{ "id": 8566449, "name": "STATE OF NORTH CAROLINA v. LARRY ALEXANDER WADDELL", "name_abbreviation": "State v. Waddell", "decision_date": "1975-12-17", "docket_number": "No. 30", "first_page": "19", "last_page": "35", "citations": [ { "type": "official", "cite": "289 N.C. 19" } ], "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": "256 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573532 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/256/0487-01" ] }, { "cite": "417 F. 2d 755", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2169335 ], "opinion_index": 0, "case_paths": [ "/f2d/417/0755-01" ] }, { "cite": "180 S.E. 2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560516 ], "opinion_index": 0, "case_paths": [ "/nc/278/0365-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "172 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561509 ], "opinion_index": 0, "case_paths": [ "/nc/276/0391-01" ] }, { "cite": "180 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560709 ], "opinion_index": 0, "case_paths": [ "/nc/278/0476-01" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "187 S.E. 2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573153 ], "opinion_index": 0, "case_paths": [ "/nc/280/0642-01" ] }, { "cite": "174 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563418 ], "opinion_index": 0, "case_paths": [ "/nc/276/0714-01" ] }, { "cite": "175 S.E. 2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561810 ], "opinion_index": 0, "case_paths": [ "/nc/277/0065-01" ] }, { "cite": "187 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "281 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573638 ], "opinion_index": 0, "case_paths": [ "/nc/281/0020-01" ] }, { "cite": "202 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "284 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564781 ], "opinion_index": 0, "case_paths": [ "/nc/284/0670-01" ] }, { "cite": "213 S.E. 2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "286 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570119 ], "opinion_index": 0, "case_paths": [ "/nc/286/0681-01" ] }, { "cite": "43 S.E. 626", 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"category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559700 ], "opinion_index": 0, "case_paths": [ "/nc/278/0088-01" ] }, { "cite": "185 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572031 ], "opinion_index": 0, "case_paths": [ "/nc/280/0366-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "132 S.E. 2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573336 ], "opinion_index": 0, "case_paths": [ "/nc/260/0139-01" ] }, { "cite": "185 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570333 ], "opinion_index": 0, "case_paths": [ "/nc/280/0170-01" ] }, { "cite": "116 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622810 ], "opinion_index": 0, "case_paths": [ "/nc/253/0130-01" ] }, { "cite": "120 S.E. 2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567264 ], "opinion_index": 0, "case_paths": [ "/nc/255/0082-01" ] }, { "cite": "124 S.E. 2d 873", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 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S.E. 2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "285 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561734 ], "opinion_index": 0, "case_paths": [ "/nc/285/0072-01" ] }, { "cite": "203 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "285 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562722 ], "opinion_index": 0, "case_paths": [ "/nc/285/0174-01" ] }, { "cite": "213 S.E. 2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "286 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570035 ], "opinion_index": 0, "case_paths": [ "/nc/286/0638-01" ] }, { "cite": "214 S.E. 2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "287 N.C. 483", "category": "reporters:state", "reporter": "N.C.", 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"9e3ce37f155319c900d3722f9619ffcbf4272c3e65e065d0256b2bde8912d971", "simhash": "1:1528956a16257d46", "word_count": 5860 }, "last_updated": "2023-07-14T21:21:01.191113+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. LARRY ALEXANDER WADDELL" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant first contends he was denied a fair trial because he was put to trial after an order was entered declaring him to be an outlaw pursuant to G.S. 15-48 and before the order was rescinded.