{ "id": 8567601, "name": "STATE OF NORTH CAROLINA v. WILLIAM BRADY TILLEY and HAROLD GLENWOOD JORDAN", "name_abbreviation": "State v. Tilley", "decision_date": "1977-03-07", "docket_number": "No. 86", "first_page": "132", "last_page": "147", "citations": [ { "type": "official", "cite": "292 N.C. 132" } ], "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": "226 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": -1 }, { "cite": "290 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560710 ], "year": 1976, "opinion_index": -1, "case_paths": [ "/nc/290/0148-01" ] }, { "cite": "178 S.E. 2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "277 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567347 ], "year": 1971, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0680-01" ] }, { "cite": "207 S.E. 2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567357 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0631-01" ] }, { "cite": "138 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570996 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0663-01" ] }, { "cite": "222 S.E. 2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "289 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569669 ], "year": 1976, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0372-01" ] }, { "cite": "88 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683432 ], "weight": 2, "year": 1883, "opinion_index": 0, "case_paths": [ "/nc/88/0623-01" ] }, { "cite": "20 S.E. 456", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1894, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "115 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652969 ], "year": 1894, "opinion_index": 0, "case_paths": [ "/nc/115/0746-01" ] }, { "cite": "37 S.E. 326", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1900, "opinion_index": 0 }, { "cite": "127 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662512 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/nc/127/0566-01" ] }, { "cite": "113 S.E. 783", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "opinion_index": 0 }, { "cite": "184 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271968 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/184/0660-01" ] }, { "cite": "73 S.E. 2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "792" } ], "opinion_index": 0 }, { "cite": "236 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627743 ], "year": 1953, "pin_cites": [ { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0745-01" ] }, { "cite": "69 S.E. 2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622833 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0251-01" ] }, { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "page": "130-31" }, { "page": "131" } ], "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "severance" } ], "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "year": 1972, "pin_cites": [ { "parenthetical": "severance" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "230 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "change of venue" } ], "opinion_index": 0 }, { "cite": "291 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557839 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "change of venue" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0223-01" ] }, { "cite": "230 S.E. 2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "continuance" } ], "opinion_index": 0 }, { "cite": "291 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558362 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "continuance" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0413-01" ] }, { "cite": "4 A.L.R. 3d 671", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 3, "year": 1965, "pin_cites": [ { "page": "678" }, { "page": "746" }, { "page": "737" } ], "opinion_index": 0 }, { "cite": "336 S.Ct. 716", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1949, "opinion_index": 0 }, { "cite": "93 L.Ed. 790", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "opinion_index": 0 }, { "cite": "336 U.S. 440", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3943375 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/us/336/0440-01" ] }, { "cite": "65 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615889 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0683-01" ] }, { "cite": "97 L.Ed. 593", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1953, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "344 U.S. 604", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11300869 ], "weight": 3, "year": 1953, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/us/344/0604-01" ] }, { "cite": "417 U.S. 211", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519759 ], "weight": 3, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/417/0211-01" ] }, { "cite": "206 S.E. 2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565262 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0497-01" ] }, { "cite": "82 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683377 ], "year": 1880, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc/82/0565-01" ] }, { "cite": "70 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698470 ], "year": 1874, "opinion_index": 0, "case_paths": [ "/nc/70/0585-01" ] }, { "cite": "13 S.E. 2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "opinion_index": 0 }, { "cite": "219 N.C. 354", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623445 