State v. Harris

• Decision Date: 05 October 1976
• Docket Number: No. 130,130
• Citation: State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (N.C. 1976)
• Parties: STATE of North Carolina v. Waymon Edward HARRIS.
• Court: North Carolina Supreme Court

Page 437

228 S.E.2d 437

290 N.C. 681

STATE of North Carolina v. Waymon Edward HARRIS.

No. 130.

Supreme Court of North Carolina.

Oct. 5, 1976.

Atty. Gen. Rufus L. Edmisten by Isham B. Hudson, Jr., Asst. Atty. Gen., Raleigh, for the State.

Jesse S. Moore, Jr., Reidsville, and Leigh Rodenbough, Madison, for defendant-appellant.

BRANCH, Justice.

Defendant first contends that the trial judge erred by denying his motion for a continuance. He takes the position that the denial of his motion violated his constitutional rights of due process, confrontation of his accusers and his right to effective assistance of counsel.

Ordinarily a motion for a continuance is addressed to the trial judge's sound discretion and his ruling is not subject to review on appeal in the absence of gross abuse. However, when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the order of the court below is reviewable. State v. Smathers, 287 N.C. 226, 214 S.E.2d 112; State v. Phillip, 261 N.C. 263, 134 S.E.2d 386, Cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052; State v. Gibson, 229 N.C. 497, 50 S.E.2d 520; State v. Farrell, 223 N.C. 321, 26 S.E.2d 322. The rights to assistance of counsel and of confrontation of one's accusers and witnesses are guaranteed by the Sixth Amendment to the Federal Constitution and by Article I, sections 19 and 23 of the North Carolina Constitution. Avery v. Alabama,308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; State v. Cradle, 281 N.C. 198, 188 S.E.2d 296. It is implicit in these guarantees that an accused have a reasonable time to investigate, prepare and present his defense. However, no set length of time for investigation, preparation and presentation is required, and whether defendant is denied due process must be determined upon the basis of the circumstances of each case. State v. Vick, 287 N.C. 37, 213 S.E.2d 335, Cert. denied, 423 U.S. 918, 96 S.Ct. 228, 46 L.Ed.2d 367; State v. Hicks, 282 N.C. 103, 191 S.E.2d 593 Cert. denied, 410 U.S. 967, 93 S.Ct. 1445, 35 L.Ed.2d 702; State v. Gibson, supra; State v. Utley, 223 N.C. 39, 25 S.E.2d 195; State v. Whitfield, 206 N.C. 696, 175 S.E. 93, Cert. denied, 293 U.S. 556, 55 S.Ct. 114, 79 L.Ed. 658.

The evidence in this case discloses that defendant was afforded a preliminary hearing and that counsel for defendant was appointed seven weeks before the case was called for trial. Defendant, who was a diabetic, was transferred to Central Prison in Raleigh and was returned to Rockingham County a week before the beginning of his trial. Defendant's alleged accomplices were confined in Rockingham County Jail during this period of time and the State had furnished defense counsel with copies of statements made by defendant to police officers. Defendant made his motion for continuance on the day the case was called for trial. He failed to support his motion with a showing that he had been unable to confer with counsel either in Central Prison or in Rockingham County. Neither was there any showing that he was deterred from interviewing defendant's alleged accomplices.

Defendant fails to show that he did not have ample time to confer with counsel and to investigate, prepare and present his defense. Thus, the trial judge correctly denied defendant's motion for a continuance.

Defendant next assigns as error the action of the trial judge in permitting the State to reexamine and challenge prospective Juror, Jones for cause after the State had accepted and tendered the juror to defendant.

Under examination by the State, prospective Juror Jones indicated that he was not opposed to the imposition of the death penalty in appropriate cases. However, in response to defense counsel's questioning, the prospective juror stated that he would not return a verdict of guilty in the case even if he were satisfied beyond a reasonable doubt that defendant was guilty of murder in the first degree. The trial judge thereupon allowed the State to reexamine the prospective juror and to challenge him for cause.

Defendant relies upon the provisions of G.S. 9--21(b) which provides in pertinent part that '(t)he State's challenge, peremptory or for cause, must be made before the juror is tendered to the defendant.'

