{ "id": 8569762, "name": "STATE OF NORTH CAROLINA v. DONALD STANFIELD and PERNELL JAMES HAM", "name_abbreviation": "State v. Stanfield", "decision_date": "1977-04-14", "docket_number": "No. 65", "first_page": "357", "last_page": "369", "citations": [ { "type": "official", "cite": "292 N.C. 357" } ], "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": "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": "12 L.Ed. 2d 747", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "377 U.S. 978", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6280578, 6280805, 6281832, 6281074, 6281620 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/us/377/0978-01", "/us/377/0978-02", "/us/377/0978-05", "/us/377/0978-03", "/us/377/0978-04" ] }, { "cite": "134 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572663 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0181-01" ] }, { "cite": "147 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558414 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0090-01" ] }, { "cite": "232 S.E. 2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "292 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567601 ], "year": 1977, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0132-01" ] }, { "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": "173 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562301 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0499-01" ] }, { "cite": "132 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573304 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0133-01" ] }, { "cite": "209 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563861 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0140-01" ] }, { "cite": "150 S.E. 2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560791 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0174-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "169 S.E. 2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559236 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0565-01" ] }, { "cite": "64 S.E. 2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611849 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0511-01" ] }, { "cite": "3 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632169 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0784-01" ] }, { "cite": "57 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "231 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630082 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/231/0412-01" ] }, { "cite": "200 S.E. 2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "284 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560715 ], "year": 1973, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0190-01" ] }, { "cite": "53 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 448", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630465 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0448-01" ] }, { "cite": "100 S.E. 2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "247 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627157 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/247/0389-01" ] }, { "cite": "78 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697848 ], "weight": 2, "year": 1878, "pin_cites": [ { "page": "554", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/78/0552-01" ] }, { "cite": "229 S.E. 2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557461 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0164-01" ] }, { "cite": "185 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571921 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0643-01" ] }, { "cite": "187 S.E. 2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573537 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0718-01" ] }, { "cite": "172 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "53" } ], "opinion_index": 0 }, { "cite": "276 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561802 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0482-01" ] }, { "cite": "180 S.E. 2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "11 S.E. 1016", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 0 }, { "cite": "107 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275068 ], "year": 1890, "opinion_index": 0, "case_paths": [ "/nc/107/0805-01" ] }, { "cite": "184 S.E. 480", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "opinion_index": 0 }, { "cite": "209 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221489 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/209/0727-01" ] }, { "cite": "220 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "289 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566449 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/289/0019-01" ] } ], "analysis": { "cardinality": 1111, "char_count": 26553, "ocr_confidence": 0.662, "pagerank": { "raw": 4.792784266028394e-07, "percentile": 0.9311015815980005 }, "sha256": "46a58a2f275f4f90964df453b4d2262810b1b7f199d64493e93047d302564c2c", "simhash": "1:9267f0006070377b", "word_count": 4404 }, "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. DONALD STANFIELD and PERNELL JAMES HAM" ], "opinions": [ { "text": "COPELAND, Justice.\nDefendants first contend the court erred by permitting a witness to refuse to answer a question on cross-examination.