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North Carolina v. Barfield

Filed: November 6, 1979.

STATE OF NORTH CAROLINA
v.
MARGIE BULLARD BARFIELD



Appeal by defendant from McKinnon, J., 27 November 1978 Special Criminal Session, Bladen Superior Court.

Britt, Justice. Justice Brock took no part in the consideration or decision of this case.

Britt

We find no prejudicial error in either phase of defendant's trial and conclude that the verdicts and judgments should not be disturbed. We will discuss the errors assigned under each phase.

Phase I -- Guilt Determination

By her first assignment of error defendant contends that the trial court erred in denying her motion for the appointment of additional counsel. There is no merit in this assignment.

When it had been determined that defendant was indigent, Attorney Robert D. Jacobson of the Robeson County Bar was appointed to serve as her counsel. At an early stage of the proceedings against defendant, Mr. Jacobson learned that the defendant was suspected of having committed at least four other murders by poisoning in addition to the one that she then stood accused of. On 15 March 1978 a motion was made that additional counsel be appointed to assist Mr. Jacobson in representing defendant. District Judge Charles G. McLean denied the motion after conducting a hearing.

It is the responsibility of the state to provide an indigent defendant with counsel and the other necessary expenses of representation. G.S. 7A-450. However, defendant's right to court-appointed counsel does not include the right to require the court to appoint more than one lawyer unless there is a clear showing that the first appointed counsel is not adequately representing the interests of the accused. People v. Marsden, 2 Cal. 3d 118, 465 P. 2d 44, 84 Cal. Rptr. 156 (1970). In making that determination the legitimate interest that the state has in securing the best utilization of its legal resources must be considered along with the interests of the defendant. Cf. State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) (appointment of two attorneys for each defendant in a murder trial critized).

While there may be situations in which the right to the effective assistance of counsel can be safeguarded only by the appointment of additional counsel, such a situation is not present in this case. Though defendant was suspected of having poisoned four persons other than Stewart Taylor, no charges were brought in connection with those deaths. While it is true that the state introduced evidence at trial which tended to show that defendant was involved in those deaths, the burden imposed upon defense counsel was not excessive. It is not unusual for a defendant to be tried for a number of offenses in one trial. Nor is it uncommon for evidence of other acts of misconduct to be introduced in a criminal trial to show motive, intent, or a scheme or plan. An attorney who is representing a criminal defendant must be prepared to deal with such evidence as it arises in the course of the trial. Though Mr. Jacobson carried a great burden in representing the defendant in a capital case, we do not find it to have been so disproportionate to that borne in the usual course of criminal defense work so as to have required the court to have appointed another attorney to provide assistance. We would add, parenthetically, that Judge McLean's order reflects favorably upon Mr. Jacobson's professional background and experience, indicating that he was competent to represent the best interests of the defendant. It is our opinion that Mr. Jacobson gave defendant high quality representation.

By her second assignment of error, defendant contends that the court improperly denied her motion for a change of venue to the western part of the state. In her third assignment of error,

she contends that the court erred in moving the case from Scotland County to Bladen County for trial. These assignments are interrelated and will be dealt with accordingly. Neither is meritorious.

On 19 April 1978 defendant moved for a change of venue to the western part of the state pursuant to G.S. 15A-957. She contended that she would be unable to secure a fair and impartial trial in Robeson County because of extensive pretrial publicity. Following a hearing on the motion, Judge Hobgood ordered that the case be removed to Scotland County.

On 1 November 1978 the district attorney moved that the case be transferred from Scotland County to Bladen County for the reasons that there were only four weeks of criminal superior court scheduled for Scotland County during 1978, defendant was scheduled to be tried during the 27 November 1978 Session of Scotland Superior Court, and there were approximately twenty persons confined to jail who were awaiting trial at that session. Though defendant objected to the change of venue, stating that she was satisfied with Scotland County, Judge Hobgood granted the motion and ordered that the case be removed to Bladen County for trial.

