STATE OF NORTH CAROLINA v. MICHAEL BASS AND GREGORY ALEXANDER BARRETT
No. 78
SUPREME COURT OF NORTH CAROLINA AT RALEIGH
9 February 1972
280 N.C. 435
SPRING TERM 1972
At all times pertinent to this rape case, an indigent defendant in a capital case could not waive the right to counsel either orally or in writing. [Former]
2. Constitutional Law § 32 — right to counsel at lineup
A pretrial in-custody lineup for identification purposes is a critical stage in the proceedings, and by statute in this State an accused so exposed is entitled to the presence of counsel.
3. Criminal Law § 66 — illegal pretrial lineup — in-court identification — independent origin
Rape victim‘s in-court identification of defendant was not tainted by an illegal lineup and was properly admitted, where the trial court found upon competent supporting evidence that the victim‘s in-court identification was based on her observation of defendant during the assault and originated independently of the lineup.
4. Criminal Law § 66 — evidence of illegal lineup identification — harmless error
Although the trial court erred in the admission of evidence of the identification of defendant in a February 1971 lineup at which defendant was not represented by cоunsel, such error was harmless beyond a reasonable doubt in light of the State‘s strong evidence of defendant‘s guilt and the fact that the victim‘s identification of defendant was not based on the lineup identification but was independent in origin.
Defendants were not prejudiced if, as defendants contend, the trial court‘s findings and conclusions as to the admissibility of identification testimony were reduced to writing and filed after the testimony had been admitted before the jury where the findings were supported by competent evidence on voir dire and the testimony was competent, although it is the better practice to make such findings at the time the evidence is tendered and before it is admitted.
6. Criminal Law § 21 — preliminary hearing — function of district court judge
In his capacity as examining (or committing) magistrate in a felony case, the district judge is concerned only with determining (1) whether a felonious offense has been committed and (2) whether there is probable cause to charge the prisoner therewith.
7. Criminal Law § 21 — preliminary hearing — failure to reduce testimony to writing
The requirement of
8. Criminal Law § 86 — credibility of defendant — impeachment on voir dire
In this rape prosecution, the solicitor was properly permitted to examine defendant on voir dire respecting the admitted fact that he was then on parole from a sentence previously imposed for assault with intent to commit rape, since defendant‘s credibility as a witness was subject to impeachment before the judge in the same manner as it would have been had he taken the stand and testified before the jury.
9. Criminal Law §§ 66, 87 — in-court identification — leading questions on voir dire
The trial court did not abuse its discretion in permitting the solicitor to ask a rape victim leading questions on voir dire as to whether her identification of defendant was based on a prеtrial lineup.
10. Criminal Law § 42; Rape § 10 — testimony that jacket was “similar” to one worn by assailant
The trial court did not err in allowing a rape victim to testify that a green military-type jacket admitted in evidence was “similar” to the coat worn by defendant when he raped her.
11. Rape § 10 — clothing worn by defendant when arrested
A blue sweat shirt and a red T-shirt defendant was wearing when arrested were properly admitted in a rape case, the prosecutrix having testified that defendant was wearing a red T-shirt when he raped her, and there being evidence that hairs on the blue sweat shirt matched in microscopic detail hairs taken from the prosecutrix.
In a rape prosecution, the admission of testimony of a State‘s witness offered to rebut a codefendant‘s alibi evidence, if erroneous as to defendant, did not prejudice defendant since the exclusion of such evidence as to him would not have affected the result of his trial.
13. Criminal Law § 92 — consolidation of rape charges against two defendants
The trial сourt did not err in consolidating for trial indictments charging two defendants with identical crimes of rape.
14. Indictment and Warrant § 14 — grounds for quashing indictment
A bill of indictment may be quashed for want of jurisdiction, for irregularity in the selection of the grand or petit jury, or for defect in the bill of indictment.
15. Indictment and Warrant § 14 — motion to quash
A motion to quash lies only for a defect appearing on the face of the warrant or indictment.
