State v. Hucks

• Decision Date: 08 December 1988
• Docket Number: No. 542A86,542A86
• Citation: 374 S.E.2d 240,323 N.C. 574
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Kenneth Odell HUCKS, General Sam Miller.

Page 240

374 S.E.2d 240

323 N.C. 574

STATE of North Carolina v. Kenneth Odell HUCKS, General Sam Miller.

No. 542A86.

Supreme Court of North Carolina.

Dec. 8, 1988.

Lacy H. Thornburg, Atty. Gen. by Steven F. Bryant, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender, and Staples S. Hughes, Asst. Appellate Defender, Raleigh, for defendant-appellant Miller.

Donald W. Bullard, Pembroke, for defendant-appellant Hucks.

MITCHELL, Justice.

The defendants were brought to trial upon proper indictments charging them with first degree murder and entered pleas of not guilty. The charges against the defendants were joined for trial over timely objections. After a jury was impaneled, the defendant General Sam Miller changed his plea to one of guilty as charged. Over the objection of the defendant Kenneth Odell Hucks, the proceeding in the trial court was thereafter conducted as a trial of Hucks on his plea of not guilty and as a simultaneous sentencing proceeding for Miller. The jury found Hucks guilty as charged. Neither Hucks nor the State presented any additional evidence during the subsequent sentencing proceeding against Hucks.

Miller testified on his own behalf for sentencing purposes after the verdict was returned against Hucks. The jury then recommended death for Miller and life imprisonment for Hucks, and judgments were entered accordingly by the trial court on 18 July 1986. The defendants appealed to this Court as of right.

As we conclude that reversible errors occurred in the trial court, each defendant must receive a new trial. Only a partial summary of the evidence presented in the trial court is necessary in light of the issues we find determinative on appeal.

The State's evidence tended to show that General Sam Miller came to North Carolina on or about 29 September 1985. Arriving in Fayetteville in a stolen automobile, he met Kenneth Odell Hucks, and the two became temporary partners in crime. On the afternoon of 5 October 1985, the defendants Allen had just spoken by telephone with his wife and was alone in the store when the defendants entered at around 3:45 p.m. Miller, armed with a .32-caliber pistol, demanded Allen's money from the cash register. Allen refused Miller's demand, and Miller raised the pistol and fired a bullet into Allen's forehead. After Allen fell to the floor mortally wounded, Miller took more than $1,000 from Allen's pockets and the cash register, while Hucks stuffed hundreds of dollars worth of watches from a display case into paper bags. Allen died six days later from the gunshot wound to his brain, never regaining consciousness.

Miller and Hucks were traveling through Robeson County in the automobile stolen by Miller. Miller parked the car near a jewelry store owned and operated by Earl Allen in the town of St. Pauls. The defendants walked over to the store and began looking in the display window. A customer inside the store saw them looking in and also saw Hucks enter the store, stay momentarily, and then join Miller outside. The customer then left the store, but saw both defendants enter the store as she was driving away.

The defendants also were identified by two other witnesses who walked into the store just moments after the shooting and saw the defendants coming from behind a counter. Allen was found by these witnesses on the floor behind the counter. One of the witnesses then went after the defendants and saw them get in a car and drive away.

Miller was arrested early the next morning after he ran a roadblock and wrecked the car he was driving in an ensuing high-speed chase. Hucks was arrested after Miller assisted investigators in locating him. Each defendant still had proceeds of the jewelry store robbery in his possession when arrested.

APPEAL OF MILLER

Miller was initially charged with felonious assault and armed robbery. At his first appearance on those charges in District Court on 6 October 1985, he was found indigent and an attorney was appointed to represent him. That appointment was renewed after Miller was charged with first degree murder by a warrant issued on 11 October 1985, after Allen's death. Miller never received nor requested the appointment of additional counsel to assist him in this capital case.

On appeal, Miller assigns as error the failure to appoint additional counsel on his behalf in a timely manner. We agree that allowing the capital case against Miller to proceed without the appointment of additional counsel to assist him violated the mandate of N.C.G.S. § 7A-450(b1). This denial of Miller's statutory right to additional counsel was prejudicial error per se. Therefore, his plea of guilty must be stricken, the verdict and judgment against him vacated and a new trial held.