\nG.S. 15-48 provides:\nIn all cases where any justice or judge of the General Court of Justice shall, on written affidavit, filed and retained by such justice or judge, receive information that a felony has been committed, by any person, and that such person flees from justice, conceals himself and evades arrest and service of the usual process of law, the justice or judge is hereby empowered and required to issue proclamation against him reciting his name, if known, and thereby requiring him forthwith to surrender himself; and also empowering and requiring the sheriff of any county in the State in which such fugitive shall be to take such power with him as he shall think fit and necessary for the going in search and pursuit of, and effectually apprehending, such fugitive from justice, which proclamation shall be published at the door of the courthouse of any county in which such fugitive is supposed to lurk or conceal himself, and at such other places as the justice or judge shall direct; and if any person against whom proclamation has been thus issued continues to stay out, lurks and conceals himself, and does not immediately surrender himself, any citizen of the State may capture, arrest, and bring him to justice, and in case of flight or resistance by him, after being called on and warned to surrender, may slay him without accusation of any crime.\nDefendant seems to take the position that the order declaring him an outlaw should have been rescinded before his trial. Obviously the statute only applied so long as defendant remained at large. Neither statutory provision nor necessity requires the rescission of such order once defendant is in custody. Further the record reveals that evidence concerning defendant\u2019s having been declared an outlaw was initially and repeatedly disclosed by defendant\u2019s counsel. On two occasions during the voir dire examination of prospective jurors defense counsel referred to the defendant having been declared an outlaw. Defense counsel also elicited the same information from defendant on his redirect examination and from police officer Whiteside on cross-examination.\nDefendant cannot invalidate a trial by introducing evidence or by eliciting evidence on cross-examination which he might have rightfully excluded if the same evidence had b\u00e9en offered by the State. State v. Gaskill, 256 N.C. 652, 124 S.E. 2d 873; State v. Williams, 255 N.C. 82, 120 S.E. 2d 442; State v. Case, 253 N.C. 130, 116 S.E. 2d 429. Neither is invited error ground for a new trial. State v. Payne, 280 N.C. 170, 185 S.E. 2d 101; Overton v. Overton, 260 N.C. 139, 132 S.E. 2d 349.\nIt appears that it was a part of counsel\u2019s plan and theory of defense to inform the jury that defendant had been declared an outlaw. Defendant cannot now successfully contend that the trial judge committed prejudicial error because he did not, ex mero motu, object to experienced counsel\u2019s plan of trial. This assignment of error is overruled.\nDefendant\u2019s Assignment of Error No. 4 is as follows:\nThe Trial Court erred in overruling defense objection to questions propounded by the State where no evidence had been offered that would substantiate the asking, and where State was eliciting testimony desiring the jury to infer therefrom that defendant had murdered another person.\nThe questions directed to defendant\u2019s witness John Thomas Alford on cross-examination to which defendant excepts are found on page 86 of the record, to wit:\nQ. That'was the day you looked at the customers in there and said, \u201cCracker, look at me and I will blow your head off.\u201d\nObjection. No Ruling.\nA. I didn\u2019t say that.\nQ. You deny looking at a third customer and saying, \u201cHonky, I am going to blow your God damned head off.\u201d?\nDefense Counsel: Objection. No ruling.\nA. No, I didn\u2019t.\nDefense Counsel: Objection. No ruling.\nQ. I will ask you if that wasn\u2019t the day you took a 38-\nDefense Counsel : Objection.\nCourt: Let me hear this question.\nQ. I\u2019ll ask you if that wasn\u2019t the day you took a 38 automatic pistol and shot Gregory Leonard\u2019s heart out?\nObjection. Overruled.\nA. No, I deny that.\nA witness, including a defendant in a criminal action, is subject to being impeached or discredited by cross-examination. State v. Williams, 279 N.C. 663, 185 S.E. 2d 174. The witness may be asked all sorts of disparaging questions and he may be particularly asked whether he has committed specified criminal acts or has been guilty of specified reprehensible or degrading conduct. State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874; State v. Jones, 278 N.C. 88, 178 S.E. 2d 820; State v. Bell, 249 N.C. 379, 106 S.E. 2d 495. However, the rule remains that a witness cannot be impeached by cross-examination as to whether he has been arrested for or indicted for or accused of an unrelated criminal offense. State v. Williams, supra. The scope of cross-examination rests largely in the trial judge\u2019s discretion and his rulings thereon will not be disturbed unless it is shown that the verdict is improperly influenced thereby. State v. Carver, 286 N.C. 179, 209 S.E. 2d 785.\nExamination of the questions asked the witness Alford on cross-examination shows that they inquired only into specific criminal and reprehensible conduct on his part. There is no showing of abuse of discretion on the part of the trial judge as to the scope of the cross-examination or that the solicitor acted in bad faith.