{ "id": 8558362, "name": "STATE OF NORTH CAROLINA v. GREGORY A. COUSIN", "name_abbreviation": "State v. Cousin", "decision_date": "1976-12-21", "docket_number": "No. 51", "first_page": "413", "last_page": "423", "citations": [ { "type": "official", "cite": "291 N.C. 413" } ], "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": "228 S.E. 2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": -1 }, { "cite": "290 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564470 ], "year": 1976, "opinion_index": -1, "case_paths": [ "/nc/290/0702-01" ] }, { "cite": "49 L.Ed. 2d 944", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6177464 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0280-01" ] }, { "cite": "165 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557806 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0077-01" ] }, { "cite": "94 S.Ct. 920", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "39 L.Ed. 2d 112", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "414 U.S. 1160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11856320, 11856386, 11856584, 11856425, 11856267, 11855982, 11856527, 11856081, 11856148, 11856215, 11856475, 11856028, 11856637 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/414/1160-07", "/us/414/1160-08", "/us/414/1160-12", "/us/414/1160-09", "/us/414/1160-06", "/us/414/1160-01", "/us/414/1160-11", "/us/414/1160-03", "/us/414/1160-04", "/us/414/1160-05", "/us/414/1160-10", "/us/414/1160-02", "/us/414/1160-13" ] }, { "cite": "187 S.E. 2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573842 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0100-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "227 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562763 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0556-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "84 L.Ed. 2d 377", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1940, "opinion_index": 0 }, { "cite": "308 U.S. 444", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141500 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/us/308/0444-01" ] }, { "cite": "220 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570361 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0582-01" ] }, { "cite": "203 S.E. 2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562949 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0209-01" ] }, { "cite": "50 N. C. L. Rev. 630", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1972, "pin_cites": [ { "page": "635" } ], "opinion_index": 0 }, { "cite": "228 S.E. 2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "421" }, { "page": "421" }, { "page": "419-20" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1012, "char_count": 23858, "ocr_confidence": 0.683, "pagerank": { "raw": 1.252360105159759e-07, "percentile": 0.6104803793580243 }, "sha256": "e88805b69a455c4c5fbfd5872a6216497a4b3ed1cfc4fc695737c3e036d2acfd", "simhash": "1:130fb88367bad5d3", "word_count": 3943 }, "last_updated": "2023-07-14T20:35:26.216351+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. GREGORY A. COUSIN" ], "opinions": [ { "text": "COPELAND, Justice.\nUnder Assignment of Error No. 4, defendant contends the trial court erred in denying defendant\u2019s motion to suppress the pistol belonging to Martha Ann Mack and her testimony. Defendant argues that this evidence was obtained directly through a disclosure by defendant\u2019s wife of a confidential communication and was thus inadmissible under G.S. 8-57.\nIn the course of their investigation, officers learned that Bowden and the defendant may have been involved in the murder-robbery and that they had a gun in their possession. Based on this lead, they arrested Bowden and the defendant at defendant\u2019s trailer. Alice Cousin, defendant\u2019s wife, was present at the time and was questioned concerning the whereabouts of the gun. At first she refused to tell them anything, but later she directed them to Martha Ann Mack\u2019s trailer where they procured the gun and learned from Martha Ann Mack that the defendant had acknowledged to her his involvement in the crime. Defendant claims his wife knew of the gun\u2019s location as a result of a confidential communication during their marriage.\nG.S. 8-57 (Cum. Supp. 1975) provides in pertinent part:\n\u201cThe husband or wife of the defendant, in all criminal actions or proceedings, shall be a competent witness for the defendant, but the failure of such witness to be examined shall not be used to the prejudice of the defense. ... No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage. Nothing herein shall render any spouse competent or compellable to give evidence against the other spouse in any criminal action.