N.C.G.S. § 7A-450(b1), applicable to indictments returned on or after 11 July 1985, provides in pertinent part: "An indigent person indicted for murder may not be tried where the State is seeking the death penalty without an assistant counsel being appointed in a timely manner." The indigent defendant Miller was indicted on 10 March 1986 for first degree murder and brought to trial on 8 July 1986. A jury was impaneled, the defendant entered a guilty plea and a sentencing proceeding resulting in a sentence of death was held, all without the appointment of assistant counsel. Such critical stages of a capital prosecution certainly fall within the statute's mandate that an indigent cannot be tried for his life without timely appointment of assistant counsel.

The statute gives a right to assistant counsel which is not to be confused with the fundamental right of criminal defendants to effective assistance of counsel guaranteed by our state and federal constitutions. On its face, the statute provides a right to counsel in addition to constitutional requirements, and reflects a special concern for the adequacy of legal services received by indicted indigents who face the possibility of the death penalty. There is no reason to believe, however, that the statute embodies such a different and limited Any reasonable notion of timely assistance of counsel must recognize that a criminal defendant's case can be won or lost before trial. The State's interest in a fair, adequate and error-free criminal process also attaches well before the actual trial. The defendant's counsel, whether one or the two which the General Assembly has seen fit to require for indigent defendants in capital cases, must have a reasonable amount of time in which to investigate and prepare a defense. See State v. Cobb, 295 N.C. 1, 243 S.E.2d 759 (1978). N.C.G.S. § 7A-450(b1) therefore mandates appointment of assistant counsel "in a timely manner" which ensures under the particular circumstances of a case that both attorneys representing the indigent defendant have time to effectively prepare for trial. In most cases, that mandate would require appointment of assistant counsel as soon as practicable after indictment of the indigent defendant on a capital charge.

notion of assistance of counsel that it would not apply to all of the post-indictment critical stages of a criminal prosecution to which the more basic and limited constitutional right to effective assistance applies.

The trial transcript and record on appeal in this case reveal no discussions of N.C.G.S. § 7A-450(b1) and are devoid of any request for assistant counsel by the defendant or offer by the trial court to appoint assistant counsel. While possible explanations for those omissions are not at issue, we note that subsection (b1) of the statute was still relatively new when this case arose and that prior to its effective date questions concerning the appointment of additional counsel generally arose upon a motion by the defendant and were within the trial court's discretion. Moreover, subsection (b1) of the statute, as previously discussed, does not expressly indicate when the trial court's duty to appoint assistant counsel arises.

The State in this case contends that the absence of any discussion relating to the appointment of assistant counsel amounts to the defendant's waiver of the statutory mandate by failure to assert it at trial. The State, in its brief, equates the mandate of N.C.G.S. § 7A-450(b1) with statutory rights which have been held waived when not asserted by defendants at trial, including the right to a polling of the jury, N.C.G.S. § 15A-1238, to joinder, N.C.G.S. § 15A-926, and to discovery, N.C.G.S. § 15A-902 and § 15A-903. Those statutes, however, are easily distinguished from N.C.G.S. § 7A-450(b1), because they expressly require a motion by the defendant before he is entitled to the rights they guarantee. There is no such requirement contained in the language of N.C.G.S. § 7A-450(b1).

Nor is this case controlled by State v. Tindall, 294 N.C. 689, 242 S.E.2d 806 (1978), cited by the State, in which we held that a trial court has no obligation to assist a defendant when he has attempted to use the wrong statutory procedure for compelling the attendance of out-of-state witnesses. Unlike the mandatory appointment of assistant counsel in this case, the procurement of witnesses is clearly an area where the trial court has no reason to act until it is prompted to do so by the litigants.

The statutory mandate at issue in this case also does not come under the broadly stated rule found in State v. McDowell, 301 N.C. 279, 271 S.E.2d 286 (1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 220 reh'g denied, 451 U.S. 1012, 101 S.Ct. 2350, 68 L.Ed.2d 865 (1981), where we held that the defendant had waived his right to make an opening statement to the jury by not raising the issue at trial, even though N.C.G.S. § 15A-1221(a)(4) provided that a defendant "must be given the opportunity" to make such a statement. In that case we stated:

It is well established that a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert...