State v. Penley

170 S.E.2d 632 (1969) 6 N.C. App. 455

STATE of North Carolina
v.
Jerry Wade PENLEY.

No. 6925SC490.

Court of Appeals of North Carolina.

November 19, 1969. Certiorari Denied January 6, 1970.

Atty. Gen. Robert Morgan and Staff Atty. James E. Magner, Raleigh, for the State.

Dan R. Simpson and Wayne W. Martin, Morganton, for defendant appellant.

FRANK M. PARKER, Judge.

Before pleading to the indictments the defendant moved for a change of venue or, in the alternative, that a jury be drawn from another county. As grounds for these motions defendant asserted that because of the extensive publicity and public discussion of the cases against him, he could not get a fair and impartial trial from a jury composed of Burke County citizens. The court instructed the attorneys for defendant to reduce these motions to writing, and proceeded with the selection of the jury. In the course of examination of prospective jurors by the solicitor, the court instructed the solicitor to ask any juror if he had read about the case in some newspaper. The record indicates that three of the prospective jurors responded that they had read some newspaper article relating to the case, but each stated that he felt he could give the defendant and the State a fair and impartial trial. While the solicitor was still in process of examining the jury panel, the court recessed for the day. On the following day the attorneys for defendant filed their written motions for change of venue or for a special venire, supporting the same by affidavits of the defendant and of three citizens of Burke County and by copies of newspaper articles which had appeared in the local newspaper at the time of defendant's arrest and preliminary hearing in January 1969. The court overruled defendant's motions, which action the defendant now assigns as error.

Defendant's motion for a change of venue and his alternative motion for a special venire from another county were addressed to the sound legal discretion of the trial court. G.S. § 1-84, G.S. § 1-85, G.S. § 9-12; State v. Ray, 274 N.C. 556, 164 S.E.2d 457; State v. Porth, 269 N.C. 329, 153 S.E.2d 10; State v. Scales, 242 N.C. 400, 87 S.E.2d 916; State v. Ledbetter, 4 N.C.App. 303, 167 S.E.2d 68 (cert. denied in 275 N.C. 500). The record before us fails to disclose that the trial judge abused his discretion in denying these motions. The newspaper articles, copies of which were filed by defendant in support of his motions, contained a factual reporting of the events giving rise to the charges against defendant and, considering the nature of these events, were not unduly inflammatory in nature. These articles had been published three months prior to the date of the trial, and the record does not indicate there had been any repeated or excessive publication. Examination of the panel of prospective jurors by the solicitor revealed that only three members had read any newspaper account of the charges against defendant, and each stated that he felt he could give defendant and the State a fair and impartial trial. As was the case in State v. Conrad, 275 N.C. 342, 168 S.E.2d 39, the record before us fails to show that any juror objectionable to the defendant was permitted to sit on the trial panel or that defendant exhausted his peremptory challenges before he passed the jury. The following statement by Parker, C. J., in State v. Ray, supra, is particularly appropriate here:

"There is nothing in the record to show or to suggest that any of the jurors had formed an opinion in respect to the guilt or innocence of the defendant. To hold that a prospective juror was disqualified for jury service in a particular case merely because he had read of it or listened to it over television or radio would mean that in a case that was given publicity in the newspapers or on the radio and television, only the most illiterate or ignorant jurors would be qualified. That would be an absurd result."

There is no merit in this assignment of error.

Defendant assigns as error the overruling of his motion for a continuance made on the ground that his attorneys had learned only a few days prior to the trial that his codefendant, Veit, had changed his story and implicated one James "Curley" Smathers, rather than the defendant, as a participant in the crimes. There is no merit in this assignment of error. A motion for a continuance is addressed to the sound discretion of the trial judge, whose ruling thereon is subject to review only in case of manifest abuse. State v. Moses, 272 N.C. 509, 158 S.E.2d 617. The record reveals that the defendant's attorneys had been appointed to represent him on the day of his arrest, which was some three and one-half months prior to the trial. Nothing in the record suggests that, had the continuance been granted, defendant would have been able to develop any additional evidence as to the existence or whereabouts of the James "Curley" Smathers concerning whom his codefendant testified. No abuse of the trial court's discretion is shown in the refusal to grant the continuance. Furthermore, "(w)hether a defendant bases his appeal upon an abuse of judicial discretion, or a denial of his constitutional rights, to entitle him to a new trial because his motion to continue was not allowed, he must show both error and prejudice." State v. Moses, supra. Here, defendant has shown neither.