\nAll except one of the questions directed to the defendant Waddell and challenged by this assignment of error relate to his actions immediately before and during the alleged murder and robbery. Representative examples of these questions are as follows:\nQ. And that when Mr. and Mrs. Wood started walking out, you told Ernest Johnson to sit there on the wall and wait for you, that you would take care of it, and you walked across the street?\nDefense Counsel: Your Honor, I object to this because there is absolutely no evidence been offered here that would be in line with these questions he is asking, and I don\u2019t think that it is proper.\nCourt: Overruled.\nDefense Counsel : The District Attorney is soliciting testimony without having any evidence introduced to go on.\nCourt: Overruled, go ahead.\nA. I deny that.\nQ. And that Ernest Johnson sat over there on the wall across the street while you walked up to Mr. Wood and blew his neck off with a sawed-off shotgun?\nObjection. Overruled.\nA. He didn\u2019t set [sic] over there while I walked across the street. It didn\u2019t happen that way. I deny that we met down to the corner of Cedar and Fourth Street and that we two got back together.\nIn this jurisdiction, cross-examination is not confined to the subject matter of direct testimony but may extend to any matter relevant to the case. State v. Huskins, 209 N.C. 727, 184 S.E. 480; State v. Allen, 107 N.C. 805, 11 S.E. 1016. We recognize this liberal practice for the purpose of allowing the cross-examiner to elicit details which might be favorable to his case, to bring out new and relevant facts and to impeach or cast doubt upon the credibility of the witness. 1 Stansbury\u2019s North Carolina Evidence (Brandis Revision) \u00a7 35, pps. 105, 107. Barnes v. Highway Comm., 250 N.C. 378, 109 S.E. 2d 219.\nWe hold that the questions asked defendant on cross-examination were relevant and were within the allowable purposes of cross-examination.\nThis assignment also challenges the following question:\nQ. Just one more question, as a matter of fact, I will ask you if you didn\u2019t on the 27th day of June, 1974, take that same shotgun and walk up to Marion Dale Kodel at the Payless Service Station at 3800 Wilkinson Boulevard and say, \u201cGimme the money bag,\u201d and bash him in the head with that same sawed-off shotgun?\nDefense Counsel : Objection, Your Honor.\nA. I did not.\nThis question was only directed to whether defendant had committed a specific criminal act and the question was therefore proper.\nDefendant next contends that the trial judge committed prejudicial error by excusing prospective juror Stitt.\nDuring the voir dire examination of prospective jurors, both the defendant and the State accepted juror Stitt. Before impanelment of the jury, the District Attorney requested that he be allowed to further examine prospective juror Stitt. The District Attorney stated that Mr. Stitt\u2019s answers to defense counsel\u2019s voir dire questions had led the District Attorney to believe that he has misinterpreted Mr. Stitt\u2019s answers to the District Attorney\u2019s inquiries concerning the prospective juror\u2019s attitude toward imposition of the death penalty. The District Attorney, over defendant\u2019s objection, was allowed to make further inquiry. Mr. Stitt then stated that knowing that the death penalty would be imposed, he did not feel that he could vote for a verdict of guilty even though he was satisfied of defendant\u2019s guilt. Thereupon the trial judge, in his discretion, and at the request of the prospective juror, excused Mr. Stitt.\nWe have considered and decided the question presented by this assignment of error many times.\nIn State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572, after both the State and defendant had accepted a juror, but before the jury was impaneled, it came to the judge\u2019s attention that service on the jury would result in extreme family hardship to juror Foster. We held that the judge\u2019s action in excusing the prospective juror Foster in this murder trial did not constitute prejudicial error.\nIn State v. Harris, 283 N.C. 46, 194 S.E. 2d 796, defendants were charged with murder. We there held that the trial judge did not commit prejudicial error by allowing the State, over defendant\u2019s objections, to reexamine a prospective juror after she had been passed by both the State and defendant when before impanelment the juror let it be known that she had changed her opinion about capital punishment.\nIn the very recent case of State v. Wetmore, 287 N.C. 344, 215 S.E. 2d 51, the trial judge allowed the solicitor to examine and challenge one prospective juror for cause and another prospective juror to be peremptorily challenged after both jurors had been passed by the State and defendant when it came to the court\u2019s attention before the jury\u2019s impanelment that one of the prospective jurors had formed an opinion as to defendant\u2019s guilt. It was also established that the other prospective juror was well acquainted with defendant and the defendant was a close friend of the prospective juror\u2019s son. We found no prejudicial error in the reexamination and excusal of these prospective jurors. Accord: State v. Atkinson, 275 N.C. 288, 167 S.E. 2d 241; State v. Vann, 162 N.C. 534, 77 S.E. 295; State v. Vick, 132 N.C. 995, 43 S.E. 626.