{ "id": 8564202, "name": "STATE OF NORTH CAROLINA v. COLONEL LEE WORTHAM", "name_abbreviation": "State v. Wortham", "decision_date": "1975-06-06", "docket_number": "No. 101", "first_page": "541", "last_page": "546", "citations": [ { "type": "official", "cite": "287 N.C. 541" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "208 S.E. 2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "23 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. 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Ct.", "opinion_index": 0 }, { "cite": "419 U.S. 857", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6310695, 6312393, 6311594, 6310217, 6312123, 6310417, 6311381, 6311834, 6312635, 6310940, 6311166 ], "opinion_index": 0, "case_paths": [ "/us/419/0857-03", "/us/419/0857-10", "/us/419/0857-07", "/us/419/0857-01", "/us/419/0857-09", "/us/419/0857-02", "/us/419/0857-06", "/us/419/0857-08", "/us/419/0857-11", "/us/419/0857-04", "/us/419/0857-05" ] }, { "cite": "202 S.E. 2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "284 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564833 ], "opinion_index": 0, "case_paths": [ "/nc/284/0701-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "177 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564719 ], "opinion_index": 0, "case_paths": [ "/nc/277/0286-01" ] }, { "cite": "163 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559994 ], "opinion_index": 0, "case_paths": [ "/nc/274/0277-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] } ], "analysis": { "cardinality": 631, "char_count": 11730, "ocr_confidence": 0.588, "pagerank": { "raw": 1.3277554235937774e-07, "percentile": 0.6283086388434229 }, "sha256": "f62c53b34f0e4c523565424b102d8562d181f470dc288393281d5b7764ce0ae3", "simhash": "1:8f1d608b3eb36cda", "word_count": 2005 }, "last_updated": "2023-07-14T16:20:34.133436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. COLONEL LEE WORTHAM" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant contends that the trial judge erred in allowing the State\u2019s witness, S.B.I. Agent Momier, to testify on rebuttal as to a statement made to him by a codefendant, Dan Moss, which statement was not made in defendant\u2019s presence. We quote the portion of the record pertinent to this assignment of error:\nMr. Momier said he was present when they arrested Dan Moss. He stated that Mr. Moss was warned of his constitutional rights. He stated that Dan Moss made the statement that he was on the car with Colonel Wortham and the two Roysters on the night before the robbery and that he did not commit the robbery.\nAt this point, the solicitor ask\u00e9d the following question:\n\u201cMr. Momier, this was on the night before the robbery, or on the night of the robbery?\u201d\nBoth the defendant Wortham and the defendant Moss objected.\nThe objection was overruled by the Court.\nThe defendant Wortham excepted.\nException No. 7.\nAnswer to this question, \u201cIt was on the night of the robbery.\u201d\nMomier stated that Dan Moss admitted that he was on the car with them.\nIn finding no error in the admission of this evidence, the Court of Appeals stated that the record indicated that the witness Momier was allowed to answer several questions concerning the Moss statement before objection was made and that defense counsel\u2019s failure to make timely objection waived the objection. The Court of Appeals further held that the admission of the evidence, if error, was harmless error beyond any reasonable doubt.\nWithout hearing the inflection of the witness\u2019s voice, it is impossible for us to decide from the cold record whether the witness Momier meant to state that Moss said he was with defendant and the Roysters on the preceding night or at an earlier time on the night of the robbery. Under these circumstances we think that it would be unfair for us to interpret this ambiguous statement so as to presume error on the part of defense counsel in not properly lodging his objection. We, therefore, do not agree with the conclusion of the Court of Appeals that defendant waived his objection.\nSince the codefendant Moss did not testify, the evidence as to his extrajudicial statement should have been excluded. