State v. Davis

• Decision Date: 04 November 1976
• Docket Number: No. 44,44
• Citation: 229 S.E.2d 285,291 N.C. 1
• Parties: STATE of North Carolina v. Clifford Delane DAVIS.
• Court: North Carolina Supreme Court

Page 285

229 S.E.2d 285

291 N.C. 1

STATE of North Carolina v. Clifford Delane DAVIS.

No. 44.

Supreme Court of North Carolina.

Nov. 4, 1976.

Atty. Gen. Rufus L. Edmisten and Special Deputy Atty. Gen. Edwin M. Speas, Jr., Raleigh, for the State.

Michael S. Scofield, Public Defender and James Fitzgerald, Asst. Public Defender, Charlotte, for defendant appellant.

SHARP, Chief Justice.

In the record on appeal defendant sets out 11 assignments of error, which we will examine in the order the matters complained of occurred at the trial.

We consider first the assignment that defendant was denied his constitutional right to a speedy trial in that 'the delay of time from indictment to trial was excessive . . . and that the delay was the studied choice of the State.' This assignment, which is based on no exception taken at the trial, is totally without merit.

Initially, defendant was represented by his privately employed counsel, Mr. William L. Stagg. Sometime (date not disclosed) after defendant was indicted for the rape of Miss Kilmer, he severely injured himself in an unsuccessful attempt to escape from the Statesville prison unit over a 15-foot wall. Inter alia, he broke both ankles. In consequence he was removed to the State's prison in Raleigh where he underwent surgery. Thereafter defendant continuously requested Mr. Stagg to have his trial postponed. In August 1975 he was brought to Charlotte for trial. At that time he told the assistant district attorney that he wanted to have a foot operation at the prison hospital before his trial, and he represented to the prosecutor that he would plead guilty to 'two reduced pleas' if the prosecutor would postpone his trial. Upon these representations defendant's case was again continued.

On 29 September 1975 defendant was again brought to Charlotte for trial. This time he requested a continuance in order to have a 'post-operative examination from surgery in August' and until after his 'prison system expires the 22nd.' He also denied any intention of ever pleading guilty to any offense and told Judge Snepp that his 'greatest fear right now is having to appear with Mr. Stagg.' After listening to defendant, Judge Snepp said to him 'Don't worry, Mr. Stagg is not going to appear for you . . . Mr. Davis, you apparently have used every method possible to put off the fateful day of trial. . . . All right. I'm going to give you a lawyer.' Thereupon, Judge Snepp ordered that the public defender, Mr. Scofield, be appointed to represent defendant and, over defendant's protest and renewed request for a continuance, directed that defendant be arraigned the following day. The order permitting Mr. Stagg to withdraw as defendant's counsel was signed on 1 October 1975.

On 9 December 1975, without prior consultation with defendant as to the motion and 'solely on the basis of the indictment being two and a half years old,' Mr. Scofield filed a motion to dismiss the action. As pointed out in the preliminary statement, the case was scheduled to be tried before Judge Snepp on 17 December 1975. However, on that day, Mr. Buckhalt, the assistant district attorney, was absent on account of illness, and Mr. Scofield--although present--was barely able to speak. He did, however, advise Judge Snepp, in open court and in the presence of defendant, that he was withdrawing his motion to dismiss for lack of a speedy trial because he had learned that defendant himself had requested the postponements of his trial. Judge Snepp reponded, 'I have seen, and from what I know about this case, what I believe to be a studied effort to avoid trial on the part of the defendant.' Mr. Scofield informed the court that after being appointed counsel for defendant he required four to six weeks to prepare, but thereafter he had informed the district attorney (whom he knew had scheduling problems) that 'as soon as (the district attorney) was ready to go they wanted to go.' The case was tried during the week of 5 January 1976.

On the foregoing facts we find incomprehensible and unsupportable the contention that the judge, Ex mero motu, should have dismissed the action. State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

Two of defendant's assignments of error relate to the admission of evidence. The first charges that the court erred in permitting Dr. Craddock to relate the history he obtained from Miss Kilmer at the time he examined her on 26 August 1974 in that the history 'did not corroborate but conflicted with the prosecuting witness's testimony.' This assignment is not sustained. We find in the record no conflict between Miss Kilmer's testimony and Dr. Craddock's account of what she told him at the time of his examination. His brief summary of the history she gave him was not, of course, in the words of her testimony. However, 'in essence there was harmony. . . . Discrepancy in minor details does not warrant a new trial.' State v. Cox, 272 N.C. 140, 141, 157 S.E.2d 717, 718 (1967).