\u201d\nDefendant apparently relies on the \u201cfruit of the poisonous tree doctrine\u201d in contending that the gun and Martha Ann Mack\u2019s testimony were inadmissible. His argument, which attempts to graft a Fourth Amendment search and seizure doctrine to G.S. 8-57, is novel but we believe not warranted by the language of our statute. G.S. 8-57 is an evidentiary rule and applies to a spouse testifying or to the admission of a statement by a spouse into evidence. See 1 Stansbury\u2019s N. C. Evidence, \u00a7\u00a7 59, 60 (Brandis Rev. 1973); Comment, A Survey of the North Carolina Law of Relational Privilege, 50 N. C. L. Rev. 630, 635 (1972). In the present case, Alice Cousin, never testified nor was any statement by her admitted into evidence. This assignment of error is overruled.\nUnder Assignments of Error Nos. 15, 16, 17, 24, 26 and 30, defendant maintains the court erred in admitting into evidence statements made by Larry Lovett before he died. Defendant argues that for this testimony to be admissible it must fall within the dying declaration exception to the hearsay rule.\nG.S. 8-51.1 (Cum. Supp. 1975) provides as follows:\n\u201cThe dying declarations of a deceased person regarding the cause or circumstances of his death shall be admissible in evidence in all civil and criminal trials and other proceedings before courts, administrative agencies and other tribunals to the same extent and for the same purpose that they might have been admissible had the deceased survived and been sworn as a witness in the proceedings, subject to proof that:\n\u201c (1) At the time of the making of such declaration the deceased was conscious of approaching death and believed there was no hope of recovery.\n\u201c(2) Such declaration was voluntarily made.\u201d\nThe record discloses that Larry Lovett appeared to be in great pain, was bleeding profusely from his head and stomach, and having difficulty speaking. The record further reveals that Larry Lovett was aware of his substantial injury. Over objection, Janice Whitten testified that when she saw Larry Lovett on the floor of the storeroom he told her he had been shot in \u201cMy head and my gut.\u201d This testimony was clearly admissible as a spontaneous utterance. State v. Bowden, supra; State v. Deck, 285 N.C. 209, 203 S.E. 2d 830 (1974); 1 Stansbury\u2019s N. C. Evidence, \u00a7 164 (Brandis Rev. 1973). Defendant also objected to the admission of Larry Lovett\u2019s question to Clarence Hilliard, \u201cDidn\u2019t you see them two black dudes?\u201d, and his statement to Deputy Sheriff Baker that \u201ctwo black dudes did it.\u201d\nIn State v. Bowden, supra, we said:\n\u201cThe admissibility of a declaration as a dying declaration is a question to be determined by the trial judge, and when the judge admits the declaration, his ruling is reviewable only to determine whether there is evidence tending to show facts essential to support it. [Citation omitted.] Under the new statute, the declaration must have been voluntary and made when the declarant was conscious of approaching death and without hope for recovery. It is the requirement that the declarant be aware of his impending death that has most often concerned the courts under the case law and now concerns us under the statute. We note, without deciding, that the words, \u2018no hope of recovery\u2019 in the statute may make the statutory exception to the hearsay rule more restrictive than existing case law. However, we believe that on the facts of this case, the declarant Larry Lovett must have believed that there was no hope for recovery. It is not necessary for the declarant to state that he perceives he is going to die. If all the circumstances, including the nature of the wound, indicate that the declar-ant realized death was near, this requirement of the law is satisfied. [Citation omitted.]\u201d State v. Bowden, supra, at 712, 228 S.E. 2d at 421 (1976).\nThe evidence shows that when Larry Lovett made the remarks in question, he was in great pain, \u201cwrithing\u201d about on the floor, crying \u201cHelp me, please,\u201d experiencing difficulty speaking and bleeding from multiple gunshot wounds of the head and stomach regions. The wounds were of such a nature that, taken with the fact that Larry Lovett died en route to the hospital, the trial judge could justifiably conclude that the declarant Larry Lovett realized that his death was imminent and that there was no hope of recovery. See G.S. 8-51.1, supra; 1 Stansbury\u2019s N. C. Evidence, \u00a7 146 (Brandis Rev. Supp. 1976) at 151.