State v. Cobb

• Citation: 243 S.E.2d 759,295 N.C. 1
• Decision Date: 08 May 1978
• Docket Number: No. 25,25
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Ronnie James COBB and Thomas Barr.

Page 759

243 S.E.2d 759

295 N.C. 1

STATE of North Carolina v. Ronnie James COBB and Thomas Barr.

No. 25.

Supreme Court of North Carolina.

May 8, 1978.

Rufus L. Edmisten, Atty. Gen., Thomas P. Moffitt, Associate Atty., Raleigh, for the State.

Mathias P. Hunoval, Wilmington, for defendant appellant Cobb.

H. P. Laing, Wilmington, for defendant appellant Barr.

BRANCH, Justice.

Defendant Barr assigns as error the failure of the court to appoint counsel until the day of his preliminary hearing on 5 May 1977.

On 25 April 1977, defendant Barr executed an affidavit of indigency, and, on 5 May 1977, when he appeared for preliminary hearing on the charges against him, District Court Judge Walker appointed attorney Harold P. Laing to represent defendant on the charges against him. Defense counsel then moved for continuance which motion was denied. Defendant contends that this ruling denied him effective assistance of counsel because appointed counsel did not have sufficient time to adequately prepare for trial.

A probable cause hearing is a "critical stage" of the criminal process entitling an indigent person to appointed counsel if he desires assistance of counsel. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); State v. Hairston, 280 N.C. 220, 185 S.E.2d 633, cert. denied, 409 U.S. 888, 93 S.Ct. 194, 34 L.Ed.2d 145 (1972). By statute it is provided that an indigent person is entitled to counsel in felony cases, G.S. 7A-451(a)(1), and such entitlement to counsel begins as soon as feasible after the initiation of criminal process including, specifically, the preliminary hearing. G.S. 7A-451(b)(4). Effective assistance of counsel, as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Sections 19 and 23, of the North Carolina Constitution, is denied unless counsel has adequate time to investigate, prepare and present his client's defense. Even so, no set time is guaranteed and whether a defendant is denied effective assistance of counsel must be determined upon the circumstances of each case. State v. Vick, 283 N.C. 37, 213 S.E.2d 335, cert. denied, 423 U.S. 918, 96 S.Ct. 228, 46 L.Ed.2d 367 (1975). Unless counsel suggests the existence of material witnesses or information that would possibly lead to material evidence or material witnesses, the mere failure to grant a continuance in order to make investigation would not, in and of itself, constitute a denial of effective assistance of counsel. State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948).

In the instant case, there is no suggestion that a continuance would have led to the discovery of material witnesses or material evidence. Neither is there any showing that the court's ruling in any way adversely affected defendant's right to effective assistance of counsel. To the contrary, the record reveals that defendant had a period of about six weeks to exercise his right of discovery and to otherwise investigate, prepare and present his defense. This assignment of error must also be overruled because defendant expressly waived his right to counsel.

A defendant in a criminal proceeding whether at trial or in pretrial proceedings may waive his right to counsel if he does so freely and understandingly and with full knowledge of his right to be represented by counsel. State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971).

G.S. 7A-457, as amended by the 1971 and 1973 Legislatures, in part provides:

Waiver of counsel; pleas of guilty. (a) An indigent person who has been informed of his right to be represented by counsel at any in-court proceeding, may, in writing, waive the right to in-court representation by counsel, if the court finds of record that at the time of waiver the indigent person acted with full awareness of his rights and of the consequences of the waiver. In making such a finding, the court shall consider, among other things, such matters as the person's age, education, familiarity with the English language, mental condition, and the complexity of the crime charged. . . . (c) An indigent person who has been informed of his right to be represented by counsel at any out-of-court proceeding, may, either orally or in writing, waive the right to out-of-court representation by counsel.

