STATE OF NORTH CAROLINA v. CHARLES E. MEMS
No. 2
In the Supreme Court of North Carolina
(Filed 31 July 1972)
281 N.C. 658
LAKE, Justice.
Chief Justice BOBBITT concurring in result. Justices HIGGINS and SHARP join in concurring opinion.
Unquestionably, the trial judge has wide discretion in the conduct of the interrogation of prospective jurors so as to avoid needless repetition and waste of time. The requirement, however, that counsel relay through the court all questions to prospective jurors does not have the virtue of saving time except insofar as it may discourage inquiry by making it a tedious and laborious process. The statute seems to contemplate that a party may propound his own questions directly to the jury, assuming the propriety of the question. Such has been the prevailing, if not the universally accepted, practice under the statute in the courts of this State. I see no virtue and some danger in departing from it.
1. Criminal Law § 146- unconstitutionality of statute - issue raised first time on appeal
Where defendant relies on a statute for the first time on appeal, the State is not precluded from raising the issue of the constitutionality of the statute for the first time on appeal.
2. Criminal Law § 146- constitutionality of statute - grounds of appeal
A statute will not be declared unconstitutional if the appeal can be determined on another ground.
3. Criminal Law § 162- incompetent evidence - admission with no objection
Admission of incompetent evidence, without objection, is not ground for a new trial, except when use of the evidence is precluded by a statute enacted in furtherance of public policy.
4. Criminal Law § 162- in-court identification of defendant - objection voir dire - failure to renew objection
When defendant objected to a proposed in-court identification of himself, a voir dire examination was conducted, with the court holding that such testimony would be competent, whereupon defendant excepted; however, when the jury returned and the testimony was heard, defendant did not renew his objection, but such renewal was not necessary to preserve the question for appellate review, though renewal would have been the better practice.
A person‘s right to counsel under the Sixth and Fourteenth Amendments attaches only after adversary judicial proceedings have been initiated against him.
6. Constitutional Law § 32-right to counsel - police lineup ---- waiver of counsel
Where a lineup is held only two or three hours after an offense is committed and no indictment has been sought or returned, no formal charge has been made, no warrant has been issued and no preliminary hearing has been set, a lineup which is not unnecessarily suggestive and conducive to irreparable mistaken identification is merely a step in the police investigatorial process and a defendant, having been given a full Miranda warning, may voluntarily waive his Sixth and Fourteenth Amendment right to counsel.
7. Constitutional Law § 4- standing to challenge constitutionality of statute
The unconstitutionality of a statute may be asserted only by a litigant adversely affected by the statute, but the State is such a litigant when the declaration of the validity of a statute will defeat the State‘s right to introduce otherwise competent and vitally important evidence, and so, its right to carry out the judgment which it has obtained against the defendant in the superior court.
8. Criminal Law § 66- findings of fact conclusive
Findings of fact made by the trial judge, being fully supported by the evidence on voir dire, are conclusive.
9. Constitutional Law § 32- right to counsel ---- waiver
The defendant in a criminal proceeding, whether it is a trial or pre-trial police lineup, has a right to handle his own case without interference by, or the assistance of, counsel forced upon him against his wishes.
10. Constitutional Law §§ 20, 32- equal protection - waiver of counsel discrimination between indigent and affluent
11. Constitutional Law §§ 20, 32- equal protection - waiver of counsel basis for classification
Indigency is a sufficient basis for classification with reference to the right to court appointed, publicly paid counsel, but it is not a reasonable basis for classification as to the right to represent one‘s self.
12. Constitutional Law § 20- equal protection - reasonableness of classification
When a special class of persons is singled out by the Legislature for special treatment, there must be a reasonable relation between the classification and the object of the statute.
APPEAL by defendant from Godwin, J., at the 26 April 1971 Criminal Session of CUMBERLAND.
By an indictment, proper in form, the defendant was charged with the rape of Mrs. Sharon Machamer. The jury returned a verdict of guilty with a recommendation that the defendant‘s punishment be imprisonment for life. From a sentence imposed in accordance with the verdict, the defendant appeals. He was represented at the trial and on appeal by the Public Defender.
