State v. Clark

206 S.E.2d 252 (1974) 22 N.C. App. 81

STATE of North Carolina
v.
Dupree CLARK.

No. 741SC403.

Court of Appeals of North Carolina.

June 19, 1974. Appeal Dismissed September 12, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. William W. Melvin, Raleigh, for the State.

Paul, Keenan & Rowan by Jerry Paul, Durham, for defendant.

Appeal Dismissed by Supreme Court September 12, 1974.

BROCK, Chief Judge.

Defendant has done considerable violence to very fundamental rules of appellate practice in North Carolina. He has grouped, under one assignment of error, exceptions which present several questions of law. The requirement for grouping exceptions is designed to have all exceptions which present the same single question of law grouped together and assigned as error. "It is the grouping of exceptions (whether one or more) presenting the same single question of law, which constitutes an assignment of error." Nye v. Development Company, 10 N.C.App. 676, 179 S.E.2d 795; Explanation of the function of assignments of error has been stated time and again. See, State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534; State v. Wilson, 263 N.C. 533, 139 S.E.2d 736; Conrad v. Conrad, 252 N.C. 412, 113 S.E. 2d 912; State v. Atkins, 242 N.C. 294, 87 S.E.2d 507; Dobias v. White, 240 N.C. 680, 83 S.E.2d 785; State v. Dickens, 11 N.C.App. 392, 181 S.E.2d 727; State v. Patton, 5 N.C.App. 501, 168 S.E.2d 500; and State v. Conyers, 2 N.C.App. 637, 163 S.E.2d 657.

For example, defendant has grouped under his first assignment of error his exceptions to (1) denial of his motion to quash the warrant, (2) denial of his motion to remand the case to the District Court or dismiss, and (3) denial of his motion for a free transcript of his trial in the District Court. Defendant undertakes to group these three assignments of error together upon his assertion that the rulings of the trial court violated defendant's First and Fourteenth Amendment rights. Nevertheless, it takes only a passing glance to determine that each of these three exceptions involves different questions of law. Lumping them under broad constitutional principles does not suffice. Where one assignment of error attempts to present more than one question of law, it is broadside and ineffective. State v. Blackwell, supra. The fact that defendant asserts that the denial of his three motions violates his First and Fourteenth Amendment rights does not mean that they present the same question of law for resolution.

Under another assignment of error, defendant groups exceptions numbers 46 through 55 and for his assignment of error states: "The trial court erred in its instructions to the jury in that the trial court (1) misstated the law; (2) expressed opinions to the jury; and (3) inaccurately summarized the evidence for the State." Again, it is clear at a glance that these exceptions do not present the same question of law.

We will not belabor further the impropriety of defendant's grouping of exceptions (assignments of error). Suffice it to say, it appears that many exceptions have been abandoned, and that others fail to clarify what question defendant seeks to raise. We will proceed as best we can, in the light of defendant's cumbersome presentation of the record on appeal, to discuss questions which have been identified and pursued on appeal.

Defendant argues that the warrant should have been quashed because no probable cause for arrest is shown in the affidavit executed in support of the warrant for arrest. He argues that the affiant must state that he is speaking from personal knowledge, or must specify the source of his knowledge. The affidavit reads as follows:

"The undersigned, Sheriff Troy Toppin, being duly sworn, complains and says that at and in the County named above and on or about the 16th day of May, 1973, the defendant named above did unlawfully, wilfully, fail and refused to disperse when commanded to do so by a law enforcement officer responsible for keeping the peace, to wit: Sheriff Troy Toppin, when said officer reasonably believed that disorderly conduct as defined by GS 14-288.4 was occurring by the assemblage of three or more persons in the Chowan County Office Building."

It seems ludicrous to suggest that the affidavit does not clearly show that it was made on the personal knowledge of Sheriff Toppin. The sheriff states under oath that defendant failed and refused to disperse when he, the sheriff, commanded defendant to disperse.

Defendant further argues that the warrant should have been quashed because G. S. § 14-288.4 and G.S. § 14-288.5 are unconstitutional. The only argument advanced by defendant with respect to G.S. § 14-288.5 is that by its terms it must rely upon the validity of G.S. § 14-288.4. Therefore, defendant relies upon his assertion that G.S. § 14-288.4 is unconstitutional because it is vague and overbroad.