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476; State v. Fox, 274 N.C. 277, 163 S.E. 2d 492. Thus, there only remains the question of whether the improperly admitted evidence was sufficiently prejudicial to warrant a new trial. The challenged evidence contributed nothing toward proving defendant\u2019s guilt of any element of the crime of armed robbery. It did tend to impeach his credibility by contradicting his statement that codefendant Moss was not in the car during the night of the robbery. All of the evidence in this case places defendant at the store at the time of the armed robbery. The uncontradicted evidence also reveals that he transported two of the confessed robbers to the scene of the robbery and afterwards carried them away from the scene. The Roysters, the one who actually used the pistol in the armed robbery and the other who took the money from the cash register, each testified that in addition to being the driver of the automobile, defendant took part in the plan to rob and received a part of the proceeds of the robbery.\nThe test of harmless error is \u201cwhether there is a reasonable possibility that the evidence complained of might have contributed to conviction.\u201d State v. Brinson, 277 N.C. 286, 177 S.E. 2d 398. Here the competent evidence against defendant Colonel Lee Wortham so positively established his guilt in the participation of the armed robbery that the incompetent evidence admitted was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed. 2d 284; State v. Davis and State v. Fish, 284 N.C. 701, 202 S.E. 2d 770, cert. denied, 419 U.S. 857, 95 S.Ct. 104, 42 L.Ed. 2d 91; State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405.\nDefendant next argues that he is entitled to a new trial because of improper remarks by the District Attorney during his argument to the jury.\nThe record contained only this fragmentary excerpt concerning the District Attorney\u2019s argument: \u201cDuring the course of Mr. Allen\u2019s argument to the jury, Mr. Allen stated \u2018they are thieves, they are rogues, they are scoundrels.\u2019 \u201d The record does not show the context in which these remarks were made; neither do we know for a certainty that the word \u201cthey\u201d included defendant. Nor do we know whether the remarks of the District Attorney were in answer to an argument made by defense counsel.\nWe find language very similar to that here objected to in State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572, vacated and remanded as to death penalty only, 408 U.S. 939, 92 S.Ct. 2873, 33 L.Ed. 2d 761. There the District Attorney characterized the defendants as \u201ctwo robbers, two thieves, two gunmen and \u2018killers.\u2019 \u201d The Court found no prejudicial error in the remarks of the District Attorney and, inter alia, stated:\nThis Court has said that the argument of counsel must be left largely to the control and discretion of the presiding judge and that counsel must be allowed wide latitude in the argument of hotly contested cases. State v. Seipel, 252 N.C. 335, 113 S.E. 2d 432; State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424; State v. Bowen, 230 N.C. 710, 55 S.E. 2d 466; State v. Little, 228 N.C. 417, 45 S.E. 2d 542. He may not, however, by argument, insinuating questions, or other means, place before the jury incompetent and prejudicial matters not legally admissible in evidence, and may not \u201ctravel outside of the record\u201d or inject into his argument facts of his own knowledge or other facts not included in the evidence. State v. Phillips, 240 N.C. 516, 82 S.E. 2d 762; State v. Dockery, 238 N.C. 222, 77 S.E. 2d 664; State v. Little, supra. On the other hand, when the prosecuting attorney does not go outside of the record and his' characterizations of the defendant are supported by evidence, the defendant is not entitled to a new trial by reason of being characterized in uncomplimentary terms in the argument. State v. Bowen, supra.\nThe prosecuting attorney may use \u201cappropriate epithets which are warranted by the evidence,\u201d .... In State v. Bowen, supra, the epithet, \u201cthese two thieves,\u201d was not approved by this Court but was held not to be ground for a new trial because it was \u201ca conclusion drawn from the evidence.\u201d . . .\n. . . The defendant being charged on this trial with murder in the first degree, it was not improper for the prosecuting attorney to characterize him and his companion as \u201ckillers.\u201d . . .\nIn instant case defendant was charged with armed robbery, and there was ample evidence to support the charge. An armed robber is a thief, a robber, and certainly a thief and a robber may be aptly characterized as a scoundrel. Thus, it appears that the District Attorney did not travel outside the record and that his characterization of defendant, if directed to him, did not demand that the trial, judge exercise his discretion and limit the argument.\nWe think it only proper to observe that the District Attorney was perilously near crossing the line from allowable denunciation into the forbidden territory of abuse which would have required reversal. In any event, we agree with the Court of Appeals that, in light of the stated circumstances, reversible error does not appear.