\nAlthough the court exercised its discretion in excusing prospective juror Stitt, the answers given by the prospective juror concerning his attitude toward the death penalty\u2019 could have supported an excusal for cause. See State v. Simmons, 286 N.C. 681, 213 S.E. 2d 280; State v. Noell, 284 N.C. 670, 202 S.E. 2d 750.\nIt is well established in this jurisdiction that it is the duty of the trial judge to see that a competent, fair and impartial jury is impaneled, and to that end the judge may, in his discretion, excuse a prospective juror even without challenge from either party. Decisions as to a juror\u2019s competency at the time of selection and his continued competency to serve are matters resting in the trial judge\u2019s sound discretion and are not subject to review unless accompanied by some imputed error of law. State v. Harris, supra; State v. Atkinson, supra; State v. Vann, supra.\nDefendant states in his brief that the systematic maneuverings of the District Attorney excluded people of defendant\u2019s race. This contention is not supported by the record. Defendant fails to show that members of defendant\u2019s race were systematically or arbitrarily excluded from the jury panel. See State v. Noell, supra; State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768. We hold that the trial judge properly excused juror Stitt.\nDefendant assigns as error the trial judge\u2019s denial of his motions for judgment as of nonsuit. He argues that Mrs. Margaret Wood was the only identifying witness and that her testimony was not sufficient to support a finding by the jury that defendant was the perpetrator of the crime charged.\nDuring the direct examination of Mrs. Wood, the District Attorney asked Mrs. Wood if she could identify the man who shot her husband. There was no objection by defense counsel. In response to this question, Mrs. Wood stated \u201cI see the man in the courtroom today that I saw murder my husband with a sawed-off shotgun.\u201d She then pointed to defendant Larry Wad-dell to indicate the person who shot her husband. On cross-examination Mrs. Wood admitted that during the police lineup in which defendant participated she identified another man as being her husband\u2019s assailant. She explained her misidentification: \u201cI did not identify him because he was disguised. His head was covered with a toboggan and pulled down over. He had lost weight. I could not see his head.\u201d\nThere was unquestionably ample evidence to carry the case to the jury if Mrs. Wood\u2019s in-court identification was properly admitted into evidence.\nWhen the State offers evidence of identification and there is an objection and a request for a voir dire hearing, the trial judge should conduct a voir dire and hear the evidence from both the defendant and the State, find facts and determine the admissibility of the proffered evidence. State v. Accor, State v. Moore, 277 N.C. 65, 175 S.E. 2d 583. Nevertheless our decisions require that there be at least a general objection in order to invoke voir dire proceedings. State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534; State v. Cook, 280 N.C. 642, 187 S.E. 2d 104. However, in capital cases it is our practice, despite counsel\u2019s failure to observe recognized rules, to carefully examine the record for prejudicial error. We, therefore, elect to further consider the admission of the unchallenged identification testimony.\nThe record shows that several weeks after the killing, Mrs. Wood was shown about fifteen photographs of young black males and at that time she picked the photograph of defendant Waddell as a photograph of the person who robbed and killed her husband. This evidence was initially brought out by defense counsel and the above summary represents all we find in the record concerning the photographic identification.\nWe do not extend the right of counsel\u2019s presence to out-of-court examinations of photographs which include a suspect, whether he be in custody or at liberty. State v. Accor, State v. Moore, supra. Nor do we find anything in this record which indicates that the out-of-court photographic identification was unlawful and impermissibly suggestive. Thus the in-court identification was not tainted by the out-of-court photographic identification.\nOur search of the record also discloses that a lineup was conducted on 20 November 1974 and that defendant was one of the persons in the lineup.\nIt is well settled that lineup procedures which are \u201cso im-permissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification\u201d violate due process and are constitutionally unacceptable. Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967; State v. Smith, 278 N.C. 476, 180 S.E. 2d 7; State v. Austin, 276 N.C. 391, 172 S.E. 2d 507. It is also established by decisions of this Court and the federal courts that an accused must be warned of his right to counsel during such confrontation and unless presence of counsel is understandingly waived testimony concerning the lineup must be excluded in absence of counsel\u2019s attendance. Further if there be objection to an in-court identification by a witness who participated in an illegal lineup procedure, such evidence must be excluded unless it be determined on voir dire that the in-court identification is of independent origin and therefore not tainted by the illegal lineup. Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951; United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926; State v. Smith, supra.\nIn the instant case defense counsel again elicited information concerning the lineup and later offered as a defense witness, Marshall McCallum, an attorney who practices in Charlotte, N. C. Mr. McCallum testified that he attended the lineup on 20 November 1974 and that \u201che was requested to view the lineup by an attorney who was representing Waddell\u2019s interest.\u201d He also represented another person who appeared in the lineup. He stated that the lineup which he and Mrs. Wood viewed consisted of six black males of approximately the same age and the same height. They were all dressed in t-shirts, dark pants and green toboggans. Each of the men came towards the viewing partition and made a complete turn so as to expose both sides of his face. During the lineup Mrs. Wood requested that Waddell say \u201cGimme the bag.\u201d She also requested that James Nealy, one of the men in the lineup, be asked to repeat the same phrase. Both men complied and Mrs. Wood thereafter identified Nealy as the man who robbed and killed her husband. This record discloses absolutely no evidence that the lineup as conducted was \u201cso impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.\u201d Further the uncontradicted evidence shows that an attorney representing defendant\u2019s interest was present to view the lineup. Thus there was no illegal lineup to infect the in-court identification.\nThe fact that Mrs. Wood failed to identify defendant at the lineup, and in fact identified another person as her husband\u2019s murderer goes to the weight rather than the competency of the testimony and is a matter for the jury. State v. Bass, 280 N.C. 435, 186 S.E. 2d 384; State v. Hill, 278 N.C. 365, 180 S.E. 2d 21; Lewis v. United States, 417 F. 2d 755.\nWe are of the opinion that had there been a voir dire procedure the evidence which appears in this record would have supported a ruling admitting Mrs. Wood\u2019s identification testimony into evidence. In our search for possible prejudice in the admission of this evidence, we also note that the evidence of Mrs. Wood\u2019s misidentification at the lineup would seem to have been favorable to defendant. Finally if the witness Wood had not testified as to defendant\u2019s identity, there was other sufficient substantial evidence as to every element of the crime charged to repel defendant\u2019s motions for judgment as of nonsuit.\nMrs. Wood testified that her husband was robbed and was killed by a shotgun wielded by a black man at about 6:30 p.m. on 12 July 1974. She generally described this man and the clothes he was wearing. Mrs. Wood stated that her husband carried money in a \u201cwhite cloth bag with . . . two tie strings that came together.\u201d The witness Byers testified that defendant and Eugene Johnson came to her house shortly after 6:30 p.m. on 12 July 1974. Defendant was carrying a white drawstring money bag containing coins and currency. Johnson was carrying a shotgun. While defendant was in her home and while she was unplaiting his hair, he removed a pistol from his pocket. She identified this pistol at trial and the witness Wood identified the same pistol as the pistol her husband was carrying on the day that her husband was killed and robbed. The same pistol was found in the apartment where defendant was apprehended and arrested. Witness Byers further testified that she heard Johnson ask Waddell, \u201cMan, why did you shoot him?\u201d Waddell responded \u201cI seen him go for his gun.\u201d Defendant testified and admitted that he was in the vicinity in which the crime occurred at approximately the time of the crime. He further admitted that he was in the home occupied by the witness Byers on the same date shortly after 6:30 p.m.\nThus, applying the well recognized and often repeated rules governing the granting or denial of motions for judgment as of nonsuit, we hold that the trial judge properly denied defendant\u2019s motions for judgment as of nonsuit.\nThe Attorney General filed a \u201ccaveat\u201d to his brief in which, acting as an officer of the Court, he calls to our attention, without citation of authority, several matters which he suggest we should consider ex mero motu.\nThe State suggests that the trial judge should have, without request by defense counsel, instructed on the law of alibi.