{
  "id": 8557352,
  "name": "STATE OF NORTH CAROLINA v. NELSON RAY RICHARDS and JOHN MAXWELL HAROLD",
  "name_abbreviation": "State v. Richards",
  "decision_date": "1974-06-05",
  "docket_number": "No. 749SC212",
  "first_page": "686",
  "last_page": "696",
  "citations": [
    {
      "type": "official",
      "cite": "21 N.C. App. 686"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "197 S.E. 2d 513",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "283 N.C. 617",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8559688
      ],
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      "case_paths": [
        "/nc/283/0617-01"
      ]
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  "last_updated": "2023-07-14T21:32:29.924632+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges' Britt and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. NELSON RAY RICHARDS and JOHN MAXWELL HAROLD"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendant Richards contends that the court\u2019s instructions to the jury were erroneous in that they would permit defendant Richards\u2019 conviction for conspiracy \u201cif he conspired with himself or if the defendant Ward conspired with Harold or Cooley with no connection with the defendant Richards at all.\u201d This contention involves the following portion of the court\u2019s charge:\n\u201cOn the charge of conspiracy to commit an armed robbery against the defendant Nelson Ray Richards, I instruct you if you are satisfied from the evidence beyond a reasonable doubt that there was an unlawful meeting of the minds between Nelson Ray Richards and C. V. Cooley, John Maxwell Harold and Harvey Allen Ward, or any one or more of those persons, to commit the crime of armed robbery upon Mr. Horton, if you find those to be the facts beyond a reasonable doubt, the defendant Nelson Ray Richards would be guilty of a conspiracy to commit armed robbery, as charged, and it would be your duty to so find.\nIf you fail to so find, or have a reasonable doubt as to his guilt of that, it would be your duty to find him not guilty.\u201d\nIn an earlier instruction the court stated:\n\u201cSo, if several people have a meeting of the minds, it does not necessarily have to be in writing or in any express language, but if there is a meeting of the minds communicated between the parties that one is to direct or point out to others a place or a person to be robbed, and that others are to commit the robbery and that one or more of the parties are to engage in the disposing of the property taken, or in its division, then that would be a conspiracy on the part of each party entering into such an agreement whose mind met with one or more of the others as to the carrying out of those unlawful purposes.\u201d\nThe charge must be viewed as a whole. When so considered, the instructions do not suggest that defendant Richards could conspire with himself or that he could be guilty of conspiracy even if he had made no agreement with anyone. The contested section of the charge correctly states that defendant Richards could conspire with one or more of the others mentioned. Since there is no \u201cand\u201d between Cooley and Harold, defendant Richards is equated to one unit necessary for conspiracy while Cooley, Harold and Allen, together, alone or in any other combination, constitute the other necessary unit. Defendant Harold makes a similar argument. We find no error in this portion of the charge.\nBoth defendants complain that the court did not properly instruct on \u201calibi.\u201d The case was heard before the opinion in State v. Hunt, 283 N.C. 617, 197 S.E. 2d 513. The judge was therefore required, without request, to instruct the jury as to the legal effect of defendants\u2019 evidence that they were not present at the scene of the crime. The relevant instructions were as follows:\n\u201cAs to both the defendant Richards, members of the jury, and the defendant Harold, they having offered evidence tending to show that they were somewhere else on the date of the offense charged, that is what is known as evidence in the nature of alibi. Alibi means to be elsewhere and it is evidence in denial of the one of the things that the State must prove, that is, the presence and participation of this party in the alleged criminal offense.\nEvidence of alibi is to be considered by you just as any other evidence in denial of the State\u2019s contention and the State must prove beyond a reasonable doubt the defendants\u2019 presence and participation in the alleged crime.\nIf the State fails to prove beyond a reasonable doubt the presence and participation of Richards, then he would not be guilty. Likewise, if it failed to prove beyond a reasonable doubt the presence and participation of Harold, he would not be guilty of the charge.\u201d\nThe judge thus specifically told the jury that the State must prove defendants\u2019 presence and participation in the crime beyond a reasonable doubt and that if the State had failed to do so they should acquit defendants. In an earlier part of the charge the jury had been properly instructed as to the presumption of innocence and the burden the State must bear to prove guilt beyond a reasonable doubt. Surely the instruction that the State must prove defendants\u2019 presence makes it clear that defendants need not prove their absence. We find no prejudicial error in the instructions.