\nMoreover, as we noted in Bowden, the statement by Lovett to Hilliard implicating \u201ctwo black dudes\u201d is admissible as a spontaneous utterance. State v. Bowden, supra at 713, 228 S.E. 2d at 421 (1976). These assignments of error are without merit and overruled.\nIn Assignments of Error Nos. 18 and 20, defendant claims the trial court erred in permitting the in-court identification of co-defendant Bobby Bowden by witness Janice Whitten. In the earlier trial of co-defendant Bowden, defendant Cousin was similarly permitted to be identified. In that case the constitutionality of the in-court identification of a co-defendant in a defendant\u2019s separate trial was challenged and the procedure found to be permissible. For the reasons stated in Bowden, these assignments of error are overruled. State v. Bowden, supra at 710-11, 228 S.E. 2d at 419-20 (1976).\nIn Assignment of Error No. 19, defendant asserts the court erred in denying his motion for a continuance to allow him to prepare for the in-court identification of Bobby Bowden. Defendant contends the presence of co-defendant Bowden in the courtroom for the purpose of identification was \u201ctotally unexpected\u201d and therefore he needed time to develop impeachment evidence.\nA motion for continuance being addressed to the sound discretion of the trial judge, the denial of such a motion is not reviewable absent an abuse of discretion. State v. Miller, 288 N.C. 582, 220 S.E. 2d 326 (1975). This rule obtains unless the motion is based on a right guaranteed by the federal or state constitution. In such a case, the question presented is one of law and not of discretion and the decision of the lower court is reviewable. State v. Miller, supra.\nNo constitutional question is here presented. Defendant was not deprived of effective representation by counsel. From the time of counsel\u2019s appointment four months before trial up to final argument in this Court, defendant was zealously and ably defended. \u201c[T]he fact, standing alone, that a continuance has been denied, does not constitute a denial of the constitutional right to assistance of counsel.\u201d Avery v. Alabama, 308 U.S. 444, 84 L.Ed. 2d 377, 60 S.Ct. 321 (1940).\nAs noted in Bowden, supra, the appearance in the courtroom of a co-defendant for the purpose of identification is neither a \u201clegal surprise or impropriety.\u201d From the record it appears that the defendant had ample opportunity and that he availed himself of the opportunity on cross-examination and in his rebuttal to impeach witness Whitten\u2019s identification of the co-defendant. No abuse of discretion nor infringement of a constitutional right having been shown, this assignment of error is overruled.\nIn Assignments of Error Nos. 61, 62, 64 and 65, defendant challenges the court\u2019s refusal to dismiss the case at the close of the State\u2019s evidence and at the close of all the evidence, as well as the court\u2019s charges on armed robbery and felony murder. All of these assignments are based on defendant\u2019s contention that the State failed to prove an armed robbery had taken place. We do not understand defendant to contend that the instructions on armed robbery or felony-murder were in any way deficient, only that they should not have been given. We construe these assignments as argument by defendant that a motion for nonsuit should have been granted on the charges of armed robbery and felony-murder.\nOn this motion for nonsuit, the question for our determination is whether there is substantial evidence of each essential element of armed robbery and of defendant\u2019s being the perpetrator. State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971). The evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. Hunter, 290 N.C. 556, 227 S.E. 2d 535 (1976); State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976).\nThe evidence when considered in the light most favorable to the State shows the following: (1) On the early morning of 7 August 1975, Larry Lovett and Norma Ehrhart were found fatally injured in the storeroom of the McArthur Road Seven-Eleven Store; (2) A sum of money had been taken from the floor safe of the store; (3) Defendant was seen leaving the store in a yellow Maverick automobile just prior to the discovery of the injured persons; (4) Lovett told two witnesses that \u201ctwo black dudes\u201d were responsible; (5) Defendant owned a yellow Maverick automobile with the same license plate number as the car seen leaving the scene; (6) Defendant had possession of a gun during the time of the robbery which later proved to be the murder weapon. Besides these circumstantial facts, the State introduced the damaging testimony of Martha Ann Mack who recounted defendant\u2019s admission that he robbed the Seven-Eleven Store. There was sufficient evidence of the elements of armed robbery and of defendant\u2019s role as perpetrator and no error in either the submission of the jury instructions or in the denial of defendant\u2019s various motions.