16. Indictment and Warrant § 14 — motion to quash
A motion to quash does not lie unless it appears from an inspection of the warrant or indictment that no crime is charged or that the warrant or indictment is otherwise so defective that it will not support a judgment.
17. Indictment and Warrant § 14 — motion to quash — consideration of extraneous evidence
In ruling on a motion to quash, the court is not permitted to consider extraneous evidence; therefore, when the defect must be established by evidence aliunde the record, the motion must be denied.
18. Indictment and Warrant § 14 — motion to quash — alleged arrest without probable cause — recitals in motion and affidavit by counsel — court‘s failure to consider
In ruling on defendant‘s motion to quash a rape indiсtment on the ground that defendant was arrested without probable cause, the trial court properly ignored defendant‘s recitals in the motion, based on information and belief, that the victim failed to identify photographs of him and that the police refused to place him in a lineup, and an affidavit of defendant‘s counsel that he had demanded a lineup for defendant and that the prosecutrix stated on oath at the preliminary hearing that she was not certain of her identity of defendant, since evidence foreign to the record may not be used to establish a defect in the indictment.
19. Criminal Law § 66 — identification at preliminary hearing — impermissible suggestiveness
The preliminary hearing was not impermissibly suggestive so as to render incompetent the testimony of a rape victim that she identified defendant at the preliminary hearing as one of her assail-
20. Criminal Law § 66 — evidence of identification at preliminary hearing
The fact that a rape victim failed to identify defendant from photographs and the fact that there were discrepancies and contradictions in her testimony at the preliminary hearing goes to the weight of rather than the competency of her testimony that she identified defendant at the preliminary hearing as one of her assailants.
21. Criminal Law §§ 99, 170 — remarks of trial court — harmless error
In this rape prosecution, the following remarks of the trial court to defense counsel, while improper, did not constitute prejudicial error when considered in context and in the setting in which they occurred: (1) “It [question by defense counsel] must not have been important then. If you don‘t care to restate it, we won‘t move into it.“; (2) “Just a minute that wasn‘t what she said at all. You know there are not six Saturdays in February. And you know this witness knows there are not six Saturdays in February.“; (3) “You are not to lecture this witness. I mean what I say. Now, you cross-examine him.”
Justice LAKE concurring in result.
DEFENDANTS appeal from Johnston, J., 24 May 1971 Session, GUILFORD Superior Court. This case was docketed as No. 138 and argued at the Fall Term 1971.
Defendants were tried upon separate bills of indictment, proper in form, charging them with the rape of Sandra K. Garner on 6 February 1971. Defendant Barrett‘s motion for a separate trial was denied, and defendants were tried together over Barrett‘s objection. Bass was adjudged indigent and was represented by the public defender. Barrett was represented by privately employed counsel.
The State‘s evidence tends to show that Sandra Garner, a sixteen-year-old high school girl, went to the Buckaroo Steak House on 6 February 1971 at 9:30 p.m. to pick up Cathy Edgerly, a girl friend who worked there. Sandra was driving a black and white 1963 Plymouth Fury four-door sedan. She parked it in front of the Steak House in a well-lighted area near the door. She observed two young colored men standing nearby. She had never seen them before but now knows them as Michael Bass and Gregory Alexander Barrett. She entered the Steak House to let Cathy know she was there and waiting for her. When she returned and entered her car, defendant Bass opened the right front passenger door, grabbed her hair, pulled her head down to the seat and struck her on the head. Defendant Bar-
One defendant asked Sandra her name and where she went to school. “I gave him a fake name, and they got my driver‘s license out of my pocketbook and read my name and address and said they knew who I was and where I lived, and if they read anything about it in the paper or anything happened to either one of them, they knew who I was and where I lived and wouldn‘t be afraid to come after me and kill me.”
