State v. White, 162 S.E.2d 473

State v. White

162 S.E.2d 473

N.C.

1968

Check Treatment

SHARP, J.

Thе State, as well as a prisoner, may petition for certiorari to review a final judgment in proceedings under the Post-Conviction Hearing Act (Act), G.S. 15-217 — G.S. 15-222. State v. Merritt, *226 264 N.C. 716, 142 S.E. 2d 687; State v. Burell, 254 N.C. 317, 119 S.E. 2d 3; G.S. 15-222. See N. C. Sess. Laws 1967, Ch. 523.

In this proceeding, petitioners sought and obtained post-conviction review upon the allegation that the trial judge had erroneously admitted evidence obtained by an unlawful search and seizure. One of the three petitioners (Nichols) had appealed his conviction to this Court without assigning the admission of the evidence as error; the other two did not appeal. Post-conviction review was had entirely upon the transcript of the original trial, and one superior court judge has purported to grant petitioners a new trial for errors assertedly committed by another — errors which were properly reviewable upon appeal. At the threshold, therefore, we are confronted with this basic question: May petitioners attack their conviction in a post-conviction proceeding upon the asserted ground that the trial court admitted evidence which had been illegally obtained in violation of the Fourth Amendment to the United States Constitution?

This Court has consistently held that proceedings under the Act are not a substitute or an alternative to direct appeal. Branch v. State, 269 N.C. 642, 153 S.E. 2d 343; State v. Graves, 251 N.C. 550, 112 S.E. 2d 85; State v. Wheeler, 249 N.C. 187, 105 S.E. 2d 615; State v. Cruse, 238 N.C. 53, 76 S.E. 2d 320; Miller v. State, 237 N.C. 29, 74 S.E. 2d 513. Since July 1965, when the Act was rewritten, G.S. 15-217 has provided: “The remedy herein provided is not a substitute for nor does it affect any remedies which are incident to the proceedings in the trial court, or any remedy of direct review of the sentence or conviction, but, except as otherwise provided in this article, it comprehends and takes the place of all other common-law and statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment, and shall be used exclusively in lieu thereof.”

In the first proceeding under the Act to come before this Court, Miller v. State, 237 N.C. 29, 74 S.E. 2d 513 (1953), Ervin, J., pointed out that it did not license a collateral attack upon any ruling which could have propеrly been presented by a direct appeal from the judgment pronounced in the original trial: “It is not designed to add to the law’s delays by giving an accused two days in court where one is sufficient for the doing of substantial justice under fundamental law. It is not devised to confer upon an accused, who is defended by counsel of his own selection or competent counsel appointed by the court, a legal privilege, at his own election, to have his rights arising under the common law and the statutes adjudicated at a time of the State’s choosing in the original criminal action, *227 and his rights arising under the constitutions of his State and Nation adjudicated at a subsequent time of his own choosing in another proceeding. It is enacted to provide an adequate and available post-trial remedy for persons imprisoned under judicial decrees who suffered substantial and unadjudicated deprivations of their constitutional rights in the original criminal actions resulting in their convictions because they were prevented from claiming such constitutional rights in the original criminal actions by factors beyond their control.” Id. at 51, 74 S.E. 2d at 528-29.

In State v. Cruse, 238 N.C. 53, 76 S.E. 2d 320 (1953), Devin, J., again emphasized that the Act did not “afford to a person heretofore convicted of crime the right to present to this Court assignments of error in the trial in which he was convicted and from which he did not appeal. . . . The statute ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍prоvides a procedure by which a person convicted of crime may thereafter obtain a hearing upon the question whether he was denied due process of law. It affords an opportunity to inquire into the constitutional integrity of his conviction.” Id. at 58, 76 S.E. 2d at 323.

In State v. Wheeler, 249 N.C. 187, 105 S.E. 2d 615 (1958), this Court reversed a judgment of the Superior Court in post-conviction proceedings which denied a new trial to the petitioners, who were “without counsel or witnesses” at the trial in which they were convicted and sentenced. In noting that the purpose of the Act was to redress the deprivation of constitutional rights such as those, the Court — speaking through Higgins, J. — said, “The Post Conviction Hearing Act is not a substitute for appeal. It сannot be used to raise the question whether errors were committed in the course of the trial. The inquiry is limited to a determination whether the petitioners were denied the right to be represented by counsel, to have witnesses, and a fair opportunity to prepare and to present their defense. . . .” Id. at 191-92, 105 S.E. 2d at 620; accord, State v. Graves, supra.

