{ "id": 8558778, "name": "STATE OF NORTH CAROLINA v. WAYNE FODDRELL", "name_abbreviation": "State v. Foddrell", "decision_date": "1977-01-31", "docket_number": "No. 129", "first_page": "546", "last_page": "562", "citations": [ { "type": "official", "cite": "291 N.C. 546" } ], "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": "194 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": -1 }, { "cite": "282 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566644 ], "year": 1973, "opinion_index": -1, "case_paths": [ "/nc/282/0431-01" ] }, { "cite": "202 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564781 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0670-01" ] }, { "cite": "212 S.E. 2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569011 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0497-01" ] }, { "cite": "200 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561910 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0366-01" ] }, { "cite": "212 S.E. 2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568917 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0472-01" ] }, { "cite": "187 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572889 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0551-01" ] }, { "cite": "200 S.E. 2d 21", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560620 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0148-01" ] }, { "cite": "98 L.Ed. 503", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1954, "opinion_index": 0 }, { "cite": "347 U.S. 62", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299308 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/us/347/0062-01" ] }, { "cite": "401 U.S. 222", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11712077 ], "weight": 3, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/401/0222-01" ] }, { "cite": "10 A.L.R. 3d 975", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1966, "opinion_index": 0 }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "204 S.E. 2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "853" } ], "opinion_index": 0 }, { "cite": "285 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563999 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0286-01" ] }, { "cite": "196 S.E. 2d 725", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559349 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0541-01" ] }, { "cite": "213 S.E. 2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570153 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0698-01" ] }, { "cite": "185 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "280 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571913 ], "year": 1972, "pin_cites": [ { "page": "339-340" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0322-01" ] }, { "cite": "422 U.S. 171", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9429 ], "weight": 7, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0171-01" ] }, { "cite": "391 U.S.. 510", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767501 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0510-01" ] }, { "cite": "220 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "288" } ], "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "168 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "275 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558852 ], "year": 1969, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0411-01" ] }, { "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": "173 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562463 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0535-01" ] }, { "cite": "187 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "778" } ], "opinion_index": 0 }, { "cite": "281 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573638 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0020-01" ] }, { "cite": "224 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "558-59" } ], "opinion_index": 0 }, { "cite": "289 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572613 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0644-01" ] }, { "cite": "227 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "118-20" } ], "opinion_index": 0 }, { "cite": "290 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561887 ], "year": 1976, "pin_cites": [ { "page": "546-549" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0511-01" ] } ], "analysis": { "cardinality": 1399, "char_count": 39314, "ocr_confidence": 0.672, "pagerank": { "raw": 2.514629626026525e-07, "percentile": 0.8108945733901861 }, "sha256": "d0f10694e5a6e47a1284bfed5428a672097bea446051095c1bbc5d17e2cabc87", "simhash": "1:13555036756cc8ae", "word_count": 6784 }, "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. WAYNE FODDRELL" ], "opinions": [ { "text": "SHARP, Chief Justice.\nSeven of defendant\u2019s 23 assignments of error relate to the legality and constitutionality of the death sentence. For the reasons stated in State v. Davis, 290 N.C. 511, 546-549, 227 S.E. 2d 97, 118-20 (1976), the sentence of death imposed upon defendant must be vacated and one of life imprisonment substituted therefor. In our further consideration of this appeal, therefore, we do not deal with a capital case. We note, however, that the record shows this case to have been tried throughout in strict compliance with our established practice in cases involving the death penalty.