The driver, Barrett, turned left off Summit Avenue onto a dirt road. Sandra was then pushed headfirst over the front seat into the rear seat and landed with her face against “the back of the back seat.” Bass followed her into the back seat, forcibly removed her boots, her panties and panty hose, and had intercourse with her by force and against her will. Barrett stopped the car, opened the door and got into the back seat. The dome light came on and Sandra again saw their faces and recognized them as the two young men she had seen earlier before she entered the steak house. Bass stood outside the car by the right rear door, and Barrett had intercourse with Sandra by force and against her will. Then Bass reentered the car and raped the girl a second time. Then Barrett raped her a second time. While this was taking place Bass got under the wheel and started driving.
The rear window of the car had fogged over and “Bass told Barrett to get up and clear the back window so he could see if there was a police car behind us. . . . Barrett raised up and cleared the back window with his hands so he could see if it was a рolice car behind us. Then he said ‘It might be a police car. It doesn‘t have any lights. Turn down this road, and if it follows us, we know it is.‘” When the car continued to follow them as they turned into various side streets, Bass said: “Get ready because we are going to have to jump.” Both men then jumped from the car while it was still moving and ran away. Bass was dressed in a green army jacket, a red T-shirt and was wearing boots. Barrett had on a beige jacket. Sandra could remember nothing else about their dress.
In response to a radio call about 10 p.m., Officer Simpson drove to the Buckaroo Steak House area looking for the black and white Plymouth bearing license number BD-7521. He saw the car at approximately 10:40 p.m. in a line of traffic at a stop light at Market and Laurel Streets. He followed the car and saw a Negro male wipe off the back glass. The car then made various right and left turns along unpaved streets and alleys and was momentarily out of view when it rounded blind corners. When the officer finally jumped from his car and ran to the slowly moving Plymouth near a dead-end alley, Sandra Garner was its only occuрant. She was crying and, except for a white sweater shirt, naked and said she had been raped. She told the officer her assailants ran south toward the railroad tracks. Officer Downs and Officer Hightower were patrolling in separate cars in the area, and each was alerted by radio about 10:40 p.m. Officer Downs left his car and went to the railroad tracks where he saw two colored males running across the tracks. He pursued them through a wooded area and into a clearing back of a churchyard. Officer Hightower approached the railroad tracks in the opposite direction from Officer Downs and saw two Negro males running toward him. He saw them run into the woods and then across a parking lot behind the
The officers knew that Michael Bass and Gregory Barrett were friends and ran together. When Bass was taken into custody an alert was put out for Barrett. Officer McNair learned from Ronald Bass, a brother of Michael Bass, that these defendants were together on the night in question and left the house together between 8 and 9 p.m. Gregory Barrett was duly arrested at 2:30 a.m. on February 8 in a room at the O‘Henry Hotel where he lived. State‘s Exhibit 5, a light beige jacket-type coat, was hanging on the closet door.
Following his arrest, defendant Bass was warned of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, and, with full knowledge and understanding of his right to counsel, orally waived such right and agreed to participate in a lineup without a lawyer present, saying he would call his lawyer in the morning. Accordingly, around 3:30 a.m. on the morning of 7 February 1971, Sandra Garner viewed a lineup of seven Negro males including Bass and identified him as one of her assailants. Defendant Barrett was never placed in a lineup following his arrest. Sandra next saw him at the preliminary hearing. She testified: “I recognized him as soon as I came into the room. He was sitting over on one side of the room against the wall. Nobody prompted me or pointed him out in any way.”
Sandra Garner positively identified both defendants at the preliminary hearing and in court at the trial. She testified that she based her in-court identification “on the times I saw them the night it took place; outside the Buckaroo, and when I came out of the Buckaroo I saw them; in the car, and just the times I saw them that night.”
Michael Bass did not testify and offered no evidence.
Gregory Barrett testified in his own behalf. His evidence tends to show that he attended a movie with his girl friend Brenda Brown on Saturday night, the 6th day of February 1971, arriving at the theater about 7:30 p.m. and leaving the theater about 9:30 p.m.; that he then sent his girl friend home on a bus and went to Michael Bass’ house, arriving there “about a quarter of ten to ten thirty“; that Bass was not at home and he watched television until about 11 p.m. at the Bass residence; that he then called Brenda Brown and they rode a cab to the O‘Henry Hotel, where they had been living together for about four months, and went to bed. Barrett stated that he did not see Michael Bass at all on 6 February 1971.