Mrs. Machamer testified concerning the details of the offense, which occurred at her trailer home in Fayetteville shortly after 12:30 p.m. on 2 March 1971. At the time, she was alone in her home save for her two infant children, her husband having gone to work in the early morning. Her assailant, whom she had observed in the vicinity about an hour earlier, entered her home and, upon being ordered by her to leave, struck her several times about the head and arms as she resisted him, then forced her into the bedroom, bound her hands and twice committed the offense, together with an unnatural sexual act, stating that he would not kill her and the children if she did what he wanted her to do. He was a Negro, about six feet in height and in his early twenties, dressed in dark colored pants and a navy blue “sweat type jacket” with the hood pulled up so that his eyes, nose and mouth alone were visible. Upon his departure she notified the police. Upon their arrival she described her assailant to them. At the trial she identified a blue sweat shirt (State‘s Exhibit 1) and a pair of green trousers (State‘s Exhibit 2) as those worn by her assailant. At the time of the offense, and for a considerable period prior thereto, a steady rain was falling.
Early in Mrs. Machamer‘s testimony the defendant objected to a proposed in-court identification by her of the defendant as her assailant. The court thereupon conducted an ex-
At the conclusion of the voir dire, the court made full findings of fact and ordered:
“1. That defendant‘s objection to an in-court identification of the defendant by Mrs. Machamer as her assailant be, and the same is, sustained.
“2. That the defendant‘s objection to an in-court identification of the defendant by Mrs. Boras and Mrs. Williams, as the man they saw walking along the street in the rain in the neighborhood of their home and that of Mrs. Machamer, about mid-day on March 2, 1971, will be overruled and that such evidence will, if ordered, be received in evidence in defendant‘s trial.”
To this order the defendant excepted. Thereupon, the jury returned to the courtroom and Mrs. Machamer‘s testimony, as above related, proceeded without objection. Mrs. Boras and Mrs. Williams then testified, without further objection.
Mrs. Boras and Mrs. Williams each identified in court the defendant as the Negro man she saw walking about her own trailer home, across the street from that of Mrs. Machamer, immediately prior to and after the assault. Each testified that, at a lineup conducted by the police on the afternoon of the offense, she observed and identified the defendant as the man she had so seen. The six men in the lineup were Negroes of about the same size and age. None of them was then wearing either a blue hooded sweat shirt or green pants such as those worn by the man she observed in the vicinity of the Machamer trailer. Each witness identified the hooded sweat shirt (State‘s Exhibit 1) as the one worn by the man so observed by her at
Approximately one hour after the offense, police officers went to the home of the defendant and found him there with his mother. They arrested him “for investigation of rape,” giving him the full Miranda warning. At that time the defendant was wearing the pair of green pants and the shoes identified by the women (State‘s Exhibits 2 and 3). The pants were quite wet. He told the officers he had been out of the house approximately one hour before their arrival and had then been wearing a pair of brown pants and a dark blue sweat shirt, both of which he handed to the officers, the sweat shirt being the one identified by Mrs. Machamer, Mrs. Boras and Mrs. Williams (State‘s Exhibit 1). It was “soaking wet” when handed to the officers by the defendant in his home, but the brown pants were dry.
The defendant did not testify. He offered witnesses in his behalf whose testimony was to the effect that he was at a Fort Bragg field house four or five miles from the Machamer trailer at the time Mrs. Machamer‘s assailant was observed walking about and entering her trailer. One of them testified that he then saw the defendant playing baseball, the other that he then saw him playing basketball and that the defendant, between 12:30 p.m. and 12:45 p.m., “signed out” from the witness a pair of basketball shoes. The second man was not called at the trial to testify in person and so was not cross-examined. Due apparently to his absence on military duty, his affidavit, dated 9 March 1971, was received in evidence, it being stipulated that he would so testify if present.
The defendant did not offer in evidence any document showing such “signing out” of the shoes by him on 2 March 1971 and there is nothing in the record to indicate that, at the
The defendant‘s mother and his girl friend testified that, approximately an hour before Mrs. Machamer‘s assailant was observed walking about the trailers, the defendant left home wearing “brownish” or “goldish-tan” pants. His mother testified that he was still wearing these when he returned home shortly before the arrival of the officers, that he did not again go out because of the rain, and that the green pants he was wearing when the officers arrived were dry.