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/nc/219/0354-01" ] }, { "cite": "176 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "769-70" } ], "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "year": 1970, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "164 S.E. 737", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "203 N.C. 13", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622578, 8597916 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/203/0865-03", "/nc/203/0013-01" ] }, { "cite": "168 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1969, "pin_cites": [ { "page": "43" }, { "page": "43" }, { "page": "43" } ], "opinion_index": 0 }, { "cite": "275 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558758 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0342-01" ] }, { "cite": "220 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570236 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0514-01" ] } ], "analysis": { "cardinality": 1356, "char_count": 35992, "ocr_confidence": 0.678, "pagerank": { "raw": 5.863124169545833e-07, "percentile": 0.9522265583823613 }, "sha256": "440ad8942932c499b6874004b161a7c04c7e83dccc4e75f4dbcd3f0f2f4123ed", "simhash": "1:cb3912366d3f1c8a", "word_count": 5997 }, "last_updated": "2023-07-14T19:01:08.778506+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM BRADY TILLEY and HAROLD GLENWOOD JORDAN" ], "opinions": [ { "text": "COPELAND, Justice.\nAppellants\u2019 first assignment of error relates to the admission in evidence of certain incriminating statements and actions which were made out of the presence of one or both of the defendants. Although defendants stress their absence on these occasions, we find this factor to be irrelevant to the determination of the admissibility of the challenged evidence. At the core of defendants\u2019 objections is the hearsay rule. When declarations and acts intended as declarations are offered for the purpose of proving the truth of the matters asserted therein and depend for their probative value on the competency and credibility of an out-of-court declarant, they are classified hearsay and are usually inadmissible. 1 Stansbury\u2019s N. C. Evidence, \u00a7 138 (Brandis Rev. 1973).\nBut where the prof erred testimony consists of extra-judicial declarations offered for the purpose of proving the truth of the matters stated, it is admissible in the face of a hearsay objection if the declarations were made by a party to a criminal conspiracy during the course of and in pursuit of the goals of the illegal scheme. State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975) ; State v. Conrad, 275 N.C. 342, 168 S.E. 2d 39 (1969) ; 2 Stansbury\u2019s N. C. Evidence, \u00a7 173 (Brandis Rev. 1973).\nThe rule allowing into evidence statements by a co-conspirator is not an exception to the hearsay rule under the rules of evidence. Incriminating statements or acts are admissible against the declarant or actor as an admission not violating the hearsay rule because the declarant or actor cannot be heard to complain about not having a right to cross-examine himself. By a rule of substantive law, vicarious liability for the same acts and declarations is extended to the declarant or actor\u2019s co-conspirators. 2 Stansbury\u2019s N. C. Evidence, \u00a7\u00a7 167, 168, 173 (Brandis Rev. 1973); IV Wigmore on Evidence, \u00a7\u00a7 1048, 1079 (Chadbourn Rev. 1942).\nAccording to the general rule, when the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. State v. Conrad, supra, see State v. Branch, supra; State v. Lea, 203 N.C. 13, 164 S.E. 737 (1932). Before the acts or declarations of one conspirator can be considered as evidence against his co-conspirators, there must be a showing that \u201c(1) a conspiracy existed; (2) the acts or declarations were made by a party to it and in pursuance of its objectives; and (3) while it was active, that is, after it was formed and before it ended.\u201d State v. Lee, 277 N.C. 205, 213, 176 S.E. 2d 765, 769-70 (1970); State v. Conrad, supra at 348, 168 S.E. 2d at 43.\nThe conspiracy must be established independently of the declarations or acts sought to be admitted. State v. Wells, 219 N.C. 354, 13 S.E. 2d 613 (1941) ; Bryce v. Butler, 70 N.C. 585 (1874). Ideally, the State should first establish a prima facie case for the existence of the conspiracy with extrinsic evidence and then tender the declarations and acts of the conspirators linking them to the criminal venture. This order of proof is not always feasible and can be altered. \u201cSometimes for the sake of convenience the acts or declarations of one are admitted in evidence before sufficient proof is given of the conspiracy, the prosecutor undertaking to furnish such proof in a subsequent state of the cause.\u201d State v. Jackson, 82 N.C. 565, 568 (1880). \u201cBecause of the nature of the offense courts have recognized the inherent difficulty in proving the formation and activities of the criminal plan and have allowed wide latitude in the order in which pertinent facts are offered in evidence. \u2018[A]nd if at the close of the evidence every constituent of the offense charged is proved the verdict rested thereon will not be disturbed. . . .\u2019 (Citations omitted.)\u201d State v. Conrad, supra at 347, 168 S.E. 2d at 43.