State v. Mathis , 293 N.C. 660 ( 1977 )

239 S.E.2d 245 (1977) 293 N.C. 660

STATE of North Carolina
v.
Kenneth MATHIS.

No. 35.

Supreme Court of North Carolina.

December 15, 1977.

Rufus L. Edmisten, Atty. Gen. by Thomas F. Moffit, Associate Atty., Raleigh, for the State.

G. Redmond Dill, Jr., Valdese, for defendant.

LAKE, Justice.

Neither Article 3A of Chapter 148 of the General Statutes, which is relied upon by the defendant upon this appeal, now repealed but in effect at the time the defendant was sentenced, nor its successor, Article 3B, in effect since 1 October 1977, has any application to the present case, and there is no merit in the defendant's contention that the trial judge should have followed the procedure set forth therein when he sentenced this defendant. State v. Niccum, 293 N.C. 276, 238 S.E.2d 141 (1977). Speaking through the Chief Justice, we there said, "We hold that neither Article 3A (repealed) nor 3B of N.C.Gen.Stats. Ch. 148 was intended to apply to convictions or pleas of guilty of crimes for which death or a life sentence is the mandatory punishment."

Furthermore, the record does not show that at the time of his conviction, this defendant was less than 21 years of age. His exact age does not appear in the record but the record does show that in July, 1974, nearly two years prior to his conviction, he was discharged from the Army after an undisclosed period of service therein. At the time of the offense of which he has been convicted, this defendant was no inexperienced, adventurous adolescent. Upon overwhelming, uncontradicted evidence, he has been found guilty of an exceptionally vicious, bestial rape with no extenuating or mitigating circumstance.

At the time of the offense of which the defendant has been convicted, Chapter 1201 of the Session Laws of 1973 was in effect. This statute rewrote G.S. 14-21 to divide the crime of rape into two degrees. It provided that for first degree rape "the punishment shall be death," but further provided, "In the event it is determined by the North Carolina Supreme Court or the United States Supreme Court that a sentence of death may not be constitutionally imposed for any capital offense for which the death penalty is provided by this Act, the punishment for the offense shall be life imprisonment." After the defendant was sentenced to death in accordance with this statute, and pending his appeal to this Court, the Supreme Court of the United States, in Woodson v. North Carolina, supra, held the corresponding provisions of G.S. 14-17, imposing the death penalty for murder in the first degree, violate the Constitution of the United States and, so, may not be given effect by the courts of North Carolina.

In State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976), we said, "[S]ince the provisions of G.S. 14-21, imposing the death penalty for the offense of first degree rape, cannot be distinguished, in this respect, from the provisions of G.S. 14-17, we must hold that there is merit in the defendant's attack upon the death sentence imposed upon him." Thus, under the compulsion of the decision of the Supreme Court of the United States in Woodson v. North Carolina, supra, we must now vacate the death sentence imposed upon this defendant and, pursuant to Chapter 1201, § 7, of the Session Laws of 1973, substitute therefor a sentence to life imprisonment.

The defendant's third contention that he should be granted a new trial because of the ineffectiveness of his representation by his court-appointed trial counsel is completely lacking in merit. It is true that his trial counsel, though appointed by the trial court to represent him upon his appeal to this Court, failed to perfect his appeal within the time allowed therefor. However, when this failure of counsel was brought to the attention of this Court by the defendant's petition for certiorari, filed on his behalf by his present court-appointed counsel, we allowed the petition and brought the case before us for full review, which has now been had in the same manner and to the same extent as if there had been no failure by the original counsel to perfect the appeal. Thus, this failure of counsel has in no way prejudiced the defendant and is not basis for the granting of a new trial. We turn, therefore, to consideration of the adequacy of the defendant's representation in the trial court.

Article I, § 23, of the Constitution of North Carolina expressly provides, "In all criminal prosecutions, every person charged with crime has the right * * * to have counsel for defense * * *." Article I, § 19, of the Constitution of North Carolina provides, "No person shall be taken, imprisoned * * * or in any manner deprived of his life, liberty, or property, but by the law of the land." Amendment VI to the Constitution of the United States, now made applicable to the States by construction placed upon Amendment XIV by the Supreme Court of the United States in Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), and Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377 (1940), provides, "In all criminal prosecutions the accused shall enjoy the right * * to have the assistance of counsel for his defense." As stated by Justice Branch, speaking for this Court in State v. Sneed, 284 N.C. 606, 612, 201 S.E.2d 867, 871 (1974), "This right is not intended to be an empty formality but is intended to guarantee effective assistance of counsel."

