State v. Grainger

225 S.E.2d 595 (1976)

29 N.C. App. 694

STATE of North Carolina v. Amos GRAINGER.

No. 7513SC994.

Court of Appeals of North Carolina.

June 16, 1976.

*596 Atty. Gen. Rufus L. Edmisten by Associate Attorney Acie L. Ward, Raleigh, for the State.

*597 John R. Hughes, Shallotte, for defendant-appellant.

PARKER, Judge.

Defendant first contends that in denying his timely motion, made on 15 April 1975, for the appointment of a psychiatrist at State expense to interview him and testify in his behalf at trial, the Court denied his Sixth Amendment right to confront his accusers. He asserts that, being indigent, he was entitled to be put on the same footing as all other defendants in criminal actions, and, since he could not afford to pay the psychiatrist, the State was responsible to provide one for him.

Every criminal defendant has the constitutional right to confront his accusers with other testimony, including "the right to consult with his counsel and to have a fair and reasonable opportunity, in the light of all attendant circumstances, to investigate, to prepare, as well as to present his defense." State v. Hill, 9 N.C.App. 279, 284, 176 S.E.2d 41, 44 (1970), and cases cited therein; State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970). However, in United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S. Ct. 391, 97 L. Ed. 549 (1953), the United States Supreme Court held there was no constitutional mandate placed upon the States to appoint a psychiatrist to make a pretrial examination.

G.S. 7A-454 provides as follows:

"Supporting services.The court, in its discretion, may approve a fee for the service of an expert witness who testifies for an indigent person, and shall approve reimbursement for the necessary expenses of counsel. Fees and expenses accrued under this section shall be paid by the State."

In appropriate circumstances our courts do have power to order a mental or physical examination at State expense, but this procedure is left to the sound discretion of the court. The 15 April 1975 motion to the court submitted by defendant's counsel simply states, "That the defendant is an indigent person with Court appointed Counsel, and, in the opinion of counsel, psychiatric evidence will be necessary and proper in behalf of the defense of the charges of murder against the Defendant, Amos Grainger." Without more, we see no abuse of the trial court's discretion in denying this motion. See, Annot., 34 A.L.R.3d 1256, Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert (1970). We note that defendant did not, as required by G.S. 15A-959(a), give notice of intention to raise the defense of insanity, nor did anything occur at his trial which suggested the existence of any question as to his "incapacity to proceed" under G.S. 15A-1001.

Defendant's second assignment of error presents his contention that his statement made to Trooper L. W. Davis on the night of 9 November 1974 should not have been admitted in evidence. He concedes that, as his confession was not made while he was in custody and was not the result of police interrogation, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is not applicable, but argues that his statement should not have been admitted because it was not knowingly, understandingly, and voluntarily made. Trooper Davis testified that he talked with the defendant on the night in question. Upon objection by defendant's attorney, the Court excused the jury in order to conduct a voir dire on the admissibility of any statement made by the defendant. On voir dire Trooper Davis stated that he interrupted defendant's conversation to advise him of his rights; that he asked defendant if he understood his rights and defendant replied in the affirmative; that although it was apparent defendant had been drinking, he did not appear to be sleepy or confused; and that defendant appeared coherent. Defendant offered testimony of two witnesses who testified that at this time he had been heavily drinking and did not appear to be in control of his faculties. The Court made findings of fact stating, in pertinent part, that any statement made by defendant to Trooper Davis on 9 November 1974 was made "voluntarily, knowingly, and independently." Such a finding by the Court, when *598 based upon competent evidence as it is in this case, is binding upon appellate review. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968). We find the statement made by defendant to Trooper Davis to have been properly admitted.

No error.

BRITT and CLARK, JJ., concur.