At the outset, defendant cites and argues the holding of State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 that portions of G.S. § 14-288.4 are unconstitutional. Defendant has misplaced his reliance. Summrell was decided under G.S. § 14-288.4 as adopted in 1969. The statute was amended by Chapter 668 of the 1971 Session Laws, effective upon its ratification on 25 June 1971. The offenses charged in Summrell were committed on 6 July 1970 and he was tried in Superior Court during the 10 May 1971 Session, all before the enactment of G.S. § 14-288.4 as it read at the time of the offense alleged in the case, sub judice. Additionally, in Summrell, the defendant was charged and convicted of the offense of disorderly conduct as defined by G.S. § 14-288.4 (1969). Defendant in the present case is not charged with the offense of disorderly conduct; he is charged and was convicted in Superior Court, of the offense of failing to comply with a lawful command to disperse in violation of G.S. § 14-288.5. The offense of disorderly conduct as proscribed by G.S. § 14-288.4 and the offense of failing to comply with a lawful command to disperse as proscribed by G.S. § 14-288.5 are not the same. Defendant's argument is wide of the mark.

Defendant also argues that section (a)(2) of G.S. § 14-288.4, as amended in 1971, is unconstitutionally vague and overbroad. This argument has no application to the present case because the trial judge restricted the jury's consideration of what constituted disorderly conduct to sections (a)(3), (a)(4), and (a)(5) b. of G.S. § 14-288.4 (1971). Defendant advances no argument that these sections are unconstitutional. The statute is severable. "If any word, clause, sentence, paragraph, section, or other part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof." Sec. 3, Chapter 668, 1971 Session Laws. Therefore, a determination of the constitutionality of G.S. § 14-288.4(a) (2) is not necessary for a disposition of this appeal, and we make no determination.

We recognize that defendant argues that G.S. § 14-288.4 must be considered in its entirety. He argues that under the warrant in question, defendant is unable to determine what section of G.S. § 14-288.4 he is charged with violating so as to be in violation of G.S. § 14-288.5. This argument has no merit. Defendant was charged and convicted in Superior Court of the offense of failing to comply with a lawful command to disperse. It is not necessary for a warrant drawn under G.S. § 14-288.5 to specify the disorderly conduct by an assemblage of three or more persons the officer reasonably believes is occurring. Under G.S. § 14-288.5, the failure to disperse when commanded by an officer would be an offense where no disorderly conduct was occurring so long as it is shown on trial that the officer had reasonable grounds to believe that disorderly conduct was occurring by an assemblage of three or more persons.

G.S. § 14-288.5(a) and (b), under which defendant is charged, reads as follows:

"(a) Any law-enforcement officer or public official responsible for keeping the peace may issue a command to disperse in accordance with this section if he reasonably believes that a riot, or disorderly conduct by an assemblage of three or more persons, is occurring. The command to disperse shall be given in a manner reasonably calculated to be communicated to the assemblage.

"(b) Any person who fails to comply with a lawful command to disperse is guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00) or imprisonment for not more than six months."

Although the warrant in this case contains elaboration in addition to the statute (G.S. § 14-288.5), it nevertheless charges in the words of the statute. The affidavit, stripped of elaboration, reads:

". . . [O]n or about the 16th day of May, 1973, the defendant named above did . . . wilfully fail . . . to disperse when commanded to do so by a law enforcement officer responsible for keeping the peace, . . . when said officer reasonably believed that disorderly conduct . . . was occurring by the assemblage of three or more persons . . .".

If the defendant desired more definite information about the particular disorderly conduct the officer reasonably believed was occurring, he had the right to request a bill of particulars. In the absence of such request, he has no cause to complain.

In State v. Frazier, 280 N.C. 181, 185 S. E.2d 652, defendant urged a fatal variance between indictment and proof. The indictment charged murder in the following words:

"THE JURORS FOR THE STATE UPON THEIR OATH DO PRESENT, That Johnny Frazier late of the County of Mecklenburg on the 18 day of June 1970, with force and arms, at and in the said County, feloniously, wilfully, and of his malice aforethought, did kill and murder Carla Jean Underwood contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

Upon trial, the evidence disclosed a homicide committed in the perpetration of a robbery. In Frazier, the Court held that the indictment was proper in form and further stated:

"The indictment is sufficient in form to allege murder and support a conviction of murder in the first degree. G.S. 15-144; State v. Haynes, 276 N.C. 150, 171 S.E.2d 435. G.S. 14-17 provides that a murder committed in the perpetration of a robbery or other felony shall be deemed murder in the first degree. It is not required that the indictment allege that the murder was so committed in order that it be sufficient to support a verdict of murder in the first degree. State v. Haynes, supra. In State v. Mays, 225 N.C. 486, 489, 35 S.E.2d 494, this Court, speaking through Justice Barnhill, later Chief Justice, said:

