State v. Baldwin

• Decision Date: 12 June 1970
• Docket Number: No. 12,12
• Citation: 276 N.C. 690,174 S.E.2d 526
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Amos BALDWIN, Jr.

Page 526

174 S.E.2d 526

276 N.C. 690

STATE of North Carolina v. Amos BALDWIN, Jr.

No. 12.

Supreme Court of North Carolina.

June 12, 1970.

C. B. Hodson, Chapel Hill, and Robert L. Satterfield, Hillsboro, for defendant appellant.

Robert Morgan, Atty. Gen., and Burley B. Mitchell, Jr., Raleigh, Staff Attorney, for the State.

HUSKINS, Justice.

On motion of defendant a special venire of 150 persons had been summoned from Person County and was present in court when defendant was arraigned. Upon arraignment the solicitor read the bill of indictment and addressed the prisoner as follows: 'How say you, Amos Baldwin, Jr., are you guilty of the felony of murder wherein you stand indicted or not guilty?' The solicitor then addressed the court and said, 'The defendant stands mute; if your Honor please, I would like the court to enter a plea of not guilty for him.' The defendant, speaking for himself, answered, 'No sir, I have to plead guilty, your Honor.' Defense counsel thereupon said, 'Motion.' The motion was denied, and the court entered a plea of not guilty for the defendant. Defendant assigns as error the denial of his motion.

As shown by the record, no grounds for the 'motion' were stated. In a conference at the bench defense counsel advised the court 'that the entire jury panel had heard the defendant and that motion as for nonsuit should be allowed.' In his brief counsel refers to 'defendant's motion for a mistrial made during the arraignment.' It is obvious that defendant's motion--by whatever name it may be called--was not in order at that point. No plea had been entered, no jury had been impaneled, and no evidence had been offered. Furthermore, defendant's position is not strengthened by treating--as we do--the motion as one for continuance on the ground that defendant's remarks had prejudiced his case with the prospective jurors then present in court so that he could not obtain a fair trial. This is true because no prejudice is shown. There was no challenge to the array before plea as there might have been. State v. Rorie, 258 N.C. 162, 128 S.E.2d 229; State v. Corl, 250 N.C. 258, 108 S.E.2d 615. The jurors were not questioned as to whether they heard defendant's unsolicited, spontaneous utterance and were biased as a result. None were challenged for cause or peremptorily on that ground. If defendant exhausted his peremptory challenges, the record fails to show it. Objection to the special venire was waived by failure to challenge the array (State v. Kirksey, 227 N.C. 445, 42 S.E.2d 613); and defendant may not object to the acceptance of individual jurors when he has failed to exhaust his peremptory challenges. State v. Anderson, 228 N.C. 720, 47 S.E.2d 1; State v. McKethan, 269 N.C. 81, 152 S.E.2d 341. How, then, can it be determined if the jurors who served in this case heard the defendant's statement and, if so, were prejudiced thereby? The record fails to show that any juror was accepted to which defendant had legal objections upon any ground. The judge in his discretion overruled the motion and entered a plea of not guilty. His action in that respect effectively removed the slightest suggestion of prejudice which might otherwise be attributed to the occurrence. We see no merit in this assignment, and it is overruled.

Defendant's second assignment is based on the denial of his motion for continuance on the grounds of newly discovered evidence. Examination of the record is necessary to bring this assignment into focus.

On 18 June 1969, Charles B. Hodson, defendant's court-appointed counsel, filed affidavit and motion that, in his opinion, defendant did not know right from wrong and did not have sufficient mental capacity to undertake his defense. Counsel therefore moved that defendant be committed forthwith to the State Hospital at Goldsboro, North Carolina, for a period of sixty days for observation in accordance with the provisions of G.S. § 122--91. The motion was allowed. At the end of the observation period, the superintendent of the hospital was directed to report his findings and recommendations to the Clerk of the Superior Court of Orange County as provided by law.

