State v. Norman

170 S.E.2d 923 (1969)

STATE of North Carolina
v.
Grover Cleveland NORMAN (2 cases: 68-7587 and 68-7588 Heard Together).

No. 43.

Supreme Court of North Carolina.

December 10, 1969.

C. David Swift, Valdese, for defendant appellant.

Robert Morgan, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., and J. Bruce Morton, Trial Atty., Raleigh, for the State.

HUSKINS, Justice.

A plea of nolo contendere is a formal declaration on defendant's part that he will not contend with the State in respect to the charge and is tantamount to a plea of guilty for purposes of the particular criminal action in which it is tendered and accepted. The presiding judge acquires full power to pronounce judgment against the defendant for the crime charged in the indictment. State v. Jamieson, 232 N.C. 731, 62 S.E.2d 52; State v. Cooper, 238 N. C. 241, 77 S.E.2d 695; State v. McIntyre, 238 N.C. 305, 77 S.E.2d 698; State v. Shepherd, 230 N.C. 605, 55 S.E.2d 79; State v. Stansbury, 230 N.C. 589, 55 S.E.2d 185; State v. Ayers, 226 N.C. 579, 39 S.E.2d 607; State v. Beasley, 226 N.C. 580, 39 S.E.2d 607; State v. Parker, 220 N.C. 416, 17 S.E. 2d 475; State v. Burnett, 174 N.C. 796, 93 S.E. 473, L.R.A.1918A, 955.

A defendant is not entitled to plead nolo contendere as a matter of right. It is pleadable only by leave of the court, and "its acceptance by the court is entirely a matter of grace." State v. Thomas, 236 N. C. 196, 72 S.E.2d 525.

A conditional plea of nolo contendere is neither sanctioned by the law nor permitted by the Constitution. State v. Camby, 209 N.C. 50, 182 S.E. 715; State v. Horne, 234 N.C. 115, 66 S.E.2d 665. By Chapter 23 (as amended by Chapter 469) of the 933 Session Laws, the General Assembly provided that in all trials in the superior court upon all charges other than capital "it shall be competent for the defendant to enter a conditional plea of guilty therein, or nolo contendere, if the court shall permit the latter plea; and thereupon, the court may hear and determine the matter" without the intervention of a jury. The judge was authorized to pass upon the weight and sufficiency of the evidence, and if it satisfied him beyond a reasonable doubt of the defendant's guilt, he was authorized to proceed to judgment and sentence upon the plea entered in like manner as upon a conviction by a jury. If not so satisfied the plea was to be stricken out and a verdict of not guilty entered. This Act was held unconstitutional in State v. Camby, supra, on the ground that it was in conflict with Article I, Section 13, of the Constitution of North Carolina which provides that "[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful persons in open court. The Legislature may, however, provide other means of trial for petty misdemeanors, with the right of appeal."

Recently, the Judicial Council recommended that Article I, Section 13, of the Constitution of North Carolina be modified to allow the General Assembly, if it so desired, to provide for waiver of a jury trial upon a plea of not guilty and to permit a defendant, at his option, to have his guilt passed upon by a judge rather than a jury. The Constitutional Study Commission was advised of this suggestion and included it among bills submitted to the 1969 General Assembly. The proposal was rejected by the General Assembly, however, and the Constitution with respect to jury trials remains unchanged.

In light of the foregoing principles, we are constrained to hold that the trial judge accepted defendant's plea as his authority to hear the evidence and, in lieu of a jury, to pass upon the question of defendant's guilt or innocence. That is exactly what he told defendant the plea of nolo contendere meant at the time it was tendered. That is the inference to be drawn from the fact that more than sixty pages of testimony was elicited bearing upon every facet and detail of the crimes charged in the bills of indictment. That defendant so understood it is implied by his attempt to prove an alibi. That the Court so understood it may be inferred from the recitals and the detailed findings of fact contained in the judgment. The result is therefore controlled by State v. Camby, supra, and State v. Horne, supra. State v. Barbour, 243 N.C. 265, 90 S.E.2d 388, depicts a perfect example of what the trial court should not do upon a plea of nolo contendere. Cases relied on by the State—State v. Shepherd, supra; State v. Jamieson, supra; State v. McIntyre, supra—are all factually distinguishable.

Since there must be a new trial, we put aside the question whether, as contended by defendant, the evidence offered by the State establishes his innocence of the charges contained in the bills of indictment.

The proceeding in the superior court was contrary to constitutional requirements; hence, the decision of the Court of Appeals upholding the judgment based thereon is reversed. The case is remanded to that Court where it will be certified to the trial court for a new trial in accord with this opinion.

Reversed and remanded.

MOORE, J., took no part in the consideration or decision of this case.