State v. McKenzie

226 S.E.2d 385 (1976)

30 N.C. App. 64

STATE of North Carolina v. Patricia Ann McKENZIE.

No. 7620SC74.

Court of Appeals of North Carolina.

July 7, 1976.

*386 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert G. Webb, Raleigh, for the State.

Benny S. Sharpe, Rockingham, for defendant.

BROCK, Chief Judge.

This case was properly consolidated for trial with similar charges against Eugene McKenzie and Frederick Cottingham. Mr. Benny S. Sharpe was appointed to represent this appealing defendant, as well as defendant Eugene McKenzie, at trial and on appeal to this Court. Mr. Donald M. Dawkins was appointed to represent defendant Frederick Cottingham at trial and on appeal to this Court. Nevertheless, on appeal Messrs. Sharpe and Dawkins caused three separate records on appeal to be filed in this Court as cases numbers 7620SC74 (Patricia Ann McKenzie), 7620SC75 (Eugene McKenzie), and 7620SC80 (Frederick Cottingham). The costs, respectively, of printing these three records on appeal were: $150.15, $155.10, and $243.48. Since each of the defendants was found to be indigent, fees for counsel at trial and on appeal are provided by the State. Also the expenses of docketing and printing the three records on appeal and printing of the briefs are provided by the State. Even if defendants were personally paying counsel fees and court costs, the preparation of three separate records on appeal would be unnecessary expenses for counsel to incur for their clients. Furthermore, it is improper procedure for counsel to file three separate records on appeal from a trial at which the three cases were consolidated. Aside from the question of the unnecessary expenses, the filing of three separate records on appeal creates the undue burden on the appellate courts of having to read three when one would have sufficed. Rule 11(d) of the North Carolina Rules of Appellate Procedure specifically addresses this subject. It provides for a single record on appeal and the methods of accomplishing a single record on appeal.

When the court has ordered consolidation of cases or charges for trial, counsel *387 cannot, of his own enterprise, sever the cases or charges and appeal each separately in the absence of a showing of compelling circumstances. Clearly the fact of indigency should not be considered by a defendant as a license to be a spendthrift with taxpayer's money. State v. Squires, 1 N.C.App. 199, 160 S.E.2d 550 (1968).

Rule 9(b)(5) of the North Carolina Rules of Appellate Procedure provides: "It shall be the duty of counsel for all parties to an appeal to avoid including in the record on appeal matter not necessary for an understanding of the errors assigned. The cost of including such matter may be charged as costs to the party or counsel who caused or permitted its inclusion."

By appealing these three cases separately, counsel has prepared and caused to be printed two redundant records on appeal; these records on appeal constitute matter not necessary for an understanding of the errors assigned. There has been no showing of compelling circumstances to justify the filing of three records on appeal instead of one. Consequently, counsel, Mr. Benny S. Sharpe, will be personally taxed with costs in the sum of $150.00. In State v. Cottingham, in an opinion filed contemporaneously herewith, counsel, Mr. Donald M. Dawkins, will be personally taxed with costs in the sum of $150.00.

Upon the merits of the appeal in this case, we have fully examined defendant's assignments of error and find them to be without merit. In our view defendant received a fair trial free from prejudicial error.

No error.

HEDRICK and CLARK, JJ., concur.