\nThe State called as a witness, Ted Purpero, a Marine Corporal who testified that he first became acquainted with defendant Stanfield in May 1975, when Stanfield moved into the same residence. Purpero testified that on 7 July 1975, defendant Stanfield did not arrive home until 9:00 or 9:30 p.m. At the time, he \u201cstormed into the house and said someone stripped his field and someone it going to pay for it.\u201d Witness Purpero admitted on cross-examination that he knew about the marijuana field and knew that defendant Stanfield had brought marijuana to the house. However, he denied smoking any of Stanfield\u2019s marijuana.\nOn cross-examination Purpero was asked, \u201cWhere did you get the marijuana?\u201d He replied, \u201cIt doesn\u2019t have anything to do with anybody in this [case].\u201d An objection by the State followed and was sustained by the court. Upon defendants\u2019 request that the witness place his answer to the question in the record, the witness whispered to the court reporter \u201cNobody that had anything to do with this case.\u201d The trial court refused to require the witness to give a more specific response. The next morning when defense counsel continued to cross-examine the witness he obtained the same answer to his question and the State\u2019s objection was again sustained. Defendants contend the ruling of the trial court infringed on their right to cross-examine the State\u2019s witness.\nCross-examination is not confined to the subject matter covered on direct examination but ordinarily may extend to any matter relevant to the issues in the case. State v. Waddell, 289 N.C. 19, 220 S.E. 2d 293 (1975) ; State v. Huskins, 209 N.C. 727, 184 S.E. 480 (1936); State v. Allen, 107 N.C. 805, 11 S.E. 1016 (1890); 1 Stansbury\u2019s N. C. Evidence, \u00a7 35 at 105, 107 (Brandis Rev. 1973). However, \u201cwide open\u201d cross-examination does not mean that all decisions on cross-examination are left to the cross-examiner. The trial judge may and should rule out immaterial, irrelevant and incompetent matter. State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971); State v. McPherson, 276 N.C. 482, 172 S.E. 2d 50 (1970); 1 Stansbury\u2019s N. C. Evidence, \u00a7 35 at 108 (Brandis Rev. 1973). The legitimate bounds of cross-examination are largely within the discretion of the trial judge. State v. Robinson, 280 N.C. 718, 187 S.E. 2d 20 (1972) ; State v. Chance, 279 N.C. 643, 185 S.E. 2d 227 (1971) ; State v. McPherson, suipra.\n\u201cOrdinarily, this Court does not approve the refusal of the trial court to permit counsel to insert in the record the answer to a question to which objection has been sustained.\u201d State v. McPherson, supra at 487, 172 S.E. 2d at 53. But in certain instances where both the question and the answer are immaterial, the trial judge\u2019s refusal to have an answer placed in the record will not be held error. State v. McPherson, supra.\nThe witness, Purpero, denied smoking any of defendant Stanfield\u2019s marijuana, but admitted he had smoked marijuana \u201conce in awhile.\u201d Obviously, it was immaterial where Purpero obtained his marijuana unless, as defendants argue, he was involved with someone in the case that would tend to create bias or interest on his part. Since the witness adamantly contended that his marijuana source was completely unrelated to this case, we cannot see how any answer he might have given could possibly be material. The trial judge properly exercised his discretion in not requiring the witness to specifically answer the question.\nAssuming arguendo that the court should have required the witness to answer, the error would not necessarily entitle defendants to a new trial. The burden is on appellants, not only to show error, but to show prejudicial error. State v. Robinson, supra; see State v. Asbury, 291 N.C. 164, 229 S.E. 2d 175 (1976). Witness Purpero admitted several times on cross-examination that he disliked defendant Stanfield. At one point he testified \u201cI did not like him. I don\u2019t like him any better now than I did then. The time he stayed there hardly a civil word passed between the two of us.\u201d Defense counsel could not have hoped to have shown a more biased witness than Purpero appeared to be. In view of this witness\u2019 bias, we do not feel defendants were prejudiced by the exclusion of other evidence merely cumulative in nature. The assignment of error is overruled.\nUnder several assignments of error defendants claim the court erred in permitting the State to show that other people were not responsible for the death of the deceased.\nThe record discloses that the investigating officer first charged and arrested two other suspects with the murder of Scott Webber but later releasesd them when the district court found no probable cause for their arrest.\nDefendants maintain that State v. England, 78 N.C. 552 (1878), is controlling and that it requires a new trial. In that case the defendant was charged with burning a stable. From the State\u2019s evidence it appeared the defendant\u2019s brother had first been suspected and arrested for the offense, but that measurements of tracks near the scene compared unfavorably with the brother\u2019s foot. Introduction of this evidence was held error because it \u201chad no legal tendency to establish the guilt of the prisoner, though it. was evidently introduced and used for that purpose.