State v. Pearce, 742

• Citation: 145 S.E.2d 918,266 N.C. 234
• Decision Date: 14 January 1966
• Docket Number: No. 742,742
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina, Respondent, v. Clifton A. PEARCE, Petitioner.

Page 918

145 S.E.2d 918

266 N.C. 234

STATE of North Carolina, Respondent, v. Clifton A. PEARCE, Petitioner.

No. 742.

Supreme Court of North Carolina.

Jan. 14, 1966.

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

Wade H. Penny, Jr., Durham, for petitioner appellant.

HIGGINS, Justice.

The petitioner challenges the legality of his trial on three grounds: (1) He was not represented by counsel selected and appointed by the court as required by law. (2) The trial court committed error in permitting Detective Morris to relate to the jury certain admissions the defendant made to the investigating officers after the indictment was returned and while he was being held in custody charged with a capital felony. (3) The attorney who represented him at the trial failed to follow his request that an appeal be taken to the State Supreme Court.

At the Post Conviction Hearing the petitioner was represented by his present counsel. The Assistant Solicitor, Thomas H. Lee, represented the State. The petitioner and Mr. C. Horton Poe, his trial counsel, testified. The court had before it in narrative form the evidence at the trial in which the defendant was convicted of an assault with intent to commit rape. We give here what appear to be the material parts of the records, the evidence, and the stipulations:

The alleged victim, Betty Louise Honeycutt, age 12 years, eight months, after returning with the defendant from the grocery store at about 9:40 on the night of February 18, 1961, told a member of her family a story which, if true, would raise at least an issue of the defendant's guilt of assault with intent to commit rape, if not of the completed offense. The defendant was called into the room where the girl repeated the story in his presence. This story the defendant denied. The victim's brother thereafter assaulted the defendant, inflicting injuries which required his hospitalization. The officers were notified and on the morning of February 19 questioned the defendant in the hospital. The defendant denied guilt. On February 21, 1961, the grand jury returned an indictment charging the defendant with the capital felony of rape. He was removed from the hospital to the jail where the officers questioned him--on how many occasions does not appear. However, at the second trial in May, 1961, Officer Morris testified: 'I understand he was indicted for the capital crime of rape during February term. I do not remember whether it was March or February that I talked to him in jail. * * * It was in the day time when we talked to him in jail. There was no discussion in my presence either by me or the other detective to Mr. Pearce that it would be a lesser charge if he would tell it. I don't recall that any charge at all was discussed. We didn't compel him to make another statement. We didn't ask him to make another statement. We just asked him in the jail if he had anything else to say about it, if he still wanted to deny it. And, of course, he eventually came around and alleged that he had tried to have intercourse with her. This statement was made in the interrogation room of the detective bureau.'

At all times during the questioning the prisoner was without counsel. However, some time in April, Solicitor Murdock requested two members of the Durham Bar to confer with the defendant and ascertain if either would be satisfactory to him as his attorney. He was not satisfied with either. Then Mr. Murdock requested Mr. C. Horton Poe to confer with the prisoner who, after the conference, consented for Mr. Poe to represent him. Mr. Poe, during the latter part of April began preparations for the trial. He drew an order of appointment as counsel which Judge Williams signed on May 10, 1961.

Upon arraignment the Solicitor announced the State would not insist on a verdict of the capital felony, but only on a verdict of guilty of assault with intent to commit rape. The victim testified and a member of her family corroborated her story. Dr. Stokes, who examined her within a few hours after the alleged assault, testified in such manner as to raise serious doubt whether there was physical evidence of one of the essential elements necessary to make out a case of rape. The evidence warranted the Solicitor in refusing to try for the capital felony. At the conclusion of the first trial, at which Officer Morris did not testify, the jury was unable to agree. Judge Williams entered a mistrial and set the case for hearing the following week.

At the second trial Detective Morris testified as heretofore recited. The jury, after deliberating for a considerable time, returned a verdict of guilty of an assault with intent to commit rape. Judge Williams imposed judgment immediately that the defendant serve not less than 12 nor more than 15 years in the State's prison. The prisoner was remanded to jail immediately. Later that day he was transferred to Central Prison in Raleigh. Neither the defendant nor his counsel gave notice of appeal.

In passing on the critical question of law here presented, Mr. Poe's good faith and his diligent representation are not challenged. The difficulity we have with the case is that...