On 25 April 1977 at his first court appearance, defendant Barr executed a written waiver of counsel in which he stated that he had been informed of the nature of the charges against him, the punishment therefor, and of his right to assignment of counsel. Therein he stated that he did not desire the assignment of counsel and expressly waived his right to assignment of counsel. Pursuant to the execution of these waivers, Judge Walker thereupon certified for the record that defendant Barr executed the waivers in his presence after the meaning and effect of the waivers had been fully explained to him and after being fully informed of the nature of the proceedings against him and of his right to have counsel assigned by the court.

Under these circumstances, we find no error in the trial court's failure to appoint counsel for defendant Barr until the day of his preliminary hearing.

We find no merit in defendant Barr's contention that the trial judge erred by permitting the district attorney to ask the prosecuting witness leading questions.

The general rule is that leading questions may not be asked on direct examination. However, leading questions may be asked of a child and particularly when inquiry is directed to "delicate matters of a sexual nature." The rulings of the trial judge on the use of leading questions are discretionary and will be disturbed only upon a showing of an abuse of discretion. State v. Payne, 280 N.C. 150, 185 S.E.2d 116 (1971); 1 Stansbury's North Carolina Evidence, Section 31, (Brandis rev. 1973), (hereinafter referred to as Stansbury). Here the questions excepted to by defendant were directed to an 11 year old child concerning her kidnapping followed by a brutal rape. No abuse of discretion on the part of the trial judge is shown.

Defendant Barr assigns as error the admission of the testimony of Rachel Sawyer identifying him as one of the men who kidnapped and raped her. He contends that a pretrial photographic procedure and a confrontation between defendant and the prosecuting witness at a preliminary hearing were each so suggestive as to impermissibly taint the witness's in-court identification testimony.

The test to be applied in determining the admissibility of an in-court identification which is preceded by a pretrial photographic identification is whether the pretrial procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. U. S., 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Accord: Stoval v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). This rule is equally applicable to all pretrial identification procedures.

In instant case, defendant Cobb was identified by the prosecuting witness without any objection. However, defendant Barr's counsel objected when it became evident that Rachel Sawyer was about to identify him as one of her assailants. When this objection was noted, the trial judge conducted a voir dire hearing.

On voir dire, Rachel Sawyer testified that Barr was the man who drove the automobile that carried her away from Hardee's on the night of 22 April 1977 and that he was the second man who had intercourse with her on that night. She was taken some distance across the city and into a second floor apartment located in a white house. She was in defendant's presence for more than an hour, and while they were in the apartment, there was a light beside the radio in the bedroom which permitted her to see their faces. She had an opportunity to observe defendant Cobb's face during the ride to the apartment.

On 23 April 1977, Detective Todd showed her a group of photographs, and she picked out the photographs of Cobb and Barr as the men who kidnapped and raped her. No one indicated which photograph she was to pick out. She stated, "My identification of Barr and Cobb is based on seeing them on the night of April 22, 1977, at Hardee's and in the apartment."

Officer Martha Lanier testified that she saw Rachel Sawyer at the hospital on the night of 22 April 1977, and Rachel told her that she could identify "the two men."

Detective Richard Todd testified that on 28 April, he carried seven photographs of black males of approximately the same age, build and complexion to the home of Rachel Sawyer. He asked Rachel to see if she saw anyone in the group who had committed the offense against her. Rachel, without hesitation and without any prompting on his part, picked out the photographs of Barr and Cobb. On cross-examination, defense counsel elicited from the witness the fact that the photographs of Cobb and Barr were more recently made and had not been handled as much as the others.

Defendant offered no evidence on voir dire.

At the conclusion of the voir dire, the trial judge found facts consistent with the above-recited testimony, including a finding (denominated as a conclusion of law) "that the in-court identification of defendant is of independent origin based solely on what the prosecuting witness saw at the time of the alleged crime and does not result from any out of court confrontation or from any photographs or from any other pretrial identification procedures suggestive or conducive to her statements of identification." The court thereupon ruled that the identification testimony was admissible.

We find nothing impermissibly suggestive in the pretrial photographic identification procedure. Defendant contends that the procedure was impermissibly suggestive in that the photographs of him and defendant Cobb were...