State v. Hoffman

190 S.E.2d 842 (1972)

STATE of North Carolina v. James Ray HOFFMAN.

No. 93.

Supreme Court of North Carolina.

August 31, 1972.

*846 Robert Morgan, Atty. Gen., Charles A. Lloyd, Associate Atty., Raleigh, for the State.

Hodges & Rochelle by James A. Hodges, Jr., Kinston, for defendant appellant.

SHARP, Justice:

Defendant brings forward four assignments of error. The first is to the *847 court's refusal to grant his motion for nonsuit made at the conclusion of the State's evidence. The rule, succinctly stated by Justice Higgins in State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956), is as follows:

"Taking the evidence in the light most favorable to the State, if the record here discloses substantial evidence of all material elements constituting the offense for which the accused was tried, then this court must affirm the trial court's ruling on the motion. The rule for this and for the trial court is the same whether the evidence is circumstantial or direct, or a combination of both."

The record here contains plenary evidence that defendant, after threatening to do so, and procuring a rifle for the purpose, on 21 October 1970 shot and killed Stocks with malice, premeditation, and deliberation. His motion for nonsuit was, therefore, properly overruled. State v. Walters, 275 N.C. 615, 170 S.E.2d 484 (1969).

The second assignment which defendant argues is that the judge erred in denying defendant's motion to suppress the testimony of Mrs. Gene Autry Stocks, Mrs. Thelma Barfield, Mrs. Bertie Croombs, and Mrs. Rebecca Moore. Defendant based his motion on the following facts:

On or about 15 March 1971 counsel for defendant moved in writing before Judge Cohoon that the solicitor be directed to furnish defendant's attorney a list of all witnesses whom the State intended to produce at defendant's trial. Judge Cohoon, after ascertaining that the solicitor had no objection to furnishing the names of the persons the State then proposed to call as witnesses, orally directed that he give defendant the requested information. Deputy Sheriff Garris immediately prepared and delivered to defendant's attorney a handwritten list which omitted the names of Mrs. Stocks, Mrs. Barfield, Mrs. Moore, and Mrs. Croombs.

At the beginning of the trial the State called Mrs. Stocks as its first witness. Defendant moved to suppress her testimony and that of any other person called whose name had not been on the list. After hearing the motion, Judge Godwin entered an order in which he found, in addition to the facts set out in the preceding paragraph, that the State now proposed to call, inter alia, Mesdames Stocks, Barfield, Moore and Croombs; that defendant's motion before Judge Cohoon was not made under G.S. § 8-74; that the State's failure to furnish defendant with the name of every person sworn as a witness when the case was called for trial, and whose testimony it then proposed to use, had not prevented defendant from making full and proper preparation for his trial. Whereupon he denied defendant's motion to suppress, and thereafter the four women above named testified. Defendant excepted but did not move to continue the case.

"The common law recognized no right of discovery in criminal cases." State v. Goldberg, 261 N.C. 181, 191, 134 S.E.2d 334, 340 (1964). In the absence of a statute requiring the State to furnish it, the defendant in a criminal case is not entitled to a list of the State's witnesses who are to testify against him. McDaniel v. State, 191 Miss. 854, 4 So. 2d 355 (1941); Padgett v. State, 64 Fla. 389, 59 So. 946 (1912); State v. Matejousky, 22 S.D. 30, 115 N.W. 96 (1908); 21 Am.Jur.2d Criminal Law § 328 (1965); 16 C.J.S. Criminal Law § 2030 (1938). There is no such statute in this State.

Defendant, however, claims that G.S. § 8-74 gives him the right to a list of the State's witnesses. This statute, however, provides for taking the deposition of an incapacitated defense witness, "whose name must be given" to the court. Patently this section has no application to defendant's motion.

Although defendant was not entitled to the list as a matter of right, Judge Godwin *848 found that an order to furnish it had been made and that the State had purported to comply with it. Thus, the question presented is whether the omission of the names of Mrs. Stocks, Mrs. Barfield, Mrs. Moore, and Mrs. Croombs prejudiced defendant's defense and deprived him of a fair trial.

Defendant contends that he was prejudiced because the testimony of these four witnesses supplied the sole evidence of motive, premeditation and deliberation. Certainly these witnesses gave material evidence tending to show essential elements of the crime with which defendant was charged. Notwithstanding, a defendant is not legally prejudiced merely because the State proves its case against him.