\nWe formerly held that when a defendant offered evidence of alibi it, was incumbent upon the trial judge to charge as to the legal effect of such evidence without a request by defendant for such instructions. State v. Spencer, 256 N.C. 487, 124 S.E. 2d 175. However, since the decision in State v. Hunt, 283 N.C. 617, 197 S.E. 2d 513 (filed 12 July 1973), the trial judge is not required to instruct on alibi unless defendant specifically requests such instruction. Further, unless there is evidence that the accused was at some other specified place at the time the crime was committed, the evidence would not require a charge on alibi even had there been a request for such charge. Neither does a mere denial that he was at the scene of the crime require the charge. In such case, the general charge that the jury should acquit the defendant unless it is satisfied beyond a reasonable doubt that the defendant committed the crime is sufficient. State v. Green, 268 N.C. 690, 151 S.E. 2d 606. Here a cursory reading of the record would show that the crime was committed at the corner of Trade and Cedar Streets in the City of Charlotte on 12 July 1974 at approximately 6:30 p.m. Defendant Larry Waddell testified that he was on the corner of Trade and Cedar Streets on 12 July 1974 at around 6:30 p.m. Thus there was insufficient evidence to require the instruction on alibi even had there been a special request for it.\nThe State also points to the failure of the trial judge, without request of defense counsel, to give a cautionary instruction that evidence concerning defendant having been declared an outlaw should not be considered as evidence of guilt. We doubt that such an instruction would have been beneficial to defendant. It is altogether possible that the instruction by the trial judge would have magnified rather than diminished the harmful effect of the evidence which had repeatedly been elicited by defense counsel.\nFinally one of the matters to which the State directs our attention is whether the trial judge should have assumed greater responsibility in the control of the trial. We join in the State\u2019s concern that the trial judge, the prosecutor, the appellate courts as well as defense counsel should strive to give every accused a fair trial. However, it must be borne in mind that criminal trials are adversary in nature and to require a trial judge to unduly intrude into counsel\u2019s plan of trial, to constantly interpose objections or to guess whether counsel desires voir dire hearings when counsel remains silent would prolong ad finitwn trials and final judgments in criminal cases. Such requirements would weight the scales of justice to the criminal and retard fair and speedy trials. The State, as well as defendant, is entitled to a fair trial.\nDefendant\u2019s contention that judgment should be arrested because the imposition of the death penalty results in cruel and unusual punishment and is therefore constitutionally impermissible has been rejected by this Court in many recent decisions. We do not deem it necessary to again set forth the exhaustive reasoning of these cases. State v. Robbins, 287 N.C. 483, 214 S.E. 2d 756; State v. Stegmann, 286 N.C. 638, 213 S.E. 2d 262; State v. Honeycutt, 285 N.C. 174, 203 S.E. 2d 844; State v. Dillard, 285 N.C. 72, 203 S.E. 2d 6; State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10; State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721; State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19.\nOur careful search of this entire record discloses no error warranting a new trial.\nNo error.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Deputy Attorney General Jean A. Benoy and Associate Attorney David S. Crump, for the State.", "T. O. Stennett for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LARRY ALEXANDER WADDELL\nNo. 30\n(Filed 17 December 1975)\n1. Criminal Law \u00a7\u00a7 91, 173 \u2014 trial before outlaw order rescinded \u2014 reference to declaration as outlaw \u2014 invited error\nDefendant was not denied a fair trial because he was put to trial before an order declaring him an outlaw pursuant to G.S. 15-48 was rescinded since the statute applied only so long as defendant remained at large and no rescission of the order was required once defendant was in custody; nor was defendant prejudiced by evidence that defendant had been declared an outlaw where such evidence was initially and repeatedly disclosed by defendant\u2019s own counsel.\n2. Criminal Law \u00a7 89 \u2014 impeachment \u2014 specified criminal acts\nWhile a witness cannot be impeached by cross-examination as to whether he has been arrested for or indicted for or accused of an unrelated criminal offense, he may be asked whether he has committed specified criminal acts or has been guilty of specified reprehensible or degrading conduct.