G.S. 15A-957 provides that if the court determines, upon the motion of the defendant that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either transfer the proceeding or order a special venire from another county. The statutory power of the court to change the venue of a trial is limited to transferring the case to an adjoining county in the judicial district or to another county in an adjoining judicial district. G.S. 15A-957. Notwithstanding this apparent statutory limitation upon the power of a court to order a change of venue, a court of general jurisdiction, of which our superior court is one, Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548 (1966), has the inherent authority to order a change of venue in the interests of justice. English v. Brigman, 227 N.C. 260, 41 S.E.2d 732 (1947). In either case, a motion for a change of venue is addressed to the sound discretion of the trial judge and will not be disturbed on appeal in the absence of a showing of an abuse of discretion. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, {PA}

Page 321} death sentence vacated, 429 U.S. 809, 50 L. Ed. 2d 69, 97 S. Ct. 46 (1976); State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

There has been no showing of an abuse of discretion in this instance. While it is true that there is evidence in the record which tends to show that a radio station in Lumberton as well as newspapers in Robeson County and surrounding counties gave coverage to the pending trial, there is nothing which suggests that the coverage was anything more than general in nature and likely to be found in any jurisdiction to which the trial might be removed. See, State v. Alford, supra; see also Annot., 33 A.L.R. 3d 17 (1970). Furthermore, Judge Hobgood, in view of the Speedy Trial Act, G.S. 15A-701 et seq. had to consider the rights of the twenty other defendants awaiting trial in Scotland County as well as the rights of the defendant in this case.

In her fourth assignment of error, defendant asserts that the trial court erred in refusing to grant her motion for a continuance. This assignment has no merit.

On 1 November 1978 the court was advised that one of defendant's witnesses, Dr. Anthony Sainz, was hospitalized and not expected to be released soon thereafter. Defendant moved for a continuance. Following a hearing, Judge McKinnon denied the motion but provided that defendant could renew her motion upon obtaining a written statement by a physician that Dr. Sainz would not be able to testify or give a deposition before or during the week of 27 November 1978, the week defendant's case was scheduled for trial. On 27 November 1978, with Dr. Sainz still hospitalized, defendant renewed her motion for a continuance. The motion was denied. On 30 November 1978 the deposition of Dr. Sainz was taken in his hospital room at the Cape Fear Valley Hospital. Defendant's attorney, the district attorney, the presiding judge, and a court reporter were present at the time the deposition was taken.

A motion for a continuance is ordinarily addressed to the sound discretion of the court and will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Cox, 281 N.C. 275, 188 S.E.2d 356 (1972); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). However, when the motion for continuance is based upon

a right which is guaranteed by the State or Federal Constitutions, the question is not one of discretion but one of law and is reviewable upon appeal. State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975); State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973).

Defendant argues that the standards enunciated in Smathers and Robinson ought to control the disposition of her case. We disagree. Contrary to the allegations of defendant, this is not a case where a continuance could properly have been based upon her Sixth Amendment right to have compulsory process issue to secure the presence of witnesses in her behalf. The facts of State v. Rigsbee, supra, are similar to the facts of this case. In Rigsbee this court applied the abuse of discretion standard of review to uphold the trial judge's denial of a motion for a continuance when a confidential informant under subpoena failed to appear at trial. In Rigsbee, as well as in the present case, the motion for a continuance was predicated upon the absence of a witness sought by the defendant. The present case differs from Rigsbee in that the testimony of Dr. Sainz was obtained and presented before the jury by way of deposition. While it is true that the demeanor and appearance of a witness upon the stand before the jury may prove to be beneficial to the party who offers the witness' testimony, a deposition is an accepted means of perpetuating and presenting the testimony of an unavailable witness. G.S. § 8-74. One of the specific grounds upon which a deposition may be taken and offered into evidence at a criminal trial is such an infirmity or physical incapacity on the part of a witness that the defendant is unable to procure his attendance at trial. Such were the facts in the present case. Dr. Sainz was then suffering from tuberculosis and was not expected to be able to return to his office before the first of the year (1979). Therefore, we conclude that the court did not abuse its discretion in denying defendant's motion for a continuance.*fn1

In her sixth assignment of error, defendant contends that the trial court erred in refusing to grant her motion for an individual voir dire of each juror and sequestration of the jurors during voir dire. This assignment has no merit.