As stated by the Kentucky Court of Appeals in Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929), prejudicial surprise results from events "not reasonably to be anticipated, or perhaps testimony contrary to a prior understanding between the parties or something resulting from fraud or deception." Id. at 415-416, 19 S.W.2d at 1093. Neither the presence nor testimony of these four womenthe wife of deceased, his mother, his sister-in-law, and a family friend of both defendant and deceasedcould have taken defendant by surprise.

Defendant suggests, however, that had he known the ladies were to testify, he might have found "possible rebuttal witnesses or searched for ground upon which to impeach their credibility. Had there been a reasonable probability of finding such witnesses or grounds, a motion for a continuance would have been appropriate. Defendant's motion, however, was to suppress the testimony of the witnesses, whatever it might be, and not to continue the trial so that he would have an opportunity to disprove it.

The record fails to show that defendant's defense was prejudiced by the omission of the four names from the list furnished him. Permitting these witnesses to testify was a matter in the discretion of the trial judge, not reviewable on appeal in the absence of a showing of abuse. State v. Anderson, 281 N.C. 261, 188 S.E.2d 336 (1972). No abuse of discretion appears.

The third question raised by defendant's assignments of error is the legality of the officers' entrance into his residence during the late afternoon of 21 October 1970 and the seizure of the .22-caliber rifle found therein. He contends that both the entry and seizure were unlawful and, in consequence, neither the rifle nor the ballistic tests made with it were admissible in evidence. Upon defendant's objection to any testimony involving the rifle, Judge Godwin held a voir dire in which he heard the evidence summarized within the brackets and also a substantial portion of the applicable testimony which was later given in the presence of the jury. He then found facts in accordance with the evidence and concluded that the officers had reasonable grounds to believe defendant was concealed in the house. He held that their entry and subsequent seizure of "plain-view" items were legal and overruled defendant's objection in the evidence. In this ruling we find no error.

G.S. § 15-44 (1965) provides: "If a felony. . . has been committed, or a dangerous wound has been given and there is reasonable ground to believe that the guilty person is concealed in a house, it shall be lawful for any sheriff . . . or police officer, admittance having been demanded and denied, to break open the door and enter the house and arrest the person against whom there shall be such ground of belief."

Indubitably Stocks had been murdered and the officers had reasonable grounds to believe that defendant had committed the murder. About 1:15 p. m. on the day of the murder, officers had gone to defendant's home, but when he did not answer their calls, they had left without entering. The thrust of defendant's argument is that Judge Godwin should not have believed Whaley's testimony that between 3:30 and 4:00 p. m. he saw the kitchen curtains move. *849 This testimony was not inherently incredible and was sufficient to support the court's findings. They are, therefore, binding on appeal. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). Reasonable grounds for belief can be based upon information given to an officer by another, "the source of such information being reasonably reliable." State v. Roberts, 276 N.C. 98, 107, 171 S.E.2d 440, 445 (1969). Further, the fact that silence greeted the officers' demands for entrance and that defendant was not found in the house did not make their entry illegal.

Being lawfully in defendant's residence, the officers could examine and, without a warrant, seize "`suspicious objects in plain sight' . . . . If the officers' presence was lawful, the observation and seizure of what was then and there apparent could not in itself be unlawful." State v. Howard, 274 N.C. 186, 202, 162 S.E.2d 495, 505-506 (1968); accord, State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). The rifle, the bullet which was removed from Stocks's body, and the testimony of ballistics expert Pierce that in his opinion the bullet was fired from the rifle were, therefore, properly admitted in evidence. The assignments of error upon which defendant bases his third proposition are overruled.

Defendant's final assignment of error is that the court erred in admitting the statements which he made to Deputy Sheriff Garris and SBI Agent Campbell as a result of their in-custody interrogation of him.

On voir dire, upon plenary supporting evidence, Judge Godwin found facts which show that both Garris and Campbell fully advised defendant of all his constitutional rights in strict compliance with all Miranda requirements; that after being thus warned defendant freely, voluntarily, understandingly, and without being induced by threats or promises, specifically waived his constitutional right to remain silent and to have counsel present when he talked to the officers. Upon these findings, Judge Godwin overruled defendant's objections, and admitted his statements to the officers in evidence.

