Branch v. State , 269 N.C. 642 ( 1967 )

153 S.E.2d 343 (1967) 269 N.C. 642

Edward W. BRANCH, Jr.
v.
STATE.

No. 329.

Supreme Court of North Carolina.

March 22, 1967.

Atty. Gen. T. W. Bruton and Staff Atty. Theodore C. Brown, Jr., Raleigh, for the State.

Simpson & Simpson, Morganton, for defendant appellant.

LAKE, Justice.

Upon the pronouncement of sentence upon him at the conclusion of his trial on the charge of murder, the petitioner, through counsel then representing him, gave notice in open court of appeal to this Court. On the following day he withdrew this notice of appeal in writing signed by him. At the post conviction hearing, he testified that no officer coerced him into signing this or any other paper or asked him to withdraw his appeal, but he and his family decided to withdraw it upon advice of his trial counsel. He also testified at the post conviction hearing that, at the time of his trial on the murder charge, his then counsel advised him not to take the witness stand but told him he could do so if he wanted to, and that he did not testify because he felt it would not be advisable for him to do so.

The procedure established by the Post Conviction Hearing Act, G.S. §§ 15-217 to 15-222, is not a substitute for an appeal from the judgment entered at the trial of the criminal charge. State v. Graves, 251 N.C. 550, 112 S.E.2d 85; State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615. Moore, J., speaking for the Court in the Graves case, said:

"The inquiry is whether there was a substantial denial of the constitutional rights of petitioners in the original criminal action in which they were convicted and whether a different result would likely have ensued had petitioners not been denied such rights."

In his brief the petitioner brings forward and argues only these two assignments of error: (1) His constitutional rights were violated in that he was denied the right and opportunity to confer, prior to trial, with his codefendant, David Secrest; (2) his constitutional rights were violated in that the arresting officers took his fingerprints while he was in custody, before he had an opportunity to employ counsel and without advising him of his constitutional rights. At the trial the State introduced testimony comparing these fingerprints with those found on objects at the scene of the crime.

Exceptions to the judgment of the superior court, and assignments of error based thereon, which are not brought forward in the appellant's brief and in support of which his brief cites no argument or authority, are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court. We have, nevertheless, reviewed the entire record before us, including the transcript of the hearing upon the petition for post conviction review and the transcript of the trial on the criminal charge, and have considered each exception by the petitioner to the judgment entered at the post conviction hearing, and to the findings of fact and conclusions therein. Each such finding of fact made by the superior court is amply supported by evidence in the record. Each such finding is, therefore, binding upon this Court. State v. Wheeler, supra. The court's conclusions of law based upon its findings of fact are subject to our review. We have examined each such conclusion and find no error therein.

The ultimate questions are: (1) Did the petitioner have a fair opportunity, prior to being placed on trial, to prepare his defense against the charge? (2) Did the State procure his conviction by the use of trial or investigatory procedures forbidden by the Constitution of North Carolina or by the Constitution of the United States? In applying these tests to the record before us, we must begin with the assumption that the petitioner is innocent of the offense with which he is charged and consider whether the procedures used would expose an innocent man to unreasonable danger of conviction.

In each of the above cited cases, this Court reversed a judgment entered upon a post conviction hearing and ordered a new trial for the reason that the defendants therein were not allowed, prior to trial, to confer with their respective codefendants in preparation of their defenses. In State v. Wheeler, supra, this Court said, "The rights of communications go with the man into the jail, and reasonable opportunity to exercise them must be afforded by the restraining authorities." In that case the facts were these:

"The petitioners were arrested together the day following the robbery and after arrest were deprived of all money and other personal effects. * * * They were kept in separate jails and not allowed to communicate with one another. They were moved from jail to jail several times between the date of the arrest and the date of their trial. * * * As they were led into court they were confronted by the State's prosecutor, ready for trial with his investigators and witnesses. Each defendant was in ignorance of what the others were able to offer in defense. Each was without an attorney, relative, or friend."

In State v. Graves, supra, the petitioners were indicted jointly for robbery. The alleged robbery occurred Sunday afternoon; they were arrested that night and tried the following Tuesday afternoon. This Court said:

"Neither of the petitioners was represented by counsel at the trial, none of their relatives were present and they had no witnesses. * * * Where, as here, defendants have no notice that trial is imminent and all the circumstances indicate that the case has not progressed beyond the investigation stage and they and their families, relatives and friends have been given no opportunity to communicate and confer, and defendants have had no opportunity to confer privately with each other as to what each may be able to contribute to the defense, until a short time before the unexpected trial, and available witnesses have not been subpoenaed, trial under these circumstances is a deprivation of due process of law."