\nApplying these principles to the separate assignments of error raised by the defendants, we find no error in the admission of the challenged evidence. We believe the prosecution sufficiently established a prima facie case of conspiracy on the part of defendants Jordan, Tilley and Smith to assault Winfred Hall with a firearm by evidence other than that now challenged. The exact moment when the three conspirators agreed on their evil scheme cannot be fixed with any certainty; however, it seems clear that the agreement had been reached by the time Harold Jordan and Brady Tilley returned to J. V. Smith\u2019s trailer after taking Hall home. At that point, J. V. Smith and Brady Tilley went into the bedroom of the trailer and borrowed the keys to Larry Hodge\u2019s car. This action and the exchange of conversation accompanying it were made during the pendency and in furtherance of the conspiracy and so were admissible equally against Brady Tilley and Harold Jordan. State v. Branch, supra; State v. Conrad, supra. Harold Jordan\u2019s absence during this period is irrelevant to the admissibility of this evidence against him. Defendants\u2019 exceptions 19-30, 36-37 are overruled.\nDefendants object to testimony by numerous witnesses that they observed J. V. Smith carrying and brandishing a pearl handled, .25 caliber, automatic pistol during the day and evening of the murder. The objection is premised on the fact that these acts of co-conspirator Smith were before the conspiracy was entered, not in furtherance of its illegal design, and out of the presence of defendants Tilley and Jordan. While all these assertions are true, they are irrelevant.\nWe have said on numerous occasions, without clarification, that \u201ca different rule applies to acts and declarations made before the conspiracy was formed or after it terminated. Prior or subsequent acts or declarations are admissible only against him who committed the acts or made the declarations.\u201d State v. Conrad, supra at 348, 168 S.E. 2d at 43; accord, State v. Carey, 285 N.C. 497, 206 S.E. 2d 213 (1974); State v. Lee, supra. On the facts of the present case it is appropriate to examine the rules which apply to acts or declarations of a conspirator committed or said outside the pendency of the conspiracy.\nIt does not necessarily follow that these acts or declarations are always inadmissible. Acts done by a co-conspirator before or after the conspiracy, which were not intended as declarations, are not hearsay and thus are competent evidence, assuming their relevance. Anderson v. United States, 417 U.S. 211, 41 L.Ed. 2d 20, 94 S.Ct. 2253 (1974); Lutwak v. United States, 344 U.S. 604, 97 L.Ed. 593, 73 S.Ct. 481 (1953). Any statements in our cases that may have indicated that acts by co-conspirators outside the pendency of a conspiracy are inadmissible, are not applicable to acts not intended as a means of expression.\nRelevant declarations or admissions by one conspirator not made during the life of the conspiracy or in furtherance of its objectives are admissible \u201conly as to the declarant and those present who by their silence or other conduct assent to the truth of the declaration.\u201d Lutwak v. United States, supra at 619, 97 L.Ed. at 604, 73 S.Ct. at 490.\nSmith\u2019s act in carrying a pistol was not intended as a declaration. Hence it matters not whether the prosecution had established a prima facie case for the existence of the conspiracy at all times that Smith was seen with the gun. This evidence was within the personal knowledge of the testifying witnesses and was not hearsay. Defendants\u2019 exceptions 14-18 are overruled.\nSimilarly, Julia Pruitt\u2019s testimony that she later threw this gun away in the pasture behind her trailer was admissible. Of her own knowledge, she explained how she gained possession of Smith\u2019s pistol, disposed of it and later led law enforcement officers to it. State v. Bovender, 233 N.C. 683, 65 S.E. 2d 323 (1951). Her evidence was probative and not hearsay. The fact that she threw the pistol away after termination of the conspiracy and that she did so out of the presence of the defendants is irrelevant. Defendants\u2019 exceptions 47-49 and 52-53 are overruled.\nThe conspiracy exception to the hearsay rule is strictly limited to those acts and declarations made before success, failure or abandonment has terminated the conspiracy. Krulewitch v. United States, 336 U.S. 440, 93 L.Ed. 790, 336 S.Ct. 716 (1949) ; State v. Branch, supra; Annot., 4 A.L.R. 3d 671, 678 (1965). Moreover, it has been held that absent special allegation and proof, the courts will not allow into evidence statements that were made after the attainment of the criminal project on the theory that there existed a secondary and continuing conspiracy to conceal the fact of the first crime. Krulewitch v. United States, supra; Lutwak v. United States, supra; Annot., 4 A.L.R. 3d 671, 746 (1965).\nHowever, several jurisdictions have recognized a res gestae exception to the above stated rule for declarations and acts made immediately following the achievement of the goal of the conspiracy. Annot., 4 A.L.R. 3d 671, 737. See State v. Wells, supra (dictum supports this exception). And, as noted earlier, actions performed after the termination of a conspiracy are admissible against all the conspirators if they are probative and not meant as declarations. Anderson v. United States, supra; Lutwak v. United States, supra. Hence we find no error in allowing into evidence testimony that J. V. Smith and Julia Pruitt took a shotgun to Smith\u2019s father\u2019s house immediately after the murder. The only declarations made at this time were requests by Smith and Tilley that Julia Pruitt drive Smith to his father\u2019s home. These declarations, following immediately on the heels of the murder, qualified as part of the res gestae and were not, in any event, prejudicial. Defendants\u2019 exceptions 31-35, 39-45, 50, 58-60 are overruled.