On appeal, defendant makes no contention that he did not orally waive the presence of counsel at his interrogation, or that he did not voluntarily submit to the officers' questioning. The evidence shows that he did both. Thus, the admission of his statements involves no federal constitutional question. See State v. Lynch, 279 N.C. 1, 13-14, 181 S.E.2d 561, 569 (1971); State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

Defendant's contention is that at the time of his interrogation he was an indigent, in custody on a capital charge; and that, under G.S. § 7A-457(a) (1969), as it read on 22 October 1970, he could not waive his right to counsel at an in-custody interrogation either orally or in writing. This contention is untenable, for the record affirmatively discloses that at the time of his interrogation defendant had funds, immediately available and adequate, with which to employ counsel to provide the legal advice he then needed. The admissibility of defendant's statements to the officers was not, therefore, affected by G.S. §§ 7A-450 to -459 (1969). The statements were competent evidence and defendant's assignments of error relating to their admission are overruled.

An indigent person for whom the State must provide counsel is defined by G.S. § 7A-450(a) as "a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation in an action or proceeding enumerated in this subchapter." Section (c) of this same statute provides: "The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation." G.S. § 7A-455(a) (1969) requires the court, *850 if it is of the opinion that "an indigent person is financially able to pay a portion, but not all, of the . . . necessary expenses of representation (to) order the partially indigent person to pay such portion to the clerk of superior court for transmission to the State treasury."

The foregoing statutes clearly manifest the legislative intent that every defendant in a criminal case, to the limit of his ability to do so, shall pay the cost of his defense. It is not the public policy of this State to subsidize any portion of a defendant's defense which he himself can pay. An indigent is not one who lacks sufficient funds over and above his homestead and personal property exemptions and his pre-existing debts and obligations to pay the total costs of his defense from beginning to end. An indigent is one who does not have available, at the time they are required, adequate funds to pay a necessary cost of his defense.

At the time of defendant's arrest, according to his sworn statement, he had $160.00 in the bank. He owed no debts except the monthly payments on his 1971 Chevrolet Nova. We take judicial notice that for a fee of less than $160.00 defendant could have obtained counsel for the purpose of advising him with reference to the course of conduct which would serve his best interest at that time. In short, he could pay for the legal services he needed on the morning of his arrest. His ability to pay the costs of subsequent proceedings was not then a question. That was a matter to be determined when that question arose.

Upon defendant's request for counsel and his affidavit of indigency, the district court assigned counsel, who represented him at his preliminary hearing and at his trial in the superior court, and the State paid counsel's fee. We note, however, that this appeal is not at State expense and that defendant was able to post bond for the costs. Prima facie, it was for such situations as this that G.S. § 7A-450(c) was enacted.

The decision here is not in conflict with State v. Wright, 281 N.C. 38, 187 S.E.2d 761 (1972). In that case, at the time of his arrest, the defendant had $5.00 in cash, an automobile on which he was paying $56.00 per month, and two recently purchased government bonds. These bonds, which had cost $18.75 each, were in his mother's possession in Ohio, unavailable even if adequate. The amount of his equity in the automobile was not disclosed, and it was immaterial at that time. The defendant, under arrest for three serious felonies, one of which was rape, was in no position to negotiate either a mortgage or a sale of his automobile. As a practical matter he had only $5.00 with which to meet the immediate emergency, and that was not enough to secure the advice of counsel which he needed then and there. At the time the defendant Wright was interrogated he was, in truth and in fact, an indigent; defendant Hoffman was not.

In the trial below we find

No error.

HIGGINS, Justice (concurring in result).

I cannot agree with that part of the opinion which intimates that if a defendant is able to employ counsel for the purpose of advising him, or being with him at the interrogation, that he is not an indigent within the meaning of § 7A-451 of the General Statutes.

The entitlement begins when the defendant is taken into custody or served with initiating process and continues through all critical stages including reviews by appeal. The statute does not contemplate that separate counsel may be appointed for each successive step in the trial, but I think contemplates that the same counsel will continue from beginning to end subject to the right of the court to excuse or allow substitution of counsel at any proper state.

"Entitlement continues through any critical stage of the action or proceeding including *851 identification procedure, preliminary hearing, trial, sentencing, and review." These are specifically stated in § 7A-451.

I concur in result.