A pretrial motion for an individual voir dire of each juror and for sequestration of the jurors during voir dire was made by defendant on 25 April 1978. The motion was denied in chambers immediately before the trial began. The court directed that twelve prospective jurors be seated in the jury box during voir dire. All other prospective jurors were excluded from the courtroom until such time as they were seated in the jury box to replace a venireman who had been excused.

A motion for an individual voir dire is addressed to the sound discretion of the court and will not be disturbed except for an abuse of discretion. State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1977); State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975), death sentence vacated 428 U.S. 903, 49 L. Ed. 2d 1208, 96 S. Ct. 3207 (1976). Defendant argues that a collective voir dire enables the jurors to digest the answers of each other and consider answers that would result in their exclusion from the panel. A domino effect is then alleged to take place, whereby juror after juror professes an aversion to the death penalty in order to be relieved of jury duty. At best, defendant's argument is speculative. There is no showing that any such thing occurred during defendant's trial. We find no basis upon which to disturb the exercise of the trial court's discretion.

In her seventh assignment of error, defendant contends that the trial court erred in allowing the state to challenge for cause certain jurors who voiced general objections to capital punishment or who expressed conscientious or religious scruples against the death penalty. Defendant asserts that an examination of the record reveals that several of the prospective jurors who were challenged for cause by the district attorney and excused by the court were merely ambivalent toward the death penalty. This assignment is without merit.

"[A] sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85, 88 S. Ct. 1770, rehearing denied, 393 U.S. 898, 21 L. Ed. 2d 186, 89 S. Ct. 67 (1968). See also Cook, Constitutional Rights of the Accused: Trial Rights § 117 (1974); 3 Wharton's

Criminal Procedure § 461 (13th ed. 1975). Unless a venireman is irrevocably committed before the trial begins to vote against the death penalty regardless of what the facts and circumstances might prove to be from the evidence adduced at trial, he cannot be excluded from the panel. Davis v. Georgia, 429 U.S. 122, 50 L. Ed. 2d 339, 97 S. Ct. 399 (1976). If a venireman who is not so committed is improperly excluded, any subsequently imposed death sentence cannot stand. Davis v. Georgia, supra.

A prospective juror is properly excused for cause when his answers on voir dire concerning his attitudes toward the death penalty, although equivocal, show when considered contextually that regardless of the evidence he would not vote to convict the defendant if conviction meant the imposition of the death penalty. State v. Bernard, 288 N.C. 321, 218 S.E.2d 327 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975), death sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1209, 96 S. Ct. 3209 (1976). See generally Annot., 39 A.L.R. 3d 550 (1971).

While it is true that taken by themselves, the answers that some of the jurors called to serve in defendant's trial seem to be equivocal or contradictory, taken as a whole, the examination indicates opposition to the death penalty so strong that they could not vote to impose it regardless of the evidence. The words of Justice (now Chief Justice) Branch from State v. Bernard are instructive on this point. In Bernard, the following exchange took place on voir dire :

Q. Do you have any religious or moral scruples or beliefs against capital punishment?

A. Well, I don't believe in the death penalty, no.

Q. Sir?

A. I don't believe in the death penalty, no.

Q. It would be impossible regardless of the evidence for us to put enough evidence in there to satisfy you to bring in a verdict of guilty if that meant the imposition of the Death Penalty, is that right?