\nWhen this case was called for trial defense counsel orally moved for a change of venue. In support of the motion counsel offered only his uncorroborated \u201csubmission\u201d that twelve unbiased jurors could not be found in Caswell County; that there had \u201cbeen widespread animosity about this\u201d; that at the time of the preliminary hearing on 27 July 1973 \u201cthe feeling was high\u201d; that the matter got \u201cwidespread notoriety in the newspaper\u201d circulated in the locale; and that defendant\u2019s escape was also \u201cgiven wide circulation.\u201d When counsel had completed his remarks the court inquired if he had \u201canything further\u201d to offer in support of his motion for a change of venue. He said he did not, and the court then heard from the solicitor for the State.\nAfter considering the arguments of both defense counsel and the solicitor for the State, Judge Lupton, in the exercise of his discretion, denied the motion to remove. In the order he recited (1) his opinion \u201cthat the defendant can receive a fair and impartial trial in Caswell County\u201d; and (2) his intention to allow defense counsel to interrogate each prospective juror to the extent he deemed appropriate with reference to possible bias and to challenge any who appeared unable to render a fair and impartial verdict.\nDefendant then \u201craised objection to the venire\u201d on the ground that, in his opinion, \u201cthe court could find\u201d that a greater preponderance of the jurors were white and \u201cthat\u201d would deprive defendant of \u201ca trial by a cross section of his peers in the county.\u201d In answer to the court\u2019s inquiry whether the venire had been drawn in the manner required by law, defense counsel conceded that it had been so drawn. Whereupon the court overruled defendant\u2019s objection to the venire and inquired if defendant was ready for trial. His attorney answered, \u201cYes, Sir.\u201d\nAssignments 11 and 12 challenge respectively the court\u2019s denial of the motion for a change of venue and the \u201cmotion challenging array.\u201d These assignments are overruled. It is elementary that motions for change of venue are addressed to the sound discretion of the trial judge and, absent abuse of discretion, his ruling will not be disturbed on appeal. State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976). Certainly, no abuse of discretion appears here. It is equally obvious that the remarks of defense counsel with reference to the composition of the jury panel fell far short of establishing a prima facie case of racial discrimination in the selection of the venire.\nThe record does not disclose the relative number of blacks and whites drawn and summoned as members of the venire. Nor does it show the population ratio of the races in the county or the ratio in which they had previously served on juries. Moreover, \u201c[a]n accused has no right to be indicted or tried by a jury of his own race or even to have a representative of his race on the jury. He does have the constitutional right to be tried by a jury from which members of his own race have not been systematically and arbitrarily excluded.\u201d To establish a prima facie case of systematic racial exclusion, \u201cdefendants are generally required to produce not only statistical evidence establishing that blacks were underrepresented on the jury but also evidence that the selection procedure itself was not racially neutral, or that for a substantial period in the past relatively few Negroes have served on the juries of the county notwithstanding a substantial Negro population therein, or both. (Lengthy citations omitted.)\u201d State v. Brower, supra at 653-54, 224 S.E. 2d at 558-59; State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768 (1972); State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970).\nDefendant having admitted that the jury panel in this case had been drawn as required by the law, and having offered no statistical evidence tending to show systematic exclusion of blacks from jury service, the trial judge was under no obligation ex mero motu to conduct an inquiry into these matters. As this Court specifically noted in State v. Cornell, supra at 37, 187 S.E. 2d at 778, \u201cThe North Carolina statutory plan for the selection and drawing of jurors is constitutional and provides a jury system completely free of discrimination to any cognizable group.\u201d\nAssignments 6, 7, 8, and 9 relate to the solicitor\u2019s voir dire examination of prospective jurors with reference to their attitude toward capital punishment.\nThis case was tried prior to the decision in Woodson v. North Carolina, __ U.S. _, 49 L.Ed. 2d 944, 96 S.Ct. 2978 (1976). It was, therefore, conducted on the assumption that if the jury found defendant guilty of rape the mandatory death sentence followed as of course. The trial would have been a futile and farcical gesture had the State been required to accept as a member of the traverse jury even one person who was so opposed to capital punishment that he would have refused to return a verdict of guilty even though satisfied beyond a reasonable doubt that defendant was guilty as charged. Such a person would be no more eligible to serve than one who had previously formed and expressed the opinion that the defendant was guilty of the crime for which he was being tried. It was not error for the solicitor to ask a prospective juror whether he \u201cbelieved in capital punishment.\u201d State v. Rogers, 275 N.C. 411, 419, 168 S.E. 2d 345, 349 (1969). Indeed, it was the solicitor\u2019s duty to ascertain whether the prospective jurors would find the facts from the evidence adduced in court and apply to these facts the law as given to them by the court.\nIn this case, however, no juror was excused for cause merely because he did not \u201cbelieve in capital punishment.