Brenda Brown corroborated Barrett‘s testimony. She testified they arrived at the theater at 7:30 p.m. on 6 February 1971, saw the movie completely through, and left at 9:30 p.m.; that she then rode a bus to her grandmother‘s home and Barrett left, saying he was going to Michael Bass’ house; that Barrett telephoned her about 11 p.m. as a result of which she caught a cab, went to the Bass home, and she and Barrett watched Shock Theater on television until midnight or later and then rode a cab to the O‘Henry Hotel where they retired for the night; that Michael Bass never came home during the time she was there. She admitted on cross-examination that she gave a statement (S-10) to the police, written in her own handwriting and signed by her, that she and Barrett went to the theater at 5:30 p.m., got out about 7:30 p.m., and she caught a bus to Paulette Knox‘s house. She asserted, however, that she had the time mixed up and the written statement was not true.
Defendant Barrett offered other witnesses whose testimony tends, in some measure, to support his alibi.
The State offered rebuttal evidence which tended to show, among other things, that Brenda Brown gave the police a statement in her own handwriting that she and Gregory Barrett went to the Carolina Theater at 5:30 p.m. on 6 February 1971 and left about 7:30 p.m.; that she went to Paulette Knox‘s
The jury convicted both defendants of rape and recommended life imprisonment. Judgment was pronounced accordingly and defendants appealed, assigning errors noted in the opinion.
Wallace C. Harrelson, Public Defender, and J. Dale Shepard, Assistant Public Defender, Attorneys for Defendant Appellant Bass.
Alston, Pell, Pell & Weston, by E. L. Alston, Jr., Attоrneys for Defendant Appellant Barrett.
Robert Morgan, Attorney General, and Millard R. Rich, Jr., Assistant Attorney General, for the State of North Carolina.
HUSKINS, Justice:
The first assignment of defendant Bass is based on the contention that since he did not sign a written waiver of his right to counsel at the lineup when he was exhibited to the prosecuting witness for identification, the lineup was illegal and his subsequent in-court identification by Sandra Garner was tainted and inadmissible. He therefore argues that his motion to suppress her in-court identification should have been allowed.
[1] At all times pertinent to this case, an indigent defendant in a capital case could not waive the right to counsel either orally or in writing. See 1969 Session Laws, Chapter 1013, Section 1, codified as
[2] A pretrial in-custody lineup for identification purposes is a critical stage in the proceedings, and by statute in this State
[3] Here, the court conducted a voir dire examination in the absence of the jury following which it found as a fact, upon supporting evidence, that Sandra Garner‘s in-court identification of Bass and Barrett was based on her observation of them during the assault upon her and originated independently of the lineup. These findings of fact by the trial judge are conclusive when, as here, they are supported by competent evidence. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966); State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970); State v. Harris, 279 N.C. 307, 182 S.E. 2d 364 (1971). In light of these principles, it follows that the victim‘s in-court identification of Bass was not tainted by the lineup and was properly admitted.
[4] Even so, due to absence of counsel at the lineup, the court erred in admitting evidence of the lineup identification; and if there is a reasonable possibility that this erroneously admitted evidence might have contributed to the conviction of Bass, a new trial is required. If not, it was harmless error. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963). “One who, because of the statute, is precluded in a capital case from waiving the right to counsel during an in-custody, pretrial lineup stands in the same position as an accused who did not knowingly, understandingly and voluntarily waive the right to counsel before the enactment of
In light of all the evidence, fortified by the fact that Sandra Garner‘s identification of Bass was not based upon the lineup idеntification but was independent in origin, we conclude that there was no reasonable possibility that evidence of the lineup identification of Bass contributed to his conviction. Its admission was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967); Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284, 89 S.Ct. 1726 (1969); State v. Brinson, 277 N.C. 286, 177 S.E. 2d 398 (1970); State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399 (1971). The first assignment of defendant Bass is overruled.
