Branch v. State, 329

• Decision Date: 22 March 1967
• Docket Number: No. 329,329
• Citation: 153 S.E.2d 343,269 N.C. 642
• Court: North Carolina Supreme Court
• Parties: Edward W. BRANCH, Jr. v. STATE.

Page 343

153 S.E.2d 343

269 N.C. 642

Edward W. BRANCH, Jr. v. STATE.

No. 329.

Supreme Court of North Carolina.

March 22, 1967.

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

Simpson & Simpson, Morganton, for defendant appellant.

LAKE, Justice.

Upon the pronouncement of sentence upon him at the conclusion of his trial on the charge of murder, the petitioner, through counsel then representing him, gave notice in open court of appeal to this Court. On the following day he withdrew this notice of appeal in writing signed by him. At the post conviction hearing, he testified that no officer coerced him into signing this or any other paper or asked him to withdraw his appeal, but he and his family decided to withdraw it upon advice of his trial counsel. He also testified at the post conviction hearing that, at the time of his trial on the murder charge, his then counsel advised him not to take the witness stand but told him he could do so if he wanted to, and that he did not testify because he felt it would not be advisable for him to do so.

The procedure established by the Post Conviction Hearing Act, G.S. §§ 15--217 to 15--222, is not a substitute for an appeal from the judgment entered at the trial of the criminal charge. State v. Graves, 251 N.C. 550, 112 S.E.2d 85; State v. Wheeler, 249 N.C. 187, 105 S.E.2d 615. Moore, J., speaking for the Court in the Graves case, said:

'The inquiry is whether there was a Substantial denial of the constitutional rights of petitioners in the original criminal action in which they were convicted and whether a different result would likely have ensued had petitioners not been denied such rights.'

In his brief the petitioner brings forward and argues only these two assignments of error: (1) His constitutional rights were violated in that he was denied the right and opportunity to confer, prior to trial, with his codefendant, David Secrest; (2) his constitutional rights were violated in that the arresting officers took his fingerprints while he was in custody, before he had an opportunity to employ counsel and without advising him of his constitutional rights. At the trial the State introduced testimony comparing these fingerprints with those found on objects at the scene of the crime.

Exceptions to the judgment of the superior court, and assignments of error based thereon, which are not brought forward in the appellant's brief and in support of which his brief cites no argument or authority, are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court. We have, nevertheless, reviewed the entire record before us, including the transcript of the hearing upon the petition for post conviction review and the transcript of the trial on the criminal charge, and have considered each exception by the petitioner to the judgment entered at the post conviction hearing, and to the findings of fact and conclusions therein. Each such finding of fact made by the superior court is amply supported by evidence in the record. Each such finding is, therefore, binding upon this Court. State v. Wheeler, supra. The court's conclusions of law based upon its findings of fact are subject to our review. We have examined each such conclusion and find no error therein.

The ultimate questions are: (1) Did the petitioner have a fair opportunity, prior to being placed on trial, to prepare his defense against the charge? (2) Did the State procure his conviction by the use of trial or investigatory procedures forbidden by the Constitution of North Carolina or by the Constitution of the United States? In applying these tests to the record before us, we must begin with the assumption that the petitioner is innocent of the offense with which he is charged and consider whether the procedures used would expose an innocent man to unreasonable danger of conviction.

In each of the above cited cases, this Court reversed a judgment entered upon a post conviction hearing and ordered a new trial for the reason that the defendants therein were not allowed, prior to trial, to confer with their respective codefendants in preparation of their defenses. In State v. Wheeler, supra, this Court said, '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 that case the fact were these:

'The petitioners were arrested together the day following the robbery and after arrest were deprived of all money and other personal effects. * * * 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. * * * 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.'

In State v. Graves, supra, the petitioners were indicted jointly for robbery. The alleged robbery occurred Sunday afternoon; they were arrested that night and tried the following Tuesday afternoon. This Court said:

'Neither of the petitioners was represented by counsel at the trial, none of their relatives were present and they had no witnesses. * * * Where, as here, defendants have no notice that trial is imminent and all the circumstances indicate that the case has not progressed beyond the investigation stage and they and their families, relatives and friends have been given no opportunity to communicate and confer, and defendants have had no opportunity to confer privately with each other as to what each may be able to contribute to the defense, until a short time before the unexpected trial, and available witnesses have not been subpoenaed, trial under these circumstances is a deprivation of due process of law.'

In contrast, the present record shows:

Branch was arrested at the home of his grandmother, with whom he lived, and while she and other relatives were present. His grandmother and other relatives visited him in jail. They employed attorneys to represent him. At the preliminary hearing he was represented by all three of his attorneys, and a transcript of this hearing was available. Secrest, the codefendant, was arrested at substantially...