\u201d State v. England, supra at 554 (emphasis supplied). Lacking probative value, the evidence was irrelevant and inadmissible. Nothing else appearing, England, would be controlling in the instant case.\nIn the present case the State offered the testimony of the investigating officer. During cross-examination, the officer testified that he had issued and served a warrant on 16 August 1975 charging two other people with the murder of Scott Web-ber. The officer stated that, at the time, the facts were consistent with their guilt, and for that reason, he signed the arrest warrant. The officer admitted these cases were later dismissed and that he had to begin his investigation anew.\nObviously defense counsel by delving into this subject was attempting to show that the sheriff\u2019s department was engaged in a witch hunt and had previously charged innocent people with the crime. The jurors might then infer that the State had a weak case against these defendants and that the offense could have been committed by someone else. It was only after this cross-examination that the State proceeded to show through the testimony of additional witnesses that the earlier suspects could not possibly have committed the offense charged. It appeared that when the earlier suspects\u2019 alibi was positively confirmed, the investigating officer recommended their release, which was subsequently granted by the court.\nWe hold that where defense counsel on cross-examinati\u00f3n of a witness brings out evidence tending to show that someone else was suspected of comitting the crime charged, the State is entitled to introduce evidence in explanation or rebuttal thereof, even though such evidence would have been irrelevant had it been offered initially by the State. In such a case, the defendant has \u201copened the door\u201d to this testimony and will not be heard to complain. Highfill v. Parrish, 247 N.C. 389, 100 S.E. 2d 840 (1957); State v. Black, 230 N.C. 448, 53 S.E. 2d 443 (1949). \u201cUpon the examination in chief, the evidence may not be competent, but the cross-examination may make it so.\u201d State v. Patterson, 284 N.C. 190, 196, 200 S.E. 2d 16, 20 (1973).\nState v. England is distinguishable because in that case the State introduced evidence tending to show that a person other than the defendant could not have committed the crime charged, not in explanation or rebuttal of testimony elicited by defense counsel, but rather as part of its case in chief. Under the circumstances of the present case, the State had a right to explain the evidence brought out on cross-examination by defense counsel and to rebut any negative inferences arising therefrom. This assignment of error is overruled.\nRichard Olive, an admitted accomplice, was permitted to say on direct examination that his testimony was not motivated by promises or threats. Under defendants\u2019 next assignment of error they assert that an accomplice may not testify that he has received neither promises or threats for his testimony before his credibility has been impugned. Defendants concede this evidence is relevant to the credibility of the witness but contend that self-s\u00e9rving statements on the part of a witness are not permissible.\nEven without cross-examination, the testimony of an accomplice, when offered by the State, is subject to careful scrutiny because an accomplice is generally regarded as interested in the event. State v. Hale, 231 N.C. 412, 57 S.E. 2d 322 (1950); State v. Roberson, 215 N.C. 784, 3 S.E. 2d 277 (1939). It is common knowledge that accomplices often testify as a result of threats of prosecution or promises of immunity. Thus, we see nothing wrong with an accomplice testifying that he has received neither threats nor promises for his testimony in order to forestall such a contention on the part of the defendant. State v. Hicks, 233 N.C. 511, 64 S.E. 2d 871 (1951).\nThis assignment lacks merit and is overruled.\nUnder two assignments of error, defendants claim the court committed error by permitting the State to introduce evidence of an unrelated incident of misconduct on the part of defendant Ham.\nThe State offered evidence tending to show that defendant Ham had been evicted from a mobile home for nonpayment of rent in late June or early July 1975. His possessions were removed by the landlord\u2019s son and placed in a nearby trailer. Defendant Ham appeared on the scene and threatened the boy with a shotgun until his possessions were returned to the mobile home.\nDefendants maintain this evidence is irrelevant and thus inadmissible. Furthermore, they claim it is inadmissible under the general rule prohibiting the State from introducing over defendant\u2019s objection evidence that the accused has committed another separate and independent criminal offense \u2014 in this case, assault with a firearm. State v. Perry, 275 N.C. 565, 169 S.E. 2d 839 (1969); State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954).\nIn the instant case, substantial evidence tended to show that the deceased was murdered with a shotgun owned by defendant Ham. The challenged evidence tends to show that defendant Ham exhibited a shotgun less than a month before the murder. The State contends that this incident was not introduced to show the commission of another crime, but solely to show possession by defendant Ham of a shotgun shortly before Webber\u2019s death.