In obedience to said order, defendant was admitted, examined and observed for sixty days; and on 20 August 1969 a Clinical Summary containing findings and recommendations was submitted to the Clerk of the Superior Court of Orange County signed by E. C. Fowler, M.D., Clinical Director, and Bruce Kyles, M.D., F.A.P.A., Assistant Superintendent. Copies were furnished for the solicitor and defense counsel. This summary shows defendant has an IQ of 84 (indicating dull, normal intelligence) and contains the following pertinent information:

'Family history said to be negative for nervous or mental disorder. * * * He denies DT's or other disturbances. * * * Hallucinations of any kind at any time were denied and none were apparent. * * * The content of thought showed no evidence of a thinking disorder, delusional material or any other abnormality. * * * Because of the complaint of blackout following drinking an electroencephalogram (EEG, brain wave test) was done. This was reported as normal and there is no indicated basis found for 'blackouts when drinking' other than the amount of liquor that would be taken. Skull x-ray was normal. * * * Subject stated that he had never had a nervous disorder and was not a regular drinker but did over drink when he would get upset. * * * and stated that there was nothing wrong with his mind but 'I was just out that day.' He states he had been upset as he stated he had found out his wife had been out all night and * * * that perhaps Mr. Cole, the victim, had been at the same party which was in that neighborhood. Careful examination failed to elicit any significant disorder and subject understood his charge and his situation quite clearly.

DIAGNOSIS: WITHOUT MENTAL DISORDER.

DISPOSITION:

1. Return to court as able to stand trial.

2. It is the carefully considered opinion of the medical staff of this hospital that Amos Baldwin, Jr. is able to plead to the bill of indictment against him. He knows right from wrong, is aware of the nature and probable consequences of the offense with which he is charged, and, in our opinion, is able to consult with counsel in the preparation of his defense.'

Following arraignment and in the absence of all prospective jurors, defense counsel moved for continuance on the ground of newly discovered evidence which had come to his attention on Sunday afternoon (the day before the arraignment). Counsel stated that he had been supplied 'some information regarding alcoholic pathological intoxication, which I understand, is a form of insanity which occurs with automatic behavior and frequently results in violence. * * *' Counsel stated that he had previously caused Dr. Silas B. Coley, a psychiatrist with the Pathological Service Center of Hillsborough, North Carolina, to make a personal examination of the defendant 'and had him examine the report from Goldsboro.' Dr. Coley, an expert in the field of psychiatry, then testified under oath that, based on his interview with defendant and on information supplied by defense counsel, he had come to the conclusion 'that there was a possibility that at the time the crime of murder was alleged to have taken place, that the prisoner Amos Baldwin, Jr. was suffering from a state that is known as pathological intoxication.' Dr. Coley stated that such condition was difficult to prove without some documentation and that proof would be provided by an abnormal reading in an EEG (electroencephalogram) following the ingestion of alcohol; that a person suffering from pathological intoxication would be capable of complicated behavior including violent behavior and, based on the description of defendant's personality state and mental state at the time the crime was committed, 'it bears a strong resemblance to the condition of alcoholic pathological.' Dr. Coley went on to state that from what he had seen of defendant 'it sounded like an abrupt change in personality' and that he felt the psychiatric investigation made during the period defendant was under observation at Cherry Hospital in Goldsboro was incomplete in that it lacked the test of administering alcohol prior to the EEG which, if done, would reveal whether or not defendant was subject to pathological intoxication. Dr. Coley recommended that defendant be given an EEG following a test dose of alcohol--a neurological procedure that he was not in a position to perform. He stated that the professional fee for this procedure would be approximately $500.00.

Defense counsel thereupon requested a continuance in order to carry out such an examination at public expense. The court in its discretion denied the motion, and this constitutes defendant's second assignment of error.

The record shows counsel had received a letter from Dr. Coley dated October 2, 1969, containing the doctor's conclusion that defendant possibly could have been suffering from pathological intoxication when the murder was committed and further shows that on Sunday afternoon at approximately one o'clock counsel received a telephone call 'which brought forth new evidence in this matter.' The content of the telephone call is not revealed. The only Newly discovered evidence mentioned is information that defendant had not ingested a test dose of alcohol prior to being given the brain wave test at Cherry Hospital. The record is unclear as to when counsel received this information. Apparently that constitutes the newly discovered evidence relied on as the basis for a continuance.

A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. 2 Strong's N.C. Index 2d, Criminal Law § 91; State v. Moses, 272 N.C. 509, 158 S.E.2d 617; State v. Stinson, 267 N.C. 661, 148 S.E.2d 593; State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666;...