\nSubstantially the same argument was advanced in State v. Bowden, supra, and there we held that a motion for nonsuit was properly overruled. We are led to the same conclusion based on the nearly identical evidence presented in this case.\nDefendant assigns as Errors Nos. 7-14 statements admitted into evidence which he alleges were rank hearsay. We have reviewed the record. Certain of the challenged statements were not clearly hearsay either because the witness appeared to be testifying from his personal knowledge or because the statement was not offered to prove the matter asserted but for some other nonhearsay purpose. Other statements, though hearsay, were admissible under recognized exceptions to the hearsay rule.\nWe choose, however, to decide these assignments on a simpler, common ground. Assuming arguendo that all these statements were technically incompetent hearsay, we find that they did not prejudice the defendant and that their admission could not have affected the result. State v. Hudson, 281 N.C. 100, 187 S.E. 2d 756 (1972), cert. den., 414 U.S. 1160, 39 L.Ed. 2d 112, 94 S.Ct. 920 (1974); State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969). Error, if any there be, was harmless and these assignments are overruled.\nFinally, defendant contends that the indictments should have been dismissed because the death penalty is unconstitutional. In Woodson v. North Carolina, _ U.S. .., 49 L.Ed. 2d 944, 96 S.Ct. 2978 (1976), the United States Supreme Court invalidated the death penalty provisions of G.S. 14-17 (Cum. Supp. 1975) under which defendant was indicted, convicted, and sentenced to death. However, there was no error in failing to dismiss the indictments because this Court may substitute life imprisonment for the death penalty by authority of the provisions of 1973 Sess. Laws, c. 1201 \u00a7 7 (1974 Session).\nThis case is remanded to the Superior Court of Cumberland County with directions (1) that the presiding judge, without requiring the presence of defendant, enter judgments imposing life imprisonment for the two first-degree murders of which defendant has been convicted; and (2) that, in accordance with these judgments, the clerk of superior court issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to the defendant and his attorney a copy of the judgments and commitments as revised in accordance with this opinion.\nDue to the serious nature of this case, we have searched the record for errors other than those assigned by the defendant and have found none.\nIn the trial we find\nNo error.\nDeath sentence vacated and, in lieu thereof, life sentence imposed.", "type": "majority", "author": "COPELAND, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Associate Attorney Elizabeth C. Bunting for the State.", "E. Lynn Johnson for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GREGORY A. COUSIN\nNo. 51\n(Filed 21 December 1976)\n1. Homicide \u00a7 20; Criminal Law \u00a7 83\u2014 felony murder \u2014 recovery of pistol attributed to defendant\u2019s wife \u2014 admissibility\nThe trial court in a felony murder prosecution did not err in allowing into evidence the pistol used in the murder and testimony of the owner of the pistol which incriminated defendant, though officers first learned about the pistol and its whereabouts from defendant\u2019s wife, since G.S. 8-57 providing that no spouse shall be compellable to disclose any confidential communication made by one to the other during their marriage is an evidentiary \u25a0 rule and applies to a spouse-testifying or to the admission of a statement by a spouse into evidence.\n2. Homicide \u00a7 16\u2014 felony murder \u2014 dying declarations of victim \u2014 admissibility\nThe trial court in a felony murder prosecution did not err in allowing into evidence dying declarations made by one of the victims, since the evidence tended to show that at the time the remarks in question were made, the victim was in great pain, he was writhing about on the floor and crying for help, and he was experiencing difficulty breathing and was bleeding from gunshot wounds in the head and stomach; moreover, statements of the victim made immediately after the shooting were admissible as spontaneous utterances.