State v. Turner

194 S.E.2d 831 (1973)

283 N.C. 53

STATE of North Carolina v. Craven TURNER, Jr.

No. 6.

Supreme Court of North Carolina.

March 14, 1973.

*832 Robert Morgan, Atty. Gen., by Howard P. Satisky, Asst. Atty. Gen., for the State.

James C. Davis and Clarence E. Horton, Jr., Concord, for defendant appellant.

HIGGINS, Justice.

The defendant brings forward two assignments of error on which he relies for a new trial. His first assignment challenges the admission of his confession on these grounds: First, it was not in writing; and second, it was made in the absence of counsel. He cites as authority, State v. Lynch, 279 N.C. 1, 181 S.E.2d 561, and the decision of this Court on his first appeal. State v. Turner, supra.

The requirement that the State furnish counsel to each defendant charged with a criminal offense beyond the class of petty misdemeanor is conditioned upon a showing of indigency and inability to procure counsel for that reason. G.S. § 7A-450; State v. Wright, 281 N.C. 38, 187 S.E.2d 761; State v. Lynch, supra; State v. Green, 277 N.C. 188, 176 S.E.2d 756; State v. McRae, 276 N.C. 308, 172 S.E.2d 37.

The evidence before the court disclosed by the defendant's own affidavit that at the time of his arrest and confession, he had jobs which paid him $650.00 *833 per month; that he had $400.00 "coming to him;" that his wife's income was $480.00 per month; that he owned two automobiles (a 1965 Mustang and a 1970 Chevrolet) on which one payment of $179.00 was due. In addition to his other household furnishings, he had a stereo of the value of $300.00 and a color television set worth $1500.00. On his own showing, he was not an indigent. Hence, he was in a position to waive counsel and actually did so. A written waiver was not required. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.

The defendant's second assignment of error challenged the evidence of the State's witness Katrina Tyson who testified that on and prior to January 5, 1971, she worked for Almond Brothers Poultry near Albemarle. She knew James Alexander Howell and that he cashed checks on Tuesday of each week. Shortly before January 5, 1971, she had a conversation with the defendant, Craven Turner, Jr., who asked her if James Alexander Howell "still cashed checks on Tuesday, and I told him `yes.' . . . I knew James Alexander Howell from the time I started my employment at Almond Brothers Poultry. I knew that he cashed checks on Tuesday of each week regularly when we got paid off."

Prior to the above testimony, the witness in answer to the questions of the solicitor, testified giving her age as nineteen and that she and the defendant "was going with each other. . . . We were out one night and he asked me whether the man still cashed checks on Tuesday and I told him `yes.'" The witness testified she knew the defendant was married. The foregoing testimony was given in reply to certain questions by the solicitor. Actually, the answers went beyond the scope of the questions. The defendant did not move to strike and did not cross-examine except as to Howell's habit of cashing checks on each Tuesday.

The defendant argues here that the State by the above testimony offered proof of the defendant's bad character and inasmuch as he did not testify, his character was not in issue. Hence, the evidence related thereto should have been excluded on his objection.

Miss Tyson, when interviewed by Sheriff McSwain, reported that shortly before Tuesday, January 5, 1971, the defendant Turner asked her if the man (Howell) still cashed checks on each Tuesday. She replied "yes." This evidence was material on the question of motive for the robbery and tended to buttress Turner's confession. The intimate relationship between the witness and the defendant was properly before the jury whose duty it was to weigh the evidence. The attitude of the witness, interest or lack of it, has bearing on the weight of the testimony. Incriminating evidence from a friend ordinarily should outweigh the same evidence from a stranger or an enemy. The defendant's objection to Miss Tyson's testimony is not sustained.

Two juries have heard the evidence and on each occasion has found the appellant guilty of murder in the first degree, but made the recommendation that his life be spared.

After careful review we conclude that prejudicial error in the second trial is not disclosed.

No error.