\nImmediately following introduction of this evidence, defendant Ham moved to strike. The court then instructed the jury as follows:\n\"Ladies and gentlemen, I will tell you you can consider the fact Pernell Ham had a shotgun in his possession, but it is irrelevant to this case, as to the testimony of the witness telling him to put the stuff back in the trailer. So do not consider that at all in your deliberations in this case.\u201d\nThus, the court excluded this evidence from the jury\u2019s consideration except as it tended to show possession by defendant Ham of a shotgun. We believe the evidence was relevant for this limited purpose. We may assume the jury complied with the judge\u2019s instructions and that any prejudicial effect was thus removed. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976) ; State v. Bruce, 268 N.C. 174, 150 S.E. 2d 216 (1966). The assignment of error is overruled.\nDefendants next complain the court erred in permitting a witness for the State to testify to the \u201ceffect\u201d of a conversation, after the witness had testified that he did not remember exactly what . was said.\nThis conversation between the defendants and witness Olive occurred several days after the murder of Webber and involved disposition of the murder weapon. Olive testified that he could remember the subject of the conversation although he could not remember the exact words. He definitely recalled that the conversation concerned the shotgun and that defendant Stanfield wanted defendant Ham to get rid of it.\nThis conversation qualifies as an admission by the defendants, and as such, is competent evidence. State v. Edwards, 286 N.C. 140, 209 S.E. 2d 789 (1974) ; State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364 (1963) ; 2 Stansbury\u2019s N. C. Evidence, \u00a7 167 (Brandis Rev. 1973). We know of no rule that requires the witness to remember the exact words spoken. This is not a case of a witness speculating or guessing as to the substance of a conversation. The assignment of error is without merit and overruled.\nDefendants assign as error the district attorney\u2019s final argument, claiming he improperly commented on their failure to testify. Neither defendant testified in his own behalf, but defendant Stanfield offered evidence of his whereabouts on 7 July. This testimony tended to show that Stanfield went off duty at the Marine base at 4:30 p.m. and arrived at the scuba diving school at 6:45 p.m.\nThe district attorney argued there was no evidence before the jury explaining defendant Stanfield\u2019s whereabouts between 4:30 and 6:45 p.m. He said: \u201cWhere was this defendant between four thirty and quarter to seven. He has put on evidence, has he showed you, ladies and gentlemen, where he was between four thirty and quarter to seven. You ask him, has he showed you that.\u201d Defendants excepted. Whereupon, the court instructed the jury not to consider the italicized portion of the prosecutor\u2019s remarks and advised the prosecutor that his argument was improper, thus curing any error. State v. Covington, supra; State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970).\nThe district attorney continued: \u201cLadies and gentlemen, he has told you where he was at four thirty; he had told you where he was at quarter to seven, he has offered evidence as to where he was at that time; why do you think he has not offered evidence to you as to where he was between four thirty and quarter to seven, why do you think he has not offered evidence to show you where he was at this time ...\u201d Again there was objection by counsel for the defendants and a motion for a mistrial. The court overruled both motions.\nFinally the district attorney said: \u201cLadies and gentlemen, you keep that in mind in your deliberations when you try to determine whether or not this defendant, Stanfield, is guilty or not guilty. I submit that you have not been shown where he was because he was right where Roger Olive said he was.\u201d\nDefendants contend these arguments of the district attorney infringed their right to remain silent under the United States and North Carolina Constitutions and G.S. 8-54.\nWe have consistently held that \u201c \u2018[Wjhile 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.\u2019 State v. Bryant, 236 N.C. 745, 747, 73 S.E. 2d 791, 792 (1953) ; . . . \u201d State v. Tilley, 292 N.C. 132, 143, 232 S.E. 2d 433, 441 (1977).\nAccording to the State\u2019s evidence, the murder allegedly took place at around 6:00 p.m. at a lodge some twenty-six miles from Jacksonville. The facts as to defendant Stanfield\u2019s whereabouts during this particular time period are critical. Certainly, the district attorney had a right to comment on defendant Stan-field\u2019s failure to account for the hours between 4:30 and 6:45 p.m., especially after the defendant had offered evidence tending to establish an alibi. The prosecutor\u2019s remarks were directed solely at defendant Stanfield\u2019s failure to offer evidence rebutting the State\u2019s case, rather than at his failure to take the stand.\nThe assignment of error is without merit and overruled.\nDefendants assign as error the court\u2019s instructions to the jury. Defendants maintain the court commented on the sufficiency of the evidence to establish intent to kill, deliberation, and alibi in violation of G.S. 1-180.