In contrast, the present record shows:

Branch was arrested at the home of his grandmother, with whom he lived, and while she and other relatives were present. His grandmother and other relatives visited him in jail. They employed attorneys to represent him. At the preliminary hearing he was represented by all three of his attorneys, and a transcript of this hearing was available. Secrest, the codefendant, was arrested at substantially the same time. Neither requested permission to talk to the other. Secrest was tried first and, upon his plea of guilty, was sentenced to life imprisonment. Branch was then brought to trial and Secrest testified as a witness for the State. At the post conviction hearing, the sheriff testified that the prisoners were kept separated for the safety of Secrest. Secrest testified that he had been threatened by Branch and had no desire, prior to their trials, to confer with him. The trial which resulted in Branch's conviction was not until nearly ten months after the employment of his counsel. In the interval, the officers carried Branch to the offices of his attorneys for conferences whenever requested to do so. At no time did Branch's attorneys request a conference with Secrest or a conference between Secrest and Branch.

The circumstances disclosed in this record are completely different from those in the Wheeler and Graves cases. Under these circumstances, it cannot be said that confining Branch and Secrest in separate cells, without opportunity to confer with each other privately, deprived Branch of a fair opportunity to prepare his defense. This procedure by the State did not deprive Branch of his liberty without due process of law and violated no other right granted to him by the Constitution of this State or by the Constitution of the United States.

There is no merit in the petitioner's contention that his constitutional rights were violated in that his fingerprints were taken while he was in custody, before he had opportunity to employ counsel and without his being advised of his constitutional rights and that, at his trial, the State was permitted to introduce evidence comparing the fingerprints so taken with fingerprints found upon objects at the scene of the crime. In State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104, this Court sustained the admission in evidence of a comparison of a bare footprint taken from the defendant, while in custody, with a footprint found at the scene of the crime. Although the footprint taken from the defendant in that case was taken with his consent, the Court, speaking through Ervin, J., said:

"But the prisoner's standing would not be bettered a whit if the record did in fact disclose that he had furnished his footprint to the State under compulsion. The point in principle is decided against the prisoner in the following North Carolina cases: State v. Riddle, 205 N.C. 591, 172 S.E. 400, * * * State v. Graham, 74 N.C. 646, 21 Am.Rep. 493, and State v. Thompson, 161 N.C. 238, 76 S.E. 249, * * * State v. Garrett, 71 N.C. 85, * * *. These North Carolina cases are in accord with well considered decisions in other jurisdictions to the effect that the constitutional privilege against self-incrimination is not violated by the introduction of evidence of fingerprints to identify the accused, even where the fingerprints of the accused are obtained by coercion."

In the very recent case of Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908, the Supreme Court of the United States held that there was no violation of rights granted by the Constitution of the United States in taking, over objection, blood from the body of one charged with driving a motor vehicle under the influence of intoxicating liquor, analyzing the same and permitting the state to offer evidence of the result of such analysis. In reaching that conclusion the Court, speaking through Mr. Justice Brennan, said:

"[B]oth federal and state courts have usually held that it [the protection against self-incrimination] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture."

In Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, the Supreme Court of the United States, speaking through Mr. Justice Holmes, said:

"[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of a use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof."

To the same effect, see: United States v. Kelly, 55 F.2d 67, 83 A.L.R. 122; 8 Wigmore on Evidence (McNaughton's Revision), § 2265; Annot., 28 A.L.R. 2d 1115, 1137.

Since the fingerprints of the petitioner could have been taken while he was in custody and against his will, even though his counsel had been present and had advised him not to assent thereto, see Schmerber v. State of California, supra, there was no violation of his rights in the taking of these fingerprints prior to his employment of counsel and prior to any advice to him concerning his constitutional rights.

The record of the petitioner's trial on the criminal charge discloses that no statement made by him while in custody was offered in evidence. The transcript of the post conviction hearing shows that from the time of his arrest to the conclusion of his trial the petitioner, when interrogated by the officers, refused to make any statement whatever except that he had no statement to make.

In this proceeding, the burden is upon the petitioner to show a denial of some right guaranteed to him by the Constitution of North Carolina or by the Constitution of the United States in the trial or investigatory procedures resulting in his conviction. The petitioner has failed to do so.

Affirmed.