No. 126 | N.C. | Jun 6, 1975
The conflict between the testimony of the police officers and that of the defendant raised a question of fact for the jury. The jury simply did not believe the defendant’s unlikely explanation of his presence in the store along with two drug thieves.
The decision of the Court of Appeals being unanimous, the defendant’s only right to appeal to this Court, as distinguished from a petition for certiorari, is upon the basis of a substantial constitutional question. G.S. 7A-30. He asserts his constitutional rights have been denied, but his assignments of error raise no substantial constitutional question. “[A]n appellant seeking a second review by the Supreme Court as a matter of right on the ground that a substantial constitutional question is involved must allege and show the involvement of such question or suffer dismissal. The question must be real and substantial rather than superficial and frivolous. It must be a constitutional question which has not already been the subject of conclusive judicial determination. Mere mouthing of constitutional phrases like ‘due process of law’ and ‘equal protection of the law’ will not avoid dismissal.” State v. Colson, 274 N.C. 295" court="N.C." date_filed="1968-10-09" href="https://app.midpage.ai/document/state-v-colson-1277129?utm_source=webapp" opinion_id="1277129">274 N.C. 295, 305, 163 S.E. 2d 376, cert. den., 393 U.S. 1087" court="SCOTUS" date_filed="1969-02-24" href="https://app.midpage.ai/document/cobb-v-johns-8965777?utm_source=webapp" opinion_id="8965777">393 U.S. 1087, 89 S. Ct. 876" court="SCOTUS" date_filed="1969-02-24" href="https://app.midpage.ai/document/new-york-central-railroad-v-lefkowitz-8964081?utm_source=webapp" opinion_id="8964081">89 S.Ct. 876, 21 L. Ed. 2d 780" court="SCOTUS" date_filed="1969-02-24" href="https://app.midpage.ai/document/hahn-v-kentucky-alcoholic-beverage-control-board-8965771?utm_source=webapp" opinion_id="8965771">21 L.Ed. 2d 780. (Emphasis added.)
The offenses are alleged to have been committed on 25 March 1974. The defendant was brought to trial at the 8 July 1974 Session of the Superior Court. In the meantime, counsel was appointed to represent him. His counsel so appointed moved in the District Court that a court reporter be appointed at the State’s expense to record proceedings at the preliminary hearing. This request was denied, but the court stated that the recording system which was used in the Juvenile Domestic & Relations Court would be available to record the preliminary hearing and ordered such hearing to be set at the earliest practicable time. This order was entered 28 March 1974, three days after the defendant’s arrest. The defendant becoming dissatisfied with his court-appointed counsel and requesting appointment of another attorney, this was done, the second attorney representing him from that time to the present. Through his second court-appointed counsel, the defendant waived a preliminary hearing on 13 May 1974. There is no showing whatever of a denial of the defendant’s right to a speedy trial.
Prior to trial the defendant filed, pro se, a motion to quash the indictments. His court-appointed counsel filed a lengthy brief in support thereof. When the cases were called for trial in the Superior Court, the trial judge announced that he had previously considered and “thoroughly reviewed” the motion to quash and the supporting brief and the motion was denied. The defendant now asserts that it was a denial of his constitutional right tó so rule upon his motion to quash “without hearing.” There is no substance to this contention.
The defendant contends he was denied the right to communicate with his witness Gibson by the denial of his request that they be put in the same jail cell so that they could confer about their “joint defense.” Defendant’s testimony at his trial was upon the theory that he and Gibson had no joint defense,
Finally, the defendant asserts that, through the State’s delay of the preliminary hearing and the denial of his request for a court reporter to take such testimony at such hearing, the defendant lost the opportunity to record Gibson’s intended testimony absolving the defendant from complicity in the breaking and entering of the store and possession of the burglary tools. He contends that Gibson committed suicide and the State, through its negligence, failed to prevent this. The record shows that had a preliminary hearing been held, facilities were available for the recording of the testimony. The record shows no effort by the defendant or his counsel to expedite a preliminary hearing after the District Court, three days after the defendant’s arrest, ordered such hearing to be held at the “earliest practicable time.” No such hearing was held because the defendant waived it.
Nothing in the record indicates any effort by the defendant or his counsel to take the deposition of Gibson for the purpose of preserving his testimony. Furthermore, nothing in the record shows that the State had any indication that Gibson would testify as the defendant now says he would have done, nor does the record show that the State had any indication that Gibson’s early death was a probability. The record does not show when Gibson died nor does it show anything about the cause of his death except the defendant’s own testimony at his trial that Gibson “killed himself or something in the jail.”
Nothing whatever in this record indicates that the defendant has not had a fair trial or that any of his rights under the State or Federal Constitution has been denied him. In addition to the above contentions of the defendant on this appeal, we have examined the rulings of the trial court concerning the admission of evidence and the charge of the court to the jury. We find therein no substantial error.
Appeal dismissed.