\n3. Criminal Law \u00a7 89 \u2014 cross-examination \u2014 specific criminal and reprehensible conduct\nA defense witness was properly asked on cross-examination whether he threatened to shoot two customers on a certain occasion and whether he shot a person on that date since the questions inquired into specific criminal and reprehensible conduct by the witness.\n4. Criminal Law \u00a7 88 \u2014 scope of cross-examination\nIn this jurisdiction cross-examination is not confined to the subject matter of direct testimony but may extend to any matter relevant to the case.\n5. Criminal Law \u00a7 88 \u2014 cross-examination of defendant \u2014 new matter\nQuestions asked defendant on cross-examination concerning actions of defendant and another immediately before and during an alleged robbery and murder were relevant and competent although the questions were not based on evidence previously introduced.\n6. Jury \u00a7 5 \u2014 reexamination of prospective juror \u2014 death penalty views \u2014 excusal by court\nIn a first degree murder prosecution, the trial court did not err in allowing the district attorney to reexamine a prospective juror concerning his beliefs as to capital punishment after the juror had been accepted by the State and by defendant but before the jury was impaneled, and the court in its discretion properly excused the juror when he stated upon reexamination that he could not vote for. a verdict of guilty with knowledge the death penalty would be imposed even though he was satisfied of defendant\u2019s guilt.\n7. Constitutional Law \u00a7 29 \u2014 absence of systematic exclusion of members of defendant\u2019s race\nDefendant failed to show that members of his race were systematically or arbitrarily excluded from the jury panel by the district attorney.\n8. Criminal Law \u00a7 66 \u2014 identification testimony \u2014 necessity for voir dire\nWhen the State offers evidence of identification and there is an objection and a request for a voir dire hearing, the trial judge should conduct a voir dire and hear the evidence of both defendant and the State, find facts and determine the admissibility of the proffered evidence.\n9.Criminal Law \u00a7 66 \u2014 pretrial photographic identification \u2014 lawfulness\nAn out-of-court photographic identification at which a, witness chose the photograph of defendant from a group of fifteen photographs of young black males was not unlawful and impermissibly suggestive and thus did not taint the witness\u2019s in-court identification of defendant.\n10. Criminal Law \u00a7 66\u2014 lawfulness of lineup \u2014 identification of another at lineup \u2014 effect on in-court identification of defendant\nA lineup was lawful and did not taint a witness\u2019s in-court identification of defendant where an attorney representing defendant\u2019s interest viewed the lineup, and the lineup consisted of six black males of approximately the same age and height and dressed alike; the fact that the witness failed to identify defendant at the lineup, but in fact identified another person as her husband\u2019s murderer, goes to the weight rather than the competency of her in-court identification testimony.\n11. Homicide \u00a7 21\u2014 murder during robbery \u2014 sufficiency of evidence\nEven if the victim\u2019s wife had not identified defendant as the person who killed her husband with a shotgun during a robbery, the State\u2019s other evidence was sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of first degree murder where it tended to show that a white cloth bag containing money was taken from the victim by a black male, when defendant and a companion went to a witness\u2019s house shortly after the robbery, defendant was carrying a white cloth bag containing coins and currency, the companion was carrying a shotgun, and defendant removed from his pocket a pistol identified as belonging to the victim, the victim\u2019s pistol was later found in defendant\u2019s apartment, the witness heard defendant tell his companion he shot the victim because he saw the victim\u2018go for a gun, and defendant admitted he was in the vicinity of the crime at approximately the time it occurred.\n12. Criminal Law \u00a7 113\u2014 failure to instruct on alibi\nThe trial court was not required to instruct the jury on alibi absent a request therefor by defendant; furthermore, the evidence did not require an instruction on alibi even if requested where defendant testified that he was in the vicinity of the crime at the time it occurred.\n13. Criminal Law \u00a7 113 \u2014 evidence defendant declared outlaw \u2014 absence of cautionary instruction\nThe trial court did not err in failing, without the request of defense counsel, to give a cautionary instruction that evidence concerning defendant having been declared an outlaw should not be considered as evidence of his guilt.\n14. Constitutional Law \u00a7 36 \u2014 death penalty \u2014 constitutionality\nImposition of the death penalty for first degree murder did not constitute cruel and unusual punishment.\nAppeal by defendant pursuant to G.S. 7A-27 (a) from Thornburg, J., 6 January 1975 Session of the Superior Court of Mecklenburg County.