The State offered in rebuttal two witnesses who lived in the vicinity of the defendant. The first testified that she saw him with his girl friend at the bus stop approximately an hour before the offense. He was then wearing dark green pants and a blue jacket with a hood, these being similar in appearance to the State‘s Exhibits 1 and 2. She again saw him walking along the street in front of her home “heading toward town,” about 12:30 p.m., this being the same time his witnesses said he was playing either baseball or basketball at the field house four or five miles away. He then had the hood of the jacket pulled up around his head, just as did Mrs. Machamer‘s assailant. The other rebuttal witness testified that she, too, saw the defendant at approximately 12:30 p.m. walking along the street near her home with the hood of his sweat shirt pulled up over his head.
After all the evidence was in, on motion of the defendant, the voir dire examination into the question of the lineup, at which Mrs. Boras and Mrs. Williams identified the defendant, was reopened. Upon the original voir dire hearing, at which the defendant elected not to testify, the evidence was that, prior to the lineup, the defendant was fully advised of his constitutional rights. He having said he wanted a lawyer at the lineup, the officers sent for one, but, prior to the lawyer‘s arrival, the defendant voluntarily signed a written waiver of counsel and the lineup proceeded without the presence of counsel.
The defendant‘s counsel then stated his desire to call the defendant for the purpose of testifying on this resumption of the voir dire. The court refused to permit the defendant to so testify for the reason that he had been present at the original voir dire hearing and had then chosen not to testify.
At the conclusion of this resumption of the voir dire, the court stated it would not disturb its former ruling. To this the defendant objected and excepted.
Following the charge by the court, to which the defendant took no exception, the jury returned and announced its verdict. Thereupon, the defendant‘s counsel announced that he desired to make a motion “before the verdict is finally received.” The motion was one for a mistrial on the ground of alleged improprieties by members of the jury during the course of the trial. The court immediately conducted an extensive hearing and, finding there had been no such irregularities, denied the motion. The court then polled the jury. Each juror having replied that he or she still assented to the verdict of guilty with the recommendation that the punishment be life imprisonment, the court accepted the verdict and imposed sentence accordingly.
Attorney General Morgan, Deputy Attorney General Bullock, and Associate Attorney Conely for the State.
James Godwin Taylor, Assistant Public Defender, for defendant.
The defendant has argued upon his appeal eight assignments of error. We have considered each carefully and find no merit in any of them. The only one meriting detailed discussion is that the trial judge erred in failing to grant the defendant‘s motion to suppress the in-court identifications of the defendant by Mrs. Boras and Mrs. Williams.
In his brief, the defendant asserts:
“Under North Carolina law in effect at the time of the present lineup the defendant was clearly, unequivocally entitled to the services of counsel at the lineup. He was guaranteed this right by
Article 36 of Chapter 7A of the General Statutes of North Carolina and could not waive this right. The provisions ofNCGS 7A-457(a) prohibit his waiver of right to counsel at any critical stage of the proceedings in a capital case. A lineup such as that conducted here is such a critical stage of the proceedings.NCGS 7A-451 (b) (1) . See State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971) and State v. Chance, 279 N.C. 643 (1971).”
[1] Nothing in the record indicates that in the superior court the defendant relied upon the provision in
The State had no opportunity to attack the constitutionality of this statutory provision in the lower court. Its evidence was admitted by the lower court. There was no contention therein that this provision of the statute made the evidence incompetent. Thus, the State‘s contention as to its invalidity is not barred from our consideration by the familiar rule to the effect that a question as to the constitutionality of a statute may not be raised for the first time in this Court when the party raising
[2] The State also contends in its brief that the defendant failed to object to the testimony in question when it was offered before the jury and, therefore, may not now assert that its admission constituted reversible error. If this were correct, we would not reach on this appeal the constitutional question raised by the State, for it is also a well established rule that a statute will not be declared unconstitutional if the appeal can be determined on another ground. State v. Blackwell, 246 N.C. 642, 99 S.E. 2d 867; Fox v. Commissioners of Durham, 244 N.C. 497, 94 S.E. 2d 842; State v. Jones, 242 N.C. 563, 89 S.E. 2d 129; In Re Parker, 209 N.C. 693, 184 S.E. 532; 16 AM. JUR. 2d, Constitutional Law, § 113.