\nThe conversation that J. V. Smith, Brady Tilley and Harold Jordan had with Gail Bullins two weeks after the shooting was too remote in time from the termination of the conspiracy to come within the res gestae exception. However, there is evidence that all the defendants were present and able to hear and understand this discussion. Thus, assuming this conversation had been inculpatory, it was admissible as an admission against those defendants who participated in the conversation and as an admission by silence against non-participating defendants. Lutwak v. United States, supra; 2 Stansbury\u2019s N. C. Evidence, \u00a7\u00a7 167, 179 (Brandis Rev. 1973).\nHowever, we believe this evidence was not prejudicial. State v. Branch, supra. Gail Bullins and these defendants were good friends. Their conversation with her was not necessarily-incriminating. Defendants merely asked her the same questions that any friend, knowing of her involvement in the police investigation, might have asked. She admitted other friends had made similar inquiries. Thus, this evidence was not inconsistent with defendants\u2019 innocence and defense counsel properly cross-examined on this point. Defendants\u2019 exceptions 55-56A along with Assignment of Error No. 5 are overruled.\nDefendants\u2019 next assignments of error concern the failure of the trial court to order a continuance, a change of venue and separate trials. All of these matters were within the sound discretion of the trial judge, and his decision will not be reversed on appeal absent a showing of abuse. State v. Cousin, 291 N.C. 413, 230 S.E. 2d 518 (1976) (continuance); State v. Harding, 291 N.C. 223, 230 S.E. 2d 397 (1976) (change of venue) ; State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972) (severance).\nThe common thread uniting these exceptions is defendants\u2019 contention that they were unable to obtain a fair trial due to extensive and prejudicial publicity surrounding the separate trial of J. V. Smith held one week prior to defendants\u2019 trial. To support their contention defendants have attached copies of numerous newspaper articles covering that earlier trial. We have carefully examined these exhibits. None of the articles are inaccurate or inflammatory.\nDefendants were allowed extensive opportunity for voir dire examination of potential jurors. The record reveals that the court excused twenty-eight veniremen for cause. Defendant Tilley excused one venireman on peremptory challenge; defendant Jordan excused nine. The record does not reveal that either defendant requested the court to remove a venireman for cause who eventually sat on the impaneled jury. In short, no juror objectionable to the defendants was allowed to sit on the jury.\n\u201cWhere the record discloses, as it does in the instant case, that the presiding judge conducted a full inquiry, examined the press releases and the affidavits in support of the motion, and where the record fails to show that any juror objectionable to the defendant was permitted to sit on the trial panel, or that defendant had exhausted his peremptory challenges before he passed the jury, denial of the motion for change of venue was not error. (Citations omitted.)\u201d State v. Harding, supra at 227, 230 S.E. 2d at 400.\nWe find no error in the court\u2019s refusal to grant defendants\u2019 motions. Assignments of Error Nos. 2, 3 and 4 are overruled.\nDefendants next complain that the prosecution improperly-commented on the failure of the defendants to take the stand. Such a comment, if made, would have been improper. State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975) ; State v. McLamb, 235 N.C. 251, 69 S.E. 2d 537 (1952) ; G.S. 8-54.\n\u201cIt is the duty of the prosecuting attorney to present the State\u2019s case with earnestness and vigor and to use every legitimate means to bring about a just conviction. . . . Counsel for both sides are entitled to argue to the jury the law and the facts in evidence and all reasonable inferences to be drawn therefrom.\u201d State v. Monk, supra at 515, 212 S.E. 2d at 130-31.\nThe State may fairly draw the jury\u2019s attention to the failure of the defendant to produce exculpatory evidence or to contradict the State\u2019s case. \u201c[W]hile defendant\u2019s failure to testify is not the subject of comment or consideration, the jury, in weighing the credibility of the evidence offered by the State may consider the fact that it is uncontradicted ... or unrebutted by evidence available to defendant.\u201d State v. Bryant, 236 N.C. 745, 747, 73 S.E. 2d 791, 792 (1953) ; see State v. Jenks, 184 N.C. 660, 113 S.E. 783 (1922); State v. Costner, 127 N.C. 566, 37 S.E. 326 (1900) ; State v. Kiger, 115 N.C. 746, 20 S.E. 456 (1894) ; State v. Johnston, 88 N.C. 623 (1883).\nTo discuss each of defendants\u2019 numerous exceptions in this regard would be pointless. Exception 92 is typical. The district attorney stated that defendants\u2019 plea of not guilty denied the State\u2019s case and placed the burden of proof upon the State. The district attorney then argued, \u201cbut not a single word of it (the State\u2019s evidence) is contradicted, and there is a lot of difference between denying it and contradicting.