State v. Engle , 5 N.C. App. 101 ( 1969 )

167 S.E.2d 864 (1969) 5 N.C. App. 101

STATE of North Carolina
v.
John L. ENGLE and Garland E. Nease.

No. 6918SC296.

Court of Appeals of North Carolina.

June 18, 1969.

Robert Morgan, Atty. Gen., by Harrison Lewis, Deputy Atty. Gen., and Eugene A. Smith, Raleigh, Trial Atty., for the State.

W. Marcus Short, Greensboro, for defendants.

BROCK, Judge.

Defendants assign as error that the presiding judge at the 16 September 1968 session declined to appoint another attorney to represent one of the defendants. There is no showing in this record on appeal as to the grounds upon which such a request to the judge was made, and no exception to his ruling was entered. The only thing in the record on appeal is an undated stipulation of counsel that a request was made and denied. The defendants' exception follows this stipulation. Also we note that no motion or argument was made to the trial judge. We do not conceive that such an exception will support an assignment of error.

Nevertheless, defendants argue that they were denied effective assistance of counsel because they did not have separate attorneys appointed to represent them. There is absolutely no argument or showing of a conflict of interests between the two defendants, and the transcript of the evidence bears out that there was none. Also it appears from the entire record that the appointed counsel diligently represented both defendants.

"While the right to counsel is absolute, its exercise must be ``subject to the necessities of sound judicial administration'; and where there appears to be no conflict, the court may, in its discretion, assign to a defendant the attorney of a co-defendant. Such an assignment is not, in itself, a denial of effective assistance of counsel. Since Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), it has been clear that some conflict of interest must be shown before an appellant can successfully claim that representation by an attorney also engaged by another defendant deprived him of his right to counsel." United States v. Dardi, 2 Cir., 330 F.2d 316 (Certiorari denied 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50).

Defendants assign as error the admission of the testimony of the assistant superintendent of the Davie County Prison Unit which tended to show an escape, an assault upon him, the larceny from the prison unit safe, and the larceny of his automobile. Evidence of a defendant's guilt of another crime is inadmissible to show his guilt of the crime in issue where its only relevancy is to show the character of the accused, or his disposition to commit a crime of the nature of the one in issue. Stansbury, N.C. Evidence 2d, § 91. However, "* * * proof of other offenses is competent when such proof tends to show quo animo, intent, design, or guilty knowledge, or make out the res gestae, or exhibit a chain of circumstances with respect to the offense in issue, and is so connected with the offense charged as to throw light upon one or more of these questions." 2 Strong, N.C. Index 2d, Criminal Law, § 34, p. 536. Clearly the testimony of the assistant superintendent tended to show preparation by defendants, to explain their possession of firearms and corroborate the victim, to explain their possession of the automobile and corroborate the victim. The testimony showed a chain of circumstances leading up to the offense in issue, and served to help identify the weapons, the automobile and the defendants. It was relevant for these purposes and properly admitted even though it disclosed the commission of independent offenses.

Defendants' third and final assignment of error is to the refusal of the trial judge to order a mistrial when defense counsel advised the judge that witnesses had suggested to him that one of the jurors had been sleeping.

During the second day of the trial the transcript shows the following:

"MR. ALBRIGHT: The State of North Carolina rests its case, your Honor, against these Defendants.

"THE COURT: Is there any evidence for the Defendants?

"MR. SHORT: Your Honor, I'd like to make a motion in the absence of the jury.

"THE COURT: Go to your room, members of the jury.

"(The jurors withdraw from the Courtroom.)

"The following proceedings were had in the absence of the jury:

"THE COURT: Go ahead.

"MR. SHORT: Your Honor, at this time, I'd like to make a motion or ask your Honor's indulgence in declaring a mistrial in this case for the reason—

"THE COURT: On what grounds?

"MR. SHORT: On the grounds that the second juror from the end on the front row has been—several witnesses have called it to my attention and are willing to sign affidavits—that he has been dozing some yesterday afternoon and some this morning during the course of the trial, and I don't have their affidavits now, but it is my understanding that I wouldn't have any trouble getting them.

"THE COURT: Well, I have observed the jury all along, and I haven't seen anybody asleep. It may have looked like they were sort of drowsy at times, but they have been responsive, it seems to me.

"MR. SHORT: Your Honor, of course, I believe your prerogative is—

"THE COURT: I wouldn't declare a mistrial unless I had more grounds than that.

"MR. SHORT: I don't have the affidavits, but it is my understanding that I'd have no trouble getting them.

"THE COURT: It's hard to tell when a man is asleep. People close their eyes —I do that myself—a lot of times, concentrating. Sometimes my eyes get tired, and I close my eyes, and anyone would say that I was asleep, but I listen."

After the trial judge allowed the defendant Nease to make certain statements about the juror sleeping, the jury returned to the courtroom whereupon the following transpired:

"THE COURT: Let me ask before the case goes any further, during the progress of the trial, has any of the jurors dozed off and gone to sleep or not? If you have, I want to know it now.

"(No response.)

"THE COURT: Is there any juror who has been in such a dazed or dozed condition that he didn't hear the witness? If so, I want to hear it now.

"(No response.)"

As can be seen from the foregoing there was absolutely no competent evidence before the court that any juror had been sleeping; the only thing before the court was defense counsel's suggestion that witnesses had called to his attention that a juror had dozed some that day and the day before. It seems clear that neither defense counsel nor the trial judge had observed a juror dozing or sleeping.

Defendants argue that the trial judge erred in failing to make findings of fact upon their motion for a mistrial. There was no competent evidence before the court upon which to make findings of fact; there was only a suggestion from defense counsel. We note that attached to the record on appeal, and agreed to by the solicitor, are seven affidavits each of which, among other things, makes the following statement: "* * * that during said trial this affiant witnessed a male Negro juror in the front row, second juror from the end away from the Judge, dozing and actually appearing to be asleep during the time that evidence was being introduced * * *" It appears from the identifications in the transcript of the trial proceedings that six of the affiants are relatives of defendant Nease (his mother, two sisters, a brother-in-law, an aunt, and an uncle), and apparently the seventh affiant is the wife of defendant Engle.

But in any event, each of the affidavits shows that it was signed on 14 or 15 April 1969, approximately five months after the conclusion of the trial. Obviously not any of these affidavits were before the trial court. We do not perceive why the solicitor agreed that these affidavits could be sent up with the record on appeal, but even his agreement does not make them a proper part of the record on appeal. We will ignore them.

Counsel has pursued every defense available to his clients, but in the trial we find

No error.

CAMPBELL and MORRIS, JJ., concur.