The next assignment is that the court permitted the district attorney to improperly cross-examine defendant concerning his prior criminal record. Specifically the district attorney's question was: 'After you were paroled (from the 12--15-year sentence for assault with intent to commit rape) you . . . broke into Paula Crotwell's apartment and attempted to have sexual relations with her at that time without her permission?' Mr. Scofield objected to the question but, before the court could rule, defendant had answered, 'I did not.' The judge then overruled the objection and thereafter, upon repeated questioning, defendant admitted that he had been 'convicted of a misdemeanor, breaking into Paula Crotwell's apartment . . . a forcible entry' and that he had received a sentence for it. In the challenged cross-examination we perceive no error prejudicial to defendant. See State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972). Indeed, defendant first informed the judge and jury in his own direct examination that he had previously been convicted of an assault with intent to commit rape and of forcible trespass. The State was within its rights in cross-examining him with respect to these two convictions. See 1 Stansbury's North Carolina Evidence (Brandis rev. 1973) § 35 at 103.

Defendant's third assignment of error is that the district attorney made irrelevant and inflammatory remarks in his argument to the jury which were not supported by the evidence. The arguments of the public defender and the district attorney are in the record, and we have read both with care. We find nothing in the solicitor's remarks which exceeded the bounds of legitimate argument. At no time did he 'travel outside of the record' or inject into his argument facts of his own knowledge or other facts not included in the evidence. His characterizations of the defendant are fully supported by defendant's own testimony. See State v. Wortham, 287 N.C. 541, 215 S.E.2d 131 (1975). Considering the character of defense counsel's argument and his attack upon the character and credibility of the prosecuting witness the district attorney's response should have come as no surprise to him. The response he received was justified. See State v. McCall, 289 N.C. 512, 223 S.E.2d 303 (1976).

Defendant has inserted in the record on appeal an exception to the district attorney's statement to the jury, 'The State would argue and contend to you that his (defendant's) testimony was nothing but the testimony of a pathological liar.' Defendant made no objection to this argument at the time it was made. The general rule is that if an objection to argument of counsel is not made at the time of the argument, so as to give the court an opportunity to correct the transgression, it is waived. State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976); State v. Noell, 284 N.C. 670, 202 S.E.2d 750 (1974). The circumstances of this case suggest no reason for making an exception.

This Court held in State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967) that, while it is improper for a lawyer to assert his opinion that a witness is lying, a lawyer may argue to the jury that they should not believe a witness. In State v. Noell, supra, we held that it was not improper for the solicitor, in discussing the testimony of the defendant's witness, to say to the jury, 'I submit to you, that they have lied to you.' The solicitor did not call the defense witnesses liars. In this case the district attorney also submitted defendant's credibility to the jury. Defendant's third assignment of error is overruled.

Defendant's assignments of error 4, 5, 6, 7, 10, and 11 relate to the judge's charge. The fourth assignment is that the judge failed to include in the list of permissible verdicts guilty of an assault with intent to commit rape and guilty of an assault on a female. The judge instructed the jury that it could return only one of two verdicts, guilty of second degree rape or not guilty. Since this Court's decision in State v. Bryant, 280 N.C. 551, 187 S.E.2d 111 (1972), the rule has been in prosecutions for rape that when all the evidence tends to show a completed act of intercourse and the only issue is whether the act was with the prosecuting witness's consent or by force and against her will, it is not proper to submit to the jury lesser offenses included within a charge of rape. State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975); State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Bynum and State v. Coley, 282 N.C. 552, 193 S.E.2d 725 (1973). Assignment No. 4 is overruled.

Assignment No. 5 is to the court's denial of the defendant's request that he give the jury the following special instruction:

'It is true, rape is a most detestable crime, and therefore ought severely and impartially to be punished; but it must be remembered that it is an accusation easy to be made and hard to be...