In reference to this exchange, Justice Branch commented, "An unequivocal answer to the final question asked by the solicitor

would have determined prospective juror Gantt's competence to serve on the panel so far as the Witherspoon rule might apply." (Emphasis added.) Our examination of the record in the case now before us would seem to indicate that the benchmark laid down in Bernard was met. In her brief, defendant mentions the voir dire of three jurors in particular: Mr. Dent, Miss Grimes, and Miss McKoy. After each was challenged for cause by the district attorney, the presiding judge proceeded to conduct an examination of their attitudes toward the death penalty. In response to questioning by the court, each of the named jurors indicated that no matter what aggravating circumstances were established by the evidence, he or she could not vote to impose a death sentence. These unequivocal responses satisfy the demands of Bernard. There was no error.

Defendant assigns as error the admission of evidence concerning the deaths of John Henry Lee, Dolly Taylor Edwards, Lillie McMillan Bullard and Jennings Barfield. The evidence tended to show that defendant was responsible not only for the poisoning death of Stewart Taylor for which she was charged but also for the poisoning deaths of the other four individuals. The evidence further tended to show that she had committed additional acts of forgery and uttering. This assignment has no merit.

Evidence that a defendant has committed other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows guilt of another crime. State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); State v. Stegmann, 286 N.C. 638, 213 S.E.2d 262 (1975), death sentence vacated, 49 L. Ed. 2d 1205, 96 S. Ct. 3203 (1976); 1 Stansbury's North Carolina Evidence § 91 (Brandis Rev. 1973).

The rule is predicated upon the law's desire to preserve for the accused in an unencumbered state the presumption of innocence which is at the heart of every criminal prosecution. See State v. Christopher, 258 N.C. 249, 128 S.E.2d 667 (1962). Furthermore,the rule operates to protect the defendant from the surprise introduction of extraneous matters which are unduly prejudicial because their probative value is outweighed by the danger that the issues before the jury will be confused and the

trial's length will be prolonged. See generally McCormick on Evidence § 190 (2d ed. 1972); 1 Wharton's Criminal Evidence § 240 (13th ed. 1972). Notwithstanding these important considerations of public policy, there are a number of instances where the probative value of such evidence outweighs the specter of unfair prejudice to the defendant. Cf. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954) ("The general rule excluding evidence of the commission of other offenses by the accused is subject to certain well recognized exceptions, which are said to be founded on as sound reasons as the rule itself.") We perceive at least four grounds upon which evidence tending to show that defendant poisoned four individuals other than Stewart Taylor would be relevant.

It is clear that evidence that a defendant committed other offenses is relevant to establish a defendant's knowledge of a given set of circumstances when such a set of circumstances is logically related not only to the crime the defendant is on trial for but also is logically related to the extraneous offense. State v. Walker, 251 N.C. 465, 112 S.E.2d 61, cert. denied, 364 U.S. 832, 5 L. Ed. 2d 58, 81 S. Ct. 45 (1960); State v. McClain, supra; State v. Smoak, 213 N.C. 79, 195 S.E. 72 (1938); McCormick on Evidence § 190 (2d ed. 1972); 1 Stanbury's North Carolina Evidence § 92 (Brandis Rev. 1973); 2 Wigmore on Evidence § 363 (1940). The Smoak case is particularly illustrative of this point.

In Smoak, the defendant was on trial for the first-degree murder of his daughter, Annie Thelma Smoak. Though she died on 1 December 1936, Annie was taken to a hospital on Thanksgiving Day, 1936, and treated for symptoms of strychnine poisoning. An autopsy indicated that the cause of her death was strychnine poisoning. At trial the state was permitted to introduce evidence tending to show that the defendant's second wife had died from strychnine poisoning. This court upheld the admission of the evidence, offering a number of grounds upon which it was relevant. One of the grounds of relevancy noted in the opinion was showing the defendant's knowledge of the effect of a particular poison, citing with approval the leading cases of Goersen v. Commonwealth, 99 Pa. 388 (1882), and Zoldoske v. State, 82 Wis. 580, 52 N.W. 778 (1892). It is appropriate to apply the principle of Smoak to the facts of the present case. When she took the stand in her own defense, the defendant testified:

On Tuesday, after the weekend, I had to come to Lumberton to Dr. Baker's office to have a dressing changed and on the way back home, we stopped at Eckerd's Drug Store to get some hair spray and there is where I purchased the Terro [Ant Killer]. I purchased it because I thought it would make him [Stewart Taylor] sick. I did intend to give it to him. (Emphasis added.)

