State v. Hager, 7120SC484
Citation | 182 S.E.2d 588,12 N.C.App. 90 |
Decision Date | 04 August 1971 |
Docket Number | No. 7120SC484,7120SC484 |
Court | Court of Appeal of North Carolina (US) |
Parties | STATE of North Carolina v. Luther HAGER. |
Atty. Gen., Robert Morgan by Asst. Atty. Gen. William F. Briley for the State.
Charles P. Brown, Albemarle, for defendant appellant.
Defendant contends his constitutional right to counsel was violated in that counsel was not provided for him at a preliminary hearing. In support of this contention he cites Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). In that case, the Supreme Court of the United States held that a preliminary hearing is a critical stage of the prosecution so as to constitutionally require the furnishing of counsel to protect the rights of a defendant. The case was remanded to the Alabama Supreme Court for a determination of whether the failure to provide counsel for defendant at his preliminary hearing constituted harmless error.
Before the decision in Coleman, our Supreme Court had consistently held that counsel at a preliminary hearing was not necessary where the proceedings were not in any way prejudicial to the trial itself. State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Clark, 272 N.C. 282, 158 S.E.2d 705; State v. Miller, 271 N.C. 611, 157 S.E.2d 211; Gasque v. State, 271 N.C. 323, 156 S.E.2d 740.
Coleman was decided 22 June 1970. This defendant's preliminary hearing was held 10 June 1969. The question is therefore whether the decision in Coleman is retroactive. If it is not, defendant is entitled to no relief because he has not shown that the proceedings at his preliminary hearing were prejudicial to the trial itself.
Federal courts of appeal in at least three circuits have refused to apply the ruling in Coleman retroactively. Phillips v. State of North Carolina, 433 F.2d 659 (4th Cir. 1970); Konvalin v. Sigler, 431 F.2d 1156 (8th Cir. 1970); United States ex rel. Bonner v. Pate, 430 F.2d 639 (7th Cir. 1970).
In Phillips it is stated:
In Konvalin we find:
* * *'
In Pate, the court held:
'Since denial of an attorney at a preliminary hearing when no rights are lost does not 'invariably deny a fair trial, * * *' we hold that the ruling announced in Coleman is not retroactive.'
Under the retroactivity rule expressed in Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Phillips v. North Carolina, Supra; Konvalin v. Sigler, Supra; and United States ex rel. Bonner v. Pate, Supra, we are of the opinion and so hold that the principles of law set forth in Coleman ought not to be applied retroactively under the facts of this case and that the defendant's contention in this respect is without merit. See also Wetzel v. North Carolina, 399 U.S. 934, 90 S.Ct. 2250, 26 L.Ed.2d 805 (1970).
Defendant assigns as error several portions of the charge. In each instance it appears likely that the statements giving rise to exception resulted from error on the part of the court reporter in transcribing the charge. For instance, the record reflects the following which are subjects of exception:
'The burden of proof never rests upon the defendant to show his innocence, But to disprove the facts necessary to establish the crime for which he is charged.
'Although, in this case there has been evidence, as I have Argued, introduced by the State of North Carolina tending to show that at the time mentioned in the bill of indictment that the defendant in this case did offer this check for payment for value. * * *
(Emphasis added).
The first portion of the charge set forth above which relates to the burden of proof is clearly...
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