``The bill of indictment charges the capital felony of murder in the language prescribed by statute. G.S. 15-144. It contains every averment necessary to be made. State v. Arnold, 107 N.C. 861, 11 S.E. 990; State v. R. R., 125 N.C. 666, 34 S.E. 527. Proof that the murder was committed in the perpetration of a felony constitutes no variance between allegata and probata. State v. Fogleman, 204 N.C. 401, 168 S.E. 536. If the defendant desired more definite information, he had the right to request a bill of particulars, in the absence of which he has no cause to complain.'"

We note that by the time defendant was placed on trial in Superior Court he had already been tried in District Court where defendant was fully apprised, or through cross-examination had the opportunity to be fully apprised, of the particular disorderly conduct the officer believed was occurring.

Defendant argues that the case should have been remanded to the District Court for a proper judgment because the District Court judgment recited that defendant was found guilty of a violation of G.S. § 14-288.4 instead of G.S. § 14-288.5 as he was charged. Conceding, without deciding, that the District Court judgment is erroneous, nevertheless, defendant appealed to Superior Court where his trial was de novo. The purpose of the appeal was to obtain a new trial free from the errors defendant may have felt were committed in District Court. He received a new trial from beginning to end, on the charge contained in the warrant, on both law and facts, disregarding completely the plea, trial, verdict and judgment in the District Court. A remand to the District Court would accomplish nothing but delay. Defendant has failed to show prejudice from the refusal to remand to the District Court.

Defendant argues that it was prejudicial error for the Superior Court to deny his motion for a free copy of the transcript of the trial in District Court. During defendant's trial in District Court, the regular Court Reporter recorded the proceedings. However, although more than a month passed between the time defendant was tried in District Court and the time he was tried in Superior Court, the defendant made no request for a transcript of the District Court trial until the date defendant's case was called for trial in the Superior Court. The Court Reporter did not prepare a transcription of the proceedings in District Court because no one requested a transcript. Defendant's counsel, the District Attorney, and the Superior Court Judge held a pre-trial conference in this case on 22 August 1973. The case was originally set for trial on 5 September 1973 and defense counsel appeared and consented to a continuance until 11 September 1973. Therefore, defendant had ample opportunity to seek a transcript prior to the time the case was called for trial. Defendant has failed to show denial of a timely request for a copy of the transcript of the proceedings in District Court.

Exceptions numbers 5 through 43, entered to rulings upon admissions and exclusions of evidence, are grouped under Assignment of Error No. II. They present a variety of questions of law. The assignment of error is broadside and of no effect. State v. Blackwell, supra. Also, the assignment of error is deemed abandoned for failure of defendant to support it by reason, argument, or citation of authority. Rule 28, Rules of Practice in the Court of Appeals.

Defendant argues that the trial judge committed error in the denial of defendant's motions to dismiss at the close of the evidence. Upon this question, we merely hold that, in our opinion, the evidence was sufficient to require submission of the case to the jury.

Defendant assigns as error that the trial court permitted improper questions by the State to prospective jurors. The District Attorney inquired whether any member of the jury had attended meetings at Gale Street Baptist Church while defendant was at the church. The trial judge overruled defendant's objection to the question. No prejudice to defendant or abuse of discretion by the trial judge has been shown, or even argued, by defendant.

Defendant assigns as error that the trial judge permitted improper argument to the jury by the District Attorney. We fail to see how the argument objected to by defendant exceeded reasonable bounds. The trial judge overruled defendant's objection. In doing so, the trial judge was correct.

Defendant's final assignment of error is to the trial judge's instructions to the jury in that he (1) misstated the law, (2) expressed opinions to the jury, and (3) inaccurately summarized the evidence for the State. Under this assignment of error defendant groups exceptions 46 through 55. From the assignment of error itself, it is obvious that it presents more than one single question of law. It is therefore broadside and ineffective. State v. Blackwell, supra. Also, the exceptions themselves fail to identify the portion of the instructions to the jury that defendant considers erroneous. It appears that the instructions constituted a fair explanation to the jury of the appropriate principles of law to be applied to the evidence.

No error.

PARKER and BALEY, JJ., concur.