State v. Corbett
| Decision Date | 07 December 1982 |
| Docket Number | No. 167A81,167A81 |
| Citation | 297 S.E.2d 553,307 N.C. 169 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Carlton Fanandza CORBETT. STATE of North Carolina v. Carl Lawrence RHONE. |
Rufus L. Edmisten, Atty. Gen. by Thomas H. Davis, Jr., and Charles M. Hensey, Asst. Attys. Gen., Raleigh, for the State.
James E. Hill, Jr., Whiteville, for appellant-defendant Rhone.
David Garrett Wall, Elizabethtown, for defendant-appellant Corbett.
We will discuss each defendant's assignments of error separately.
This defendant first contends that the indictment charging him with first degree rape was fatally defective for failure to allege the averment "with force and arms" which, he maintains, is required under G.S. § 15-144.1 (Cum.Supp.1981). He further contends that "since the indictment was fatally defective, the charge to the jury and the entry of verdicts and judgment against [him] which were based on the indictment are equally defective and must be reversed." We do not agree.
In support of his contention that the indictment charging him with first degree rape was fatally defective defendant relies on the following language which appears in G.S. § 15-144.1(a):
(a) In indictments for rape it is not necessary to allege every matter required to be proved on the trial; but in the body of the indictment, after naming the person accused, the date of the offense, the county in which the offense of rape was allegedly committed, and the averment 'with force and arms,' as is now usual, it is sufficient in describing rape to allege that the accused person unlawfully, willfully, and feloniously did ravish and carnally know the victim, naming her, by force and against her will and concluding as is now required by law. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law as an indictment for rape in the first degree and will support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape or assault on a female.
(Emphasis added).
By contrast, the bill of indictment charging defendant with first degree rape reads as follows:
THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 23rd day of January, 1981, in Bladen County Carl Lawrence Rhone unlawfully and wilfully did feloniously ravish and carnally know Donna Gooden Rice, by force and against the victim's will, against the form of the statute in such case made and provided and against the peace and dignity of the State.
Also of some significance to our decision on this issue is the following language appearing in G.S. § 15-155:
No judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed or reversed for ... omission of the words ... 'with force and arms,' ....
Defendant was charged with first degree rape pursuant to G.S. § 14-27.2(a)(2)(a): "A person is guilty of rape in the first degree if the person engages in vaginal intercourse ... [w]ith another person by force and against the will of the other person, and [e]mploys or displays a dangerous or deadly weapon ...." Defendant does not attempt to argue, nor would we agree, that the averment "with force and arms" is necessary to establish the "dangerous or deadly weapon" element of the offense. We have previously held that in enacting G.S. § 15-144.1(a), the General Assembly has provided for a "shortened form" of the rape indictment which explicitly eliminates the requirement that the indictment contain allegations of every element of the offense. State v. Perry, 298 N.C. 502, 259 S.E.2d 496 (1979); State v. Lowe, 295 N.C. 596, 247 S.E.2d 878 (1978). Although proof of the "dangerous or deadly weapon" element of the offense was essential to a conviction of the defendant for first degree rape, G.S. § 15-144.1(a) "clearly authorizes an indictment for first-degree rape which omits averments (1) that the offense was perpetrated with a deadly weapon ...." State v. Lowe, 295 N.C. at 600, 247 S.E.2d at 881. In Lowe this Court upheld the constitutionality of G.S. § 15-144.1. 1
We therefore must determine whether the inclusion of the averment "with force and arms," though not necessary by virtue of G.S. § 15-155, is nevertheless mandated by G.S. § 15-144.1(a). We do not read this statute as either requiring the averment or as expressing a legislative intent that the language in G.S. § 15-144.1(a) prevail over the express language in G.S. § 15-155 which states in effect that no judgment shall be stayed or reversed because of the omission of the words "with force and arms" from the indictment. As the bill of indictment upon which defendant was charged comports with the requirements of G.S. § 15-144.1(a), this assignment of error is overruled.
As his second assignment of error, defendant Rhone contends that the court erred by denying his motion for funds with which to retain an expert in fingerprint analysis "in view of the heavy reliance which the State placed on the testimony of Phillip Little as an expert in fingerprint analysis." Defendant concedes that the decision to approve fees for the appointment of an expert under G.S. § 7A-454 rests within the sound discretion of the trial judge and will not be disturbed on appeal absent abuse of discretion. State v. Parton, 303 N.C. 55, 277 S.E.2d 410 (1981); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976).
As we stated in State v. Gray, 292 N.C. 270, 277, 233 S.E.2d 905, 911 (1977), The Court further stated that the assistance contemplated by G.S. § 7A-454 will be provided "only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial." Id. at 278, 233 S.E.2d at 911. The record before us discloses that defendant's counsel conducted an intelligent and thorough cross-examination of Detective Little. Defendant makes no convincing argument that the retention of an expert would have materially assisted him in his preparation for trial. This assignment of error is overruled.
Defendant's third assignment of error concerns the denial of portions of his motion for information necessary to receive a fair trial. Defendant concedes that the three paragraphs in question "would appear to seek information prohibited by G.S. 15A-904(a)." Inasmuch as defendant requested (1) written statements of witnesses, (2) the names and addresses of all witnesses to be called by the State, and (3) copies of statements made to any law enforcement officer or staff connected with defendant's case, we agree that the information sought was not subject to discovery, pursuant to G.S. § 15A-904(a). State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). The trial court did not err in denying defendant's motion with respect to these requests.
Defendant next contends that the trial court erred in denying his motion for a change of venue. In support of his position, defendant includes in the record on appeal copies of four newspaper articles concerning the crimes with which he was charged. The articles, captioned as follows: "Search Underway for Two Rapists," "No Arrests Yet in Friday Rape Case," "Rape Suspect Charged," and "Second Rape Suspect Arrested," give a factual, straightforward account of the investigation. We do not view these articles as evidence of "considerable publicity and reaction to the crimes" as defendant asserts. Also included in the record is testimony that Ms. Rice came from a large, respected Bladen County family and that at the time of the crime, the people of the community, especially friends and neighbors, were concerned and upset over the event.
This Court has held that a motion for change of venue on the grounds of local prejudice or unfavorable publicity against the defendant is addressed to the sound discretion of the trial judge. The trial court's ruling will not be disturbed absent an abuse of discretion. State v. Parton, 303 N.C. 55, 277 S.E.2d 410; State v. See, 301 N.C. 388, 271 S.E.2d 282 (1980); State v. Faircloth, 297 N.C. 100, 253 S.E.2d 890, cert. denied, 444 U.S. 874, 100 S.Ct. 156, 62 L.Ed.2d 102 (1979); State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1046, 59 L.Ed.2d 90 (1979). The burden is on the defendant to show that "there exists in the county in which the prosecution is pending so great a prejudice ... that he cannot obtain a fair and impartial trial." G.S. § 15A-957. State v. See, 301 N.C. 388, 271 S.E.2d 282. From the information supplied to us in the record, we conclude that defendant has not met this burden. The mere fact that four newspaper articles traced the investigation and reported on the apprehension of the defendants is not tantamount to a showing of "great prejudice" sufficient to preclude "a fair and impartial trial." Nor does the fact that the prosecuting witness and her family enjoyed the respect of a community which was quite naturally concerned for Ms. Rice's well-being suggest "local prejudice" sufficient to invoke the protection of G.S. § 15A-957. The assignment of error is overruled.
By his fifth assignment of error, defendant contends that the trial court erred in allowing the State's motion to consolidate for trial his cases with those of his co-defendant Corbett. Defendant properly points out that the joinder of offenses and defendants is governed by G.S. §...
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