\nSeveral motions made by the State and defendants were heard when defendants were not present. These included motions for a special venire, consolidation of the cases, sequestration of witnesses and change in venue. Defendants were represented by able counsel who participated in the hearings on these motions and at no time did counsel suggest the absence of defendants or note exceptions to their absence. All assignments of error directed to the consideration of pretrial and other motions when defendants Were not present are overruled.\nOther assignments of error concern testimony by Ward as to statements defendant C. V. Cooley made during telephone conversations between Ward and Cooley after the robbery and prior to trial. The court instructed the jury to consider the evidence only in connection with the guilt or innocence of defendant Cooley. Cooley did not testify. Assuming, without declaring, that it was error to admit Ward\u2019s version of the conversation between him and one of the other alleged conspirators, we will set out Ward\u2019s testimony as to the conversation to illustrate that the error, if any, was harmless beyond a reasonable doubt.\n\u201cA. Well, the phone rang, I picked it up, the man said, \u2018this is C. V., the man from up in Louisburg,\u2019 and I said, \u2018yeah, how did you get this phone number\u2019, I said, \u2018how did you know my name?\u2019 He said, \u2018well, Nelson left his address book laying here and I found it in that.\u2019 And he said he wanted to know what was going on, said \u2014 he asked \u2018how much money was in there?\u2019, and I said about fifteen hundred dollars and some bonds. He said, \u2018well\u2019 \u2014 I didn\u2019t tell him about the other six thousand dollars. He said, \u2018well, the paper up here said it was thirty or forty thousand dollars.\u2019 I said, \u2018well, Nelson has got these bonds, there was fifteen, twenty or twenty-five thousand dollars\u2019. He said, \u2018well, I want to make sure that I get my part of the money.\u2019 He said, T think Nelson might try and screw out of them\u2019, told me that he would be back in touch with me and he left me a phone number in case I heard from Nelson.\nEach Defendant Moves to Strike Answer.\nMotion Denied.\nRichards\u2019 Exception No. 11\nHarold\u2019s Exception No. 9\nHe did leave me a phone number. I did not have any further conversation with that person at that time. I did have a conversation with this same person again at a later time. He called me and identified himself the same way. \u2018This is C. V., the guy from Louisburg\u2019, in return to a call that I made up here.\nI called the number he had given me. A lady answered. I said \u2018is C. V. there?\u2019 She said, \u2018no\u2019, and I said \u2018is this the C. V. with the orange Pontiac\u2019 and she said \u2018yes\u2019. I said \u2018do you know when he will be back\u2019, and she said, \u2018no\u2019. I said \u2018fine\u2019. The next day I called the same number and I called person to person for C. V. Cooley. The lady that answered the phone said he wasn\u2019t there. The operator left the number for him to call me back. She left my number. After I left my number with the lady for him to call me back, the man called back, said \u2018this is C. V., the man from Louisburg.\u2019 He called back the next day.\nQ. What, if anything did this person tell you?\nEach Dependant Objects. Overruled.\nA. He said that Nelson was flying into Atlanta with a girl, and he gave me the time of the flight and he said he thought he screwed us out of the money for the bonds. He said, \u2018you need to get out to the airport to find out what is going on.\u2019\nRichards\u2019 Exception No. 12\nHarold\u2019s Exception No. 10\nI went to the airport and Nelson Richards came in on the airplane.\nQ. All right, what other conversation did you have with this man at that time ?\nEach Dependant Objects.\nCourt: Overruled as to the defendant Cooley. Objection Sustained as to the defendants Harold and Richards, and the jury has previously been instructed not to consider that.\nA. I called him back after seeing Nelson at the airport and told him I had seen Nelson out there and Nelson claimed that he had lost the bonds.\nRichards\u2019 Exception No. 13\n\u2022 Harold\u2019s Exception No. 11\nQ. How did you call?\nA. I called the number \u2014\nDependant Cooley Objects.\nOverruled by the Court.\nA. I called the number that the man had given me who had identified himself as \u2018C.Y., the man from Louisburg.\u2019\nDependants Harold and Richards Move to Strike Answer.\nDependant Cooley Objects, Moves to Strike Answer.\nCourt: Again, members of the jury, any statements by the person on the telephone as testified by this witness are to be considered only against the defendant Cooley and not against the defendants Harold and Richards.\nRichards\u2019 Exception No. 14\nHarold\u2019s Exception No. 12\nQ. Tell us what happened in that conversation.