\u201d The six whom the State successfully challenged because of their attitude toward the death penalty made it quite clear that under no circumstances would they return a verdict of guilty of any crime for which the punishment was death. Applicable here is the statement by Justice Huskins in State v. Britt, 288 N.C. 699, 706, 220 S.E. 2d 283, 288 (1975): \u201cWith respect to jury selection in capital cases, we have interpreted Witherspoon v. Illinois, 391 U.S.. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770 (1968), to mean that veniremen may not be challenged for cause simply because they voice general objections to the death penalty or express conscientious or religious scruples against its infliction; but veniremen who are unwilling to consider all of the penalties' provided by law and who are irrevocably committed, before the trial has begun, to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the trial may be challenged for cause on that ground. (Citations omitted.) In the light of these principles, we hold that the prospective jurors here in question were properly excused for cause.\u201d\nWe note that when the jury was finally passed each juror seated had been accepted by defendant without exhausting his peremptory challenges. Assignments Nos. 6, 7, 8, and 9 are overruled.\nDefendant\u2019s Assignment No. 16, based on his Exception No. 32, has reference to the solicitor\u2019s cross-examination of defendant concerning his failure to deny that he was Mrs. Reynolds\u2019 assailant either at the scene of the crime when she identified him as the rapist or a short time thereafter at the sheriff\u2019s office when the warrant was served upon him. This cross-examination must be viewed in the light of the evidence which preceded it. When evaluated in context it cannot be held prejudicial error.\nWhen the State rested its case the evidence tended to show that defendant had raped Mrs. Reynolds on the west side of the church behind some tall shrubbery; that three deputy sheriffs, who had come to the churchyard in response to a telephone call from an unidentified person, saw; defendant back out of the shrubbery on his knees, his dungarees down and his red underpants showing; that he fled the scene holding up his pants, his belt flopping; and that the officers, who never lost sight of defendant, captured him in the east driveway just before he got to the highway. On cross-examination defendant explained his dishabille and his presence in the eastern drive (the longer route to the mill) by saying it was the more secluded route and he had the necessity of relieving himself; that after he had stopped \u201cabout 15 or 20 feet up in the driveway\u201d he was interrupted in his purpose by the sound of two pistol shots. Not knowing from whence they came and fearing for his safety, he started running toward the light in front of the church. When he turned in response to someone\u2019s order to halt, an officer snapped handcuffs on him. Defendant testified, \u201cI was brought back around to where Mrs. Reynolds was, that is when I seen her. That is the first time that I had seen the lady. She pointed me out and accused me of raping her.\u201d The cross-examination set out below, which defendant assigns as error, followed the foregoing statement by defendant:\n\u201cQ. You did not say anything, did you?\nA. Did I say anything?\nQ. You didn\u2019t say anything did you in response to that?\nA. No, I didn\u2019t say nothing.\nQ. Then later they served a warrant on you and gave you a copy of the warrant, didn\u2019t they, charging you with rape?\nA. Right.\nQ. And you didn\u2019t make any statement then did you?\nA. No.\nQ. And the reason why you didn\u2019t make any statement you knew that you had in the past raped Mrs. Reynolds?\nAttorney Moore: Objection.\nCourt: Sustained.\n(Exception No. 32).\u201d\nCiting United States v. Hale, 422 U.S. 171, 45 L.Ed. 2d 99, 95 S.Ct. 2133 (1975), defendant contends that it was prejudicial error for the court \u201cto permit the solicitor to cross-examine defendant concerning silence during police interrogation.\u201d To this contention there are several answers, each sufficient to overrule Assignment No. 16. One is that defendant neither objected to the questions at the time they were asked nor moved to strike the answers which were made. The final question, to which objection was made and sustained, was not answered. The rule is as quoted in State v. Jones, 280 N.C. 322, 339-340, 185 S.E. 2d 858, 869 (1972): \u201cIt is elementary that, \u2018nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered.\u2019 . . . An assertion in this Court by the appellant that evidence, to the introduction of which he interposed no objection, was obtained in violation of his rights under the Constitution of the United States, or under the Constitution of this State, does not prevent 'the operation of this rule.\u201d See State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255 (1975); State v. Gurley, 283 \u00d1.C. 541, 196 S.E. 2d 725 (1973); 4 Strong\u2019s North Carolina Index 3d Criminal Law \u00a7 162 (1976).\nThe second answer to defendant\u2019s contention is that in this case there was no police interrogation of defendant at any time. The situation in which Mrs. Reynolds identified defendant as her attacker was not set up after the event by the police in an effort to entrap defendant into making admissions or statements which could be used against him. When the officers captured defendant running away from the scene of the crime only moments after its commission, it was natural and inevitable that they should walk him back to the spot on the other side of the church where they had left the victim for a confrontation.