State v. Barfield

• Citation: 298 N.C. 306,259 S.E.2d 510
• Decision Date: 06 November 1979
• Docket Number: No. 12,12
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Margie Bullard BARFIELD.

Page 510

259 S.E.2d 510

298 N.C. 306

STATE of North Carolina v. Margie Bullard BARFIELD.

No. 12.

Supreme Court of North Carolina.

Nov. 6, 1979.

Robert D. Jacobson, Lumberton, for defendant-appellant.

BRITT, Justice.

We find no prejudicial error in either phase of defendant's trial and conclude that the verdicts and judgment should not be disturbed. We will discuss the errors assigned under each phase.

PHASE I GUILT DETERMINATION

By her first assignment of error defendant contends that the trial court erred in denying her motion for the appointment of additional counsel. There is no merit in this assignment.

When it had been determined that defendant was indigent, Attorney Robert D. Jacobson of the Robeson County Bar was appointed to serve as her counsel. At an early stage of the proceedings against defendant, Mr. Jacobson learned that the defendant was suspected of having committed at least four other murders by poisoning in addition to the one that she then stood accused of. On 15 March 1978 a motion was made that additional counsel be appointed to assist Mr. Jacobson in representing defendant. District Judge Charles G. McLean denied the motion after conducting a hearing.

It is the responsibility of the state to provide an indigent defendant with counsel and the other necessary expenses of representation. G.S. 7A-450. However, defendant's right to court-appointed counsel does not include the right to require the court to appoint more than one lawyer unless there is a clear showing that the first appointed counsel is not adequately representing the interests of the accused. People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970). In making that determination the legitimate interest that the state has in securing the best utilization of its legal resources must be considered along with the interests of the defendant. Cf.

Page 524

State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) (appointment of two attorneys for each defendant in a murder trial criticized).

While there may be situations in which the right to the effective assistance of counsel can be safeguarded only by the appointment of additional counsel, such a situation is not present in this case. Though defendant was suspected of having poisoned four persons other than Stewart Taylor, no charges were brought in connection with those deaths. While it is true that the state introduced evidence at trial which tended to show that defendant was involved in those deaths, the burden imposed upon defense counsel was not excessive. It is not unusual for a defendant to be tried for a number of offenses in one trial. Nor is it uncommon for evidence of other acts of misconduct to be introduced in a criminal trial to show motive, intent, or a scheme or plan. An attorney who is representing a criminal defendant must be prepared to deal with such evidence as it arises in the course of the trial. Though Mr. Jacobson carried a great burden in representing the defendant in a capital case, we do not find it to have been so disproportionate to that borne in the usual course of criminal defense work so as to have required the court to have appointed another attorney to provide assistance. We would add, parenthetically, that Judge McLean's order reflects favorably upon Mr. Jacobson's professional background and experience, indicating that he was competent to represent the best interests of the defendant. It is our opinion that Mr. Jacobson gave defendant high quality representation.

By her second assignment of error, defendant contends that the court improperly denied her motion for a change of venue to the western part of the state. In her third assignment of error, she contends that the court erred in moving the case from Scotland County to Bladen County for trial. These assignments are interrelated and will be dealt with accordingly. Neither is meritorious.

On 19 April 1978 defendant moved for a change of venue to the western part of the state pursuant to G.S. 15A-957. She contended that she would be unable to secure a fair and impartial trial in Robeson County because of extensive pretrial publicity. Following a hearing on the motion, Judge Hobgood ordered that the case be removed to Scotland County.

On 1 November 1978 the district attorney moved that the case be transferred from Scotland County to Bladen County for the reasons that there were only four weeks of criminal superior court scheduled for Scotland County during 1978, defendant was scheduled to be tried during the 27 November 1978 Session of Scotland Superior Court, and there were approximately twenty persons confined to jail who were awaiting trial at that session. Though defendant objected to the change of venue, stating that she was satisfied with Scotland County, Judge Hobgood granted the motion and ordered that the case be removed to Bladen County for trial.