Earlier, in the presentation of the state's case-in-chief, the statement which the defendant had given to Officers Parnell and Lovette was introduced into evidence. In her statement, the defendant confessed:

I had given poison to people before and they died. The label (on the bottle of poison) read, "May be fatal if swallowed."

The defendant's testimony from the stand is at odds with the clear implication of the statement that she gave to the deputies, i.e., that she knew the fatal properties of the insecticide. The evidence which relates to the deaths of the other four individuals is, therefore, admissible to show that the defendant knew the probable consequences of her actions when she administered the poison to Stewart Taylor. Its relevancy is made more striking when one notes that defendant entered a plea of not guilty by reason of insanity in addition to a general plea of not guilty. The test of insanity as a defense to a criminal charge is whether the accused, at the time of the alleged act, was laboring under such a defect of reason, from disease or deficiency of the mind, as to be incapable of knowing the nature and quality of the act, or, if he does know this, was by reason of such defect of reason, incapable of distinguishing between right and wrong in relation to such act. State v. Jones, 293 N.C. 413, 238 S.E.2d 482 (1977); see also, W. LaFave & A. Scott, Handbook on Criminal Law § 37 (1972); Comment, The Insanity Defense in North Carolina, 14 Wake Forest L. Rev. 1157 (1978). For a defendant to know the nature and quality of his act, he must have understood the physical nature and consequences of the act. State v. Terry, 173 N.C. 761, 92 S.E. 154 (1917); State v. Spivey, 132 N.C. 989, 43 S.E. 475 (1903); see also LaFave & Scott, supra, § 37; Comment, The Insanity Defense in North Carolina, supra at 1166-1168. Since the defendant tendered a plea of not guilty by reason of insanity, it was in issue whether

or not the defendant knew the physical nature and consequences of her actions. Accordingly, the Smoak holding is buttressed further.

Evidence that defendant poisoned four individuals in addition to Stewart Taylor was relevant for the purpose of showing her intent. Evidence of other offenses is properly admitted whenever it is necessary to prove that a defendant had a specific intent or that a particular act was done intentionally rather than accidentally. State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972); State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); McCormick on Evidence § 190 (2d ed. 1972); 1 Stansbury's North Carolina Evidence § 92 (Brandis Rev. 1973). Though homicide which is committed by use of poison does not differ in its substantive elements from homicide committed by other means, the deliberative features which usually attend the use of poison have historically caused the courts to receive evidence of its prior uses in order to show intent. 2 Wigmore on Evidence § 363, n. 11 (1940). Such evidence is clearly relevant in a prosecution for first-degree murder in that the state must prove a specific intent to kill if it is to win a conviction. State v. Wilson, 280 N.C. 674, 187 S.E.2d 22 (1972). Defendant was tried for first-degree murder. Evidence that she had previously administered poison to others was competent to show specific intent on her part in that she had a pattern of administering poison to persons, knowing full well the probable consequences of her actions.

Evidence of other offenses is relevant to establish a defendant's motive in engaging in criminal conduct. State v. Poole, 289 N.C. 47, 220 S.E.2d 320 (1975); State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Smoak, supra ; McCormick on Evidence § 190 (2d ed. 1972); 1 Stansbury's North Carolina Evidence § 92 (Brandis Rev. 1973). Again, the facts of the Smoak case are pertinent in explaining this point. In Smoak, the state was allowed to introduce evidence that tended to show a pattern of similar deaths which were followed by the defendant filing proof of death and collecting the proceeds of life insurance policies he had procured on the lives of the decedents. Such evidence was deemed competent to show the defendant's motive in administering poison ...


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