\nWe have reviewed the judge\u2019s instructions in their entirety and find that the court\u2019s statements concerning the sufficiency of the evidence were expressed as contentions of the State and do not represent the court\u2019s opinion. The judge\u2019s charge must be read contextually and when this is done, we find the charge free from error. State v. Hall, 267 N.C. 90, 147 S.E. 2d 548 (1966); State v. Goldberg, 261 N.C. 181, 134 S.E. 2d 334, cert. denied, 377 U.S. 978, 12 L.Ed. 2d 747, 84 S.Ct._1884 (1964).\nThese assignments of error are without merit and overruled.\nDefendants last assignments of error attacks the imposition of the death penalty. In Woodson v. North Carolina, _ U.S. _, 49 L.Ed. 2d 944, 96 S.Ct. 2978 (1976), the United States Supreme Court invalidated the death penalty provisions of G.S. 14-17 (Cum. Supp. 1975) under which defendants were indicted, convicted, and sentenced to death. By authority of the provisions of 1973 Sess. Laws, c. 1201, \u00a7 7 (1974 Session), sentences of life imprisonment are substituted for the death penalty in these cases. We, therefore, deem it unnecessary to discuss further this assignment of error.\nThese cases are remanded to the Superior Court of Onslow County with directions (1) that the presiding judge, without requiring the presence of defendants, enter judgments imposing life imprisonment for the first-degree murder of which defendants have been convicted; and (2) that, in accordance with these judgments, the clerk of superior court issue commitments in substitution for the commitments heretofore issued. It is further ordered that the clerk furnish to the defendants and their attorneys copies of the judgments and commitments as revised in accordance with this opinion.\nWe have also examined defendants\u2019 Assignment of Error No. 31 and find no merit in it. Due to the serious nature of the crime for which defendants have been convicted, we have searched the record for errors other than those assigned and have found none prejudicial to the defendants.\nIn the trial we find\nNo error.\nDeath sentences vacated and, in lieu thereof, life sentences imposed.", "type": "majority", "author": "COPELAND, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten by Associate Attorney, George J. Oliver for the State.", "Roger W. Smith for defendant Stanfield.", "Joseph C. Olschner for defendant Ham." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD STANFIELD and PERNELL JAMES HAM\nNo. 65\n(Filed 14 April 1977)\n1. Criminal Law \u00a7 88.1\u2014 scope of cross-examination\nCross-examination is not confined to the subject matter covered on direct examination but ordinarily may extend to any matter relevant to the issues in the case; however, this does not mean that all decisions on cross-examination are left to the cross-examiner, since the trial judge may and should rule out immaterial, irrelevant and incompetent matter.\n2., Criminal Law \u00a7 169.6\u2014 refusal to have answer placed in record\nThe trial judge's refusal to have an answer placed in the record will not be held error where both the question and the answer are immaterial.\n3. Criminal Law \u00a7 88.3\u2014 cross-examination \u2014 refusal to require immaterial answer\nThe trial court in a homicide case did not infringe on defendant's right to cross-examine a State\u2019s witness by refusing to require the witness to answer specifically a question as to where he obtained marijuana which he smoked where the witness stated that his source of marijuana was not connected with this case, and so no specific answer that he might have given would have been material.\n4. Criminal Law \u00a7 35\u2014 evidence crime not committed by another \u2014 opening door by cross-examination\nWhere defense counsel on cross-examination of a witness brought out evidence tending to show that someone else had been suspected of committing the crime charged, the State was entitled to introduce evidence that the earlier suspects could not have committed the offense for the purpose of explaining or rebutting the testimony elicited by defense counsel, even though such evidence would have been irrelevant had it been offered initially by the State.\n5. Criminal Law \u00a7 89.8\u2014 accomplice \u2014 absence of threats or promises\nAn accomplice may testify that he has received neither promises nor threats for his testimony even though his credibility has not yet been impugned.\n6. Criminal Law \u00a7 34\u2014 evidence of another crime \u2014 competency to show possession of gun\nIn a murder prosecution in which the State\u2019s evidence tended to show that the victim was killed with a shotgun owned by one defendant, evidence that such defendant assaulted his landlord\u2019s son with a shotgun less than a month before the murder was properly admitted for the limited purpose of showing possession by such defendant of a shotgun shortly before the murder.\n7. Criminal Law \u00a7 77.1\u2014 \u201ceffect\u201d of conversation \u2014 competency as ad- . mission\nTestimony of the \u201ceffect\u201d of a conversation between the witness and defendants several days after a murder concerning disposition of the murder weapon was competent as an admission by defendants, although the witness did not remember the exact words spoken.