State v. Hatcher

• Decision Date: 16 September 1970
• Docket Number: No. 7018SC534,7018SC534
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. George Everett HATCHER.

Page 401

176 S.E.2d 401

9 N.C.App. 352

STATE of North Carolina v. George Everett HATCHER.

No. 7018SC534.

Court of Appeals of North Carolina.

Sept. 16, 1970.

Atty. Gen. Robert Morgan, by Staff Atty. Edward L. Eatman, Jr., Raleigh, for the State.

Wallace C. Harrelson, Public Defender, Eighteenth Judicial District, for defendant appellant.

MORRIS, Judge.

Prior to entering a plea, defendant moved to dismiss both cases on the ground that he was held from 31 October 1969 until 11 December 1969 without a preliminary hearing and without bail and on the ground that defendant was committed to Cherry Hospital for psychiatric evaluation without his consent. He also moved to quash the bills of indictment. Both motions were denied. The denial of these motions forms the basis for defendant's assignments of error Nos. 1 and 2.

From the evidence taken prior to arraignment it appears that defendant was served with warrants at approximately 6 o'clock a.m. on 31 October 1969. He testified that he was then under the influence of alcohol. He further testified that he was not questioned by anyone from that time until his preliminary hearing on 11 December. After his preliminary hearing, he was sent to Cherry Hospital for 77 days. He testified that he made every effort possible to obtain a preliminary hearing. He had privately retained counsel, but stated that he did not talk to counsel about a preliminary hearing, and on 23 March 1970 the Public Defender was appointed by the court to represent him.

The arresting officer, a deputy sheriff, testified that the prosecuting witness was in the hospital for 28 days, that he did talk with defendant's privately retained counsel about having a preliminary hearing and getting the prosecuting witness into court.

Defendant's privately retained counsel testified that he was employed to represent defendant very shortly after defendant's arrest, that he looked into the desirability of having a preliminary hearing, concluded that it would be desirable to have the prosecuting witness present in person and discussed that with defendant. He further testified that the prosecuting witness was in the intensive care unit at the hospital for about 28 days and from the hospital went to the home of a relative in Rockingham County, that as soon as he was able to travel, a preliminary hearing was arranged and held during December. He testified that on one occasion while the prosecuting witness was still in the hospital, the deputy sheriff had him brought to court, but the witness was then himself involved in a matter in superior court and was unable to be there, so the sheriff returned the prosecuting witness to the hospital. He further testified that the deputy sheriff approached him on three other occasions about a preliminary hearing but each time he was involved in a jury trial and could not be present. The witness testified that defendant's parents were informed of the amount of bond defendant was under and they could not arrange to post bond. Witness tried to get the bond reduced, but because of the seriousness of the charges and the fact that notice of revocation of probation had been filed for offenses prior to these alleged offenses, and the serious condition of the victim, the solicitor would not recommend a reduction in bond. At the revocation of probation hearing, defendant asked for permission to speak for himself and did so. During the course of his testimony he stated to the court that he had never had what he considered to be an adequate psychiatric examination anywhere. Whereupon, counsel requested the solicitor to petition the court for a psychiatric examination. This was done, and the order committing him to Cherry for examination was signed on 16 December 1969. After the defendant was returned from Cherry, he called his counsel. Counsel went to see defendant and advised him that his parents had not been able to pay his fee and suggested that he attempt to secure the services of the Public Defender. Counsel subsequently, on his own motion, was allowed to withdraw and turned his file over to the Public Defender.

The prosecutor testified that a hearing on the bond was never asked for but that he had advised defendant's counsel that his recommendation would be an increase rather than reduction. That Judge Alexander kept insisting that the man be brought before her for a speedy hearing, but that 'we kept explaining that the man was in the hospital'. During the 40-day period the prosecuting witness was brought to court one time by ambulance, but defendant's counsel was not available.

We perceive no error in the court's denial of defendant's motions. It appears unquestionably that defendant was represented by counsel from very shortly after his arrest. It also appears unquestionably that no request for a hearing on his bond was made. His counsel, after investigation, wisely decided not to attempt a vain thing. The circumstances were that the solicitor would not recommend reduction, the probation officer would not recommend bond at all, and defendant's parents had stated their inability to post bond. It appears that in this case, a preliminary hearing was afforded this defendant just as soon as feasible under the circumstances.

It also appears that the order committing him to Cherry Hospital for psychiatric evaluation was entirely proper. In fact, the inference is that it was done as a result of his own suggestion and on request of his counsel.

The record is silent as to the date of his return from Cherry Hospital and the date of his admission there. He says and the record shows that the order was signed on 16 December 1969 and that he stayed there for 77 days. He was tried at the April 1969 Session of the Guilford Superior Court. Justice Sharp, in State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969), set out the following principles established by decisions of the Supreme Court of this State applicable to determination of whether a defendant has been denied a speedy trial:

'1. The fundamental law of the State secures to every person Formally accused of crime the right to a speedy and impartial trial, as does the Sixth Amendment to the Federal Constitution (made applicable to the State by the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)).

2. A convict, confined in the penitentiary for an unrelated crime, is not excepted from the constitutional guarantee of a speedy trial of any other charges pending against him.

3. Undue delay cannot be categorically defined in terms of days, months, or even years; the circumstances of each particular case determine whether a speedy trial has been afforded. Four interrelated factors bear upon the question:

the length of the delay, the cause of the delay, waiver by the defendant, and prejudice to the defendant.

4. The guarantee of a speedy trial is designed to protect a defendant from the dangers inherent in a prosecution which has been negligently or arbitrarily delayed by the State; prolonged imprisonment, anxiet and public distrust engendered by untried accusations of crime, lost evidence and witnesses, and impaired memories.

5. The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. A defendant who has himself caused the delay, or acquiesced in it, will not be allowed to convert the guarantee, designed for his protection, into a vehicle in which to escape justice. State v. Hollars, 266 N.S. 45, 145 S.E.2d 309; State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, appeal dismissed, 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965); State v. Patton, 260 N.C. 359, 132 S.E.2d 891, cert. denied, 376 U.S. 956, 84 S.Ct. 977, 11 L.Ed.2d 974 (1964); State v. Webb, 155 N.C. 426, 70 S.E. 1064.'

Applying these principles to the circumstances of this case, we come to the inescapable conclusion that the trial court did not commit error in denying defendant's motions. Certainly defendant has not shown that any delay was due to the neglect or willfulness of the prosecution, nor is there any showing that witnesses were not available or memories impaired by reason of any delay.

Assignments of error Nos. 5, 8, 11 and 12 are addressed to the court's allowing testimony and the introduction of exhibits all pertaining to evidence obtained at the time of defendant's arrest. Defendant contends that the arrest was based on an illegal identification and the search was, therefore, illegal and no evidence obtained incident to the arrest admissible. The arresting officer testified that he talked with the prosecuting witness at the hospital, at which time the prosecuting witness stated that he had picked up the man who shot and robbed him at the General Greene, that he gave him a general description of the man, said he did not know his name but could identify him. He further testified that a waitress at the General Greene whose name was Doris would know who the man was with whom he left the General Greene. On voir dire, the officer testified that he then went and talked with the waitress who told him that the prosecuting witness and Bobby Hatcher left the General Greene together. The officer then obtained a photograph of Hatcher from the Greensboro Police Department and returned to the hospital. He told the prosecuting witness he had a picture he would like him to look at and when he...