State v. Gainey , 280 N.C. 366 ( 1972 )

185 S.E.2d 874 (1972) 280 N.C. 366

STATE of North Carolina
v.
Frank GAINEY.

No. 120.

Supreme Court of North Carolina.

January 28, 1972.

Atty. Gen. Robert Morgan and Staff Atty. Burley B. Mitchell, Jr., Raleigh, for the State.

J. William Anderson, Fayetteville, for defendant appellant.

SHARP, Justice:

Defendant's case on appeal contains seven assignments of error, one of which he expressly abandons in his brief. His first two assignments relate to Judge Dupree's findings that, prior to defendant's waiver of counsel and preliminary hearing, he had explained to him the nature of the charges against him, the statutory punishment therefor, and his constitutional rights in connection therewith.

Defendant was bound over to the Superior Court upon a warrant charging him with common-law robbery, a crime punishable by imprisonment not exceeding ten years. G.S. § 14-2 (1969). In the Superior Court he was tried upon an indictment charging robbery with firearms for which the punishment is not less than five nor more than thirty years. G.S. § 14-87 (1969). Defendant argues that the crime for which he was tried was not the one which Judge Dupree had explained to him and, therefore, he could not have knowingly and understandingly waived either counsel or a preliminary hearing. However, defendant does not project this argument further. He points to no prejudice whatever resulting to him from the absence of counsel at the time he waived preliminary hearing, and the record neither discloses nor suggests any. Nothing prejudicial to defendant is shown to have taken place at any time. He made no statements with reference to the charge against him until he testified in the Superior Court, where he was represented by counsel. No preliminary hearing was required and none was held.

Under our law a preliminary hearing is not an essential prerequisite to a bill of indictment. Gasque v. State, 271 N.C. 323, 156 S.E.2d 740, cert. den. 390 U.S. 1030, 88 S. Ct. 1423, 20 L. Ed. 2d 288 (1968), and cases therein cited. However, since G.S. § 7A-451 (effective 1 July 1969) declares a preliminary hearing to be "[a] critical stage of the action," it follows that an indigent defendant would be entitled to the appointment of counsel if such a hearing is held. See Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970). We hold that none of defendant's constitutional rights were violated during the proceedings in the District Court; that his waiver of counsel was valid; and that he sustained no prejudice either by reason of his waiver of counsel or preliminary hearing. State v. Clark, 272 N.C. 282, 158 S.E.2d 705.

Defendant's third assignment of error is: "To the court's overruling of defendant's objection to questions by the solicitor concerning defendant's previous arrest. (R p 41)" As we have repeatedly pointed out, such an assignment does not comply with Rule 19(3) of the Rules of Practice in the Supreme Court. 254 N.C. at 783, 798-800. See Grimes v. Home Credit Company, 271 N.C. 608, 157 S.E.2d 213; State v. Staten, 271 N.C. 600, 607-608, 157 S.E.2d 225, 231. Although the assignment of error does not itself specifically show the questions sought to be presented as required by the rule, we have reviewed the record and ascertained the question. On cross-examination, after defendant denied that he had seen Officer Acker "earlier that day" (31 January 1969), he testified without objection that Acker had arrested him on a Thursday night— presumably on 30 January 1969. The solicitor's next question was, "What did he arrest you for"? Defendant's objection was overruled, and he answered that he had been arrested for an assault upon a person whose name he did not know, just somebody he was "fighting with."

It is no longer the rule in North Carolina that, for purposes of impeachment, a witness may be asked if he has been arrested or indicted for a specified offense. In State v. Williams, 279 N.C. 663, 185 S.E.2d 174, this Court overruled State v. Maslin, 195 N.C. 537, 143 S.E. 3; State v. Brown, 266 N.C. 55, 145 S.E.2d 297, and other cases which permitted such questions for impeachment. Chief Justice Bobbitt, writing the opinion of the Court, said: "We now hold that, for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been indicted or is under indictment for a criminal offense other than that for which he is then on trial.. . . A fortiori, we hold that, for purposes of impeachment, a witness, including the defendant in a criminal case, may not be cross-examined as to whether he has been accused, either informally or by affidavit on which a warrant is issued, of a criminal offense unrelated to the case on trial, nor cross-examined as to whether he has been arrested for such unrelated criminal offense." Id., 279 N.C. at 672, 185 S.E.2d at 180.