\n8. Criminal Law \u00a7 102.8\u2014 jury argument \u2014 failure to show whereabouts at time of crime\nIn a murder prosecution in which the State\u2019s evidence tended to show that the crime occurred at about 6:00 p.m. and defendant offered evidence of his whereabouts at 4:30 p.m. and again at 6:45 p.m. on the day of the crime, the prosecutor\u2019s argument that defendant did not show where he was between 4:30 and 6:45 p.m. because he was where a State\u2019s witness said he was did not constitute a comment on defendant\u2019s failure to testify but was directed solely at defendant\u2019s failure to offer evidence rebutting\u2019 the State\u2019s case.\n9. Homicide \u00a7 31\u2014 substitution of life sentences for death penalties\nSentences of life imprisonment are substituted for death penalties imposed for first degree murder.\nDefendants appeal pursuant to G.S. 7A-27 (a) from judgment of Webb, J., entered at the 11 November 1975 Criminal Session of ONSLOW Superior Court. This case was docketed and argued as No. 55, Fall Term 1976.\nOn indictments, proper in form, defendants were charged with the murder of Scott Webber. Their cases were consolidated for trial. The jury returned a verdict of guilty of murder in the first degree as to each defendant, and each received the death sentence.\n\u2022 The evidence for the State tended to show that in July 1975 Scott Webber was a Marine Sergeant living on Highway 17 South, near Jacksonville: At noon on July 7, Webber was seen alive at his apartment. That night at 8 p.m., he was not at home. Between 9:00 and 9:30 p.m. the same night, Webber\u2019s van was observed parked along Highway 210 near a bridge at West Onslow Beach, some twenty-six miles from Jacksonville. The next morning, Webber still had not returned to his apartment. His associates, including defendant Stanfield, looked for him and in the course of their search examined the van.\nOn 9 July 1975, employees of the North Carolina Department of Transportation, engaged in road construction in the West Onslow Beach area, went to eat their lunches at an abandoned hunting lodge located about a quarter of a mile off Highway 210 near a bridge. In the bathroom of this abandoned hunting lodge they found a body, which had not been present there two days earlier. The body was identified as that of Scott Webber. Medical testimony indicated Webber died from a gunshot wound to the back of the head. From this wound a part of a slug and plastic wadding were removed.\nAt some time prior to his death, Scott Webber, Phillip Tatta, and defendant Stanfield, all members of the United States Marine Corps, planted a marijuana field at West Onslow Beach to raise \u201cgrass\u201d for sale. They set out over 2,000 plants and expected to make around $20,000 on the crop. After the marijuana grew large enough to pick, defendant Stanfield became angry because Webber was not doing his share of the work, was telling other people about the \u201cpot\u201d field, and had taken an outsider with him to the private field.\nIn the latter part of June 1975, defendant Stanfield asked Roger Olive, also a member of the United States Marine Corps, and defendant Ham, who apparently had formerly been in the Marine Corps, to get rid of Webber and promised them all. the \u201cpot\u201d they could smoke. About 5:30 p.m. on July 7, defendant Ham and Olive went to the abandoned hunting lodge near West Onslow Beach. They had been in the area earlier the same day and located the lodge. On the second trip to the lodge defendant Ham carried a shotgun, which he and defendant Stan-field had purchased earlier. Ham and Olive entered the abandoned hunting lodge after hiding Ham\u2019s car so Webber could not see it as he approached the lodge. Defendant Ham stood inside next to a window, apparently watching the road for the approach of Webber and defendant Stanfield.\nSometime later, Scott Webber and defendant Stanfield arrived at the abandoned hunting lodge in a Volkswagen automobile. After Webber and Stanfield entered the front room, Stanfield went directly to the bathroom. Defendant Ham then went into the bedroom and returned with the shotgun. He ordered Webber to get into the bathroom. Webber asked Stan-field what was going on. Stanfield did not reply but instead exited from the bathroom into the bedroom where Olive was located and closed the door.\nShortly thereafter Olive heard a shot and something hit the floor. Olive and defendant Stanfield came from the bedroom and went into the front room when they observed defendant Ham leaving the bathroom with a shotgun in his hand. The three left the lodge but returned almost immediately to get Webber\u2019s keys and wallet. Defendant Ham and Olive left the lodge, for the last time between 6:00 and 6:30 p.m. They moved Webber\u2019s white van, which had been parked along Highway 210, across the bridge. Defendant Stanfield was still at the lodge when they departed.\nSubstantial circumstantial evidence tended to corroborate the above events as testified to by Olive.\nDefendant Stanfield\u2019s evidence tended to show that on 7 July 1975 he worked a normal day in the Marine Corps, getting off at 4:30 p.m. At about a quarter to seven he arrived at his scuba diving school in Jacksonville. Other evidence tended to show that defendant Stanfield was a person of good character and that Roger Olive was a person of bad character.\nDefendant Ham offered no evidence.\nOther facts necessary to the decision will be discussed in the opinion.\nAttorney General Rufus L. Edmisten by Associate Attorney, George J. Oliver for the State.\nRoger W. Smith for defendant Stanfield.\nJoseph C. Olschner for defendant Ham." }, "file_name": "0357-01", "first_page_order": 377, "last_page_order": 389 }