\n3. Criminal Law \u00a7 91\u2014 motion for continuance \u2014 denial proper\nThe trial court did not abuse its discretion in denying defendant\u2019s motion for continuance to allow him to prepare for an in-court identification of his co-defendant who was tried in a separate trial.\n4. Homicide \u00a7 21\u2014 convenience store employee \u2014 felony murder \u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a prosecution for felony murder where it tended to show that two people were found fatally injured in the storeroom of a convenience store; a sum of money had been taken from the floor safe of the store; defendant was seen leaving the store in a yellow Maverick automobile just prior to discovery of the injured persons; one of the victims told witnesses that \u201ctwo black dudes\u201d were responsible; defendant owned a yellow Maverick automobile with the same license plate number as the car seen leaving the scene; defendant had possession of a gun during the time of the robbery which later proved to be the murder weapon; and one State\u2019s witness testified concerning an admission by defendant that he robbed the convenience store.\n5. Homicide \u00a7\u00a7 12, 31\u2014 homicide statute providing for death penalty \u2014 death penalty invalidated \u2014 indictment and trial under statute proper\nThough the U. S. Supreme Court invalidated the death penalty provisions of G.S. 14-17 under which defendant was indicted, convicted and sentenced to death, there was no error in failing to dismiss the indictments against defendant, since the Supreme Court could substitute life imprisonment for the death penalty.\nDefendant appeals pursuant to G.S. 7A-27 (a) from judgment of Herring, J., entered at the 19 January 1976 Criminal Session, Cumberland County Superior Court.\nOn indictments, proper in form, defendant was charged and found guilty of two counts of first degree murder and one of armed robbery. The death sentence was imposed for the murder convictions and, as was proper, judgment was arrested for the armed robbery conviction because the murder indictments were tried on the theory of felony murder.\nThe evidence for the State tended to show the following:\nDeceased Larry Lovett left for work around 6 a.m. on 7 August 1975. He was employed by McArthur Road Seven-Eleven Store in Fayetteville and was familiar with the fact that $125.00 was always placed in the floor safe when the store closed at night. He had been instructed not to resist a robbery and did not own or carry a gun.\nJust before 7 a.m. on the same morning, deceased Norma Ehrhart left her home to pick up a few groceries at the Seven-Eleven Store. About the same hour, Clarence Hilliard and Janice Whitten left for work together and planned to stop at the same store to pick up some cigarettes. They pulled up outside the store at 7:10 a.m. Both of them noticed a yellow Maverick automobile parked alongside their car, and shortly thereafter saw a light-complexioned black man come out of the store and head for the Maverick. Janice Whitten and Clarence Hilliard later identified the defendant as this man.\nClarence Hilliard waited in the car while Janice Whitten got out and headed for the double-door entrance-way. As she reached the doors, she observed a dark-complexioned black man come out of the store and get in the passenger side of the Maverick. Janice Whitten later identified this man as the co-defendant, Bobby Bowden.\nJanice Whitten walked into the store and noticed no clerks in sight and that it was very quiet. She waited awhile and another customer came in. While she was talking to the other customer, they heard muffled, moaning sounds coming from the back storage room. They went to the storage room door and opened it. There Janice Whitten saw Larry Lovett, lying on his left side, bleeding from his head and stomach. Close by lay Norma Ehrhart, also bleeding. Both had been shot and were breathing faintly. Janice Whitten ran to the front of the store to call the police and summon Clarence Hilliard. When she came back to the storeroom, she bent over Larry Lovett to inquire about his condition. He responded that he was hurt in \u201cMy head and my gut ... it just happened. Didn\u2019t you see them?\u201d By this time Clarence Hilliard was in the storeroom asking Larry Lovett what happened. Larry replied, \u201cIt just happened. Didn\u2019t you see them two black dudes?