In State v. Wilson, 269 N.C. 297, 152 S.E. 2d 223, an indigent, unable to perfеct his appeal because of inability to pay counsel, filed a petition for a post-conviction hearing under the Act upon grounds which should have been asserted upon appeal. The hearing judge correctly disposed of the petition by directing counsel to apply to this Court for certioraH. We granted the petition, аnd — upon appeal — ordered a new trial. Similarly, in State v. Roux, 263 N.C. 149, 139 S.E. 2d 189, counsel for the petitioner in post-conviction proceedings was directed to apply to this Court for certiorari to review the petitioner’s trial when it was manifested that the petitioner, an indigent without counsel, had withdrawn his appeal because he did *228 not know that “he had a constitutional right to have the State provide him with means to secure a full appellate review of his trial. . . .” Id. at 157, 139 S.E. 2d at 195. Accord, State v. Staten, 271 N.C. 600, 157 S.E. 2d 225.

The Act as now written incorporates habeas corpus, coram nobis, and any other common law or statutory remedy under which a prisoner may collaterally attack his sentence (G.S. 15-217, C'h. 352, Sess. Laws 1965). Thus, a petitioner sentenced upon a plea of guilty to a crime not charged in the bill of indictment rеceived his discharge in McClure v. State, 267 N.C. 212, 148 S.E. 2d 15. See also State v. Burell, supra, in which the petitioner alleged that sentence had been imposed upon him by a court without jurisdiction. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍However, only claims as to which there have been no prior adjudication are justiciable under the Act.

This is the first post-conviction proceeding to come to us in which a judge has awarded a prisоner a-new trial for alleged errors which could have been reviewed upon direct appeal from the judgment pronounced. Nor have we, upon granting certiorari to review a judgment denying post-conviction relief, reviewed asserted errors in a criminal trial which were brought forward for the first time in a post-conviction proceeding. In Branch v. State, 269 N.C. 642, 153 S.E. 2d 343, we allowed certiorari to review a judgment denying a new trial to the- petitioner serving a life sentence for murder. The hearing judge, upon plenary and convincing evidence, had found facts which disproved the petitioner’s contention that he had been deprived of an- opportunity to prepare his dеfense. The judge had also considered and overruled the petitioner’s assertions that his constitutional rights had been violated when evidence was introduced at the trial that fingerprints found on objects at the scene of the crime compared with his fingerprints, which had been taken while he was in custody and before he had procurеd counsel. In affirming the judgment denying the petitioner a new trial, we reiterated and re-emphasized that the Act was not a substitute for appeal. However, for the consolation of the petitioner, who had not appealed his conviction, we pointed to both state and federal authorities holding that the fingerprint-evidence had not violated his constitutional rights.

In the present proceeding, the hearing judge apparently took the view that federal' habeas corpus is now available to State prisoners to challenge illegal searches or seizures in cases arising after the decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. ed. 2d 108, and that we therefore should afford petitioners a corresponding collateral review “for a full airing' of federal claims.” See Linkletter v. *229 Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. ed. 2d 601; Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. ed. 2d 837; Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. ed. 2d 408.

We are, of course, aware that petitioners — despite their “procedural default” in the State court — may yet, in a federal habeas corpus proceeding, pursue their claim that they were convicted by illegally obtained evidence. Indeed, were a prisoner to have both direct and collateral review in the State court of his claim that he was deprived of constitutional rights in his trial, he might still have a de novo “evidentiary hearing” in federal habeas corpus proceedings if the district judge concludes that the facts found by the State court werе not “reliable findings.” Mr. Chief Justice Warren, in Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. ed. 2d 770, has said that the district judge “may, and ordinarily should, accept the facts found in the hearing (in the state court). But he need not. In every case he has the power, constrained only by his sound discretion, to receive evidence bearing upon the applicant’s constitutional claim.” Id. at 318, 83 S. Ct. at 760, 9 L. ed. 2d at 789. (Italics ours.) Since the Supreme Court of the United States has the last word in questions involving the Federal Constitution, it would serve no useful purpose were we here to marshal the arguments which weigh against ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a decision that an inferior federal court may order the release of one held pursuant to a judgment of a court of this State, or to voice our foreboding as to its ultimate effect upon our federal system and the administration of justice.

