Gasque v. State, 658

• Citation: 156 S.E.2d 740,271 N.C. 323
• Decision Date: 20 September 1967
• Docket Number: No. 658,658
• Court: United States State Supreme Court of North Carolina
• Parties: Willie Lee GASQUE v. STATE of North Carolina.

Page 740

156 S.E.2d 740

271 N.C. 323

Willie Lee GASQUE v. STATE of North Carolina.

No. 658.

Supreme Court of North Carolina.

Sept. 20, 1967.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen., James F. Bullock, for the State.

W. Ritchie Smith, Jr., Fayetteville, for petitioner appellant.

PARKER, Chief Justice.

We allowed appellant's petition for Certiorari to bring up his case on a delayed appeal of his conviction. Appellant, an indigent, is represented in this Court by his court-appointed counsel, W. Ritchie Smith, Jr., a member of the Cumberland County Bar. The case on appeal has been agreed to by appellant's counsel and the State, and the case on appeal and the brief of appellant have been mimeographed in the same manner as if he were a rich man.

Appellant assigns as error, based upon his exception No. 3, as stated in the agreed case on appeal: 'No lawyer was appointed to represent the defendant at his preliminary hearing in the Recorder's Court of the City of Fayetteville, and the defendant, without counsel, waived his hearing and was bound over to the Superior Court without privilege of bond.' Appellant stated in his petition for post conviction review that he requested counsel at the preliminary hearing because he was an indigent, and the court refused his request. Jane W. Herring, judge of the recorder's court of the city of Fayetteville, states in an affidavit:

'That the undersigned appointed no attorney to represent Willie Lee Gasque at said Preliminary Hearing, and the undersigned does not now recall whether Willie Lee Gasque was represented by counsel at said hearing.

'That the undersigned does not recall whether Willie Lee Gasque waived his right to be represented by counsel at said hearing.'

The warrant in the recorder's court charged the appellant with the commission of the crime of rape on one Anna Jean Gasque, a female child under the age of twelve years, to wit, eleven years of age, which is a capital felony in this jurisdiction punishable by death, unless the jury recommends at the time of rendering its verdict in open court that the punishment shall be imprisonment for life in the State's prison. G.S. § 14--21.

Coming as it does in the wake of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), the right to counsel here presented is of particular significance. Gideon overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), and thereby abolished the distinction between the right to counsel in capital and non-capital cases in State prosecutions. Gideon was concerned with the right of an accused to counsel at trial and did not involve the right of counsel at a preliminary hearing or arraignment. The situation at bar is markedly different from that of the Gideon case. Well in advance of the trial in the Superior Court on the charge of the capital felony of rape, James C. MacRae, an experienced member of the Cumberland County Bar, was appointed by the court to represent the appellant, an indigent person, and he represented the appellant throughout the trial. Bailey, J., at the 7 November 1966 Session of Cumberland, entered an order appointing W. Ritchie Smith, Jr., a member of the Cumberland County Bar, to represent appellant and directing him to file a petition for a writ of Certiorari with the Supreme Court to bring up his case on appeal, and directed Cumberland County to pay the cost of the transcript and the cost of appeal in the Supreme Court. Bailey, J., in his order states:

'(A)nd it appearing to the Court from the statement of the petitioner and the statement to this court by his appointed attorney, Mr. Ritchie Smith of the Cumberland County Bar, that the petitioner now states in open Court that he had every opportunity for witnesses, that he and his attorney had time and opportunity to prepare for a criminal trial, but that it appears from the transcript of the record that the petitioner did in fact give notice of appeal and there is no showing in the record of any attorney having been appointed to perfect said appeal; and it appearing to the Court that through a misunderstanding that his court-appointed counsel at his original trial, to wit, James C. McRae, Jr., (sic) through inadvertence and misunderstanding did not perfect such appeal, and that said petitioner ought not to be denied his right of appeal.'

Nevertheless, apart from any assertion that he was not given a fair trial, or that he was in fact prejudiced, appellant contends that his conviction is defective because he was not represented by counsel when he waived preliminary hearing in the recorder's court. In support of this proposition, appellant relies on Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

Hamilton v. State of Alabama, supra, involved a State capital conviction where the petitioner had pleaded not guilty at his arraignment. At the time of entering this plea, petitioner was not represented by counsel, although he did have counsel at the trial. The Supreme Court reversed his conviction stating: 'Whatever may be the function and importance of arraignment in other jurisdictions, * * * in Alabama it is a critical stage in a criminal proceeding.' The Court enumerated several defensive maneuvers which are waived in Alabama if not asserted at the arraignment: the defense of insanity, pleas in abatement, and improper grand jury selection. Whatever happens at arraignment in Alabama, therefore, may well affect the whole trial. The Court took care in the Hamilton case to indicate, however, the 'differing consequences' that attach to arraignment in the various jurisdictions.

While White v. State of Maryland, supra, is factually distinguishable from Hamilton v. State of Alabama, supra, similar principles governed. In the White case petitioner had entered a guilty plea at a Maryland preliminary hearing when he was not represented by counsel. Later at his arraignment, when he did have counsel, petitioner entered pleas of not guilty and not guilty by reason of insanity. The guilty plea made at the preliminary hearing was introduced in evidence at the trial. Under these circumstances, the Court held that the preliminary hearing was a 'critical' stage in the proceedings and there was no need to determine whether prejudice resulted from the absence of counsel. It is clear from the Court's opinion that what made the preliminary hearing 'critical' was that a guilty plea had been entered and that the plea had been used against petitioner at the trial. Thus, the Court commented: 'Whatever may be the normal function of the 'preliminary hearing' under Maryland law, it was In this case as 'critical' a stage as arraignment under Alabama law.' (Emphasis ours.)

In Pointer v. State of Texas, supra, at the defendant's trial in a Texas State court on a charge of robbery, the State, over defendant's objections, introduced the transcript of a witness' testimony given at the preliminary hearing at which defendant was not represented by counsel and had no opportunity to cross-examine the witness. The State showed that the witness had moved out of Texas with no intention to return. Defendant was convicted and his conviction was affirmed by the Texas Court of Criminal Appeals, 375 S.W.2d 293. On Certiorari, the Supreme Court of the United States reversed. In an opinion by Black, J., expressing the views of seven members of the Court, it was held that the facts as stated above constituted a denial of defendant's constitutional right of confrontation. Black, J., in his opinion, said:

'In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra. In making that argument petitioner relies mainly on White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, in which this Court reversed a conviction based in part upon evidence that the defendant had pleaded guilty to the crime at a preliminary hearing where he was without counsel. Since the preliminary hearing there, as in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel. But the State informs us that at a Texas preliminary hearing, such as is involved here, pleas of guilty or not guilty are not accepted and that the judge decides only whether the accused should be bound over to the grand jury and if so whether he should be admitted to bail. Because of these significant differences in the procedures of the respective States, we cannot say that the White case is necessarily controlling as to the right to counsel. Whether there might be other circumstances making this Texas preliminary hearing so critical to the defendant as to call for appointment of counsel at that stage we need not decide on this record, and that question we reserve. In this case the objections and arguments in the trial court as well as the arguments in the Court of Criminal Appeals and before us make it clear that petitioner's objection is based not so much on the fact that he had no lawyer when Phillips made his statement at the preliminary hearing, as on the fact that use of the transcript of that statement at the trial denied petitioner any opportunity to have the...