\u201d This comment and the prosecutor\u2019s other remarks along this line were directed at the defendants\u2019 failure to produce witnesses who could exculpate them or contradict the State\u2019s case. As the cases previously cited make clear, such arguments, when supported by the evidence, are not improper. They are not an impermissible commentary on the defendants\u2019 failure to take the stand and personally contradict the testimony of the State\u2019s witnesses. State v. Johnston, supra.\nDefendants also object to the State\u2019s comment on the failure of Edgar Smith to testify. This exception is frivolous. Edgar Smith was not a defendant and thus, defendants\u2019 right not to testify was not commented upon. The State is free to point out the failure of the defendants to produce available witnesses.\nIn State v. Kiger, supra, barrels of brandy which had been stolen from the complaining witness were found near the house of the defendant\u2019s brother, Jack Kiger. Extensive circumstantial evidence linked the defendant to the theft. The court held there was no error in allowing the prosecutor to argue, \u201cYour brother Jack Kiger knows whether you brought that brandy to his house. He is here in the courthouse. Why, if you did not carry it there and conceal it, did you not show it by him?\u201d State v. Kiger, supra at 749, 20 S.E. at 457. We cannot distinguish this argument from the district attorney\u2019s reference in the present case to Edgar Smith\u2019s failure to exculpate his son.\nDefendants maintain that the State argued outside the record by innuendo concerning Mrs. Hall\u2019s testimony at the earlier trial of defendant J. Y. Smith. We note that defendants failed to object to the district attorney\u2019s arguments before verdict as required by the general rule in order to preserve their exceptions. The general rule obtains unless, in a capital cas\u00e9, \u201cthe argument of counsel is so prejudicial to defendant that the prejudicial effect of such argument could not have been removed from the jurors\u2019 minds by any instruction the trial judge might have given. (Citations omitted.)\u201d State v. Alford, 289 N.C. 372, 384, 222 S.E. 2d 222, 230 (1976).\nWe agree that the prosecutor\u2019s remarks verge on impermissible \u201ctraveling outside the record.\u201d State v. Monk, supra. However, after careful review, we find the district attorney\u2019s arguments were substantially in accord with the evidence in the case and not unduly prejudicial so as to warrant a new trial. The district attorney never referred directly or indirectly to the Smith trial and he accurately described Mrs. Hall\u2019s testimony in the present case. The prosecutor\u2019s speculation that Mrs. Hall could have given more damaging testimony in this trial was arguably a reasonable inference to be drawn from the facts and was not a case of the prosecutor \u201cinjecting into his argument facts of his own knowledge or other facts not included in the evidence.\u201d State v. Monk, supra at 515, 212 S.E. 2d at 131.\nDefendants claim the district attorney also improperly referred to the constitutional rights that must be scrupulously afforded a criminal defendant.\nOnce again, defendants neglected to raise a timely objection to this argument. The gist of the district attorney\u2019s argument is summed up by his statement that, \u201cIf Winfred Hall\u2019s rights had been observed to the extent that we are now undertaking to observe these defendants\u2019 rights, Winfred Hall would be alive.\u201d We feel the argument by the district attorney was within permissible bounds. It would be a different matter if the district attorney had argued or even suggested that defendants were hiding behind these constitutional protections in order to shield their guilt. The district attorney did not make that argument, however. Assignments of Error Nos. 13, 14 and 16 are overruled.\nDefendants\u2019 next contention, that the State\u2019s expert witness R. D. Cone, could only state his opinion as to whether the defendants had positively fired a gun on the night of 24 January 1974, or not at all, is unsupported by authority. Defendants\u2019 failure to substantiate their claim is unsurprising since this Court has long held that an expert witness may state his opinion that certain events probably happened or probably caused certain results. Lockwood v. McCaskill, 262 N.C. 663, 138 S.E. 2d 541 (1964). Moreover, we have specifically heM that this expert, Cone (who is a frequent witness for the State on the result of gunshot residue tests designed and examined by him), may give his opinion that a suspect \u201cprobably\u201d or \u201ccould have\u201d fired a gun within a short time prior' to the administration of the test. State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712 (1974). Assignment of Error No. 11 is overruled.\nDefendants\u2019 claim the trial judge erred in his recapitulation of the evidence and in his instructions to the jury. This Court has repeatedly held that:\n\u201c[a] charge must be construed contextually, and isolated portions of it will not be held prejudicial when the charge as a whole is correct. (Citations omitted.) If the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for a reversal. (Citation omitted.) Furthermore, insubstantial technical errors which could not have affected the result will not be held prejudicial. (Citation omitted.) The judge\u2019s words may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred. (Citations omitted.)