STATE
v.
Brooks WHEELER, Walter English, allas Tony Geno, and Myrtle Oliver, allas Thelma Oliver.
No. 146.
Supreme Court of North Carolina.
November 19, 1958.*619 Malcolm B. Seawell, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.
John W. Hinsdale, Raleigh, for petitioners, appellants.
A. Jeffery Bivins, Newport News, Va., for Myrtle Oliver, appellant.
HIGGINS, Justice.
By this proceeding the petitioners seek a new trial under the North Carolina Post *620 Conviction Hearing Act, claiming that during imprisonment and trial their fundamental rights under Article I, Sections 11 and 17, Constitution of North Carolina, and under the Due Process Clause of the 14th Amendment to the Constitution of the United States had been denied them.
The Post Conviction Hearing Act is not a substitute for appeal. It cannot be used to raise the question whether errors were committed in the course of the trial. The inquiry is limited to a determination whether the petitioners were denied the right to be represented by counsel, to have witnesses, and a fair opportunity to prepare and to present their defense. Miller v. State, 237 N.C. 29, 74 S.E.2d 513; 16A C.J.S. Constitutional Law § 579, p. 617, et seq., and cases cited; Am.Jur. 12, Sec. 573, p. 267. The question whether these rights have been denied, is one of law. State v. Hackney, 240 N.C. 230, 81 S.E.2d 778; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Farrell, 223 N.C. 321, 26 S.E.2d 322; State v. Whitfield, 206 N.C. 696, 175 S.E. 93; State v. Garner, 203 N.C. 361,166 S.E. 180.
While this Court is bound by the findings of fact made by the court below if supported by evidence, it is not bound by that court's conclusions of law based on the facts found. Miller v. State, supra.
The petitioners were arrested together the day following the robbery and after arrest were deprived of all money and other personal effects. According to the court's finding, "being unable to give bond (petitioners) were imprisoned from the time of their arrest until their trial. 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."
In Paragraph 9 the petitioner English alleges he was denied the right to phone or write his sister in Washington, D. C. "The jailer said he had orders from the sheriff not to permit your petitioner to communicate with anyone." The solicitor "neither admitted nor denied." The jailer and the sheriff did not answer. The only evidence in the record that either petitioner actually got a message beyond the confines of the jail was that Oliver was permitted to talk to her sister by phone and the jailer admitted he did not know whether that was before or after the trial. The attempt by Wheeler to get a message to his brother in Wake Forest by SBI Agent Thomas was thwarted by the failure of Thomas to deliver the message. The attempt of English to identify the hatter produced nothing except two unfulfilled promises made by SBI Agent Thomas to look for him.
So the court's conclusion, "Petitioners were not denied the right to communicate with counsel nor were they denied the right to communicate with their relatives," is not supported by evidence. All affirmative evidence is to the effect that the opportunity was denied them. 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 this connection attention is called to the provisions of G.S. § 15-47: "* * * it shall be the duty of the officer making the arrest to permit the person so arrested to communicate with counsel and friends immediately, and the right of such persons to communicate with counsel and friends shall not be denied." The denial of the opportunity to exercise a right is a denial of the right.
This Court realizes the difficulty attending any attempt to lay down and apply general rules dealing with such constitutional rights as are here involved. After all, each case must be decided on its own facts. In this particular setting, however, we think the court's finding of fact No. 3 is sufficient within itself to require that the case go back for a new trial. The State has elected to prosecute the three defendants in a single bill of indictment containing *621 one count charging a joint offense. The victim testified as to the identity of Wheeler and English as the actual perpetrators, and other witnesses offered testimony tending to show that the three defendants were together both before and after the offense. While the indictment does not contain a conspiracy count, nevertheless, we may assume the State emphasized the petitioners' associations together both before and after the robbery as proof they acted together in committing the offense. Such being the background, evidence tending to show English was in Raleigh at the time of the offense would tend materially to weaken the State's case.
In the light of the foregoing circumstances, it follows as a matter of course the three petitioners were entitled to confer together as to their joint defense to the joint charge. Each was entitled to know what facts and circumstances the others could contribute to the defense. The record shows this right was denied. Each was given a separate hearing. The bill of indictment charging a joint offense was not returned until the term at which the trial took place. Nothing in the record indicates either defendant was advised of the joint charge until the case was called for trial. The court's finding No. 3 furnishes proof that the right to prepare for trial was denied. Due process of law implies the right and opportunity to be heard and to prepare for the hearing. Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780; 16 C.J.S. Constitutional Law § 138, p. 578; Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791.
Did the petitioners waive their rights by failing to complain to the court at the time of arraignment? Neither had been "allowed" to communicate with the others since their arrest two months previously. 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. It is scarcely surprising, therefore, that all were overwhelmed at the prospect of facing trial upon a charge which carried the same maximum punishment as murder in the second degree. Even though they were mature persons and the men not altogether strangers to court proceedings, nevertheless, their failure at the time of arraignment to complain to the court was not a waiver of their constitutional rights.
We suggest that it is the duty of officers of the law, upon request, to make a reasonable effort to notify relatives of persons held in jail charged with serious offenses. Likewise, persons jointly charged have the constitutional right, as a part of their trial preparations, to confer together as to their joint defense. This right is neither withdrawn nor abridged by reason of fear on the part of the investigating officers that from a conference they may evolve a bogus defense.
We have admiration and respect for the able and painstaking judge who conducted the post conviction hearing in this case. However, on the record as it comes to us we are unable to join in the view that the petitioners' constitutional rights have been afforded them. We think the records and his own findings require decision to the contrary. For the reasons herein set forth, it is ordered that the verdict and judgment be set aside and that there be a
New trial.
PARKER, J., not sitting.