State v. Yancey

293 S.E.2d 298 (1982)

STATE of North Carolina v. Harold Thomas YANCEY.

No. 819SC1351.

Court of Appeals of North Carolina.

July 6, 1982.

*301 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant-appellant.

WEBB, Judge.

The defendant's first assignment of error is to the court's denial of his motion to suppress the identification testimony of Elizabeth Currin and his motion for a lineup. G.S. 15A-281 provides:

"A person arrested for or charged with an offense punishable by imprisonment for more than one year may request that nontestimonial identification procedures be conducted upon himself. If it appears that the results of specific nontestimonial identification procedures will be of material aid in determining whether the defendant committed the offense, the judge to whom the request was directed must order the State to conduct the identification procedures."

We can find no cases interpreting this section of the statute. The superior court found that a nontestimonial procedure would not have constituted a material aid in determining whether the defendant committed the offense in denying his motions to suppress the identification testimony of Elizabeth Currin and for a nontestimonial identification procedure. We do not believe the court committed error in this ruling. There was substantial evidence identifying the defendant which did not depend on Mrs. Currin's ability to recognize him at the trial. Officer Clayton testified the defendant told him he was driving the automobile of Melody Roach at the time the evidence showed it was used in the break-in. Two officers testified that they heard the defendant say that he knew that "white bitch got my license number" after Mrs. Currin had testified she took the license number of the person who was at Mr. Currin's house. There was evidence that the defendant threw from Melody Roach's automobile checks and a card that had been in Mr. Currin's house. We do not believe that with this evidence the results of a lineup could weaken Elizabeth Currin's identification testimony. For that reason we hold the court was not in error in holding that a nontestimonial identification procedure would not have been a material aid in determining whether the defendant committed the offense.

In his second assignment of error the defendant contends it was error for the court not to replace his attorney and not to advise the defendant that he could represent himself. The defendant argues that his counsel's failure to get a lineup for him, his failure to object to Elizabeth Currin's identification testimony at the preliminary hearing, his failure to get his bond reduced and his failure to visit him in jail had made relations so bad between them that the defendant's counsel could not be effective. See State v. Thacker, 301 N.C. 348, 271 S.E.2d 252 (1980). The defendant says this contention is confirmed by the record which shows there were stormy scenes between Mr. Pike and the defendant at trial. We believe the fault the defendant found with his attorney was in regard to trial tactics. We do not believe they rise to such a level that they should destroy the relationship between attorney and client.

We comment that the defendant was represented at the trial by John Pike. Defendant was tried for two felonies. The evidence was substantial that the defendant was guilty of both charges and he could have been sentenced to 20 years in prison if the jury had so found. While being represented by Mr. Pike, in whom the defendant expressed no confidence, he was found guilty only of a misdemeanor for which he could receive a sentence of two years. Mr. Pike must have done something right.

The defendant also argues it was error for the court not to advise the defendant of his right to represent himself after the court had refused to appoint new counsel for him. We believe that to hold this was reversible error, we would have to overrule State v. Cole, 293 N.C. 328, 237 S.E.2d 814 (1977) which we cannot do. The defendant's second assignment of error is overruled.

*302 The defendant next assigns error to the charge. The State's evidence showed that four items were taken from the house of William Currin. The court instructed the jury that they could find the defendant guilty if they found he had taken any one of the items. The defendant contends this deprived the defendant of a unanimous jury verdict because some of the jurors could have found the defendant guilty of taking one of the items and the other jurors could have found him guilty of taking another item. We believe we are bound by State v. Hall, 305 N.C. 77, 286 S.E.2d 552 (1982) to overrule this assignment of error.

In his fourth assignment of error the defendant contends that he should have been allowed to put on surrebuttal evidence. Mrs. Currin testified that she had seen the defendant in court on Monday. Defendant testified he had not been in court on Monday. After defendant rested, the State called as a witness Deputy Sheriff Marion Grissom who testified he had brought the defendant into the courtroom on Monday. The defendant's attorney then made a motion that he be allowed to put on evidence to show he was not in the courtroom and to contradict the testimony of Mr. Grissom. G.S. 15A-1226(a) provides:

"Each party has the right to introduce rebuttal evidence concerning matters elicited in the evidence in chief of another party. The judge may permit a party to offer new evidence during rebuttal which could have been offered in the party's case in chief or during a previous rebuttal, but if new evidence is allowed, the other party must be permitted further rebuttal."

The defendant, relying on State v. Thompson, 19 N.C.App. 693, 200 S.E.2d 208 (1973) argues that the testimony of Mr. Grissom was new evidence which gave him the right to put on further rebuttal evidence. We do not believe Thompson governs this case. In that case after the jury had begun their deliberations, they returned to the courtroom and asked a question as to the interior design of the passenger compartment of a truck. The court allowed the State to reopen its case and put on testimony as to the interior of the truck. There had been no previous evidence on this feature of the case. The defendant was not allowed to put on evidence as to the design of this part of the truck, and this Court found this was error. In the instant case, unlike Thompson, the State did not present evidence tending primarily to add to its original case but offered the testimony of Mr. Grissom to impeach the testimony of the defendant and corroborate the testimony of Elizabeth Currin. This would not be new evidence and the defendant would not have the right to further rebuttal under G.S. 15A-1226(a). See 1 Stansbury's N.C. Evidence § 22 (Brandis rev. 1973) for a definition of new evidence. The defendant's fourth assignment of error is overruled.

In his last assignment of error the defendant contends the special venire was improperly drawn. G.S. 9-11(a) provides:

"If necessary, the court may, without using the jury list, order the sheriff to summon from day to day additional jurors to supplement the original venire. Jurors so summoned shall have the same qualifications and be subject to the same challenges as jurors selected for the regular jury list. If the presiding judge finds that service of summons by the sheriff is not suitable because of his direct or indirect interest in the action to be tried, the judge may appoint some suitable person in place of the sheriff to summon supplemental jurors. The clerk of superior court shall furnish the register of deeds the names of those additional jurors who are so summoned and who report for jury service."

The defendant contends the court should have found the sheriff was not suitable because of his interest in the action to be tried. He says this is so because (1) it was a criminal case in which several deputy sheriffs were testifying; (2) there was evidence in the record that the defendant believed the sheriff was harassing him and seeking to connect him with additional charges; (3) and there was a possibility that the sheriff, Arthur Currin, might have been related to *303 the victim, William Currin. We do not believe any of these factors would support a finding that the sheriff is not suitable because of his direct or indirect interest in the case. Deputy sheriffs testify in many cases. We do not believe the legislature intended to disqualify sheriffs from summoning extra jurors in all of them. If this were so, we believe the legislature would have designated some other official to summon extra jurors. We also believe that if the sheriff were disqualified from summoning jurors in every case in which a defendant feels the sheriff is harassing him, there would be few if any sheriffs qualified to summon a juror. As to the contention that the sheriff has the same last name as the victim so that they might be related and if they are related the sheriff might have such an interest in the case that he is disqualified, we believe this is too speculative to merit consideration. The defendant's last assignment of error is overruled.

No error.

CLARK and WHICHARD, JJ., concur.