G.S. 15A-957 provides that if the court determines, upon the motion of the defendant that there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, the court must either transfer the proceeding or order a special venire from another county. The Statutory power of the court to change the venue of a trial is limited to transferring the case to an adjoining county in the judicial district or to another county in an adjoining judicial district. G.S. 15A-957. Notwithstanding this apparent statutory limitation upon the power of a court to order a change of venue, a court of general jurisdiction, of which our superior court is one, Bryant v. Dougherty, 267 N.C. 545, 148 S.E.2d 548 (1966), has the inherent authority to order a change of venue in the interests of justice. English v. Brigman, 227 N.C. 260, 41 S.E.2d 732 (1947). In either case, a motion for a change of venue is addressed to the sound discretion of the trial judge and will not be disturbed on appeal in the absence of a showing of an abuse of discretion. State v. Alford, 289 N.C. 372, 222 S.E.2d 222, Death sentence

Page 525

vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976); State v. Mitchell, 283 N.C. 462, 196 S.E.2d 736 (1973); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

There has been no showing of an abuse of discretion in this instance. While it is true that there is evidence in the record which tends to show that a radio station in Lumberton as well as newspapers in Robeson County and surrounding counties gave coverage to the pending trial, there is nothing which suggests that the coverage was anything more than general in nature and likely to be found in any jurisdiction to which the trial might be removed. See, State v. Alford, supra; see also Annot., 33 A.L.R.3d 17 (1970). Furthermore, Judge Hobgood, in view of the Speedy Trial Act, G.S. 15A-701 et seq., had to consider the rights of the twenty other defendants awaiting trial in Scotland County as well as the rights of the defendant in this case.

In her fourth assignment of error, defendant asserts that the trial court erred in refusing to grant her motion for a continuance. This assignment has no merit.

On 1 November 1978 the court was advised that one of defendant's witnesses, Dr. Anthony Sainz, was hospitalized and not expected to be released soon thereafter. Defendant moved for a continuance. Following a hearing, Judge McKinnon denied the motion but provided that defendant could renew her motion upon obtaining a written statement by a physician that Dr. Sainz would not be able to testify or give a deposition before or during the week of 27 November 1978, the week defendant's case was scheduled for trial. On 27 November 1978, with Dr. Sainz still hospitalized, defendant renewed her motion for a continuance. The motion was denied. On 30 November 1978 the deposition of Dr. Sainz was taken in his hospital room at the Cape Fear Valley Hospital. Defendant's attorney, the district attorney, the presiding judge, and a court reporter were present at the time the deposition was taken.

A motion for a continuance is ordinarily addressed to the sound discretion of the court and will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Cox, 281 N.C. 275, 188 S.E.2d 356 (1972); State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). However, when the motion for continuance is based upon a right which is guaranteed by the State or Federal Constitutions, the question is not one of discretion but one of law and is reviewable upon appeal. State v. Smathers, 287 N.C. 226, 214 S.E.2d 112 (1975); State v. Robinson, 283 N.C. 71, 194 S.E.2d 811 (1973).

Defendant argues that the standards enunciated in Smathers and Robinson ought to control the disposition of her case. We disagree. Contrary to the allegations of defendant, this is not a case where a continuance could properly have been based upon her Sixth Amendment right to have compulsory process issue to secure the presence of witnesses in her behalf. The facts of State v. Rigsbee, supra, are similar to the facts of this case. In Rigsbee this court applied the abuse of discretion standard of review to uphold the trial judge's denial of a motion for a continuance when a confidential informant under subpoena failed to appear at trial. In Rigsbee, as well as in the present case, the motion for a continuance was predicated upon the absence of a witness sought by the defendant. The present case differs from Rigsbee in that the testimony of Dr. Sainz was obtained and presented before the jury by way of deposition. While it is true that the demeanor and appearance of a witness upon the stand before the jury may prove to be beneficial to the party who offers the witness' testimony, a deposition is an accepted means of perpetuating and presenting the testimony of an unavailable witness. G.S. § 8-74. One of the specific grounds upon which a deposition may be taken and offered into...