State v. Dangerfield

32 N.C. App. 608 | N.C. Ct. App. | 1977

MORRIS, Judge.

Defendant was arrested on 19 November 1975. On 20 November, he made an initial appearance in the district court before Johnson, Judge, pursuant to G.S. 15A-601. At that time, defendant filed a motion demanding a probable-cause hearing pursuant to G.S. 15A-606. However, the district attorney announced in open court during the initial appearance that at the next session of the Mecklenburg County grand jury he intended to submit a bill of indictment charging defendant with murder. On 24 November, the presiding district court judge set defendant’s probable-cause hearing for 11 December. However, Judge Johnson entered an order on 28 November which made findings of fact and concluded “ ... as a matter of law that the defendant is not entitled to as a matter of right to have the State conduct a probable cause hearing and that a probable cause hearing is not an essential prerequisite to the return of a bill of indictment.” The grand jury’s next session began on 1 December 1975, and defendant was served with the true bill of indictment on 5 December. The probable-cause hearing was never held.

In his first and second assignments of error, defendant contends that the trial court committed prejudicial error in failing to order that defendant was entitled as a matter of right to a probable-cause hearing. We disagree.

Prior to the adoption of Chapter 15A of the General Statutes, a criminal defendant could be tried on a bill of indictment without the necessity of a preliminary hearing. E.g., State v. Foster, 282 N.C. 189, 192 S.E. 2d 320 (1972). However, G.S. 15A-606 states:

“(a) The judge must schedule a probable-cause hearing unless the defendant waives in writing his right to such hearing. A defendant represented by counsel, or who desires to be represented by counsel, may not before the date of the scheduled hearing waive his right to a probable-cause hearing without the written consent of the defendant and his counsel.

(d) If the defendant does not waive a probable-cause hearing, the district court judge must schedule a hearing not later than 15 working days following the initial appearance before the district court judge; . . . ” .

In State v. Sutton, 31 N.C. App. 697, 230 S.E. 2d 572 (1976), this Court held that G.S. 15A-606 does not entitle a criminal defendant to a probable-cause hearing as a matter of right after a bill of indictment has been returned. We noted that “ [w] e find nothing in Chapter 15A or its legislative history which demonstrates the legislature’s intention to alter the preexisting rule which dispensed with the requirement for a preliminary, or probable-cause, hearing when the defendant has been charged by indictment.” Id. at 700, 230 S.E. 2d at 574.

In the present . case, defendant’s hearing was properly scheduled within the 15 working-day requirement of G.S. 15A-606(d). However, the necessity for the hearing was eliminated by defendant’s subsequent indictment on 5 December. Therefore, we fail to see how the order of 28 November denying defendant’s motion could possibly have been prejudicial to defendant. These assignments are overruled.

At the close of State’s evidence and again at the close of all the evidence, defendant moved for “a directed verdict of not guilty.” The trial judge denied both motions, and defendant assigns these rulings as error. Defendant’s motions are properly treated as motions for judgment as of nonsuit. State v. Britt, 285 N.C. 256, 204 S.E. 2d 817 (1974). In ruling upon the motions, the trial court is required to view the evidence in the light most favorable to the State and to give the State the benefit of every reasonable inference and intendment to be drawn therefrom. State v. McKinney, 288 N.C. 113, 215 S.E. 2d 578 (1975). Contradictions and discrepancies, even in the State’s evidence, are for the jury to resolve and do not warrant the granting of the motion. State v. Cox, 289 N.C. 414, 222 S.E. 2d 246 (1976). If there is evidence, direct, circumstantial, or both, from which the jury can find that the defendant committed the offense charged, the motion should be overruled. State v. Jones, 287 N.C. 84, 214 S.E. 2d 24 (1975). Applying these principles to the present case, we believe there is plenary evidence in the record to overcome defendant’s motions and to take the case to the jury. This assignment is overruled.

