State v. Gray

Citation233 S.E.2d 905,292 N.C. 270
Decision Date14 April 1977
Docket NumberNo. 85,85
PartiesSTATE of North Carolina v. Dewey L. GRAY, Jr.
CourtUnited States State Supreme Court of North Carolina

Rufus L. Edmisten, Atty. Gen., by Edwin Speas, Jr., Sp. Deputy Atty. Gen., and Jack Cozort, Associate Atty., Raleigh, for the State.

Tate K. Sterrett, Charlotte, for defendant-appellant.

EXUM, Justice.

Upon separate bills of indictment defendant was tried and convicted of first degree rape (75-CR-2774), assault with a deadly weapon with intent to kill resulting in serious bodily injury (75-CR-2775), and first degree burglary (75-CR-2776). He was sentenced, respectively, to death, twenty years imprisonment, and life imprisonment.

Incorporated within twenty questions presented in his brief, defendant brings forward some twenty-eight assignments of error the most significant of which challenge the: (1) trial court's refusal to appoint a private investigator and an expert witness to assist in the defense; (2) denial of defendant's motion to dismiss court-appointed counsel and counsel's motion to be permitted to withdraw; (3) admissibility of certain blood grouping and absorption inhibition tests; and (4) admissibility of lay opinion testimony as to defendant's age and a so-called "Certified Certificate of Birth." We find no merit in any of defendant's assignments of error relating to the trial of the cases. We do, however, vacate the death sentence entered in the rape case and remand this case for the entry of a sentence of life imprisonment.

The state's evidence tends to show the following: At about 11:00 p. m. on 12 January 1975, Louise Johns was at home in her apartment at 609 Key Street in Charlotte with a friend, Robert Griffith. They heard a knock at the front door. Thinking the visitor might be Griffith's wife, from whom he was separated, Griffith exited the apartment through the back door while Mrs. Johns proceeded to answer the door.

When she opened the door, Mrs. Johns encountered a black man whom she mistakenly thought she recognized as a neighbor's son. The man asked to use her phone but she told him it was out of order and suggested he use a neighbor's phone. When he was insistent she again refused. Mrs. Johns quickly apprehended her mistake as to the visitor's identity as she observed him in the strong light in the doorway. She was close enough to the man to smell alcohol on his breath.

The man pushed his way through the door with a long-barreled pistol in his hand. He was smoking a cigarette and dropped it on the carpet. Upon his inquiry, Mrs. Johns told him someone had just left the apartment. He instructed her to "go get rid of them." Mrs. Johns went to Griffith, who was standing in front of the apartment and said, "Run. He has a gun." Griffith ran after Mrs. Johns but was confronted by the black man, who pointed a "big gun" at his stomach and threatened to kill him. At this time Mr. Griffith was standing in the parking lot where there was sufficient illumination from a street light that he could see the man's face clearly. From Griffith's and Mrs. Johns' descriptions the man was tall and thin-faced, wearing a three-quarter length coat with a fur collar and a small hat. Griffith was edged toward his car by the gunman, got into it and drove away to a phone booth from which he tried to call Mrs. Johns, but got no answer.

Mrs. Johns ran back into her apartment, locked the door and called police, giving her name and address. Then she went upstairs and hid in her bedroom closet. The man, having kicked in the door, soon discovered her hiding place, grabbed her around the neck and dragged her down the stairs and out the back door. He told her not to scream and waved the gun. Still holding Mrs. Johns by the neck, the man dragged her down an embankment and into a field behind the apartment building. He pushed her down and ordered her to undress. After Louise Johns had pulled down her jeans and the man had undressed, he began having sexual intercourse with her, and then forced her to have oral sex with him. The man then resumed having intercourse until he ejaculated.

Mrs. Johns testified that her assailant hit her on the head with the butt of his gun after the completed act of intercourse, dazing her. She said he began beating her and that she thought she was stabbed but did not see a knife. The man walked quickly back towards the apartment building. Mrs. Johns walked to the front of the apartment building where she saw a police car with the door open. She fell into the car, told police what had happened and gave them a description of her assailant.

