State v. Carroll

195 S.E.2d 306 (1973)

17 N.C. App. 691

STATE of North Carolina v. Robert E. CARROLL.

No. 7315SC170.

Court of Appeals of North Carolina.

March 28, 1973.

*307 Atty. Gen. Robert Morgan by Associate Atty. Gen. Edwin M. Speas, Jr., for the State.

John D. Xanthos, Burlington, for defendant appellant.

CAMPBELL, Judge.

Defendant has argued that it was error for the trial court to allow the witness to testify that defendant was an "inmate" of the North Carolina Department of Correction on 8 December 1970, and that he was "captured". The fact that a person is a prison inmate is a status based on observable facts, as is the fact of his apprehension in some place other than the designated place of confinement. The witness having personally observed these facts may testify to them. Likewise, the judgment and order of commitment upon conviction of a felony on 5 December 1969 in Alamance County Superior Court, placed into evidence, was competent evidence of the lawfulness of the custody from which he escaped. State v. Walters, 17 N.C.App. 94, 193 S.E.2d 316 (1972); State v. Ledford, 9 N.C.App. 245, 175 S.E.2d 605 (1970).

The defendant also argued that his fundamental constitutional rights were denied him when the trial court refused to subpoena witnesses to appear and testify in his behalf. The right of an accused to *308 have compulsory process for obtaining witnesses in his favor guaranteed by the Sixth Amendment to the United States Constitution, is applicable to state trials. However, it applies only to secure testimony for the defendant by persons who are physically and mentally capable of testifying to events that they had personally observed and which testimony would be relevant and material in defense of the crime charged. Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)

Here the witnesses offered by defendant had no knowledge of the facts of his escape for which he was being tried, and could offer no testimony relevant and material in defense of that crime. "The right to compulsory process is not absolute, and a state may require that a defendant requesting such process at state expense establish some colorable need for the person to be summoned, lest the right be abused by those who would make frivolous requests." Hoskins v. Wainwright, 440 F.2d 69, 71 (5th Cir. 1971).

Carroll was sentenced to a period of imprisonment within that allowed by the statute, G.S. § 148-45, which punishment, therefore, is not unconstitutionally cruel or unusual. State v. Powell, 6 N.C.App. 8, 169 S.E.2d 210 (1969). Further, segregated confinement of a prison inmate in solitary or maximum security is not per se banned by the Eighth Amendment as cruel and unusal punishment. Rather, it is a question of internal administration and discipline of prisoners normally within the discretion of prison officials. Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970), cert. denied, 404 U.S. 1062, 92 S. Ct. 743, 30 L. Ed. 2d 751 (1972).

Defendant's Double Jeopardy claim is also untenable. The Double Jeopardy Clause of the Fifth Amendment now applies to the states. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). In claiming this right defendant asserts that since he was punished in prison for his escape, he cannot now be tried and convicted for the same offense.

The United States Supreme Court has held that the Fifth Amendment guarantees the right to be free from a second punishment attempted to be inflicted for the same offense by a judicial sentence. Ex Parte Lange, 18 Wall. 163, 21 L. Ed. 872 (1874). More recently, however, that court has held that the prohibition is not against being twice punished, but against being twice put in jeopardy. It insures freedom from the risk and hazard that an accused for a second time will be convicted of the same offense for which he was initially tried. The Double Jeopardy Clause is cast in terms of the risk or hazard of trial and conviction. Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970).

Regardless of any inconsistency in Lange and Price, each case contemplates consequences flowing from multiple action by a court of law.

Administrative discipline of an inmate does not constitute multiple punishment within the meaning and intent of the Fifth Amendment because such punishment is not imposed by judicial sentence upon trial and conviction in a court of law.

No error.

HEDRICK and GRAHAM, JJ., concur.