[5] Both defendants contend it was also error for the trial judge to file his findings of fact upon the voir dire examination after the evidence had already been admitted before the jury.
Defendants’ next assignment is grounded on the failure of the district judge who conducted the preliminary hearing to reduce to writing the testimony of the witnesses examined before him. Both defendants contend they were prejudiced on the trial in the superior court by reason of such failure.
[6, 7]
[9] During the voir dire examination of Sandra Garner, the solicitor was permitted to ask, and the witness to аnswer, over objection, as follows:
“Q. Is your identification here of Bass in any way based on that lineup?
“A. I recognized him from the times I saw him before the lineup.
“Q. In the absence of attendance at the lineup, would you still be able to recognize him here today?
“A. Yes, sir. I would still be able to recognize him.”
Defendant Bass assigns the court‘s ruling as error.
The trial court has discretionary authority to permit leading questions in proper instances, State v. Painter, 265 N.C. 277, 144 S.E. 2d 6 (1965), and upon defendant‘s failure to show prejudice such discretionary action of the trial court will not be disturbed. State v. Cranfield, 238 N.C. 110, 76 S.E. 2d 353 (1953). “The allowance of leading questions is a matter entirely within the discretion of the trial judge, and his rulings will not be reviewed on appeal, at least in the absence of abuse of discretion.” Stansbury, N. C. Evidence (2d ed.) Witnesses § 31; State v. Pearson, 258 N.C. 188, 128 S.E. 2d 251 (1962). No abuse of judicial discretion is shown. This assignment is overruled.
[10] When Bass was arrested he was wearing a green military-type jacket. It was offered in evidence as State‘s Exhibit 4. This jacket was exhibited to Sandra Garner while she was on the witness stand and she was permitted to testify, over objection, that it was “similar” to the coat worn by Bass on the night he raped her. Bass assigns the admission of this testimony as еrror.
[11] Likewise, the blue sweat shirt (S-7) and the red T-shirt (S-8) Bass was wearing when arrested were properly allowed in evidence. The prosecutrix testified that Bass was wearing a red T-shirt when he raped her, and hairs on the blue sweat shirt matched, in microscopic detail, hairs taken from the prosecutrix. In this setting, the relevancy of these exhibits on the question of identity is so readily apparent that the assignments of error based thereon seem trivial. “There was no violation of the defendant‘s right in requiring him, while in custody under a valid arrest upon the charge in this case, to change his clothing and in taking from him the clothing which he wore at the time of his arrest immediately after the alleged offense. There was no error in permitting the State to introduce in evidence the shirt so taken from the defendant and the hair found thereon.” State v. Tippett, 270 N.C. 588, 155 S.E. 2d 269 (1967).
[12] Defendant Bass objected to the testimony of Paulettе Knox, offered by the State to rebut the testimony of Defendant Barrett and his girl friend Brenda Brown. Paulette Knox testified, among other things, that Brenda Brown had been with her “from before noon on 6 February 1971 until some time after eleven o‘clock that evening” when Brenda made a phone call and left, saying she was going “over to Michael‘s house.” Bass contends this evidence, as to him, was incompetent and its admission prejudicial.
We perceive no prejudice to Bass by the admission of this evidence. If the evidence had been excluded as to Bass, it would not have changed the result of his trial. “It is not enough for the appellant to show error, and no more. He must make it appear that it was prejudicial to his rights, and that a different result but for the error would have likely ensued.” State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364 (1963); State v. Williams, supra; State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (1970). The error, if such it be, was entirely harmless. Stansbury, N. C. Evidence (2d Ed.) § 9. State v. Franklin, 248
[13] Defendant Barrett moved for a separate trial and assigns as error the denial of his motion.