Upon denial of the motion for continuance, defendant's court-appointed attorneys moved that they be allowed to withdraw from the case. There was no error in overruling this motion. An attorney of record is not at liberty to abandon his client's cause in court without (1) justifiable cause, (2) reasonable notice to the client, and (3) the permission of the court. Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303. Here, no justifiable cause was shown and no prior notice had been given to the client. The court properly refused to grant the permission.

On cross-examination, the State's witness, Garland, had testified that "the person that got into the car at the bridge talked in a normal voice," and that he could recall nothing "unusual about the talk or the manner of his speech." Counsel for defendant then asked the witness: "If this man (indicating the defendant) has a speech defect and talks with a speech impediment, then he is not the man that got in the car, is he?" The solicitor's objection to the question was sustained by the court, which action defendant now assigns as error. There is no merit to this assignment of error. At the time the question was asked no evidence had been presented to the effect that the defendant had a speech defect. The question was argumentative in nature, and the record does not reveal what the witness's answer would have been had he been required to answer the question. The record does reveal that subsequently in the trial the defendant did present testimony of a speech therapist and of other witnesses to the effect that defendant did have a speech defect, and defendant was given ample opportunity to develop this fact in his effort to inject doubt as to his identity as a perpetrator of the crimes. No prejudicial error is shown by the court's action in sustaining the solicitor's objection to the argumentative question at the time the question was asked.

Defendant next assigns as error the court's refusal to permit his attorneys to interview his codefendant, Veit, without the presence of Veit's court-appointed attorney. This assignment of error is without merit. Aside from the fact that no prejudice can be shown by virtue of the ruling complained of, since Veit's testimony could hardly have been more favorable to the defendant even had the defendant's attorneys been able to interview Veit at length and in private, there was no error in the court's ruling. At the time the request was made, Veit had pleaded guilty to three of the charges against him and the State had taken a nol pros with leave as to the fourth. However, Veit had not yet been sentenced and was still being represented by his court-appointed attorney, who, in open court, had advised Veit not to testify in behalf of Penley. It was the court's duty to see that Veit's rights, no less than those of the defendant, were protected. It would have been a violation of that duty for the court to have directed that defendant's attorneys should have the right to interview Veit without his attorney being present.

While cross-examining the State's witness, Garland, defendant's attorney commenced to ask a question as to what the witness's mother had told him during the course of a conversation in which the witness had told his mother that he had seen a 1966 Plymouth at Brentwood on the night in question. This evidence as to what the witness's mother may have told him on the occasion in question was clearly hearsay, and there is no merit to defendant's contention that the court committed error in excluding it. Nor is there any merit in defendant's contention that the court, by excluding this incompetent evidence, thereby expressed an opinion as to the weight of the evidence. Furthermore, the record does not disclose what the witness's answer would have been and is totally devoid of any showing that the court's action resulted in any prejudice whatsoever to the defendant.

Defendant next assigns as error the court's action in permitting the doctor who had examined Miss Radford on the night she had been raped to testify that he may have made a statement to her concerning pain. In their brief, counsel for defendant admits that the doctor's answer, allowed in evidence over objection, was not prejudicial to defendant's case, and there is no merit to their contention that by allowing in evidence this admittedly non-prejudicial testimony, the defendant's rights were thereby prejudiced before the jury.