The trial of this case occurred before the decision in Williams. Although no longer permissible, the solicitor's questions with reference to defendant's arrest were then competent. However, the decision in Williams did not change the rule that for purposes of impeachment a witness may be asked whether he has committed specific criminal acts or been guilty of specified reprehensible conduct. State v. Hartsell, 272 N.C. 710, 158 S.E.2d 785; State v. Bell, 249 N.C. 379, 106 S.E.2d 495; Stansbury, N.C. Evidence § 111 (2d Ed.1963). Had the solicitor's question been whether defendant had engaged in an affray on Thursday night instead of "What were you arrested for"? it would have been permissible.

As the opinion in Williams pointed out, "Whether a violation of the rule [against impeachment by evidence of criminal charges as distinguished from convictions] will constitute sufficient ground for a new trial will depend upon the circumstances of the particular case." Id., 279 N.C. at 674, 185 S.E.2d at 181. Therefore, even under Williams, the admission of the evidence with reference to defendant's arrest was inconsequential and constitutes no ground for a new trial.

Assignment of error No. 4 purports to raise the question whether the court erred "in overruling defendant appellant's objections to questions by the solicitor concerning defendant's failure to have certain defense witnesses in court." This assignment likewise does not comply with our Rule 19 (3). The record page reference to which the assignment refers shows defendant to have testified without objection that Willie Ray, the man who (he said) had given him and Robinson a ride to the home of Robinson's mother, was not in court. When the solicitor asked defendant if he had subpoenaed Ray as a witness, defendant answered that Ray "didn't want to come to court." The solicitor's next question was, "He didn't want to go on the stand and perjure himself, did he"? There was no objection to this question, which defendant answered by saying, "He didn't have no reason to tell no lie."

Defense counsel then objected "about where he [Ray] is and what he was going to say." The objection was overruled, and the solicitor dropped the subject. Defendant not only made no objection to the question which elicited this testimony, but there was no motion to strike it. However, such a motion would have been addressed to the discretion of the court. State v. Herndon, 223 N.C. 208, 25 S.E.2d 611, cert. denied 320 U.S. 759, 64 S. Ct. 67, 88 L. Ed. 452 (1943). See 4 Strong, N.C.Index Trial § 15 (1961). The solicitor's question with reference to Ray's motives was objectionable. However, it is inconceivable that it affected the outcome of the case, and under all the circumstances, it cannot be held prejudicial error. State v. Perry, 275 N.C. 565, 169 S.E.2d 839; State v. Hunt, 223 N.C. 173, 25 S.E.2d 598.

The foregoing comments with reference to assignment of error No. 4 are equally applicable to assignment No. 5. On direct examination defendant had explained his flight from Officer Acker at the time of his arrest by saying that he was on parole and was not supposed to be out after midnight. On cross-examination the solicitor asked him how many times he had broken the terms and conditions of his parole. There was no objection and defendant answered, "That is the first time that I can recall." Defense counsel then objected "to this line of questioning" on the ground that defendant "is not charged with a violation of probation, your Honor, and that is not the issue here." No motion to strike the answer was made. Judge Bickett did not understand counsel's statement. His reply to it was that he could not hear a word and that "the jury is the judge."

For the purpose of impeachment it was competent for the solicitor to ask defendant if he had been guilty of other parole violations and, had objection been timely made, it would have been properly overruled. Therefore, the judge's failure to evaluate this question and answer was immaterial. Indubitably, the competency and admissibility of evidence is for the court and not the jury. However, it is beyond belief that the judge's erroneous statement that "the jury is the judge," when considered in context, could have influenced the jury's verdict one way or the other. Assignment of error No. 5 is overruled.

After defendant had testified on cross-examination that he had bought the watch, which Grice identified as his, from another inmate while he was in prison in Raleigh, the solicitor asked this question: "You've had a lot of experience in prison, haven't you"? Defendant's objection was overruled, and he answered that he had "been convicted of nothing but assault cases. . . on one charge they had me for attempt to kill; I was shooting at one."

The solicitor's question was inexactly phrased, but in effect it was, as defendant understood, an inquiry as to the number of prison sentences defendant had served. As such, it was proper cross-examination, and the court's ruling was not erroneous. Assignment of error No. 6 is overruled.

In his brief, defendant properly abandoned his seventh and final assignment of error. It was based upon his only exception to the judge's charge, and it pointed to no error.

We have carefully examined the entire record in this case. It discloses that defendant has had a fair trial, free from prejudicial error, and it leaves no reasonable doubt of his guilt. While defendant's appeal appears to have been unnecessarily delayed, since his sentence must be affirmed, no prejudice has resulted to him from the delay. He has been in custody since 4 November 1969 and, all the while, he has been serving the sentence from which he appealed. G.S. § 15-186.1 (1971).

In the trial below we find

No Error.