\u2019-\u2019\nSoon thereafter, officers from the Sheriff\u2019s department arrived. Norma Ehrhart appeared to be dead and -Larry Lovett was still struggling. Ambulances took them to the hospital where both were pronounced dead on arrival. It was determined that $124.89 had been taken from the floor safe. Janice Whitten and Clarence Hilliard told the officers what they had seen in the store but did not mention the two black males they had seen leaving in the yellow Maverick. Later the same day when they heard of the death of Larry Lovett, they went to the Law Enforcement Center and reported that they had seen two black men leaving the scene. Four days later, they returned to the Center and each identified the defendant separately from photographs.\nThe next day, 12 August 1975, a lineup was held in which the defendant was one of six persons shown to Janice Whitten and Clarence Hilliard. They observed the lineup separately, but Janice Whitten was unable to identify the defendant; in fact, she identified another individual. Clarence Hilliard, however, did select the defendant.\nSometime before 7 August 1975, Martha Ann Mack and her boyfriend, Rodney Harris, had gone with the defendant and Bobby Bowden in defendant\u2019s yellow Maverick to a bank in Fay-etteville for business purposes. After Martha Ann Mack and, Rodney Harris had gotten out of the vehicle, Martha noticed that Harris had her pistol in his pocket. She suggested that he not carry it into the bank so he returned with the gun to the car. The day before 7 August 1975, Martha Ann Mack went to the hospital to see her boyfriend, Rodney Harris. When she inquired about her pistol, he told her he had left it in defendant\u2019s yellow Maverick.\nOn the evening of 7 August 1975, the defendant and Bobby Bowden went to Martha Ann Mack\u2019s trailer to return the gun. It was later determined that bullets from this gun killed Larry Lovett and Norma Ehrhart. While at the trailer, the defendant told Martha Ann Mack in the presence of Bobby Bowden that they were responsible for the Seven-Eleven robbery and murders. She questioned his statement so defendant suggested that she listen to the 11 p.m. news which appeared on television shortly thereafter, and this was done.\nThe defendant and Bobby Bowden were arrested at defendant\u2019s trailer in the early morning hours of 12 August 1975. As a result of information provided by Alice Cousin, the defendant\u2019s wife, officers were able to secure the pistol from Martha Ann Mack\u2019s trailer the same morning.\nIn December of 1975, Janice Whitten reported to the police the license plate number of the yellow Maverick seen at the Seven-Eleven Store. She testified that she remembered the numbers of the plate because she got in the habit, when she lived in Ohio, of memorizing plate numbers to use in playing the \u201cnumbers\u201d game. The letters on the plate, HJW, she recalled because they included her initials and Clarence Hilliard\u2019s last initial. The license number described by Janice Whitten matched the license number of a Maverick automobile in defendant\u2019s yard on the night of his arrest.\nDefendant\u2019s evidence tended to show:\nCity-County identification records and photographs of the men who appeared in the 12 August 1975 lineup with defendant revealed that their complexions ranged from medium to dark. However, defendant\u2019s own complexion in the photograph on file appeared to be medium rather than light, and defendant\u2019s witness admitted that the photographs of individuals varied depending on the development process.\nWhen recalled to the stand, Clarence Hilliard testified that he remembered the license plate on the Maverick being dirty. He recollected Janice Whitten\u2019s mentioning the letters of the license plate shortly after the robbery but had no further conversations with her about the license number. Hilliard confirmed that Janice Whitten got her ideas for betting from numbers she observed on license plates.\nThe defendant did not testify in his own behalf.\nThe co-defendant, Bobby Bowden, was tried and convicted of the same offenses at the 15 December 1975 Criminal Session, Cumberland County Superior Court. On appeal of that case to our Court, we found No Error. State v. Bowden, 290 N.C. 702, 228 S.E. 2d 414 (1976).\nOther facts necessary to the decision will be discussed in the opinion.\nAttorney General Rufus L. Edmisten by Associate Attorney Elizabeth C. Bunting for the State.\nE. Lynn Johnson for defendant appellant." }, "file_name": "0413-01", "first_page_order": 437, "last_page_order": 447 }