\nA. I just told him that I had gotten in a hassel with Nelson at the airport and had slapped him and he had called the police and had me taken away, and I said that it looked like he wasn\u2019t going to give us the money for the bonds.\nEach Dependant Moves to Strike Answer.\nCourt: Motion allowed as to Harold and Richards, Denied as to Cooley.\nRichards; Exception No. 15\nHarold\u2019s Exception No. 13\nQ. What, if anything, did the other person say?\nEach Dependant Objects.\nCourt: Objection Overruled as to Cooley, Sustained as to Harold and Richards.\nA. He said that he would get the money. He said that Nelson wasn\u2019t going to screw us out of it, that he would be back in touch with us, that he wasn\u2019t going to let Nelson beat us out of the money.\nRichards\u2019 Exception No. 16\nHarold\u2019s Exception No. 14\nQ. Did you ever have any further telephone conversations with this person at any time?\nA. About nine months ago.\nQ. When was that?\nEach Defendant Objects.\nCourt: Sustained as to the defendants Richards and Harold and Overruled as to the defendant, Cooley, and again, members of the jury, any conversation this witness may testify that he had with the person who identified himself as \u2018C.V.\u2019 on the phone may be considered only against the defendant Cooley and not against the defendants Richards and Harold.\nRichards' Exception No. 17\nHarold\u2019s Exception No. 15\nQ. Where were you when you had a conversation with the person again?\nA. At my house.\nQ. All right, now, tell us how that came about.\nEach Defendant Objects.\nCourt: Sustained as to Harold and Richards and Overruled as to Cooley. Go ahead.\nA. The man called, said this was \u2018C.V.\u2019 and he said \u2018did you know that we have all four been indicted?\u2019 I said, \u2018how do you know that?\u2019 and he said, \u2018some friend of Collins had told him, a friend of Mike Collins, and he had found out that we had all been under indictment and we were all going to be tried.\u2019\nRichards\u2019 Exception No. 18\nHarold\u2019s Exception No. 16\nQ. Was there any further conversation?\nEach Defendant Objects.\nOverruled by the Court as to Cooley.\nSustained by the Court as to Richards and Harold.\nA. Then he asked me where John Harold was, and I said John was in Charlotte, and then he said he would find out more about it, and he would be back in touch with me. He just said \u2018keep your mouth shut.\u2019\nRichards\u2019 Exception No. 19\nHarold\u2019s Exception No. 17\nHe didn\u2019t say anything else that I can recall at this time, other than we just discussed, you know, what he had heard and he just talked about not saying anything. He said, you know, \u2018if you are in any kind of bad way, just let me know\u2019 or something like that, but \u2018don\u2019t open your mouth at all.\u2019\nI had another conversation with this same person. It was several days after that, five, six, seven days, I am not exactly sure. This was after that first phone call. I was at the same number at my house. He called me.\nQ. What, if anything, was said on that occasion?\nEach Dependant Objects.\nCourt: Objection Sustained as to Richards and Harold.\nOverruled as to Cooley.\nA. He said that he had found out that Collins was going to testify against us and he said we might have to have him killed.\nRichards\u2019 Exception No. 20\nHarold\u2019s Exception No. 18\nQ. Did you have any further conversation with him?\nA. Yeah, he said that, \u2018did I think that John Harold would say anything?\u2019 I said, T didn\u2019t think he would,\u2019 and he said, \u2018well, if he does, you are going to have to take care of him because I can\u2019t do anything outside of North Carolina.\u2019\nEach Dependant Objects.\nCourt: Sustained as to Harold and Richards, Denied as to Cooley.\nRichards\u2019 Exception No. 21\nHarold\u2019s Exception No. 19\nDependant Cooley Objects.\nOverruled by the Court.\nDefendants Harold and Richards Object.\nSustained as to defendants Harold and Richards.\nA. He said, \u2018we are all going to go to jail, and if anybody did any talking, that we would all be in the Raleigh State Prison, the North Carolina State Prison.\u2019 He said that his brother or somebody was a guard there and he said that we wouldn\u2019t last in there if we said anything against him.\u201d\nAll that Ward testified he did or told Cooley was, of course, competent. Ward was on the stand and subject to cross-examination and jury consideration of his veracity. Apparently the jury gave little credence to this and other testimony by Ward as to Cooley\u2019s involvement for Cooley was acquitted. Nothing that Cooley is alleged to have said with reference to defendant Harold is of significant value. In fact, the only references to Harold were Cooley\u2019s inquiries as to Harold\u2019s whereabouts and whether Ward thought that Harold would say anything.\nCooley\u2019s statements as to Richards were of little more consequence. Ward\u2019s statement that Nelson [Richards] had the bonds was competent. Cooley\u2019s alleged concern that Nelson might not share the bonds was no evidence that he had them. Cooley\u2019s later statement that Nelson was flying to Atlanta with the bonds added little to Ward\u2019s statements that he met Nelson at the airport, and that Nelson claimed he had lost the bonds and had caused Ward to be arrested after Ward slapped Nelson at the airport. There is no reasonable probability that the statements the witness Ward attributed to defendant Cooley contributed to the conviction of defendants Harold and Richards.\nWe have considered the other assignments of error and find them to be without such merit as to require a new trial.\nNo error.\nJudges' Britt and Parker concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Lester V. Chalmers, Jr., Assistant Attorney General, for the State.",