What constitutes effective counsel? Obviously, the mere fact that the defendant was convicted does not show that his counsel was either incompetent, neglectful or ineffective. As we said in State v. Sneed, supra, neither the State nor the Federal Constitution guarantees the defendant in a criminal case "the best available counsel, errorless counsel or satisfactory results for the accused." Again, as we there said, "Incompetency (or one of its many synonyms) of counsel for the defendant in a criminal prosecution is not a Constitutional denial of his right to effective counsel unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice." Even the most skilled counsel for the defense cannot "make bricks without straw" and his duty to his client does not require him to use dishonorable means, subterfuge or false testimony in order to confuse and mislead the court or the jury and thus procure a verdict favorable to the defendant.

Nothing in the record indicates in the slightest degree any divided loyalty on the part of the defendant's court-appointed trial counsel, or any lack of diligence or skill in investigating, analyzing or evaluating the strength or weakness of the State's case, in searching for possible rebuttal evidence or in planning and presenting the defendant's case to the jury. According to the evidence, 15 minutes after the completion of the crime, the defendant was found by police officers at the scene, sitting or lying, in a disheveled condition, upon the clothing of the victim abandoned by her when she fled from the scene. The defense of alibi was obviously unavailable. The victim's obvious physical condition negated the defense of consent. Her testimony, corroborated by the results of a virtually immediate medical examination, establishes beyond any reasonable doubt that the offense of rape was committed. In this situation, trial counsel sought and obtained expert psychiatric examination of the defendant, which failed to produce any evidence of insanity. Counsel then turned his efforts in the direction of obtaining a more favorable sentence by plea bargaining, which was unsuccessful, to which lack of success the defendant's insistence upon a plea of not guilty appears to have contributed.

When the case was called for trial, counsel moved for a continuance in the obviously vain hope that another psychiatric examination might be more favorable in result. This motion was directed to the discretion of the trial court. Strong, N.C. Index 3d, Criminal Law, §§ 91.1, 91.6. In the court's denial of this motion, we find no indication of abuse of discretion. See: State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970), in which the facts with reference to the motion for continuance are quite similar to those in the present case except that in that case there was some indication that a further psychiatric examination might be productive of evidence favorable to the defendant. Be that as it may, counsel made an effort to obtain a continuance. The record indicates that the denial of his motion was based in part upon counsel's failure to make it more promptly, but the record shows the real reason for the court's ruling was the absence of any indication of a basis for the belief that further psychiatric examination would be productive of results favorable to the defendant. Obviously, counsel was under no duty to make a misrepresentation to the court concerning that prospect.

Counsel's examination of witnesses for the State, as shown in the record, appears to have been amply extensive and there is nothing in the record to indicate that it was not skillfully conducted. The record does not disclose any objection by counsel to evidence offered by the State, but neither does it disclose any question by the District Attorney which was objectionable. The record indicates no impermissible pre-trial identification procedures. While the defendant's counsel did not request a voir dire examination of the prosecuting witness before she was permitted to identify the defendant in court as her assailant, the record indicates no basis for the belief that such an examination would have tainted her in-court identification. All of the evidence is that she was seized on a brightly lighted street, was dragged a short distance into a wooded area which was rather well lighted, there was a full moon, which would have been almost directly overhead at the time of the attack, and she was in a face to face encounter with her assailant for approximately 45 minutes. Fifteen minutes later, he was found alone at the scene of the crime, sitting or lying upon her clothing. Nothing in the record, or in the brief or oral argument of defendant's present counsel, suggests that the defendant ever told his trial counsel, or anyone else, that he was not the assailant. Under these circumstances, the failure of counsel to demand a voir dire examination of the prosecuting witness, prior to her in-court identification, cannot be deemed such evidence of ineffective assistance of counsel as to warrant the granting of a new trial.

The defendant's trial counsel made an oral argument to the jury. Nothing in the record, or in the brief or oral argument of the defendant's present counsel, indicates the slightest inadequacy of this argument. At the conclusion of the trial, the learned trial judge, who had full opportunity to observe and determine the quality of the representation received by the defendant at the trial, appointed the trial counsel to represent the defendant on the appeal.

On 11 May 1977, the defendant's present, able counsel was appointed for purposes of the appeal. More than two months later, he served upon the District Attorney the statement of the case on appeal. Six months later he argued the appeal in this Court. It is worthy of note that his intervening study of the transcript of the trial did not disclose to him any question directed to any witness by the District Attorney which should have been made the subject of an objection. In his oral argument in this Court, he frankly stated that, notwithstanding his own opportunity to review the report of Dr. Groce concerning the defendant's mental condition some three weeks after the offense, and notwithstanding his own opportunities in the meantime to confer with the defendant, he was unable to state in what respect his tactics at a new trial would differ from those pursued at the original trial by the defendant's then court-appointed counsel.

We conclude that the defendant has failed to show that at his trial in the Superior Court he was prejudiced in any way by the representation given him by his then court-appointed counsel.

Pursuant to the custom of this Court in cases wherein the defendant has received a sentence to death or life imprisonment, we have carefully examined the entire record on appeal and have not limited our review to those assignments of error brought forward in the appellant's brief. We find in the record no error which would justify the granting of a new trial to this defendant. To warrant a new trial, there should be made to appear that the ruling complained of was material and prejudicial to defendant's rights and that a different result could well have ensued had the error not been committed. Strong, N.C. Index 3d, Criminal Law, § 167; State v. Jones, 278 N.C. 259, 179 S.E.2d 433 (1971); State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); State v. Bryant, 236 N.C. 745, 73 S.E.2d 791 (1953); State v. Bovender, 233 N.C. 683, 65 S.E.2d 323 (1951). As this Court, speaking through Justice Barnhill, later Chief Justice, said in State v. Bryant, supra, "On this record he could have no reasonable hope of acquittal in a future trial, for such a verdict would manifest a clear miscarriage of justice." In State v. Turner, supra, we said: "The seriousness of the offense charged and the severity of the potential penalty therefor do not constitute or affect the test to be applied in determining whether an error is prejudicial or nonprejudicial. The test is not the possibility of a different result upon another trial. The test is whether there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises."

We think a like test is appropriate in determining whether a new trial should be granted because of alleged ineffectiveness of court-appointed trial counsel. We find nothing in this record, or in the brief or oral argument of the defendant's present counsel, to indicate that any different, and legitimate, tactic or procedure by the defendant's trial counsel would have produced in this case a verdict more favorable to the defendant.

When the defendant was called upon to plead to the indictment, he responded, "Not guilty by reason of mental irresponsibility and insanity." Upon objection by the District Attorney, upon the ground that he was taken by surprise, he having had no prior notice of the defendant's intent to rely upon insanity as a defense, the court rejected the proposed plea and the defendant thereupon entered a simple plea of "Not guilty." In State v. Potts, 100 N.C. 457, 6 S.E. 657 (1888), speaking through Chief Justice Smith, this Court said:

"When called on to plead to the indictment, the prisoner answered, and proposed it should be so entered: ``I admit the killing, but was insane at the time of the commission thereof; therefore, not guilty.' The preliminary portion of the answer was rejected, and the plea entered in the usual form, divested of the irrelevant and impertinent surplusage; and this was entirely proper. The inquiry put to him required a direct and positive response, and this is contained in the plea, not guilty, under which every defense to the charge, in repelling, or mitigating and reducing the offense to a lower degree, was admissible."

Thus, under the plea as entered, evidence of the defendant's insanity, if otherwise competent, would have been admissible. We do not reach the point upon the present appeal as to whether, by virtue of lack of notice to the State of intent to rely upon insanity as a defense, the defendant could be properly precluded from offering evidence of insanity. In the present case, no evidence of insanity was offered by the defendant. Nothing whatsoever in the record indicates that the defendant was insane at the time the offense was committed and nothing in the record indicates that such failure to offer such evidence was due to any inability or ineffectiveness of his court-appointed counsel.

Notwithstanding the defendant's express abandonment of his Assignments of Error No. 1 through No. 6 in the brief prepared by his present counsel, we have carefully considered each of those assignments. We concur in the judgment of his present counsel that there is no merit in any of them.

This case is remanded to the Superior Court of Burke County with directions (1) that the presiding judge, without requiring the presence of the defendant, enter a judgment imposing a sentence of life imprisonment for the first degree rape of which the defendant has been convicted; and (2) that in accordance with this judgment, the Clerk of the Superior Court issue a commitment in substitution for the commitment heretofore issued. It is further ordered that the Clerk furnish to the defendant and to his attorney a copy of the judgment and commitment as revised pursuant to this opinion.

No Error In The Verdict. Death Sentence Vacated. Remanded For Proper Sentence.