In the recent case of State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, we stated that '(n)othing in G.S. 9--21(b) prohibits the trial court, in the exercise of its discretion before the jury is empaneled, from allowing the State to challenge Peremptorily or for cause a prospective juror previously accepted by the State and tendered to the defendant.' Accord: State v. Harris, 283 N.C. 46, 194 S.E.2d 796, Cert. denied, 414 U.S. 850, 94 S.Ct. 143, 38 L.Ed.2d 99.

We hold that the trial judge did not abuse his discretion in allowing the State to reexamine and challenge the prospective Juror Jones.

Defendant's next assignment of error is that the trial judge erred by allowing the foreman of the grand jury to sign the bill of indictment without the presence of the full grand jury or a majority of them in open court.

G.S. 15--141, pertinent to this assignment of error, provides:

Grand juries shall return all bills of indictment in open court through their acting foreman, except in capital felonies, when it shall be necessary for the entire grand jury, or a majority of them, to return their bills of indictment in open court in a body.

The statute requires the Return of the indictment in open court in the presence of the entire grand jury or a majority of them. The statute does not require that the foreman Sign the indictment in the presence of the entire grand jury or a majority of them. In fact, under G.S. 15--141, endorsement by the foreman of the grand jury was not essential to the validity of an indictment otherwise duly returned into open court. State v. Avant, 202 N.C. 680, 163 S.E. 806.

G.S. 9--22 requires that the grand jury consist of eighteen jurors. This record discloses that the grand jury returned into open court, with sixteen members being present, the following indictment marked 'a true bill': '75 CR 1577C--State v. Waymon Edward Harris--Murder.' Thus, it is clear that this bill of indictment was returned in open court in a body by a majority of the grand jury.

This assignment of error is overruled.

Defendant contends that the trial judge erred in failing to instruct the jury to disregard irrelevant and immaterial evidence elicited by the State.

The testimony pertinent to this assignment of error is as follows:

Q. What, if anything were you doing for the defendant during this time that you stayed together or what, if anything, was he doing for you?

A. Well he had demanded that I work as a prostitute.

Q. When was that demand first made on you?

A. At---

ATTORNEY MOORE: Objection Your Honor to any testimony on this.

THE COURT: Just a minute, Sustained.

It is well established that when a specific question is asked, objection should be interposed immediately and before the witness has the opportunity to answer. However, when inadmissibility is not indicated before the witness answers, counsel should move to strike the answer or the objectionable part of it. 1 Stansbury's N.C. Evidence (Brandis Rev.1973) § 27, p. 69. State v. Little, 278 N.C. 484, 180 S.E.2d 17. However, in capital cases we will review assignments of error concerning admission of incompetent evidence even when there is no motion to strike when probable prejudice appears. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10.

Even though the judge sustained defendant's objection to the admission of this evidence, it might well have been relevant and admissible as evidence of prior acts to corroborate the witness's direct testimony that defendant had instructed her to get a 'date' with Mr. Hopper. State v. Browder, 252 N.C. 35, 112 S.E.2d 728. The evidence objected to was consistent with the relationship between defendant and the witness as related in her other testimony.

In any event, the effect of the challenged evidence was to impugn defendant's character. The record shows that defendant had previously instructed the witness Phyllis Brown to 'make a date' with deceased in order to rob him. The witness Brown testified that defendant had made threats on her life and that although she had previously slept with him on several occasions, defendant 'forced' her to sleep with him on the night before the robbery. We do not believe that the admission of this further evidence of an already established sordid relationship between defendant and Phyllis Brown resulted in prejudicial error.

This assignment of error is overruled.

We turn to defendant's contention that the search of his automobile was illegal and that the evidence relating to the finding of the pistol (State's Exhibit 8), the pistol itself, and the statement by defendant that the pistol belonged to him, were therefore all erroneously admitted into evidence. Upon defendant's objection to this evidence, the trial judge correctly excused the jury and conducted a Voir dire hearing, found facts, entered conclusions of law and ruled on the admissibility of the evidence. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, Cert. denied, 414 U.S. 874, 94 S.Ct. 157, 38 L.Ed.2d 114.

On Voir dire, police officers Ganelle, Martin and Johnson testified to the effect that they observed defendant in his red Chevrolet automobile in front of a liquor store in Albany, Georgia. They approached defendant and told him that they wanted to talk to him about his activities in North Carolina. Officer Ganelle also advised defendant that they would probably have to get a search warrant to search his automobile. At that time, defendant replied: 'You won't need one. Go ahead and help yourself.' The officers then asked defendant to accompany them to the police station for questioning and when he consented, Officer Martin drove ...