\u201d State v. McWilliams, 277 N.C. 680, 685, 178 S.E. 2d 476, 479 (1971).\nDefendants complain that portions of the judge\u2019s remarks, although correct, were confusing and apt to mislead the jury. We have carefully studied the judge\u2019s instructions and his recapitulation of the evidence and have found them to be clear and correct. We do not believe that any jurors could have been misled. Defendants\u2019 Assignments of Error Nos. 15, 17, 18 and 20 are overruled. Nor do we find that the trial judge expressed any opinion as to the weight or credibility of any of the evidence during the trial. Assignment of Error No. 6 is without merit and overruled.\nFinally, defendants question the sufficiency of the evidence to go to the jury. Considering the evidence, as we must, in the light most favorable to the State and giving the State the benefit of every reasonable inference to be drawn therefrom, we conclude there was sufficient evidence to withstand a motion for nonsuit. State v. Cousin, 291 N.C. 413, 230 S.E. 2d 518 (1976) ; State v. Harding, 291 N.C. 223, 230 S.E. 2d 397 (1976).\nViewed in this light, the evidence tells the following tale: Winfred Hall went with the defendants to a party at the trailer of J. V. Smith on the night of 24 January 1974. On that day, Smith was seen armed with a .25 caliber automatic pistol. Alcohol was consumed at the party, and Hall was brought home around 11:00 p.m. by Tilley and Jordan. An argument apparently occurred between them after he was let out of the vehicle. This encounter so upset Hall that he paced the living room floor of his trailer after entering. Tilley and Jordan returned to Smith\u2019s trailer. The three then borrowed Larry Hodge\u2019s car and left again. Around this time, \u00e1 car matching the description of Hodge\u2019s car, by sight and sound of horn, pulled up in front of Hall\u2019s trailer and blew its horn. Voices and the closing of a trunk lid were heard. Hall jumped out of bed and ran out of the trailer. He was shot at with a shotgun and Smith\u2019s .25 caliber automatic pistol by the occupants of the car. He died from buckshot wounds. Shortly thereafter J. V. Smith hid a shotgun under a mattress at his father\u2019s house. Tests showed that Brady Tilley had probably fired a gun during the night of 24 January 1974. This evidence was sufficient to submit to the jury the charges of first degree murder and conspiracy to commit an assault with a firearm. Assignment of Error No. 12 is overruled.\nThe defendants\u2019 briefs have other assignments of error. We have examined all of these and find no merit in any of them. In addition, due to the serious nature of this case, we have searched the record for errors other than those assigned by the defendants and have found none.\nIn the trial we find\nNo error.", "type": "majority", "author": "COPELAND, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Senior Deputy Attorney General R. Bruce White, Jr., and Assistant Attorney General Zoro J. Guice, Jr., for the State.", "Malcolm B. Grandy for William Brady Tilley, defendant.", "A. D. Folger, Jr., George T. Fulp, and Ronald M. Price for Harold Glenwood Jordan, defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM BRADY TILLEY and HAROLD GLENWOOD JORDAN\nNo. 86\n(Filed 7 March 1977)\n1. Criminal Law \u00a7 79 \u2014 acts and declarations of co-conspirators\nWhen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to the conspiracy in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered.\n2. Criminal Law \u00a7 79 \u2014 acts and declarations of co-conspirators \u2014 establishment of conspiracy \u2014 order of proof\nWhile ideally the State should first establish a prima facie case for the existence of a conspiracy with extrinsic evidence and then tender the declarations and acts of the conspirators linking them to the criminal venture, this order of proof is not always feasible and can be altered.\n3. Criminal Law \u00a7 79\u2014 acts of co-conspirators \u2014 absence of defendant\nWhere the State established a prima facie case of conspiracy by defendants And another to commit an assault with a firearm, the actions of one defendant and a co-conspirator in borrowing the keys to a car and the exchange of conversation accompanying such actions during the pendency and in furtherance of the conspiracy were admissible against both defendants, although one defendant was absent during such actions and conversation.\n4. Criminal Law \u00a7 79\u2014 acts before or after conspiracy \u2014 admissibility\nActs done by a co-conspirator before or after the conspiracy which were not intended as declarations are not hearsay and thus are competent evidence if relevant.\n5. Criminal Law \u00a7 79 \u2014 co-conspirator\u2019s act of carrying pistol \u2014 admissibility\nIn a prosecution for murder and conspiracy to commit an assault with a firearm, the trial court properly admitted testimony that witnesses observed defendants\u2019 co-conspirator carrying a .25 caliber pistol during the day and evening of the murder, although these acts of the co-conspirator occurred before the conspiracy was entered, since the acts of carrying a pistol were not intended as declarations, and the testimony was within the knowledge of the witnesses and was not hearsay.