      "Blanchard, Tucker, Denson & Cline by Irvin B. Tucker, Jr., and Tharrington, Smith & Hargrove by Roger W. Smith, attorneys for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. NELSON RAY RICHARDS and JOHN MAXWELL HAROLD\nNo. 749SC212\n(Filed 5 June 1974)\n1. Conspiracy \u00a7 7; Robbery \u00a7 5\u2014 conspiracy to commit armed robbery \u2014 sufficiency of instructions\nIn a prosecution for conspiracy to commit armed robbery and armed robbery, the trial court\u2019s instruction correctly stated that one defendant could conspire with one or more of the persons mentioned, and it did not suggest that defendant could conspire with himself or that he could be guilty of conspiracy even if he had made no agreement with anyone.\n2. Criminal Law \u00a7 113\u2014 alibi instruction \u2014 sufficiency\nThe trial court\u2019s instruction on alibi which specifically stated that the State must prove defendants\u2019 presence and participation in the crime beyond a reasonable doubt and that, if the State had failed to do so, the jury should acquit defendants was proper.\n3. Criminal Law \u00a7 98\u2014 hearings on motions \u2014 presence of defendants\u2019 counsel\nAll assignments of error directed to the consideration of pretrial and other motions when defendants were not present are overruled, since defendants were represented by able counsel who participated in the hearings on the motions, and at no time did counsel suggest the absence of defendants or note exceptions to their absence.\n4. Criminal Law \u00a7\u00a7 95, 169\u2014 statements of nontestifying codefendant \u2014 any error in admission harmless\nEven if the trial court erred in allowing into evidence testimony by a State\u2019s witness as to telephone statements made by a nontestify-ing codefendant which referred to defendants, such error was harmless beyond a reasonable doubt.\nOn certiorari to review trial before McKinnon, Judge, at the April-May 1973 Session of Superior Court held in Franklin County.\nDefendants were indicted for conspiracy to commit armed robbery and armed robbery. C. V. Cooley was indicted for accessory before and after the fact of armed robbery and conspiracy to commit armed robbery.\nThe State\u2019s evidence tended to show that on 4 November 1970, two men entered the Louisburg home of Walter H. Horton, Jr. and forced Horton to open his safe. One of the men held a gun on Horton, while the other ransacked the house. The men, one of whom Horton identified as defendant John Maxwell Harold, took about $30,000.00 worth of bonds, silver coins, cash and travelers checks.\nOn 13 December 1970, Durham County police officers stopped an automobile owned and operated by defendant Nelson Ray Richards. Acting pursuant to a search warrant issued in a matter unrelated to that presently before the court, the officers searched the automobile. They found two debentures which were identified as belonging to Horton.\nIn early 1972, Georgia law enforcement officials and SBI agent Roger Allen talked with Harvey Ward in Atlanta. Ward told the officers that Cooley and Richards had planned the robbery and that he and Harold had been recruited to help Richards carry it out. Some of Horton\u2019s property was recovered from a safety deposit box Ward rented in Atlanta. Ward was a witness for the State and gave evidence tending to show that all'defendants were guilty as charged.\nAlthough defendant Harold did not testify in his own behalf, his wife testified that in November 1970, Harold was living in Charlotte and was there on the date of the Louisburg robbery.\nDefendant Richards, who said he lived in Jonesboro, Georgia in November 1970, claimed that he had won the debentures found in his automobile in a poker game in Durham on 6 December 1970. His evidence also tended to show he was staying in an Atlanta motel when the Horton robbery occurred.\nCooley was acquitted. Richards was found guilty of conspiracy to commit armed robbery and sentenced to an active prison term of 10 years. Harold was found guilty of armed robbery and conspiracy to commit armed robbery. He was sentenced to 24-30 years for the first offense and 10 years on the second. The terms are to run consecutively. We allowed certiorari to allow both defendants appellate review.\nAttorney General Robert Morgan by Lester V. Chalmers, Jr., Assistant Attorney General, for the State.\nBlanchard, Tucker, Denson & Cline by Irvin B. Tucker, Jr., and Tharrington, Smith & Hargrove by Roger W. Smith, attorneys for defendant appellants."
  },
  "file_name": "0686-01",
  "first_page_order": 714,
  "last_page_order": 724
}