\nOur further consideration of this case convinces us that certiorari was improvidently allowed and that the action of the Court of Appeals in finding no prejudicial error was correct.\nThe decision of the Court of Appeals is\nAffirmed.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.", "C. W. Wilkinson, Jr., for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. COLONEL LEE WORTHAM\nNo. 101\n(Filed 6 June 1975)\n1. Constitutional Law \u00a7 31; Criminal Law \u00a7\u00a7 95, 169\u2014 extrajudicial statement of nontestifying codefendant \u2014 admission harmless error\nDefendant did not waive his objection to testimony by a law enforcement officer concerning a statement made by a nontestifying codefendant to the officer outside defendant\u2019s presence, and evidence as to the statement should have been excluded; however, the competent evidence against defendant so positively established his guilt in the participation of the armed robbery that the incompetent evidence admitted was harmless beyond a reasonable doubt.\n2. Criminal Law \u00a7 102\u2014 jury argument \u2014 remark by District Attorney not improper\nIn an armed robbery case the District Attorney\u2019s remarks in his jury argument, \u201cthey are thieves, they are rogues, they are scoundrels,\u201d were not improper and did not entitle defendant to a new trial where the District Attorney did not travel outside the record in making the remarks and his characterization of defendant, if directed to him, did not require that the trial court exercise his discretion and limit the argument.\nOn certiorari to review the decision of the Court of Appeals, 23 N.C. App. 262, 208 S.E. 2d 863, which found no error in the judgment of Bailey, 25 March 1974 Criminal Session of Gran-ville County Superior Court.\nDefendant was charged in a bill of indictment, proper in form, with armed robbery. He entered a plea of not guilty.\nThe State\u2019s evidence tends to show that on the 16th day of January 1974 defendant in company with Dan Moss, James Royster and Lewis Royster drove his automobile around Oxford for the purpose of \u201cgetting some money.\u201d After finding that several places were not \u201cright,\u201d they stopped at the Buy-Quick Food Mart operated by Jim Hobgood. Lewis Royster, armed with a pistol and accompanied by his brother James, entered the store and by the use of the pistol took over $320 from the cash register. At that time defendant was also in the store purchasing a \u201csoft drink and some cigarettes.\u201d While the robbery was in progress, defendant departed and pulled his automobile around on a side street, where he waited with the motor running until he was joined by his other companions. The four occupants of the car later divided the money.\nThe State\u2019s evidence included the testimony of Lewis Roy-ster and James Royster.\nDefendant\u2019s evidence tended to show that on the night of 16 January 1974 he was at the home of Otis Royster playing cards. He there encountered James Royster, Lewis Royster, and a third man whom he did not yet know, and they asked him to take them to the Buy-Quick Food Mart to buy wine. He had not previously known any of these persons, but on the next day he learned the Roysters\u2019 names. Dan Moss was at Otis Royster\u2019s home, but he did not accompany them to the food mart. On the way to the store the other men talked about robbing the store, but he paid no attention to this \u201ctalk.\u201d When they arrived, the Roysters entered the store, and after talking to some girls whom he saw on the street, he entered the store and purchased a \u201csoda\u201d and some cigarettes. At that point Lewis Royster stuck a gun in the store owner\u2019s face, and his brother James took money from the cash register. He slowly backed out of the store and told the third unidentified man that those \u201cfools\u201d were robbing the place. Thereupon -the third man pulled a gun and forced him to pull his automobile around to a side street, where they waited until the Roysters joined them. He then drove out into the country, where his passengers got out. He reported these occurrences to the police on the next day after he had finished work.\nThe jury returned a verdict of guilty as charged. Defendant appealed from judgment entered on the verdict, and the Court of Appeals found no prejudicial error in the trial. We allowed certiorcvri, pursuant to G.S. 7A-31, on 4 February 1975. .\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.\nC. W. Wilkinson, Jr., for defendant." }, "file_name": "0541-01", "first_page_order": 569, "last_page_order": 574 }