At trial, one of defendant’s witnesses was Lolanda Fisher, an employee in a convenience food store in Charlotte. She testified that on 4 November 1975,. Robyn Dangerfield had come into the convenience store and “ . . . wanted to hide in the stockroom. When she came in, she was moving very fast. She was very upset. She was crying.” Fisher further testified, outside the presence of the jury, that Mrs. Dangerfield said that her boyfriend was trying to kill her; that she asked Fisher to phone her husband but that he did not answer; that she wanted to hide in the stockroom; that Fisher called a cab for Mrs. Dangerfield; that Fisher temporarily closed the store and Mrs. Dangerfield hid in the rear of the store until the cab arrived; and that Mrs. Dangerfield left in the cab. The court ruled that the testimony was inadmissible, and defendant assigns as error the exclusion of this evidence. We disagree.

“Evidence, oral or written, is called hearsay when its probative force depends, in whole or in part, upon the competency and credibility of some person other than the witness by whom it is sought to produce it.” State v. Branch, 288 N.C. 514, 529, 220 S.E. 2d 495, 506 (1975); State v. Bryant, 283 N.C. 227, 230, 195 S.E. 2d 509, 511 (1973); 1 Stansbury, N. C. Evidence, § 134, p. 458 (Brandis Rev. 1973). When the evidence is offered for any purpose other than to prove the truth of the matter stated, it is not hearsay. State v. Crump, 277 N.C. 573, 178 S.E. 2d 366 (1971). Our courts have long held that threats made by a third person against the deceased are hearsay and therefore inadmissible. State v. Duncan, 28 N.C. 236 (1846). Defendant, however, contends that the testimony was admissible, not to show that deceased’s boyfriend had threatened her, but rather to show her state of mind, i.e., her fear for her life. While evidence of the declarations showing the state of mind of a decedent are sometimes admissible, this is true only where the state of mind is at issue in the case. Stansbury notes that any state of mind may be shown by contemporaneous declarations “ . . . whenever a person’s intention or design is considered relevant ...” 1 Stansbury, N. C. Evidence, § 162, p. 541 (Brandis Rev. 1973). See also 6 Wigmore on Evidence, § 1790, pp. 237-40 (3rd Ed. 1940).

Defendant cites two cases, State v. Prytle, 191 N.C. 698, 132 S.E. 785 (1926), and State v. Miller, 16 N.C. App. 1, 190 S.E. 2d 888 (1972), modified on other grounds, 282 N.C. 633, 194 S.E. 2d 353 (1973), as authority for his position that the testimony was admissible under the state-of-mind exception to the hearsay rule. We find neither case persuasive. In Prytle, the defendant was on trial for the murder of his wife, and he alleged as a defense that she committed suicide. Our Supreme Court held that declarations of the wife tending to show her despondent state of mind were not violative of the hearsay rule. In Miller, the defendant, a “house man” employed at a gambling house, was charged with the murder of a police officer, and he claimed that the killing was in self-defense. This Court held that statements which defendant received from third parties concerning robberies of other gambling games were admissible “ ... as bearing upon the reasonableness of defendant’s apprehension that a robbery might have been in progress when he saw unidentified armed men walking rapidly into the room.” 16 N.C. App. at 13, 190 S.E. 2d at 896. Thus, state of mind was clearly relevant in each instance. In the present case, however, there is no claim of self-defense or any other allegation which would put decedent’s state of mind at issue. The testimony, therefore, was properly excluded by the trial court. This assignment is overruled.

Defendant contends that the trial court erred in failing to instruct the jury “ . . . that he had no opinion with regard to the testimony, and that his statement of the evidence, if it differed from that of. the jury, was not to be considered, but that the jury should take only their recollections of the evidence in arriving at their verdict.” However, the record reveals that defendant failed to ask for such instruction. It is well settled in this State that such instructions are not required absent a request therefor, particularly where, as here, the court did instruct the jury that they should be guided by their own recollections of all the evidence. State v. Biggerstaff, 226 N.C. 603, 39 S.E. 2d 619 (1946); State v. Harris, 213 N.C. 648, 197 S.E. 142 (1938); State v. Chappell, 23 N.C. App. 228, 208 S.E. 2d 508 (1974). This assignment is overruled.

We have reviewed defendant’s other assignment of error and find it to be without merit. Defendant has received a fair and impartial trial free from prejudicial error.

No error.

Judges Vaughn and Martin concur.