. 2d 838 (1962) (conviction or acquittal of assault to commit rape bars subsequent prosecution for rape based on same act or transaction). Accordingly, there was no legally justifiable reason for reading the indictment charging felonious assault to the jury. Likewise, the indictment in the larceny case alleged the value of the stolen property to be $250 (making the crime a felony) whereas the plea accepted by the court was to a misdemeanor, indicating that the value of the property was not more than $200. See G.S. § 14-72. 2 Again, there was no legally justifiable reason for reading this indictment to the jury.

For all of the foregoing reasons, I would hold that the trial court erred in allowing the deputy clerk at the sentencing hearing to read to the jury: (1) the formal parts of the judgment containing felony charges against the defendant to which the defendant had entered pleas of not guilty, and (2) grand jury indictments against the defendant for alleged offenses to which he had entered pleas of not guilty.

The next question is whether the trial court’s error was prejudicial. Under the facts of this case, I believe that it was. As noted, the trial court improperly admitted testimony concerning a bill of indictment in which defendant was charged with feloniously shooting Eugene Jacobs in the head. Following the erroneous admission of the above testimony, Officer Conerly, the witness who appeared before the grand jury, was permitted to testify at *41 the sentencing hearing that he had visited Eugene Jacobs in the hospital and had seen Jacobs’ bandaged head. The relevancy of this officer’s testimony was based on the improperly admitted bill of indictment which stated that Eugene Jacobs was the victim of the felonious assault with which defendant was charged. Further, the purpose of introducing the officer’s testimony was to corroborate the improperly admitted bill of indictment. Finally, the indictment and the officer’s testimony served as a convenient basis for the prosecutor’s use in making an improper closing argument to the jury on the question of sentence.

In seeking the death penalty, the prosecutor suggested to the jury that the earlier assault committed by defendant was, like the murder for which defendant was on trial, an attempt to eliminate a witness prepared to testify against defendant. The prosecutor argued, “[y]ou know the fact that he has previously pled guilty to shooting someone in the head that he had committed a larceny with. Doesn’t it sound very familiar?” I find nothing in the record to support such an argument. In fact, the defendant had denied this allegation, both by his misdemeanor plea to the original charge, and by his testimony at the guilt-innocence phase of the present trial. There is no evidence regarding defendant’s motive for the prior assault. Indeed, had defendant in the earlier assault been attempting to eliminate a witness, it is unlikely that he would have been permitted to plead guilty to a misdemeanor and receive a suspended sentence.

Thus, through the use of improperly admitted testimony concerning a bill of indictment against defendant, the State was allowed to introduce a corroborating witness and to suggest to the jury in closing arguments that this was the second time defendant had been convicted of a similar crime. The erroneous admission of the indictment thus served as a basis for the admission of other damaging evidence and provided a means for the prosecutor to make improper and potentially harmful arguments to the jury. Accordingly, I am not prepared to say that the combined effect of the erroneously admitted testimony and the prosecutor’s improper argument based thereon were not sufficient to tip the scales in the minds of the jurors between life imprisonment and death for this defendant. Thus, I would hold that the error was prejudicial.

*42 For all of the above reasons I vote to uphold defendant’s conviction of first degree murder, vacate the sentence of death and remand the case for a new sentencing hearing to be conducted pursuant to G.S. §§ 15A-2000 through 15A-2003.

Justice Exum joins in this dissenting opinion.

. This evidence would not have been admissible as a part of the State’s casein-chief to show an aggravating factor, since the defendant was not convicted of a felony. G.S. § 15A-2000(e)(3) lists as one of the aggravating circumstances the following: “(3) The defendant had been previously convicted of a felony involving the use or threat of violence to the person.” Assault with a deadly weapon is a misdemeanor, G.S. § 14-33. Assault with a deadly weapon with intent to kill and assault with a deadly weapon inflicting serious injury are both felonies. G.S. § 14-32.

. Pursuant to G.S. § 14-72 (1975), which was in effect at the time defendant entered his plea of guilty, the difference between felonious larceny and misdemeanor larceny was the taking of goods valued at no more than $200 (presently $400).