State v. Hairston

• Decision Date: 14 January 1972
• Docket Number: No. 130,130
• Citation: 185 S.E.2d 633,280 N.C. 220
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Charles Curtis HAIRSTON. STATE of North Carolina v. Edward Alexander HOWARD. STATE of North Carolina v. Earnest McINTYRE, Jr.

Page 633

185 S.E.2d 633

280 N.C. 220

STATE of North Carolina v. Charles Curtis HAIRSTON.

STATE of North Carolina v. Edward Alexander HOWARD.

STATE of North Carolina v. Earnest McINTYRE, Jr.

No. 130.

Supreme Court of North Carolina.

Jan. 14, 1972.

Atty. Gen. Robert Morgan and Associate Atty. Edwin M. Speas, Jr., Raleigh, for the State.

Stephen G. Calaway, Winston-Salem, for defendant Hairston, appellant.

William G. Pfefferkorn, Winston-Salem, for defendant McIntyre, appellant.

J. Erle McMichael and Thomas W. Moore, Jr., Winston-Salem, for defendant Howard, appellant.

MOORE, Justice.

On appeal defendants set forth 21 assignments of error. Assignments Nos. 3, 11, 12, and 18 are not discussed in defendants' briefs and are therefore deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 783, 810 (1961). Nevertheless, since these are capital cases, these assignments have been carefully considered and found to be without merit.

Defendant McIntyre first assigns as error the court's failure to provide him with counsel at the preliminary hearing. On 8 March 1971 McIntyre appeared before Judge Sherk of the District Court for a hearing to determine whether counsel should be appointed to defend him. The court found that defendant had a job with George Sparks Construction Company and made $90 per week, that his wife worked and made $385 per month, and that they owned an automobile and furniture. Based on these findings, the court refused to appoint counsel.

On 11 March 1971 defendant McIntyre appeared before Judge Sherk for a preliminary hearing. At that time the court inquired into whether the defendant wanted counsel appointed. Defendant specifically refused the appointment of counsel, stating that he had had trial experience in the service and did not need an attorney.

Before trial, William G. Pfefferkorn was appointed counsel for McIntyre. Counsel then moved that the indictment against McIntyre be quashed and that all proceedings against defendant be dismissed with prejudice for the reason that a preliminary hearing was held for the defendant on the capital offense of murder, and at said time defendant was not appointed counsel as required by the Constitution and statutes of North Carolina and by the Constitution of the United States. On 18 May 1971 a hearing was held on this motion before Charles Kivett, Judge Presiding, at which hearing the State offered the testimony of Judge A. Lincoln Sherk, before whom the preliminary hearing was held; Mr. George Thomas, an attorney at law in the city of Winston-Salem; Mr. R. H. Frye, one of the investigating officers from the Winston-Salem Police Department; and James C. Yates, III, the assistant solicitor. Defendant McIntyre took the stand and testified in his own behalf. After this hearing, the court made, among others, the following findings:

'. . . (T)hat on the date of March 8, 1971, a short time after his arrest, the defendant was taken into the District Court before District Court Judge Sherk for the purpose of making an inquiry to determine whether or not the defendant should have an attorney appointed to represent him; that, on that date, at the hearing, the Court, after making an inquiry of the defendant, determined that he was in a position to employ his own attorney; that between that date and the date of March 11, 1971, at which time the Preliminary Hearing was conducted, the defendant advised Officer R. H. Frye that he would not have a lawyer to represent him at the hearing and that he had decided, after conferring with his wife, to represent himself and that he had had some experience in criminal matters while in the military service, where he served for approximately five and one-half years; the Court further finds that on the date of March 11, 1971, the defendant was brought into Court before Judge Sherk and that Judge Sherk on that occasion asked the defendant if he had an attorney; that he stated that he did not and that he would represent himself; that Judge Sherk on that date and prior to that statement by the defendant had advised the defendant that he would appoint counsel to represent him, and that the defendant, McIntyre, thereupon advised the Court that he did not want an attorney; and the Court further finds that Judge Sherk advised him as to the charge against him and as to the nature thereof and the Statutory punishment therefore, and the nature of the proceedings taking place and of his right to assignment of counsel and the consequences of a waiver; all of which the defendant told the Court that he fully understood.

