State v. Hill

• Decision Date: 26 August 1970
• Docket Number: No. 7021SC338,7021SC338
• Citation: 9 N.C.App. 279,176 S.E.2d 41
• Parties: STATE of North Carolina v. Charles G. HILL, III.
• Court: North Carolina Court of Appeals

Page 41

176 S.E.2d 41

9 N.C.App. 279

STATE of North Carolina v.Charles G. HILL, III.

No. 7021SC338.

Court of Appeals of North Carolina.

Aug. 26, 1970 Certiorari Allowed by Supreme Court Oct. 5, 1970.

Atty. Gen. Robert B. Morgan, Asst. Atty. Gen. William W. Melvin, and Staff Atty. T. Buie Costen, for the State.

Craige, Brawley, Horton & Graham, by Hamilton C. Horton, Jr., and Alvin A. Thomas, Winston-Salem, for defendantappellant.

MALLARD, Chief Judge.

The evidence tended to show that about 10:45 p.m. on the night of 13 March 1968, the defendant's automobile was involved in a collision with another automobile on Reynolda Road in Winston-Salem.The defendant's automobile crossed the center line of the road and struck the other vehicle at the front hinge of the front door.

William E. Stroupe testified he was the driver of the car that the defendant struck, that before the police officer arrived the defendant approached him, and that '(a)s he approached me I know that it was more than once and I know that it was more than twice he kept repeating, 'I don't think I hit you, but if I did I'm sorry.I don't think I hit you, but if I did I'm sorry."

One of the police officers of the City of Winston-Salem arrived at the scene at 10:47 p.m.The officer testified that in his opinion the defendant was under the influence of intoxicating liquor.The defendant stated to the police officer that he'was operating the 1964Lincoln Continental.'The record does not otherwise reveal the make of the automobiles involved.The police officer arrested defendant for operating a motor vehicle under the influence of intoxicating liquor 'and advised him of his rights.'After being arrested the defendant was taken to the police station, and sound motion pictures were taken of him during a sobriety test.At about 11:45 p.m. after voluntarily consenting thereto, the defendant was given a breathalyzer test which 'indicated a reading between .23 and .24%.'After these tests were made and just a few minutes after midnight, the defendant was served with a warrant charging him with operating an automobile under the influence of intoxicating liquor.

The arresting officer informed the defendant's attorney, over the telephone after the defendant had called him, that the defendant had been charged with operating an automobile under the influence of intoxicating liquor.The attorney testified upon a pretrial hearing, upon certain motions made by the defendant, that the officer said 'that if I would come down there I could take him on home, that he could go home.'

The uncontradicted evidence on this record tends to show that thereupon the attorney went to the police station and was told by the arresting officer that the defendant had already been booked and was across the street in jail.The attorney went to the jail and was informed that the defendant was locked up and was under a $300.00 bond.The record does not reveal at what time the attorney arrived at the jail.The attorney testified that the following transpired between him and the jailer with respect to permission to see the defendant and the release of the defendant:

'The jailer stated that Mr. Hill was there, that he was locked up, and that he was under $300.00 bond.So I sat down in the jailer's office and called one of the local bondsmen and he sent a man down there to get Mr. Hill out on bond.I was not permitted to see my client at that time.The bondsman came down within ten or fifteen minutes and bond was posted and given to the deputy sheriff and I said, 'Well, let's have him so we can get out of here,' and it was getting after midnight.

The jailer said, 'No, we are not going to let him out' and when I asked him why, he said, 'The four hour rule.'I said, 'What are you talking about?' and the jailer said, 'Well, we can't let the man out until he has been locked up here for four hours.'I said, 'Well, bond has been posted.The arresting officer called me and said to come down here and get him out.'The jailer said, 'Well, I am running this jail and you are not going to get him out of here until the four hours are up.'

I was not permitted to see my client.

The deputy who was acting as jailer was Weldon Keyser.There was another assistant or two whom I did not know.Mr. Keyser said, 'Chief Tucker said it was up to me, that I could do what I wanted to do.'I said, 'Well, what are you going to do?'

Keyser went on back to where Mr. Hill was locked up around the corner from the jailer's office.You cannot see down this corridor.I heard him walking down the corridor, heard him rattle the bars or something, and then I heard Mr. Hill say, 'What do you want?'Keyser said, 'Nothing, I just wanted to see if you were here.'