Mrs. Johns was taken by ambulance to a hospital, where she underwent surgery to repair damage resulting from deep puncture wounds to her stomach, diaphragm and colon. Her scalp was also sutured. At the hospital Mrs. Johns told police that her assailant was not her neighbor's son, although he looked something like him. (Defendant is the brother of the man whom Mrs. Johns knew as her neighbor's son.) Medical testimony established the presence of spermatozoa in a vaginal fluid sample taken from Mrs. Johns. Testimony of an expert witness established the presence of blood type "B" in this sample. Mrs. Johns and Griffith both had blood type "A". The defendant had blood type "B".

At trial Mrs. Johns and Robert Griffith positively identified defendant as the assailant.

Two police officers arrived at the apartment complex soon after Mrs. Johns' call, but found no one at her apartment, although they saw the dead bolt lock hanging by one screw. In cruising the parking lot using their spotlight these officers saw a man who met the description later given them by Mrs. Johns, but the man disappeared before the officers could apprehend him. At trial both officers positively identified defendant as the man they saw in the parking lot.

Defendant presented an alibi defense. He testified himself that he was with friends at the Red Bird Lounge or Club until 10:00 or 10:30 on the night of the crime, that he went home alone, watched TV and went to sleep. His testimony was corroborated by the friends he named as his companions that evening.

I

By his first assignment of error defendant, an indigent, contends the court erred in denying his pre-trial motion that the state furnish him for the purpose of assisting in his defense an expert in serology and a private investigator. We fully considered the questions presented by this assignment in State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976) and State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976). In these cases defendants' pre-trial motions for appointment of private investigators at state expense were held properly denied. Recognizing that General Statute 7A-450(b) requires the state to provide an indigent defendant "with counsel and the other necessary expenses of representation," the Court in Tatum held that an order for the appointment of a private investigator "should be made with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense. Mere hope or suspicion that such evidence is available will not suffice." 291 N.C. at 82, 229 S.E.2d at 568. To similar effect was the statement in Montgomery that "(t)his statute has never been construed to extend to the employment of an investigator in the absence of a showing of a reasonable likelihood that such an investigator could discover evidence favorable to the defendant. We decline so to construe it. We do not have before us . . . the right of an indigent defendant to have such an investigator employed at the expense of the State upon a showing of a reasonable basis for belief that such employment would be productive of evidence favorable to him." 291 N.C. at 97-98, 229 S.E.2d at 577. These cases also established that denial of a state-paid private investigator to an indigent defendant did not, ipso facto, constitute a denial of equal protection of the laws notwithstanding that such investigators might be available to indigent defendants represented by public defenders, G.S. 7A-468, and to pecunious defendants.

We recognized in Tatum that "all defendants in criminal cases shall enjoy the right to effective assistance of counsel and that the State must provide indigent defendants with the basic tools for an adequate trial defense or appeal." 291 N.C. at 80, 229 S.E.2d at 566-67. While in Tatum we determined to adhere to the holding in United States ex rel. Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953) (the state has no constitutional duty to provide an expert witness to assist in the defense of an indigent), we said, further, that "we do not interpret Baldi to obviate the doctrine of 'fundamental fairness' guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution." 291 N.C. at 81, 229 S.E.2d at 567. We concluded in Tatum that the appointment of experts to assist an indigent in his defense depends really upon the facts and circumstances of each case and lies finally, within the discretion of the trial judge. See also G.S. 7A-454 providing for payment in the court's discretion of a fee for an expert witness who testifies for an indigent defendant.

We know, of course, that the assistance of an expert or private investigator or both would be, generally, welcomed by all defendants and their counsel as an added convenience to the preparation of a defense. State v. Tatum, supra. We must, however, also recognize that it is practically and financially impossible for the state to give indigents charged with crime every jot of advantage enjoyed by the more financially privileged. See State v. Patterson, 288 N.C. 553, 220 S.E.2d 600 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed.2d 1211 (1976). "And the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required." Ross v. Moffitt,417 U.S. 600, 616, 94 S.Ct....

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