[3, 4] The admission of incompetent evidence, without objection, is not ground for a new trial, except when use of the evidence is precluded by a statute enacted in furtherance of public policy. Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529; Stansbury, North Carolina Evidence 2d, § 27. We do not now need to determine whether, by reason of
[5, 6] There is nothing in the record to indicate a violation of the defendant‘s constitutional rights in the admission of this evidence. It is now established that “a person‘s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him,” and the rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed. 2d 1178, is limited to lineups conducted after “the onset of formal prosecutorial proceedings.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed. 2d 411, 40 Law Week 4607. The lineup here in question was held only two or three hours after the offense was committed. The defendant was in custody “for investigation of rape,” but no indictment had been returned or even sought, no formal charge had been lodged against him, no warrant had been issued and no preliminary hearing had been set. The lineup was merely a step in the police investigatorial process. All of the evidence compels the finding that there was nothing in the lineup procedure which made it “unnecessarily suggestive and conducive to irreparable mistaken identification” so as to violate the defendant‘s rights under the Due Process Clause of the Fifth and Fourteenth Amendments, as construed in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199, and Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed. 2d 402. Furthermore, the record shows clearly that the defendant, after being given the full warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, with full understanding of his constitutional right to counsel, waived it voluntarily. This he may do. Miranda v. Arizona, supra.
The defendant‘s assignment of error must, therefore, fail unless it is supported by
“(a) An indigent person who has been informed of his rights under this subchapter may, in writing, waive any right granted by this subchapter, if the court finds of record that at the time of the waiver the indigent person acted with full awareness of his rights and of the consequences of a waiver. In making such a finding, the court shall consider, among other things, such matters as the person‘s age, education, familiarity with the English language, mental condition, and the complexity of the crime charged. A waiver shall not be allowed in a capital case.” (Emphasis added.)
This was a capital case. The trial court found:
“16. That at the time of his arrest at his home in Fayetteville during the afternoon of March 2, 1971, the defendant was advised of his constitutional rights as required by Miranda.
“17. That after he reached the courthouse in custody of Sheriff‘s Officers, following his arrest, he was advised that Sheriff‘s Officers desired to establish a lineup of several men to be viewed by Mrs. Machamer and other witnesses in order that they might determine if they could identify the defendant as a person seen by them earlier that day in the neighborhood of the Machamer mobile home, and that he was entitled to be represented by counsel in connection with the lineup; that if he was unable to employ counsel, counsel would be appointed for him without ex-
pense to him; that thereupon the defendant advised the Sheriff‘s Officer that he wished to have counsel present with him at the time of the lineup;
“18. That Sheriff‘s Officers agreed to see that legal counsel was furnished to him without expense to him, and that they began to search for an attorney to be present and represent the defendant in connection with the lineup;
“19. That before the arrival of counsel and before the lineup was made up, the defendant changing his mind, advised Sheriff‘s Officers that he did not desire to be represented by counsel in connection with the lineup and that he waived his right to counsel in writing.”
The trial court thereupon concluded:
“4. That the defendant knowingly and intentionally waived his right to be represented by legal counsel in connection with the aforesaid lineup.”
These findings and this conclusion of the trial court comply with the requirements of
Effective 30 October 1971, subsequent to the trial of this defendant, the Legislature rewrote
[7] It is well settled that the unconstitutionality of a statute may be asserted only by a litigant who is adversely affected by the statute. Nicholson v. Education Assistance Authority, 275 N.C. 439, 168 S.E. 2d 401; D&W, Inc. v. Charlotte, 268 N.C. 577, 151 S.E. 2d 241; Charles Stores v. Tucker, 263 N.C. 710, 140 S.E. 2d 370. In this case, the State is a party litigant. Its right to introduce evidence, otherwise competent and vitally important to its case, and so, its right to carry out the judgment which it has obtained against the defendant in the superior court will be defeated if this provision of
[8] The findings of fact made by the trial judge, being fully supported by the evidence on voir dire, are conclusive. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1, cert. den., 386 U.S. 911; State v. Barnes, 264 N.C. 517, 142 S.E. 2d 344; State v. Chamberlain, 263 N.C. 406, 139 S.E. 2d 620; State v. Outing, 255 N.C. 468, 121 S.E. 2d 847, cert. den., 369 U.S. 807, 82 S.Ct. 652, 7 L.Ed. 2d 555. It is, therefore, established, for the purposes of this appeal, that the defendant, after being fully advised of his right to counsel at the lineup, knowingly, understandingly and voluntarily waived that right in writing. Unless the above quoted prohibition of such waiver in
Under the circumstances of this case, it would make no difference had the attorney summoned by the sheriff actively participated in and approved the manner of conducting the lineup. This attorney was not chosen or accepted by the defendant. He was not appointed by the court. Nothing in the record indicates that he was a member of the staff of the Public Defender. He was not designated by the Public Defender to represent the defendant. He was simply selected by the police officers who had no authority, by statute or otherwise, to select an attorney for the defendant in the absence of the defendant‘s acquiescence in the selection.