There is no merit in this assignment. These defendants were charged in separate bills of indictment with identical crimes. The offenses charged are of the same class, relate to the same crime, and are so connected in time and place that most of the evidence at the trial upon one of the indictments would be competent and admissible at the trial on the other. Under such circumstances the trial judge was authorized by
Before pleading to the merits defendant Barrett filed a written motion to quash the bill of indictment against him on the ground that he was arrested without probable cause. He asserted in his motion, on information and belief, that the victim had failed to identify photographs of him and that the police had refused to place him in a lineup for identification. His counsel, by affidavit in support of the motion to quash, swore he had demanded a lineup for Barrett and, further, that the prosecuting witness stated on oath at the preliminary hearing that she was not certain of her identity of defendant Barrett. The trial judge did not formally rule on the motion, as he should have done, but proceeded with the trial of Barrett upon the true bill of indictment returned by the grand jury. Barrett assigns error. We now examine the validity of his position.
[14-17] A bill of indictment may be quashed for want of jurisdiction, State v. Sloan, 238 N.C. 547, 78 S.E. 2d 312 (1953), or for irregularity in the selection of the grand jury, Miller v. State, 237 N.C. 29, 74 S.E. 2d 513 (1953), or for irregularity in the selection of the petit jury, State v. Litteral, 227 N.C. 527, 43 S.E. 2d 84 (1947), or for defect in the bill of indictment. State v. Mayo, 267 N.C. 415, 148 S.E. 2d 257 (1966). Thus a motion to quash is an appropriate method of testing the suffi-
[18] It appears from the record in this case that defendant Barrett, by grand jury indictment proper in form, is charged with committing the capital felony of rape upon Sandra Garner on 6 February 1971. Evidence foreign to the record may not be used to establish a defect in the bill of indictment. The recitals in Barrett‘s written motion to quash and in his counsel‘s affidavit were properly ignored by the trial court. His action in that respect was equivalent to denial of the motion and we so regard it. Barrett‘s assignment of error based thereon is overruled.
[19] Barrett next assigns as error that Sandra Garner was permitted to testify over his objection that she identified him at the preliminary hearing. Barrett asserts that since he had not
The record does not support the contention that the preliminary hearing was “rigged” for purposes of identifying Barrett. There is no evidence of impermissible suggestiveness by the officers or the court. Sandra Garner testified that she was subpoenaed as a witness to testify at the preliminary hearing and recognized Barrett “as soon as I came into the room. He was seated over on one side of the room against the wall. Nobody prompted me or pointed him out in any wаy.” She said there was no question in her mind that her identification was correct. She further testified that her in-court identification was based on the times she saw defendants the night she was raped. The trial court so found on voir dire and further found, in effect, that the preliminary hearing was not an impermissibly suggestive procedure which likely led the victim into misidentification of her assailants. These findings were based on competent evidence and rendered the victim‘s in-court identification properly admissible. State v. Gray, supra. We hold there has been no denial of due process contemplated by the Fourteenth Amendment.
[20] Furthermore, the record shows that both defendants, and especially Barrett‘s counsel, cross-examined this young victim at the preliminary hearing and again at the trial with unusual vigor, calling into question her ability to identify Barrett and suggesting many discrepancies and contradictions in her testimony — all of which she denied or attributed to counsel‘s rapid-fire questions and overreaching tactics. Her positive in-court identification of Barrett suffices to carry the case to the jury. Thе fact that she failed to identify him from photographs and the fact that there were discrepancies and contradictions in her testimony at the preliminary hearing, if such there were, goes to the weight rather than the competency of the testimony and is thus a matter to be considered by the jury. Lewis v. United States, 417 F. 2d 755 (1969), cert. den. 397 U.S. 1058, 25 L.Ed.
[21] Barrett‘s next assignment of error is grounded on the court‘s comments on three occasions during the trial.
On the first occasion the court directed counsel to restate a question because it was confusing, and counsel refused, saying he was unable to do so. The court replied: “It must not have been important then. If you don‘t care to restate it, we won‘t move into it. Now, Mr. Alston, I have told you to ask this witness a question and then wait for an answer. Now, that question is a confusing question for any witness. So you restate your question.”