\nThe moment Mrs. Reynolds saw defendant, and \u2014 so far as the record discloses \u2014 without any questions having been asked, she said, \u201cYes, that\u2019s him.\u201d Defendant\u2019s silence in the face of Mrs. Reynolds\u2019 accusation and identification at the scene of the crime was entirely inconsistent with the story he told on the witness stand. When Mrs. Reynolds identified him he had not been given the Miranda, warning; there had been no time for that. He was lawfully in custody, but he had not been charged with any crime. The evidence was competent to impeach his testimony at the trial and it was offered for no other purpose. Compare State v. Castor, 285 N.C. 286, 204 S.E. 2d 848 (1974) where the defendant did not testify and, over his objection, the State offered evidence that after his arrest he had failed to deny incriminating statements made by a codefendant whom the officers interrogated in his presence.\nThe case of United States v. Hale, 422 U.S. 171, 45 L.Ed. 2d 99, 95 S.Ct. 2133 (1975), cited by defendant in support of his position, is distinguishable from this case on its facts. In Hale, following his arrest for robbery, the defendant was taken to the police station, given the Miranda warning, and then questioned about the source of the money found on his person. The defendant made no response to the questions. Hale testified at his trial. Over his objection, on cross-examination, the prosecutor caused him to admit he had not given the police the exculpatory information to which he had just testified.\nIn holding that the defendant\u2019s motion for a mistrial should have been granted, the Supreme Court said that the Government had failed \u201cto establish a threshold inconsistency between silence at the police station and later exculpatory testimony at trial,\u201d and the defendant\u2019s silence, while lacking significant probative value, held \u201csignificant potential for prejudice.\u201d Having just received the Miranda warning the defendant \u201cwas particularly aware of his right to remain silent.\u201d Thus his failure to offer an explanation during the custodial interrogation could \u201cas easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication.\u201d The Supreme Court based its decision on the ground that the probative value of the defendant\u2019s silence was outweighed by its prejudicial impact and so the Court did not reach the question whether the prosecutor\u2019s cross-examination infringed the defendant\u2019s constitutional right to remain silent under Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602, 10 A.L.R. 3d 975 (1966).\nWe hold that the evidence of defendant\u2019s silence in the presence of Mrs. Reynolds\u2019 accusations at the scene of the crime was properly admitted in evidence for the purpose of impeaching defendant. Had defendant exercised his right not to testify, evidence of his silence at the time of the confrontation and accusation would not have been competent for it would then have been offered as affirmative or substantive evidence tending to establish guilt of the crime charged. See Harris v. New York, 401 U.S. 222, 28 L.Ed. 2d 1, 91 S.Ct. 643 (1971); Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354 (1954); State v. Huntley, 284 N.C. 148, 200 S.E. 2d 21 (1973); State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111 (1972). However since defendant did take the stand the evidence was admissible to impeach his testimony.\nDefendant\u2019s admission on cross-examination that he made no statement at the time the warrant was served on him at the sheriff\u2019s office, however, would have been incompetent whether he took the stand or not, had the defendant made timely objection to the question which elicited it. See State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975). At the time the warrant was served upon him, Deputy Sheriff Carter had fully advised defendant of his constitutional rights as defined in Miranda, and when the officers asked him if he would sign a waiver of rights \u201che chose not to sign it.\u201d Under these circumstances- the rationale of United States v. Hale, supra, was applicable. However, defendant did not object to this evidence.\nEven had defendant objected, this evidence of his silence could not be held to have prejudiced his case in view of his silence at the time he confronted Mrs. Reynolds and all the other circumstances attending his arrest. Lack of prejudice is the final answer to defendant\u2019s contention that evidence of his silence at the sheriff\u2019s office entitles him to a new trial. When evidence is erroneously admitted, the test of prejudice is \u201cwhether, in the setting of this case, we can declare a belief that the erroneously admitted evidence was harmless beyond a reasonable doubt, that is, that there is no reasonable possibility the admission thereof might have contributed to the conviction.\u201d State v. Castor, 285 N.C. 286, 292, 204 S.E. 2d 848, 853 (1974).\nIn the evidentiary setting of this case we can and do declare the belief that there is no reasonable possibility that defendant\u2019s admissions of silence contributed to his conviction. Defendant was not a stranger to Mrs. Reynolds. He worked where she did, and almost every night he put the yarn on the machine she operated. Her identification of defendant was positive. Here there is no reasonable possibility of a mistaken identification. The officers saw a man wearing blue dungaree trousers and red underpants backing out of the shrubbery to which Mrs. Reynolds\u2019 screams had led them. The officers saw this man, who was not wearing a shirt, run away. He was holding up his unbuttoned pants; his unfastened belt was flopping. They gave chase and, without ever losing sight of him, the officers caught him moments later at the edge of the churchyard. The man they caught was the defendant. They immediately returned him to the scene, where Mrs. Reynolds had remained with another officer. As soon as she saw defendant she said, \u201cYes, it\u2019s him.