The defendant‘s statutory right to have the services of duly appointed counsel at this lineup conducted prior to the inception of prosecutorial proceedings is not here in question. He voluntarily and understandingly waived that right in writing. The only question for us to determine is the validity of the statutory provision denying him the right to waive it.
[9] This Court has repeatedly held that the defendant in a criminal proceeding has a right to handle his own case without
In State v. McNeil, 263 N.C. 260, 267-268, 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.
In United States v. Plattner, 330 F. 2d 271 (2nd Circuit 1964), the judgment of the trial court was reversed and the matter remanded because the defendant “expressed the desire to be his own counsel,” but the trial court “thereupon appointed counsel from Legal Aid to represent him because petitioner was not schooled in the law.” The Court of Appeals, speaking through Circuit Judge Medina, said:
“As we hold that a defendant on the trial of a criminal case, including a coram nobis proceeding at which the defendant is present and witnesses are to be examined and cross-examined, has a right to conduct and manage his own case pro se, we reverse the order appealed from and remand the case. Moreover, we hold the right to act pro se as above stated is a right arising out of the Federal Constitution and not the mere product of legislation or judicial decision. * * *
“Under the Fifth Amendment, no person may be deprived of liberty without due process of law. Minimum requirements of due process in federal criminal trials are set forth in the Sixth Amendment. * * * Implicit in both amendments is the right of the accused personally to manage and conduct his own defense in a criminal case.”
Also declaring that the right of a defendant to represent himself in a criminal proceeding is a constitutional right are: Lowe v. United States, 418 F. 2d 100 (7th Circuit 1969), cert. den., 397 U.S. 1048, and United States v. Sternman, 415 F. 2d 1165 (6th Circuit 1969), cert. den., 397 U.S. 907, rehear. den., 397 U.S. 1081.
[9] 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 capital case and any other case. See State v. Williams, supra. If he may represent himself, as we there held, through the intricacies of an actual trial, he surely has the right to look after his own interest at a police lineup free from threats, duress and unduly suggestive indications that he is the person the police desire to have selected by the viewer. This right the Legislature may not deny a defendant, be he indigent or affluent.
[10] Furthermore,
[11, 12] Indigency is obviously a sufficient basis for classification with reference to the right to court appointed, publicly paid counsel, but it is not a reasonable basis for classification as to the right to represent one‘s self. Poverty is not synonymous with lack of intelligence or even with limited education, and possession of funds does not necessarily mean possession of good judgment or of knowledge of legal procedure. When a special class of persons, such as 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 Manufacturing Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 71 L.Ed. 1165; State v. Glidden Co., 228 N.C. 664, 46 S.E. 2d 860; 16 AM. JUR. 2d, Constitutional Law, § 501. 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, while permitting the affluent defendant to exercise such right, has no reasonable relation to the objective of equal opportunity to prevail at the trial of the case. Such classification is beyond the power of the Legislature.
No error.
Chief Justice BOBBITT concurring in result.
The court found that defendant had knowingly and intentionally waived in writing his right to be represented by counsel at the lineup at which Mrs. Boras and Mrs. Williams identified him.
The lineup was on March 2, 1971, the date the crime was committed.
Whether a nonindigent person could have successfully contended that he was entitled to the same protection it purported to confer on an indigent person is not presented. I do not share the view that the State‘s counsel have standing to challenge as unconstitutional a right which the General Assembly saw fit to confer on an indigent person.
Defendant, an indigent, relies upon this provision of
My concurrence in result is on a different basis. As used in
Justices HIGGINS and SHARP join in this concurring in result opinion.