On the second occasion, the State‘s rebuttal witness Paulette Knox had testified that she was with Barrett‘s girl friend Brenda Brown on Saturday night, 6 February 1971, during the hours when Brenda Brown and Barrett had testified she was with Barrett. On cross-examination Barrett‘s counsel asked Paulette Knox: “Which Saturday night in February was it, the first, second, third, or fourth?” The witness answered: “The sixth.” Counsel then said: “You say there are six Saturdays in February?” The court interposed: “Just a minute that wasn‘t what she said at all. You know there are not six Saturdays in February. And you know this witness knows there are not six Saturdays in February.” The witness was never afforded an opportunity to say whether she was referring to the sixth day or the sixth Saturday of February.
On the third occasion the court instructed counsel: “You are not to lecture this witness. I mean what I say. Now, you cross-examine him.”
As stated by Mr. Justice Black in Illinois v. Allen, 397 U.S. 337, 25 L.Ed. 2d 353, 90 S.Ct. 1057 (1970): “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of conduct should not and cannot be tolerated.”
Standards of conduct imposed on trial judges and trial counsel are discussed by Justice Sharp in State v. Lynch, supra, and the reciprocal duties of each are summarized in the follow-
Considered in context and in the setting in which they occurred, we are inclined to the view that the words of the judge here under attack had no prejudicial effect on the result of the trial. Unless it appears “with ordinary certainty that the rights of the prisoner have been in some way prejudiced by the remarks or conduct of the court, it cannot be treated as error.” State v. Browning, 78 N.C. 555 (1877). Trial judges must be given sufficient discretion to meet the circumstances of each case. This assignment is overruled.
Barrett‘s remaining assignments, five in number, relate to the admission of inconsequential evidence, i.e., testimony that the prosecuting witness “was quite nervous,” appeared “tо be confused,” and similar expressions. A careful review of these assignments impels the conclusion that the matters complained of were not prejudicial.
Defendants having failed to show prejudicial error, the verdict and judgment as to each defendant must be upheld.
No error.
Justice LAKE concurring in result.
Had the superior court erred, as the majority opinion states, in admitting evidence of the lineup identification, I would concur in the majority‘s conclusion that this was harmless error and not ground for granting Bass a new trial. In my opinion, there was no error in the admission of this evidence.
The majority opinion states:
“At all times pertinent to this case, an indigent defendant in a capital case could not waive the right to counsel
either orally or in writing. See 1969 Session Laws, Chapter 1013, § 1, codified as
G.S. 7A-457 ; State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971).”
I am unable to concur in this statement by the majority which is the foundation for its conclusion that there was error in admitting testimony of identification of Bass by Miss Garner at the lineup. Notwithstanding the amendment to
In no case has this Court ever set aside a conviction in reliance upon
Following the proper holding of a voir dire, the trial court found that Bass was specifically advised by the officer of his right to have a lawyer present before going into the lineup, that he indicated to the officer that he was willing to partici-
It is my view that
Assuming the validity of
We are not here concerned with any violation of the right of the defendant under the Constitution of the United States or under the Constitution of this State to have counsel present to advise and represent him at such lineup. It is established, as the majority observes, that the defendant Bass freely, voluntarily and with full understanding of his constitutional right to counsel, waived that right. Neither Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, nor any other decision of the Supreme Court of the United States, nor of this Court, declares an oral waiver of the constitutional right to counsel invalid. We are here concerned solely with the provisions of the State statute.