North Carolina has fully recognized its obligation to protect every right guaranteed by both the state and federal constitutions to all those whom it accuses of crime. At state expense it furnishes an attorney to any indigent charged with a serious crime. G.S. 15-4.1, G.S. 15-5. Prior to trial, it affords to every defendant full opportunity to assert and еstablish constitutional or other objections to the grand jury which returned the bill of indictment against him, G.S. 9-23; Miller v. State, supra. If the State offers a defendant’s confession, and objection is made that it was involuntary or “the product of constitutionally unpermissive methods,” the judge must — in. the absence of the jury — hear evidence, find facts, and determine the question in a preliminаry inquiry. State v. Clyburn, 273 N.C. 284, 159 S.E. 2d 868; State v. Barber, 268 N.C. 509, 151 S.E. 2d 51; State v. Gray, 268 N.C. 69, 150 S.E. 2d 1. When a defendant moves to suppress or objects to evidence upon the ground that it was obtained by illegal search and seizure, the state must likewise establish the legality of a warrantless search upon voir dire. *230 State v. Pike, 273 N.C. 102, 159 S.E. 2d 334. After conviction, every defendant has the unqualified right to appeal. G.S. 15-180; State v. Rhinehart, 267 N.C. 470, 148 S.E. 2d 651; State v. Graves, supra; State v. Cruse, supra. Any indigent may appeal as a pauper аnd, if he has been convicted of a felony or of an offense less than the felony charged, the State pays the cost of the appeal. G.S. 15-181. The Post-Conviction Act provides every defendant adequate opportunity for the adjudication of claimed deprivations of constitutional rights which prevented him from obtaining a fair trial, provided factors beyond his control prevented him from claiming them earlier.

We are convinced that our laws fully meet the requirements of due process, and that we should not disrupt the administration of justice in North Carolina by changing the orderly procedures established by the legislature to review a convicted defendant’s claims that his constitutional rights have been violated. Furthermore, in view of the present instability of longstanding decisions and the diversity in the views of the different federal district court judges, any change which we might make in our procedure in an effort to satisfy the federal courts would not necessarily accomplish that purpose. An additional hearing would merely provide a prisoner with one more inconclusive state remedy, for the Supreme Court has held (1) “that the federal habeas judge may in his discretion deny relief to an applicant who had deliberately by-passed the orderly procedure of State courts and in so doing has forfeited his state court remedies,” Fay v. Noia, supra at 438, 83 S. Ct. at 849, 9 L. еd. 2d at 869, and (2) that the federal district judge may try the facts anew whenever he supposes that the state court judge has not “reliably found the relevant facts.” Townsend v. Sain, supra at 318, 83 S. Ct. at 759, 9 L. ed. 2d at 788.

In Anderson v. Gladden, 234 Ore. 614, 383 P. 2d 986, cert. denied, 375 U.S. 975, the Supreme Court of Oregon denied relief under its post conviction act to a petitioner who had failed, prior to his trial, to challenge the bill of indictment on the ground that Indians ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍had been systematically excluded from the grand jury which returned it. O’Connell, J. (concurring with Denecke, J., in the majority opinion), said: “It is possible that under Fay v. Noia . . . the writ of habeas corpus is still available to petitioner in the federal courts, but I do not think that this should concern us. . . . [T]he legislative assembly has expressed the policy of this state with respect to the application of the principle of res judicata in post-conviction proceedings. . . . That is a salutary rule. If the United States Supreme Court feels differently, it is privileged to open the federal *231 •courts to provide additional relief. But we are not required to make our procedure conform to that policy.” Id. at 628-29, 383 P. 2d at 993.