\n6. Criminal Law \u00a7\u00a7 73, 79\u2014 acts of witness after conspiracy terminated \u2014 admissibility\nIn a prosecution for conspiracy to commit an assault with a firearm and murder resulting from the conspiracy, a witness\u2019s testimony of her own knowledge that she threw an accomplice\u2019s pistol away was properly admitted since it was probative and not hearsay, notwithstanding she threw the pistol away after termination of the conspiracy and out of the presence of defendants.\n7. Criminal Law \u00a7 73 \u2014 requests by defendant \u2014 res gestae\nRequests by one defendant and a co-conspirator that the witness drive the co-conspirator home, made immediately after a murder resulting from the conspiracy, were admissible as part of the res gestae.\n8. Criminal Law \u00a7\u00a7 48, 77\u2014 admissions and admissions by silence\nA conversation some two weeks after a murder in which defend- ' ants asked the witness what an SBI agent had asked her about the murder and what she had told him was admissible as an admission against those defendants who participated in the conversation and as an admission by silence against non-participating defendants who were present; furthermore, the admission of testimony as to the conversation was not prejudicial to defendants since the conversation was not inconsistent with defendants\u2019 innocence.\n9. Criminal Law \u00a7\u00a7 15, 92\u2014 publicity of accomplice\u2019s trial \u2014 motions for continuance, change of venue, and severance\nIn a prosecution for murder and conspiracy to commit a felonious assault, tne trial court did not abuse its discretion in the denial of defendants\u2019 motions for a continuance, a change of venue and separate trials because of publicity surrounding the separate trial of a co-conspirator one week earlier where newspaper articles of the co-conspirator\u2019s trial were not inaccurate or inflammatory, and no juror objectionable to defendants was allowed to sit on the jury.\n10. Criminal Law \u00a7 102\u2014 jury argument \u2014 failure to contradict State\u2019s case\nThe district attorney\u2019s remarks directed at the failure of defendants to produce exculpatory evidence or to contradict the State\u2019s case did not constitute an impermissible comment on the failure of defendants to take the stand.\n11. Criminal Law \u00a7 102 \u2014 jury argument \u2014 speculation \u2014 no argument outside record\nThe district attorney\u2019s speculation that the murder victim\u2019s wife could have given more damaging testimony in this trial was arguably a reasonable inference to be drawn from the evidence and did not constitute an argument outside the record by innuendo concerning testimony by the victim\u2019s wife at an earlier trial of defendants\u2019 accomplice.\n12. Criminal Law \u00a7 102 \u2014 jury argument \u2014 constitutional rights of victim and defendants\nThe district attorney\u2019s argument that the murder victim would still be alive if his rights \u201chad been observed to the extent that we are now undertaking to observe these defendants\u2019 rights\u201d was within permissible bounds.\n13. Criminal Law \u00a7\u00a7 52, 57\u2014 expert testimony \u2014 use of \u201cprobably\u201d or \u201ccould have\u201d\nAn expert on gun residue tests could properly testify that a defendant \u201cprobably\u201d or \u201ccould have\u201d fired a gun within a short time prior to the administration of the test to him.\n14. Homicide \u00a7 21; Conspiracy \u00a7 6 \u2014 first degree murder \u2014 conspiracy to assault with firearm \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for submission to the jury on issues of defendants\u2019 guilt of first degree murder and conspiracy to commit an assault with a firearm where it tended to show that the victim went with defendants to a party at the trailer of defendants\u2019 accomplice; the accomplice was armed with a .25 caliber pistol; defendants took the victim home and an argument occurred; defendants returned to the trailer and they and the accomplice borrowed a car and left again; shortly thereafter a car matching the description of the borrowed car, by sight and sound of horn, pulled up in front of the victim\u2019s trailer and its horn was blown; voices and the closing of a trunk lid were heard; the victim ran from the trailer and was shot, with a shotgun and the accomplice\u2019s .25 caliber pistol, causing his death; shortly thereafter the accomplice hid a shotgun under a mattress at his father\u2019s house; and tests showed that one defendant had probably fired a gun during the night of the crimes.\nDefendants appeal pursuant to G.S. 7A-27 (a) from judgments of Wood, J., 29 September 1975 Session, Stokes Superior Court. Defendants\u2019 convictions of conspiracy to commit a felonious assault with a firearm were certified for initial appellate review by the Supreme Court pursuant to G.S. 7A-31(a) on 26 February 1976. This case was docketed and argued as No. 85, Spring Term 1976.\nOn indictments proper in form, defendants were charged with first degree murder and conspiracy to commit a felonious assault with a firearm. Defendants were convicted of second degree murder and conspiracy and sentenced to life imprisonment for the murder and ten years imprisonment for the conspiracy. J. V. Smith, the third defendant, was tried separately a week earlier and convicted of first degree murder and conspiracy. That case was affirmed in State v. Smith, 290 N.C. 148, 226 S.E. 2d 10 (1976).