Miranda v. Arizona, supra, and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, do not hold that state courts may not admit evidence obtained in violation of a state statute. The effect of thоse cases is limited to the admissibility of evidence obtained in violation of the defendant‘s rights held guaranteed by the Federal Constitution. The effect of a disregard of
It is well established that the common law of North Carolina does not forbid the admission of evidence unlawfully ob-
Of course, the Legislature, in an otherwise valid statute, has the authority to change a common law rule as to the competency of evidenсe. However, there is no provision in G.S. Chapter 7A declaring evidence obtained in disregard of its provisions to be incompetent. In State v. McGee, supra, this Court refused to extend, to evidence obtained by a search without any warrant at all, a statute declaring incompetent evidence obtained by a search under an illegally issued warrant. Pursuant to State v. McGee, supra, we should not interpolate into
If, however, it be thought that G.S. Chapter 7A should be construed as a legislative declaration that evidence is incompetent if obtained at an in-custody lineup in a capital case, prior to which an indigent defendant knowingly, understandingly and voluntarily waived his right to the presence of counsel, and at which he had no counsel present, the evidence here in question would, in my opinion, nevertheless be admissible for the reason that
The defendant‘s constitutional right to have counsel at an in-custody lineup or interrogation is now clearly established. Miranda v. Arizona, supra. It is, however, equally well settled that a defendant has a constitutional right to handle his own
In State v. McNeil, 263 N.C. 260, 139 S.E. 2d 667, Justice Parker, later Chief Justice, said:
“The United States Constitution does not deny to a defendant the right to defend himself. Nor does the constitutional right to assistance of counsel justify forcing counsel upon a defendant in a criminal action who wants none. Moore v. Michigan, 355 U.S. 155, 2 L.Ed. 2d 167; Carter v. Illinois, 329 U.S. 173, 91 l.Ed. 172; United States v. Johnson, 6 Cir. (June 1964), 333 F. 2d 1004.”
In State v. Bines, 263 N.C. 48, 138 S.E. 2d 797, Justice Higgins said:
” ‘The constitutional right (to counsel), of course, does not justify forcing counsel upon an accused who wants none.’ Moore v. Michigan [supra]; Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126.”
In State v. Morgan, 272 N.C. 97, 157 S.E. 2d 606, this Court said:
“Having been fully advised by the court that an attorney would be appointed to represent him if he so desired, he [the defendant] had the right to reject the offer of such appointment and to represent himself in the trial and disposition of his case.”
In State v. Williams, 276 N.C. 703, 174 S.E. 2d 503, this Court affirmed a death sentence imposed for murder in the first degree upon a defendant who was tried without counsel, pursuant to his declaration that he did not want counsel. Our decision was reversed by the Supreme Court of the United States, but upon another ground and without mention of the defendant‘s having been tried without counsel.
It not infrequently happens that a defendant is dissatisfied with the counsel appointed for him by the court. While he may not insist that the court appoint a different counsel to represent him, the defendant has the right to insist that his case not be handled by an attorney in whom he has no confidence. If he so desires, he has the right, in that situation, to represent himself. In this there is no distinction between a
Furthermore,
The purpose of the statutory provision for appointment of counsel, at public expense, for indigent defendants is to put indigent defendants on an equality with affluent defendants in trials upon criminal charges. To deny, or to restrict the right of the indigent to waive counsel, i.e., to represent himself, has no reasonable relation to the objective of equal opportunity to prevail at the trial of the case. Such classification is beyond the legislative power. When a special class of persons (indigents) is singled out by the Legislature for special treatment, there must be a reasonable relation between the classification and the object of the statute. Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927; Power Mfg. Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165; State v. Glidden Corp., 228 N.C. 664, 46 S.E. 2d 860; 16 AM. JUR. 2d, Constitutional Law, § 501.
The defendant, with full knowledge of his constitutional right to have counsel at the lineup and not to enter the lineup without the presence of his counsel, waived that right, thereby electing to represent himself at that stage of the pre-trial proceedings. Having so elected, his constitutional right to represent himself was recognized and granted by the officers. Having so asserted his desire to proceed at that stage without counsel, he may not now be heard to say that, because he was permitted to do so, the evidence so obtained by the State was unlawfully
Consequently, it is my view that there was no error in admitting the testimony that Miss Garner identified the defendant Bass at the lineup and clearly no error in admitting her in-court identification of him, the latter identification being independent in origin and unaffected by the identification at the lineup.