\u201d Later that night, defendant asked the officers who took him to jail in Roxboro to retrieve his shirt for him. He said he had left it, along with an empty beer can and an empty pack of cigarettes, behind the oak tree by the path on the west side of the church. This debris is inconsistent with his story that he ran from his home to the church, holding only his shirt and arriving only moments before his arrest. The officers found the shirt and the other two articles where defendant had said they were. Had the officers \u201ccaught defendant in the act\u201d the evidence could hardly have been more conclusive of his guilt. Evidence of his silence at the scene or at the sheriff\u2019s office added nothing to the State\u2019s case, and it indicated nothing but defendant\u2019s recognition at the time of the futility of a denial. Assignment No. 16 is overruled.\nDefendant\u2019s Assignment No. 19 concerns the failure of the court ex mero motu \u201cto conduct a voir dire before permitting Deputy Carter to testify to the statements defendant made to him about his shirt.\u201d\nOn direct examination defendant testified, \u201cI had told one of the officers where my shirt was, I don\u2019t know which one it was, but when they grabbed me I told one of them to let me get my shirt. ... I told them to go behind the church and get my shirt.\u201d After this testimony Deputy Carter was recalled and testified as follows:\n\u201cThe defendant asked me to get his shirt. At the time that he asked me to pick up his shirt for him, we were on our way to Roxboro to carry him to jail to maximum security. We were not trying to question him.\u201d\nWhen the solicitor asked Carter how defendant\u2019s request \u201ccame about,\u201d over defendant\u2019s objection, he gave the following answer: \u201cWe were riding along and Wayne said, T left my shirt at the oak tree,\u2019 and he said, \u2018there is also an empty pack of cigarettes there and also an empty beer can that I left there.\u2019 . . . and there is where we found it. . . .\u201d\nCarter\u2019s testimony was interrupted by a further objection from defendant. The court overruled this objection and instructed the jury that the statements which Carter said defendant made to him were received into evidence for the sole purpose of impeaching his testimony, if it did impeach him, and were to be considered for no other purpose.\nAssignment No. 19 is overruled for lack of merit. All the evidence tends to show that it was defendant himself who broached the subject of the shirt by requesting the officers to retrieve it for him. He makes no contention that his statements were involuntary or the result of police interrogation. Indeed, he testified without equivocation that on the way to Roxboro, \u201cThese officers didn\u2019t undertake to question me any.\u201d Under these circumstances a voir dire could have produced no further evidence. Most important, however, the defendant\u2019s statements did not amount to a confession. Thus, the trial judge was not required to conduct a voir dire before ruling on the admissibility of the evidence, which was clearly competent for the purpose of impeachment. State v. Shaw, 284 N.C. 366, 200 S.E. 2d 585 (1973).\nAssignment No. 22, the court\u2019s failure to submit to the jury the issues of defendant\u2019s guilt of assault with intent to commit rape and assault on a female, is also devoid of any merit. Why this assignment was made or brought forward, we do not understand. In his brief defendant concedes that \u201csubmission of such issues to the jury in this case would have been error in favor of the defendant.\u201d Mrs. Reynolds testified positively that after defendant had choked her and threatened to kill her, he penetrated her forcibly and against her will. Defendant denied that he was the man who assaulted Mrs. Reynolds. His alibi was that he was on the east side of the church at the time Mrs. Reynolds was assaulted on the west side.\nThe trial court is required to charge the jury upon the issue of a defendant\u2019s guilt of lesser degrees of the crime charged in the indictment only when there is some evidence to sustain a verdict of defendant\u2019s guilt of such lesser degrees. There was no such evidence here. State v. Lampkins, 286 N.C. 497, 212 S.E. 2d 106 (1975); State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974); State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111 (1972).\nAfter carefully considering each of defendant\u2019s remaining assignments of error we find them to be wholly without merit. The record reveals no error in defendant\u2019s conviction of the crime with which he was charged. As noted in the beginning, however, the sentence of death cannot be upheld. Accordingly, it is hereby vacated, and this case is remanded to the Superior Court of Caswell County with the following directions: (1) The presiding judge, without requiring the presence of defendant, shall enter a judgment imposing life imprisonment for the rape of which he has been convicted; and (2) in accordance with these judgments the clerk of the superior court shall issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to defendant and his attorney a copy of the judgment and commitment as revised in accordance with this opinion.