The inexpediency of a series of reviews, in each of which a prisoner asserts a particular violation of his constitutional rights, has nowhere been better stated and demonstrated than in In re Sterling, 63 Cal. 2d 486, 47 Cal. Rptr. 205, 407 P. 2d 5. In Sterling, the petitioners’ conviction of gambling had been affirmed on appeal. Thereafter, in habeas corpus proceedings in the state court, they attempted again to attack the judgment on the ground that the evidence upon which they had been convicted was obtained by an unconstitutional search and seizure. The Supreme Court of California held that habeas corpus was not available to challenge the use of evidence thus obtained, and thаt habeas corpus did not provide “a second appeal.” Traynor, C.J., speaking for a unanimous court, asserted— as do we — that his state’s appellate procedure afforded every defendant a fair opportunity for an adjudication of all claimed deprivations of his constitutional rights. Reasoning that the use of illegally seized evidence — unlike an involuntary confession — carried no risk of convicting an innocent person, that the purpose of the exclusionary rule was to deter unconstitutional methods of law enforcement, and that that purpose is adequately served when a state provides an orderly procedure for raising the question at or before trial and on appeal, he said: “The risk that the deterrent effect of the rule will be compromised by an occasional erroneous decision refusing to apply it is far outweighed by the disruption of the orderly administration of justice that would ensue if the issue could be re-litigated over and over again on collateral attack.” Id. at 487-88, 47 Cal. Rptr. at 207, 407 P. 2d at 7.

Noting the intimations in Mapp v. Ohio, supra at 659, 81 S. Ct. at 1693, 6 L. ed. 2d at 1092 (fn. 9), and Fay v. Noia, supra at 438, 83 S. Ct. at 848, 9 L. ed. 2d at 869, that a petitioner’s deliberate bypassing of orderly state procedures could deprive him of federal habeas corpus relief, Traynor, C.J., said: “Pursuit of (state) remedies will give a defendant a full adjudication of his claim and also lay the groundwork for immediate federal review. Under these circumstances, to authorize additional state collateral remedies would result only in needless repetition and delay. We have recognized the need to accomodate the state system to the existence of a federal collateral remedy . . . but such accomodation does not require the abandonment of procedures vital to the orderly administration of justice by the state courts. Preservation of a defendant’s constitutional rights lies not in multiple state remedies that will ordinarily pro *232 duce the same result, but in one effective state remedy plus an awareness on the part of all state officials that ultimate federal review is аvailable. We expedite the availability of that federal remedy by the compilation of a full and adequate record and by insisting that one state remedy is ordinarily enough.” Id. at 489, 47 Cal. Rptr. at 208, 407 P. 2d at 8. Accord, In Re Lokey, 64 Cal. 2d 626, 51 Cal. Rptr. 266, 414 P. 2d 394, cert. denied, 385 U.S. 888; In Re Shipp, 62 Cal. 2d 547, 43 Cal. Rptr. 3, 399 P. 2d 571, cert. denied, 382 U.S. 1012; In Re Lessard, 62 Cal. 2d 497, 42 Cal. Rptr. 583, 399 P. 2d 39. In Shipp, supra, the California court had previously said that the issue of a coerced confession raised at the trial “could not be embalmed for the purpose оf transmigration to post-conviction procedures. To condone such piecemeal presentation ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and to sanction split adjudication between trial and post-conviction process would be to place a premium on covert retention of issues for post-judgment litigation in the event of defeat upоn trial and appeal.” Id. at 556, 43 Cal. Rptr. at 10, 399 P. 2d at 578.

We adhere to our former decisions. Errors in a petitioner’s trial which could have been reviewed on appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings. See People v. Eastman, 33 Misc. 2d 583, 228 N.Y.S. 2d 156, affirmed, 18 App. Div. 2d 1102, 239 N.Y.S. 2d 972; Ciucci v. People, 21 Ill. 2d 81, 171 N.E. 2d 34; cf. People v. Hamby, 32 Ill. 2d 291, 205 N.E. 2d 456; Collier v. Commonwealth, 387 S.W. 2d 858 (Ky. Ct. App.). The answer to the question propounded at the beginning of this opinion is, therefore, No. Thus, we do not consider the question whether the instruments of housebreaking introduced into evidence at the trial were obtained by an unconstitutional search and seizure.

The judgment of the court below is reversed, and the cause remanded to the Superior Court for the entry of an order remanding petitioners to the custody of the warden of the State’s prison.

Reversed.

HusKiNS, J., took no part in the decision or consideration of this case.