'This Court further finds that the defendant, McIntyre, stated to the Court that he did not desire the assignment of counsel and that he expressly waived the same and that he desired to appear at the Preliminary Hearing in all respects in his own behalf, which he said he understood he had the right to do.

'The Court finds that he signed on the date of March 3rd, 1971, a waiver of right to have counsel assigned, and that he swore to the same and subscribed his name following said waiver before a representative of the Clerk of Superior Court's Office, Mr. J. R. Reece, on March 11, 1971.'

The court further found:

'. . . (T)hat, prior to and at the Preliminary Hearing, Judge Sherk informed the defendant that he thought he should have an attorney, despite the fact that the defendant said he wanted to waive his right to an attorney and that Judge Sherk, notwithstanding that fact, designated an attorney present in the courtroom at that time, Mr. George Thomas, who is a licensed attorney in the State of North Carolina and who engages in the practice of law in Winston-Salem, to sit next to the defendant and to be there for the purpose of advising the defendant at any time he cared to take advantage of any advice that he might give; and that Judge Sherk explained to the defendant and to Mr. Thomas the reason why Mr. Thomas was being placed next to the defendant, that reason being to advise him or to be available to represent him, should he choose to utilize his services at the Preliminary Hearing.

'The Court further finds that once or twice during the hearing that proceeded, the defendant did, in fact, ask certain questions of Mr. Thomas and that immediately prior to the hearing, Mr. Thomas and the defendant conferred briefly.'

In North Carolina a preliminary hearing is not a constitutional requirement nor is it essential to the finding of an indictment. Gasque v. State, 271 N.C. 323, 156 S.E.2d 740 (1967), cert. denied 390 U.S. 1030, 88 S.Ct. 1423, 20 L.Ed.2d 288 (1968). The preliminary hearing may be waived (G.S. § 15--85), in which case the defendant is bound over to the superior court to await grant jury action without forfeiting any right or defense available to him. State v. Hargett, 255 N.C. 412, 121 S.E.2d 589 (1961). However, G.S. § 7A--451(b)(4) provides that a preliminary hearing is a critical stage in a criminal proceeding and that an indigent person is entitled to services of counsel at such hearing.

Defendant relies on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). This decision also holds that a preliminary hearing is a critical stage of the proceeding so as to require the presence of counsel. In Coleman, the opinion written by Mr. Justice Brennan states:

'. . . Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. . . .

'The inability of the indigent accused on his own to realize these advantages of a lawyer's assistance compels the conclusion that the Alabama preliminary hearing is a 'critical stage' of the State's criminal process at which the accused is 'as much entitled to such aid (of counsel) . . . as at the trial itself.' Powell v. Alabama, supra (287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932)), 287 U.S. at 57, 53 S.Ct. at 60 (77 L.Ed. at 164, 84 A.L.R. 527).'

Both Coleman and G.S. § 7A--421(b)(4) apply to an indigent person. Judge Sherk, upon competent evidence, found that for the purpose of the preliminary hearing defendant McIntyre was not an indigent and was in a position to employ his own attorney. This Court is bound by that finding. State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). Not being indigent for the purpose of the preliminary hearing, McIntyre did not have the right to appointed counsel, and he could waive counsel and elect to defend himself. Before the preliminary hearing began, the court again inquired as to whether or not McIntyre wished counsel to be appointed. He specifically replied that he did not, stating that he had had some experience while in the service and wished to represent himself. He then signed a written waiver of counsel which he had a right to do. State v. Williams, 274 N.C. 328, 339, 163 S.E.2d 353, 361 (1968), and cases therein cited.

In State v. McNeil, 263 N.C. 260, 268, 139 S.E.2d 667, 672 (1965), this Court said:

'The United States Constitution does not deny to a defendant the right to defend himself. Nor does the constitutional right to assistance of counsel justify forcing counsel upon a defendant in a criminal action who wants none. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; United Stated v. Johnson, 6 Cir. (June 1964), 333 F.2d 1004.'

Under the circumstances of this case, the refusal of the trial court to appoint counsel to represent defendant McIntyre at the preliminary hearing was not error, and the court properly overruled defendant's motion to suppress all evidence presented at the preliminary hearing.

Before the trial, Judge Kivett, in accordance with G.S. 7A--450(c), which provides that the question of indigency may be determined or redetermined by the court at any stage of the action, made a further finding...