\nDefendant was charged in an indictment, proper in form, with the first-degree murder of Alma Bertram Wood.\nThe State\u2019s evidence, in summary, was as follows:\nMrs. Margaret Wood, wife of deceased, testified that on 12 July 1974 she and her husband worked at his dry cleaning establishment until about 6:80 p.m. Upon closing the establishment, they started to their automobile. Mr. Wood, armed with a pistol, was carrying a bag containing the day\u2019s receipts. They encountered defendant at their car who at that uttered the word \u201cHa,\u201d and flipped some clothes from his arm revealing a sawed-off shotgun. He said \u201cgimme the bag\u201d and almost simultaneously with his demand, fired the shotgun toward Mr. Wood. Mrs. Wood observed defendant fleeing with the money bag and found her husband lying on his back with blood gushing from a wound in his neck. She identified State\u2019s Exhibit 5 as the pistol which her husband carried on that day. The witness, without objection from defense counsel, unequivocally identified defendant as the man who robbed and shot her husband with a sawed-off shotgun.\nThe State offered expert medical testimony to the effect that Mr. Wood died as a result of a wound inflicted by a shotgun, fired at close range.\nHazel Eugene Erwin testified that on 12 July 1974, he was driving by Mr. Wood\u2019s dry cleaning establishment when he heard a shot. He observed Mr. Wood stumbling backwards and saw a man wearing a lavender t-shirt and carrying a sawed-off shotgun grab a bag and flee to a nearby wooded lot.\nEvelyn Byers testified that Eugene Johnson and Larry Waddell came to the house in which she lived with her mother shortly after 6:80 p.m. on 12 July 1974. She allowed defendant to use the telephone in the Byers\u2019 residence and heard him ask for \u201cDot\u201d and thereafter heard him give directions to the Byers\u2019 house and ask that he be picked up there. At that time defendant had an off-white drawstring money bag containing coins and currency. Johnson was carrying a plastic bag which contained a broken-down shotgun. After defendant finished his telephone conversation, he asked her to take his braided hair loose and comb it out. While she was unbraiding defendant\u2019s hair, he removed a pistol from his pocket. She identified State\u2019s Exhibit 5 as the pistol which she saw at that time. Upon her inquiry defendant told her that his name was Larry. The witness further testified that she heard Johnson ask defendant \u201cMan, why did you shoot him?\u201d Waddell responded \u201cI seen him go for his gun.\u201d Shortly after this conversation defendant and Johnson left the house and rode away in a green car driven by an unidentified third person.\nR. J. Whiteside, a Charlotte police officer, testified that Waddell was arrested for the murder of Alma Bertram Wood on 19 November 1974 in Apartment C-13 at 1701 West Boulevard, Charlotte, N. C. At the time of the arrest, Waddell was in the process of having his head shaved. The officer stated that he found two pistols in the apartment and one of the pistols was the one identified as State\u2019s Exhibit 5.\nThe State rested and defendant offered evidence tending to show the following:\nDefendant testified that on 12 July 1974, at about 6:30 p.m., he met Ernest Johnson at the corner of Trade and Cedar Streets and Johnson inquired if he knew anyone who would give him a ride to Clanton Park. Upon his reply that he would have to make a telephone call, Johnson said that he knew a nearby place where the call could be made. They went to Evelyn Byers\u2019 house where Evelyn unbraided his hair and combed it out. He stated that he was not carrying anything with him at that time but that Johnson did have a package or a bag. He had no knowledge of its contents. He further stated that Eric Cunningham came by and gave them a ride to his (Waddell\u2019s) house. He denied he robbed or shot Mr. Wood.\nJohn Alford, testifying for defendant, said that on 12 July 1974 he and Eric Cunningham picked up Waddell and Johnson at the Byers\u2019 home. Waddell was not carrying anything when he entered the car but Johnson was carrying a bag. When they arrived at Waddell\u2019s home, Johnson gave Waddell a gun and some money.\nMarshall MeCallum testified concerning a lineup procedure viewed by him and Mrs. Wood. We will consider this lineup procedure and the admissibility of the identification testimony more fully in the opinion.\nDefendant moved for judgment as of nonsuit at the close of the State\u2019s evidence and at the close of the evidence for the defense. Both motions were denied.\nThe jury returned a verdict of guilty of first-degree murder and defendant appealed from judgment entered on the verdict imposing the death penalty.\nAttorney General Rufus L. Edmisten, by Deputy Attorney General Jean A. Benoy and Associate Attorney David S. Crump, for the State.\nT. O. Stennett for the defendant." }, "file_name": "0019-01", "first_page_order": 39, "last_page_order": 55 }