\nNo error in the verdict.\nDeath sentence vacated; life sentence substituted.", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Attorney General Edmisten; Deputy Attorney General Be-noy; and Associate Attorney Allen for the State.", "Melzer A. Morgan, Jr., for defendant appellmit." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WAYNE FODDRELL\nNo. 129\n(Filed 31 January 1977)\n1. Criminal Law \u00a7 15\u2014 motion for change of venue \u2014 uncorroborated assertions by defense counsel\nThe trial court did not err in the denial of defendant\u2019s motion for change of venue in this rape case where defense counsel offered in support of the motion only his uncorroborated \u201csubmission\u201d that twelve unbiased jurors could not be found in the county; that there had \u201cbeen widespread animosity about this\u201d; that at the time of the preliminary hearing \u201cthe feeling was high\u201d; that the matter got widespread publicity in the newspaper circulated in the locale; and that an escape by defendant was given wide circulation.\n2. Constitutional Law \u00a7 29; Jury \u00a7 7\u2014 challenge to venire \u2014 exclusion of blacks \u2014 assertions by defense counsel\nThe trial court properly denied defendant\u2019s challenge to the jury venire based on defense counsel\u2019s assertion that \u201cthe court could find\u201d that a greater preponderance of jurors were white and \u201cthat\u201d would deprive defendant of a trial by a cross section of his peers in the county where defense counsel offered no statistical evidence tending to show systematic exclusion of blacks from jury service, and defense counsel admitted that the jury panel in this case had been drawn as required by law.\n3. Jury \u00a7 6\u2014 examination of prospective juror \u2014 belief in capital punishment\nIn a rape prosecution conducted before the decision invalidating the death penalty, it was not error for the district attorney to ask a prospective juror whether he \u201cbelieved in capital punishment.\u201d\n4. Constitutional Law \u00a729; Jury \u00a7 7\u2014 exclusion of jurors for capital punishment views\nIn a rape prosecution conducted before the decision invalidating the death penalty, the trial court properly excused for cause six prospective jurors who made it clear that under no circumstances would they return a verdict of guilty of a crime for which the punishment was death.\n5. Criminal Law \u00a7 162\u2014 failure to object to evidence \u2014 effect of alleged constitutional violation\nAn assertion that evidence was obtained in violation of defendant\u2019s constitutional rights does not prevent the operation of the rule that, nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered.\n6. Criminal Law \u00a7 48\u2014 admission by silence \u2014 competency for impeachment\nIn this prosecution for rape, cross-examination of defendant concerning his failure to deny that he was the victim\u2019s assailant when she identified him as the rapist at the scene of the crime immediately after the crime occurred and before he had been given the Miranda warnings was competent for the purpose of impeaching defendant\u2019s testimony at the trial.\n7. Criminal Law \u00a7 48 \u2014 admission by silence \u2014 incompetency if objected to \u2014 harmless error\nIn this prosecution for rape, defendant\u2019s admission on cross-examination that he made no statement at the time the warrant for rape was served on him at the sheriff\u2019s office, defendant having been given the Miranda warnings and having refused to sign a waiver of his rights prior to service of the warrant, would have been incompetent had defendant made timely objection to the question that elicited it; however, even had defendant objected, evidence of his silence was harmless beyond a reasonable doubt where the victim recognized defendant and there was no reasonable possibility of a mistaken identification of defendant by the victim, officers captured defendant running away from the scene of the crime only moments after its commission, and officers later found defendant\u2019s shirt and other items where he said he had left them near the crime scene.\n8. Criminal Law \u00a7 76\u2014 admission of defendant\u2019s statements to officer \u2014 absence of voir dire\nThe trial court in a rape case did not err in failing to conduct a voir dire before admitting for impeachment purposes defendant\u2019s statements to an officer that he had left his shirt and two other items at a tree at the crime scene since (1) all the evidence showed that defendant broached the subject of the shirt by requesting officers to retrieve it for him, defendant made no contention that his statements were involuntary or the result of police interrogation, and a voir dire could have produced no further evidence, and (2) defendant\u2019s statements did not amount to a confession.\n9. Rape \u00a7 6\u2014 failure to submit lesser offenses\nThe trial court in a rape case did not err in failing to submit to the jury the issues of defendant\u2019s guilt of assault with intent to commit rape and assault on a female where the victim testified positively that after defendant had choked her and threatened to kill her, he penetrated her forcibly and against her will, and defendant denied that he was the man who assaulted the victim.\nAppeal by defendant under G.S. 7A-27 (a) from Lwpton, J., at the 3 June 1974 Criminal Session, Superior Court of Caswell, docketed and argued as Case No. 23 at the Fall Term 1975.