Deputy Keyser came back and then I said, 'Okay, let me have him.'He said, 'I am not going to do it.'I said, 'Why?'Mr. Keyser said, 'The son-of-a-bitch is so drunk he can't stand up.'

It must have been after 2:00 a.m. by this time.

I said, 'If you are not going to let me take him, let me see him.'The deputy sheriff said, 'You are not going to see him, git.'And I got, and that is the end of it.

I understand that Mr. Hill was released at about 7:00 a.m. and I saw him later on that day.'

G.S. § 15--47 provides, among other things, that a person arrested shall be permitted to give bail bond, except in capital cases.Operating a motor vehicle under the influence of intoxicating liquor is a misdemeanor and is not a capital case.The uncontradicted evidence in this case indicates that the defendant was permitted by proper authority to give bail, but after doing so, the jailer refused to release him.The evidence that the defendant was not released by the jailer until the next morning at about 7:00 a.m. is also uncontradicted.This was approximately five hours after the defendant had given the bail bond required.

G.S. § 15--47 means that when the required bail bond is given and approved, the accused is to be released.The conduct of a jailer who refuses to release a defendant, after the proper bail bond is given and he is informed thereof, violates the statute and is indefensible.However, in this casewe approve of that portion of the dissenting opinion of Judge Finley in City of Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867(1966), in which it is stated:

'(T)hecourts do have a responsibility and the authority for taking corrective action respecting over-zealous, overly aggressive police practices which complicate and negate the prosecution of law violations and/or may unreasonably deprive the law violator of life, liberty, and the pursuit of happiness without due process of law.Corrective action, however, Does not necessitate turning criminal offenders loose as a form of shock treatment for the police.Such judicial experimentation has too little, if any, propensity to produce the intended results; and furthermore, in my judgment, such experimentation is too inimical to other social values and too dangerous to society and law-abiding citizens to be indulged by the judiciary.'

It is elementary law that every person in North Carolina has the right to have counsel for his defense and not be compelled to give self-incriminating evidence.N.C.Const. art. I, § 11;U.S.Const. amend. VI.Also, G.S. § 15--4 provides that:

'Every person, accused of any crime whatsoever, shall be entitled to counsel in all matters which may be necessary for his defense.'

A defendant has the constitutional right, in a criminal prosecution, to confront his accusers with other testimony.Every defendant is entitled under the Constitution to have a reasonable opportunity to prepare his defense.This includes the right to consult with his counsel and to have a fair and reasonable opportunity, in the light of all attendant circumstances, to investigate, to prepare, as well as to present his defense.This right must be accorded every person charged with a crime.N.C.Const. art. I, § 11;U.S.Const. amend. XIV;State v. Whisnant, 271 N.C. 736, 157 S.E.2d 545(1967);State v. Graves, 251 N.C. 550, 112 S.E.2d 85(1960);State v. Hackney, 240 N.C. 230, 81 S.E.2d 778(1954);State v. Speller, 230 N.C. 345, 53 S.E.2d 294(1949);State v. Gibson, 229 N.C. 497, 50 S.E.2d 520(1948);State v. Whitfield, 206 N.C. 696, 175 S.E. 93(1934), cert. denied, 293 U.S. 556, 55 S.Ct. 114, 79 L.Ed. 658(1934).

In the case of State v. Speller, Supra, Justice Ervin, speaking for the Court, said:

'Both the State and Federal Constitutions secure to every man the right to be defended in all criminal prosecutions by counsel whom he selects and retains.N.C.Const., Art. I, sec. 11;U.S.Const., Amend. XIV.This right is not intended to be an empty formality.It would be a futile thing, indeed, to give a person accused of crime a day in court if he is denied a chance to prepare for it, or to guarantee him the right of representation by counsel if his counsel is afforded no opportunity to ascertain the facts or the law of the case.As the Supreme Court of Georgia declared in Blackman v. State, 76 Ga. 288: 'This constitutional privilege would amount to nothing if the counsel for the accused are not allowed sufficient time to prepare his defense; it would be a poor boon indeed.This would be 'to keep the word of promise to our ear and break it to our hope." Since the law regards substance rather than form, the constitutional guaranty of the right of counsel contemplates not only that a person charged with crime shall have the privilege of engaging counsel, but also that he and his counsel shall have a reasonable opportunity in the light of all attendant circumstances to investigate, prepare, and present his defense.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 refusal of the jailer to permit the defendant's attorney to confer with him that night while he was there in the jail was a denial of a constitutional right.Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct....