State v. Bell ( 1972 )

MALLARD, Chief Judge.

In 1968, Banks and Justice (who were tried with the defendant Jesse Bell in Case No. 1903-S) both appealed from their convictions. The defendant Bell, after discussing with his attorneys his right to appeal, decided not to do so. Banks’ appeal was dismissed because of the failure to docket the record on appeal in this court within the time required by the rules. Justice was given a new trial (in January 1969) because of the introduction into evidence of that portion of Banks’ extrajudicial confession which incriminated Justice. Banks did not testify and therefore Justice and Bell did not have the opportunity to cross-examine him. [See State v. Justice 3 N.C. App. 363, 165 S.E. 2d 47 (1969).] In so holding, the Court of Appeals relied mainly on the decision in State v. Fox, 274 N.C. 277, 163 S.E. 2d 492 (1968), which was based upon the holding in Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968), and its retroactive application in Roberts v. Russell, 392 U.S. 293, 20 L.Ed. 2d 1100, 88 S.Ct. 1921 (1968). (Bruton was decided May 20, 1968, and this case was tried May 13, 14 and 15, 1968.)

In the case No. 687SC418, reported as State v. Justice, supra, there is on file in this court a transcript of the proceedings at the May 1968 Criminal Session of Superior Court held in Nash County in which Tommy Justice, Jesse Bell and Cleveland Banks were the defendants. It is this trial (Case No. 1903-S) in which the defendant Bell now contends the trial judge committed error by admitting the extrajudicial confessions of his co-defendants Banks, Justice, Dancy and Richardson, which incriminated him. Only portions of this transcript were made a part of the record on appeal in this present case. However, we take judicial notice of our own records, which include the transcript, in this interrelated proceeding. State v. Patton, 260 N.C. 359, 132 S.E. 2d 891 (1963). After consideration of the record, and for the reasons set forth by Judge Parker in State v. Justice, supra, we hold that no error was committed in allowing introduction in evidence of the confessions of the co-defendants Justice, Dancy and Richardson.

Since State v. Justice, supra; State v. Fox, supra; and Bruton v. United States, supra, the Supreme Court of the United States has modified and narrowed the application of the Bruton holding. In Schneble v. Florida, 405 U.S. 427, 31 L.Ed. 2d 340, 92 S.Ct. 1056 (1972), the Court said: “The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” See also, Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284, 89 S.Ct. 1726 (1969).

The testimony at the trial of Jesse Bell in May 1968 showed that all five of the defendants were questioned by the officers together and that each admitted taking part in the robbery and receiving part of the money. On a voir dire relating to the admissibility of the confessions, the investigating officer when asked, “Did these three individuals (the defendants) tell on themselves or tell on the others?,” replied: “These three boys just told on themselves.”

We hold that the properly admitted evidence of this defendant’s guilt was so overwhelming and that the prejudicial effect against him of the improperly admitted statement of the co-defendant Banks was so insignificant by comparison, that it is clear beyond a reasonable doubt that its admission was harmless error. Moreover, this defendant did not choose to appeal at that time and waited from the date of this trial in May 1968 until December 1970 before deciding to file a petition, pro se, to challenge, among other things, the admissibility of the evidence at his trial. A post-conviction hearing is not a substitute for an appeal. In State v. White, 274 N.C. 220, 162 S.E. 2d 473 (1968), Justice Sharp, speaking for the Court, said:

“In this proceeding, petitioners sought and obtained post-conviction review upon the allegation that the trial judge had erroneously admitted evidence obtained by an unlawful search and seizure. * * *

This Court has consistently held that proceedings under the Act are not a substitute or an alternative to direct appeal. * * *

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We adhere to our former decisions. Errors in a petitioner’s trial which could have been reviewed on appeal may not be asserted for the first time, or reasserted, in post-conviction proceedings. * * *”

In Case No. 1905-S, the acceptance of defendant’s plea of guilty, even though done in 1968, met all of the requirements enumeratead in Boykin v. Alabama, 395 U.S. 238, 23 L.Ed. 2d 274, 89 S.Ct. 1709 (1969). The fact, if indeed it is a fact, that defendant may have thought that incompetent evidence would be used against him upon a plea of not guilty is not sufficient grounds to strike a plea of guilty that the defendant swore, and the court found, was freely, understandingly and voluntarily entered. Parker v. North, Carolina, 397 U.S. 790, 25 L.Ed. 2d 785, 90 S.Ct. 1458 (1970). It has been held that a guilty plea is constitutionally valid even though it may be motivated in part by fear of the death penalty. North Carolina v. Alford, 400 U.S. 25, 27 L.Ed. 2d 162, 91 S.Ct. 160 (1970); Brady v. United States, 397 U.S. 742, 25 L.Ed. 2d 747, 90 S.Ct. 1463 (1970).

It is also noted that even if there were prejudicial error in the trial of Case No. 1903-S in 1968, the sentence imposed therein runs concurrently with the sentence imposed in Case No. 1905-S in which the defendant pleaded guilty and which is free from error.

We have considered all of defendant’s contentions and no prejudicial error is made to appear.

Affirmed.

Judges Campbell and Brock concur.