\nOn 20 July 1973, defendant was arrested upon a warrant which charged that he had raped Violet Gay Matherly Reynolds (Mrs. Reynolds) on that date. Because of his indigency, on 23 July 1973, counsel was appointed to represent him. Defendant was given a preliminary hearing on 27 July 1973 in the district court, which found probable cause and bound him over to the superior court. Soon thereafter defendant escaped from the Caswell County jail and fled to Washington, D. C. His attorney did not see him again until the first of June 1974.\nAt the 22 October 1973 Session the grand jury returned a true bill of indictment in which he was charged with the common law crime of rape. At his arraignment on 3 June 1974 defendant entered a plea of not guilty. Upon his trial, on 7 June 1974, the jury returned a verdict of \u201cguilty of rape as charged in the bill of indictment.\u201d From the mandatory sentence of death imposed under G.S. 14-21 (1966) as interpreted in State v. Waddell, 282 N.C. 431, 194 S.E. 2d 19 (1973), defendant appealed to the Supreme Court. His appeal was not perfected by his trial counsel, whose appointment had been continued for that purpose. By order of this Court dated 2 June 1975, trial counsel was removed. On 4 June 1975 defendant\u2019s present counsel, Melzer A. Morgan, Jr., Esquire, was appointed to bring up the appeal.\nAt the trial evidence for the State tended to show:\nOn 20 July 1973 Mrs. Reynolds, age 56, had been employed at the Hanover Mills in Yanceyville for eight weeks. She had previously lived in Virginia. On that day she was scheduled to work the third shift beginning that night at 11:30 p.m. Her residence was in sight of the mill and a five minutes\u2019 walk away. She walked to work that night, following her customary path to the mill. The path took her through the yard of the First Baptist Church, which is separated from the mill property by a driveway. The churchyard was well lighted by street lights, a flood light in the churchyard, lights in front of the mill and on its roof.\nAs Mrs. Reynolds passed an oak tree beside the path on the west side of the church a man ran up behind her, slapped his hand over her mouth, jerked her arm behind her back, and threw her to the ground. As she fell his hand slipped from her month, and she screamed for help. The man then jerked her up by the arm, slapped his hand over her mouth again, and pushed her back to the oak tree. There he exclaimed, \u201cg . . d. . . , you are not the one that I was after.\u201d He said that he \u201cwas after Diana Fuquay\u201d and asked Mrs. Reynolds if she recognized him. She replied NO. However, she did recognize him as defendant Foddrell, for he was also an employee of the mill \u2014 the man who, practically every night, put up the yarn on the machine she operated. When he got her to the oak tree \u201ca car was coming around\u201d the gravel driveway around the church. He pushed her behind the tree until it passed. Then, with her arm behind her back and his hand over her mouth, he dragged her behind some four-foot high shrubbery next to the church. During this time Mrs. Reynolds lost her glasses.\nMrs. Reynolds testified that behind the shrubbery he pushed her down, put one hand on her throat and his knee on her chest. With his other hand he jerked her slacks down to her ankles and said to her, \u201cIf you try to yell another time I will cut your g. . d. . . throat ... I am going to kill you anyhow.\u201d However, at no time did Mrs. Reynolds see a weapon of any kind. With her pants down to her ankles, she \u201cmight as well have been tied.\u201d He then pried her knees apart and told her if she did not cease her resistance he would kill her \u201cright here and now.\u201d Mrs. Reynolds continued to resist to the limit of her ability but defendant forcibly penetrated her. During all this time she was on the ground, flat on her back, and defendant had nothing on but his shoes, underpants, and pants, which he had unfastened and dropped. While he was still assaulting her a car entered the gravel driveway around the church. When defendant saw the car lights he jumped up and ran back of the church, between the church and the mill.\nIn the automobile were Deputy Sheriffs Carter, Fulcher, and Webster who had come from the sheriff\u2019s office five blocks away in response to a telephone call. Hearing Mrs. Reynolds\u2019 screams the officers stopped across from the shrubbery. As they jumped from the car they saw defendant Foddrell back out of the shrubbery on his knees, jump to his feet and run. Ful-cher observed that this man \u201cwas wearing blue dungaree pants and a pair of red underpants.\u201d The officers then saw Mrs. Reynolds come up on her side from a prone position and heard her say, \u201cLord, have mercy; somebody please help me.\u201d\nDeputy Webster knew defendant. As he and Carter \u201ctook out after him,\u201d Carter pulled his gun and fired twice in the air. They pursued defendant while Fulcher remained with Mrs. Reynolds. She was \u201creally crying\u201d and upset. She told Fulcher that she had been raped and she was concerned because her glasses had been knocked off somewhere on. the path to the mill. One of the officers later found them in the path.\nOfficers Carter and Webster, without ever losing sight of defendant, overtook him in the driveway on the east side of the church. He had been running, holding up his pants with his left hand. They were still unbuttoned and his belt \u201cflopped open\u201d when they caught him. He was wearing red shorts and was not wearing a shirt. After capturing defendant, the deputies took him to the police car. Mrs. Reynolds and Fulcher were there and \u201c[s]he said yes, that was him.