State v. Smith , 291 N.C. 438 ( 1976 )

230 S.E.2d 644 (1976) 291 N.C. 438

STATE of North Carolina
v.
Freddie SMITH.

No. 43.

Supreme Court of North Carolina.

December 21, 1976.

Atty. Gen. Rufus L. Edmisten, Associate Atty. Jack Cozort, Raleigh, for the State.

Turner & Harrison, Kinston, for defendant-appellee.

SHARP, Chief Justice.

Section (a) of G.S. 15A-928 (1975 Replacement) provides, inter alia: "When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter," an indictment or information charging the higher offense may not allege the previous conviction.

Section (b) requires that an indictment or information charging "the higher offense" referred to in (a) "be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the solicitor's option" this special pleading "may be incorporated in the principal indictment as a separate count." (This section limits the State's use of this special pleading as provided in Section (c).)

Section (c) allows the defendant, at the time of his arraignment and in the absence of the jury, to choose whether he will contest the issue of his prior conviction or convictions. If he admits the alleged previous conviction, Section (c)(1) requires the judge to submit the issue of his guilt of the principal charge to the jury without reference to such previous conviction and as if they were not an element of the offense. If the defendant denies the previous conviction or remains silent, Section (c)(2) permits the State to "prove that element of the offense charged before the jury as part of its case."

Section (d) provides that in trials de novo in the superior court upon an appeal from the district court, when the fact of a previous conviction is an element of the offense affecting punishment, "the State must replace the pleading in the case with superseding statements of charges separately alleging the substantive offense and the fact of any prior conviction, in accordance with the provisions of this section relating to indictments and informations." Jury trials in the superior court on such appeals must be held in accordance with the provisions of sections (b) and (c).

The defendant attacks the constitutionality of G.S. 15A-928 on the ground it violates N.C.Const. art. I, § 24 in that "it permits the question of the defendant's guilt of multiple offenses to be determined without submission of the entire case to the jury." His premise is as follows: An accused cannot waive a trial by jury as long as his plea remains not guilty. "Therefore, as long as the plea is not guilty, the defendant cannot waive the jury trial as to any element of the crime charged. State v. Camby, 209 N.C. 50, 182 S.E. 715." Since G.S. 15A-928(c) permits a defendant to admit the previous convictions charged in the State's special pleading or separate count, it "clearly permits a defendant to waive a portion of his jury trial." Thus, the statute is unconstitutional.

Defendant's syllogism is devoid of merit. The case of State v. Camby, 209 N.C. 50, 182 S.E. 715 (1935) does not support the proposition for which defendant cites it. Camby holds that when the defendant in a criminal prosecution in the superior court enters a plea of not guilty he cannot waive his constitutional right to a jury trial and have the judge hear and determine his guilt or innocence; that as long as his plea is not guilty the determinative facts cannot be referred to the judge even by defendant's consent—they must be found by the jury. This pronouncement remains the law today. See State v. Norman, 276 N.C. 75, 170 S.E.2d 923 (1969); Still v. Muse, 219 N.C. 226, 13 S.E.2d 229 (1941). However, nothing in the State or Federal Constitutions nor in our case law prevents the defendant himself from making a judicial admission or stipulating to an undisputed fact, albeit the fact is essential to the State's case.

The rule is succinctly stated in State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971), a case in which the defendant, who was indicted for murder, judicially admitted the cause of the deceased's death. In writing the Court's opinion, Justice Huskins said with reference to the defendant's admission, "This is sufficient to remove the cause of death from contention and constitutes an admission that the head wound inflicted by defendant was fatal. . . . A stipulation of fact is an adequate substitute for proof in both criminal and civil cases. State v. Powell, 254 N.C. 231, 118 S.E.2d 617 (1961). ``Such an admission is not evidence, but rather removes the admitted fact from the field of evidence by formally conceding its existence. It is binding in every sense, preventing the party who makes it from introducing evidence to dispute it, and relieving the opponent of the necessity of producing evidence to establish the admitted fact. In short the subject matter of the admission ceases to be an issue in the case. . . .' Stansbury, North Carolina Evidence (2d Ed.1963), § 166." Id. at 686, 178 S.E.2d at 480. See State v. Mitchell, 283 N.C. 462, 469, 196 S.E.2d 736, 740 (1973).

The case of State v. Powell, cited in the foregoing excerpt from State v. McWilliams, was a prosecution for the second offense of operating a motor vehicle upon the public highway while under the influence of intoxicating liquors. In Powell, the Court said: "Where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment or warrant for a subsequent offense must allege the prior conviction or convictions, and in the absence of judicial admission by defendant the question as to whether or not there was a former conviction is for the jury, not for the court." (Emphasis added.) 254 N.C. at 233, 118 S.E.2d at 619. In such a case the law is clear that the defendant may stipulate the previous convictions charged against him.

The effect of G.S. 15A-928(c) is not to deprive the defendant of a jury trial. It merely allows defendant, by judicially admitting his prior convictions, to preclude the State from adducing evidence of them and to require the judge to submit the case to the jury without reference to them and as if previous convictions were not an element of the offense. Where the State's allegation of a prior conviction or convictions is true, the benefit to the defendant of this provision is obvious. Where the defendant denies the previous conviction the State must prove this element of the offense charged beyond a reasonable doubt. See G.S. 15A-924(d). When such evidence is introduced it is relevant only to the issue whether defendant has previously been convicted of an offense identical to the substantive offense charged, and the judge must charge the jury that they shall not consider such a prior conviction in passing upon his guilt or innocence of the primary charge. Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967).

For the reasons stated we hold that G.S. 15A-928 is immune to the attack which defendant makes upon it. Accordingly the judgment of Judge Perry Martin is

Reversed.