\nEvidence for the State tended to show that Gail Bullins, Willia Dean Hicks and J. V. Smith drove to Smith\u2019s trailer on Highway 704 near Walnut Cove early on the evening of 24 January 1975 in Smith\u2019s black Chevrolet Monte Carlo automobile. Over the next several hours, David Willard, Larry Hodge, Julia Pruitt, Winfred Hall (the deceased) and the defendants, Harold Jordan and Brady Tilley, arrived at the trailer. No one present remembered the exact order in which they came. People began to drink, and a party developed. Although the party apparently was amicable, several persons testified that J. V. Smith was openly carrying a pearl handle .25 caliber automatic pistol.\nAround 9 p.m., Gail Bullins, who had been drinking heavily, attempted to walk across the living room. When she fell down, Larry Hodge helped her up and escorted her to the bedroom of Smith\u2019s trailer where they both went to bed. At approximately 10:30 p.m. Harold Jordan and Brady Tilley left the party to take Winfred Hall home. They returned shortly from that errand and after a few minutes Tilley and Smith went into the bedroom. Smith asked Hodge if they could borrow Hodge\u2019s car. Hodge owned a white 1962 Chevrolet Impala with a red stripe down the side. The car had six tail lights and double headlights. Smith indicated that Tilley would drive. Hodge told them where his keys were and a few minutes later he heard a car drive off. He testified that the n\u00e9xt morning his car was not in the same position that it had been in when he parked it the night before. Julia Pruitt testified that Smith, Tilley, and Jordan left the trailer around 11:00 p.m.\nMr. and Mrs. Hall lived in a trailer park on Wards Road off Highway 704, about one mile from Smith\u2019s trailer. Hall left the trailer on the morning of 24 January 1975 with Harold Jordan. He returned that night around 6:00 p.m. with Jordan and Tilley, but stayed at home for only five minutes and left again. Harold Jordan brought him back around 10:30 p.m. Mrs. Hall had the television turned on so she could not understand the content of the conversation, but she could hear loud voices outside after Jordan drove up. Hall walked in the trailer and began to pace back and forth in the living room. He appeared intoxicated and looked mad.\nShortly after 11:00 p.m. he undressed and promptly fell asleep. His wife remained awake and heard a car pull up in the parking lot around 11:30 p.m. The automobile was an older model white car with a stripe down the side. Neighbors in the trailer park noted the car had dual headlights and six tail lights. The car sounded its horn twice. Mrs. Hall described it as \u201ca real funny sounding horn.\u201d (Mrs. Hall later identified Larry Hodge\u2019s car horn as sounding exactly like the horn she heard on the night of the murder. Hodge testified that his horn was malfunctioning that night and thus sounded different from other car horns.) Mrs. Hall heard a trunk lid close and loud voices. Winfred Hall awoke and looked out the window several times. He appeared \u201cscared\u201d and started to leave the trailer. He stopped, pulled on his pants, and then ran out.\nMrs. Hall heard the car start to back up. She then heard three shots. A bullet came through the bedroom wall of her trailer. She ran outside and found her husband lying in the parking lot. He had been shot under the heart with a shotgun. His only words were, \u201cThey shot me.\u201d Winfred Hall died en route to the hospital.\nMeanwhile, Smith, Tilley and Jordan re-entered Smith\u2019s trailer. Tilley asked Julia Pruitt if she would drive J. V. Smith to the home of Edgar Smith, J. V. Smith\u2019s father. She did so and observed a shotgun lying on the back seat of Smith\u2019s car. (No one else who had been in Smith\u2019s car earlier in the day had seen this weapon.) Smith took the shotgun from the car and placed it under the mattress of his father\u2019s bed. Smith and Pruitt then rejoined Tilley and Jordan at the trailer.\nThe next day, investigating officers recovered two shell casings from the parking lot and a bullet from the Hall trailer. The shell casings were definitely identified as having been fired from J. V. Smith's .25 caliber pistol. It was determined that the bullet could have been fired from the same gun. The same day, an S.B.I. special agent took gunshot residue wipings from the hands of Brady. Tilley and Harold Jordan. Analysis of those wipings revealed that Tilley had probably fired a gun within the past twelve hours. The tests were inconclusive as to Jordan.\nThe day after the shooting, Smith gave his pearl handled pistol to Julia Pruitt and she hid it in her trailer. A week later she placed it in a brown paper bag and threw it into a pasture behind her house. Later she assisted law enforcement officers in its recovery.\nTwo weeks after the shooting, Smith, Tilley and Jordan paid a visit to Gail Bullins. They inquired as to what S.B.I. Agent Terry Johnson had asked her about the murder and what she had told him.\nThe defendants presented no evidence.\nOther facts necessary to the decision will be related in the opinion.\nAttorney General Rufus L. Edmisten by Senior Deputy Attorney General R. Bruce White, Jr., and Assistant Attorney General Zoro J. Guice, Jr., for the State.\nMalcolm B. Grandy for William Brady Tilley, defendant.\nA. D. Folger, Jr., George T. Fulp, and Ronald M. Price for Harold Glenwood Jordan, defendant." }, "file_name": "0132-01", "first_page_order": 152, "last_page_order": 167 }