There is no merit to the defendant's assignment of error directed to the admission in evidence of two photographs of the defendant which had been shown to the State's witnesses, Garland and Miss Radford, and by which they had identified the defendant. While there is some question from the record as to whether these photographs were ever introduced in evidence, we treat the matter as though they were. Defendant does not contend that the photographs were not a true likeness of the defendant, or that in themselves they were of such nature that they ought not to have been shown to the witnesses for purposes of identification. While the photographs had been in the files of the Sheriff's Department before the crimes for which defendant was tried were committed, the court clearly instructed the jury that they should not consider this fact against the defendant at any stage of the trial or during their deliberation. In oral argument on appeal, defendant's attorneys contend the photographs should not have been admitted in evidence because the record is silent as to whether these were the only photographs shown by the officers to the State's witnesses while attempting to establish the identity of the persons who had committed the offenses under investigation. Although it may be possible that photographic identification be conducted in such manner as to be unfairly suggestive to the witnesses and cause them to mistakenly identify a particular suspect as the perpetrator of a crime under investigation, evidence of any such unfairness is totally lacking in the record before us. If such had occurred, defendant's attorneys had ample opportunity to develop the facts when cross-examining the State's witnesses. We cannot presume that the photographic identification was unfairly made in the absence of any evidence to that effect, and certainly not when the contention to that effect is first made in this Court on appeal.

There is no merit in defendant's assignment of error directed to the court's refusal to permit cross-examination of a sheriff's deputy in an attempt to show that defendant's fingerprints had not been found on Garland's automobile. On voir dire the sheriff's deputy testified that he was not a fingerprint expert, had never qualified to read fingerprints, and the only information he had ever received concerning fingerprints had come to him from the S.B.I. He further testified that he had no knowledge of his own as to whose fingerprints had been found on the automobile. Under these circumstances, there was clearly no error in sustaining objections to questions directed to this witness concerning fingerprints. Furthermore, the defendant subsequently in the trial called as his own witness an investigator from the S.B.I. who testified that none of the fingerprints found on Garland's car compared with defendant's prints.

Defendant assigns as error the court's overruling his objection to the solicitor's question directed to defendant's witness, Veit, on cross-examination as to whether defendant, a married man and married to Veit's sister, had been "running around" with Beulah Burnette. Defendant contends that this was error in that, since he had not taken the stand as a witness and thereby subjected himself to impeachment, and had not introduced evidence of his good character to repel the charge of a crime, the State should not be permitted to show his bad character. In the case before us, however, the evidence was not admitted for the purpose of attacking the character of the defendant, and the court correctly admonished the jury not to consider it in any way as a reflection upon his character. The evidence was entirely relevant and competent to show the nature of the association the defendant had with the witness Beulah Burnette, who had testified to facts tending to support an alibi. "If specific acts are relevant and competent as evidence of something other than character, they are not inadmissible because they incidentally reflect upon character." Stansbury, N.C. Evidence 2d, § 111, p. 254.

Defendant next assigns as error the court's refusal to permit the introduction into evidence of a tape recording made by a speech therapist who had interviewed the defendant at the jail shortly before the trial. This evidence was offered for the purpose of corroborating the testimony of the speech therapist to the effect that the defendant had a speech defect. The record reveals that the defendant examined the speech therapist at considerable length before the jury and that she testified fully to the nature of the speech defects of the defendant. Defendant suffered no prejudicial error by the court's action in refusing admission in evidence of the tape recording which at most corroborated his witness's testimony.

Defendant assigns as error "the failure of the court to properly charge the jury on the law applicable to kidnapping, armed robbery and assault with intent to commit rape, as shown by defendant's exception No. 15." The exception referred to appears at the end of the entire charge in the record, and apparently applies to the charge as a whole. This assignment of error is broadside and will not be considered on appeal. 1 Strong, N.C. Index 2d, Appeal and Error, § 31, p. 166.

Defendant's assignment of error directed to the court's refusal of his motions for nonsuit is also without merit. There was ample evidence of every essential element of the crimes for which he was tried.

Defendant has been represented at his trial and on this appeal by court-appointed attorneys who have been conscientious and diligent to protect his rights in all respects. The witnesses for the State positively identified him as one of the perpetrators of the crimes for which he was tried. The evidence presented on behalf of defendant was in direct contradiction to that presented by the State. Obviously the jury did not believe the defendant's witnesses, but by their verdicts found him guilty of the vicious and brutal crimes for which he was tried. There was ample evidence to support the verdicts. Defendant has had a fair trial, free from any prejudicial error.

No error.

CAMPBELL and GRAHAM, JJ., concur.