\u201d\nOn the night of 20 July 1973 Deputy Sheriff Willis was patrolling the area around Hanover Mills and \u201cgiving particular attention to the shift change\u201d between 11:15 and 11:30 p.m. He was about 300 feet from the First Baptist Church when he heard two screams coming from that area. When he saw a deputy\u2019s car coming around the church he pulled into the circular drive which ran between the church and the mill. He found Mrs. Reynolds standing by Deputy Carter\u2019s car. She was \u201cshaking and crying\u201d and trying to get the dirt and grass off her clothing. He observed that her lip was bleeding, one of her eyes was bruised, and there were red marks around her neck. She told him a man had attacked her and raped her and, when Webster and Carter appeared with defendant, she stated in his presence that he was the man. Willis then took Mrs. Reynolds to the sheriff\u2019s office and from there to the emergency room at the hospital.\nMrs. Reynolds testified that as a result of defendant\u2019s assault upon her she had a black eye; her teeth were knocked through her lips; his fingers made black bruises all over her arm and on her throat; that she had not been with a man in six years and she had blood on her underclothes. In the absence of the jury, Mrs. Reynolds informed the court that two weeks after she was raped she discovered that she had gonorrhea.\nAfter defendant\u2019s arrest in the churchyard he was taken to the sheriff\u2019s office where a warrant charging him with having raped Mrs. Reynolds was served upon him. He was then fully advised of his rights and asked to sign a waiver. He chose not to sign it, and there was no interrogation. Later in the night defendant was taken to the Roxboro jail in Person County \u201cto maximum security.\u201d Deputy Sheriff Carter testified that the officers did not question him on the way. However, en route, defendant asked him to pick up his shirt for him. He said, \u201cI left my shirt at the oak tree. There is also an empty pack of cigarettes there and also an empty beer can that I left there.\u201d Upon their return to Yanceyville the officers went immediately to the oak tree by the church. There they found an empty fresh beer can, an empty pack of cigarettes and a shirt (State\u2019s Exhibit 4) where defendant said they were.\nMrs. Reynolds\u2019 supervisor at the Hanover Mills and four residents of Pittsylvania County, Virginia, where she had lived before coming to work in Yanceyville, testified that Mrs. Reynolds\u2019 general character and reputation were good.\nDefendant\u2019s testimony tended to show: On 20 July 1973 he was employed at Hanover Mills, working the third shift which began at 11:30 p.m. He had seen Mrs. Reynolds at the mill\u2014 never at any other place \u2014 , and he had never spoken to her. On 20 July 1973 he was living at a trailer park approximately one-fourth mile from the First Baptist Church, and his usual route to work was the path across the churchyard. Before leaving for work that evening he had been playing and running around the trailer with four friends who also lived at the park. The four friends, William Bigelow, Willie Davis, \u2022 Gladys Lip-comb, and Helen Neal, testified in corroboration of this statement. Helen Neal said that at 11:25 p.m. Gladys Lipcomb told defendant he had better go to work or he would be late. Defendant testified he left running about 11:20 p.m. after someone had warned him about 11:15 that he would be late. He was carrying his shirt, intending to put it on before he entered the mill.\nUpon reaching the church defendant said he took the route around the east side, farthest from the mill, in order to relieve himself. While there he heard a gunshot which was followed by a woman\u2019s scream and another shot. Defendant immediately dropped his shirt and started running. First he ran behind the church, then toward the light in front of the church. When he heard somebody say, \u201cHalt\u201d he stopped and the officers handcuffed him.\nDefendant testified that the officers never asked him if he \u201chad had anything to do with this lady\u201d either that night or at any time later, and that those who took him to the jail in Roxboro on the night of 20 July 1973 did not question him at all during the ride from Yanceyville to Roxboro. In his testimony defendant denied raping Mrs. Reynolds. He also denied ever being on the west side of the church where the shrubbery and oak tree were located.\nOn cross-examination defendant admitted that in Rocking-ham County he had once been convicted of trespass and twice of disorderly conduct; that in Martinsville, Virginia, he had been convicted of breaking and entering; that he had escaped from the Virginia prison while serving the sentence imposed for the breaking and entering and had come to Yanceyville. Defendant also admitted escaping from the Caswell County jail while being held on this rape charge. He said he escaped and fled to Washington, D. C., because he \u201cdid not get bond\u201d and he felt that \u201cif it was a white man that did this or was accused of this that he would have got bond.\u201d While in Washington he learned from his girl friend that the FBI was looking for him with \u201cpapers for unlawful flight to avoid prosecution,\u201d so he \u201cturned himself in.\u201d (The record suggests that defendant was returned to North Carolina sometime about the last of May 1974, but the exact date is not shown.)\nOther facts pertinent to decision will be referred to in the opinion.\nAttorney General Edmisten; Deputy Attorney General Be-noy; and Associate Attorney Allen for the State.\nMelzer A. Morgan, Jr., for defendant appellmit." }, "file_name": "0546-01", "first_page_order": 570, "last_page_order": 586 }