State v. King

• Decision Date: 26 June 1975
• Docket Number: No. 8,8
• Citation: 287 N.C. 645,215 S.E.2d 540
• Parties: STATE of North Carolina v. Thomas Lee KING and Joseph Lee King.
• Court: North Carolina Supreme Court

Page 540

215 S.E.2d 540

287 N.C. 645

STATE of North Carolina v. Thomas Lee KING and Joseph Lee King.

No. 8.

Supreme Court of North Carolina.

June 26, 1975.

Atty. Gen. Rufus L. Edmisten, Asst. Atty. Gen. Thomas B. Wood and Associate

Atty. Archie W. Anders, Raleigh, for the State.

Frank Patton Cooke, Gastonia, for Thomas Lee King, defendant-appellant.

Robert H. Forbes, Gastonia, for Joseph King, defendant-appellant.

MOORE, Justice.

Joseph King moved for a separate trial and assigns as error the denial of his motion. These defendants were charged in separate bills of indictment with identical crimes. The offenses charged are of the same class, relate to the same crimes and are so connected in time and place that most of the evidence at the trial on one of the indictments would be competent and admissible at the trial on the others. Each defendant relied on an alibi as a defense and their defenses were not antagonistic. Under such circumstances, the trial judge was authorized by G.S. § 15--152 (repealed by Sess.Laws 1973, c. 1286, s. 26, effective July 1, 1975) in his discretion to order their consolidation for trial. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506 (1965); State v. Morrow, 262 N.C. 592, 138 S.E.2d 245 (1964).

No statement made by either defendant was admitted which tended to incriminate or prejudice the other defendant. Hence, the rule as set out in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), as applied in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968), does not apply.

Defendant further contends, however, that the action of Judge Hasty in consolidating the cases for trial was void because it overruled a prior order entered by Judge Grist, and that one superior court judge cannot overrule an order entered by another superior court judge. It should first be noted that the order of Judge Grist to which defendant refers was entered at a hearing held for the purpose of setting bond. This hearing was held on 13 June 1974 and after hearing a number of witnesses, Judge Grist entered an order denying the motion for allowance of bond for each defendant. He then added that the cases were held for further consideration, and

'That the State has indicated that (it) will Probably not proceed in both cases at the same term and counsel for the defendant, Joe King, Mr. Robert H. Forbes, has indicated he would Likewise move that the matters not be consolidated for trial.

'It further appearing to the Court that the cases were calendared for trial during the week of June 10, 1974, and that the defendants were ready for trial and that it became necessary that the State move for a continuance because of the absence of private prosecution, Mr. Grady B. Stott, and the Court having considered the motion for a bond as a further motion for a speedy trial;

'THE COURT ORDERS that the State be required to elect as to which case it desires to try and that said case be placed on the calendar for trial in Gaston County on July 15, 1974.' (Emphasis added.)

At the hearing before Judge Grist on 13 June 1974, no motion for a severance was pending. Such motion was not made until 9 July 1974. Judge Grist never considered this motion, and his order of 13 June only referred to future probabilities. Therefore, Judge Hasty did not overrule Judge Grist. This contention is without merit.

The cases were properly consolidated for trial and the foregoing assignment of error is overruled.

Defendants next contend that the trial court erred in allowing the State to introduce evidence against defendants regarding extraction of blood and hair samples from them and the comparison of blood from defendants and Missouri Davis with exhibits introduced into evidence by the State. Defendants contend that there was no factual basis for allowing these blood samples to be drawn and hair samples taken. There is no merit in this contention.

When the State moved to require defendants to submit to the extraction of blood samples and to furnish hair samples, Judge Snepp, after hearing evidence and arguments of counsel, made findings of fact fully supported by the evidence as follows:

'(1) On 16 February 1974, the dead body of Leo Davis was found by police at his home in Gaston cOunty. It was also discovered that his wife had sustained multiple head wounds.

'(2) Mrs. Davis advised the investigating officers that two subjects assaulted her and her husband in their home; that one wore a head covering of some type; that one used a hammer as a weapon; that in a struggle with one of the persons she hit him with the hammer. his home in Gaston County. It was also cap in the Davis home with hair inside it. Mrs. Davis has advised investigating officers that the cap was not her property or her husband's.

'(4) Investigating officers found a claw-type hammer lying under a truck one-half block from the Davis home. There appeared to be dried blood on the hammer.

'(5) Mrs. Davis, who is still in the hospital as a result of her injuries, has made a photographic identification of the defendants as the persons who assaulted her and her husband.

'(6) On 19 February 1974, investigating officers under authority of a search warrant searched the home of the defendant, Joseph King, and seized clothing which appeared to be bloodstained. Apparent bloodstains were also found on the woodwork in the home.

'(7) Donald Robinson, a cab driver for Yellow Cab Company, has informed investigating officers that early in the morning after this occurrence the defendant, Tommy King, was a passenger in his cab and that the said defendant had apparent bloodstains on his clothing.

'(8) Blood samples from Mr. and Mrs. Davis have been obtained and sent to the State Bureau of Investigation for analysis.

'(9) Samples of stains on the hammer and clothing have been sent to the State Bureau of Investigation for analysis, and the bureau has advised investigating officers that the stains are blood.

'(10) The defendant, Joseph King, has stated to investigating officers that he received some cuts at his home which resulted in the bloodstains to his clothing.

'(11) The defendants both appear to be healthy males, and there is no evidence that either suffers from any illness, disease, or physical disability which would make a reasonable withdrawal of blood deleterious to his health.

'(12) That it is reasonably necessary for the State to secure hair samples and bloodstain samples from the defendants and that they will be of material aid in determining whether the defendants committed the offenses charged.'

Based on these findings, Judge Snepp properly ordered that blood and hair samples be taken.

Defendants' counsel concede that their constitutional rights were not violated by the involuntary withdrawal of blood and taking of hair samples, citing State v. Cash, 219 N.C. 818, 15 S.E.2d 277 (1941), and 21 Am.Jur.2d, Criminal Law § 364 (1965).

Defendants further contend, however, that defendants' counsel had a right to be present when the blood samples were taken, but were not. For that reason they argue that the court erred in denying their motion to suppress all evidence having to do with their furnishing blood samples and the comparison of these samples with stains found on items of clothing and other objects at or around the scene of the crime and with the blood of the victims.

As a foundation for denying this motion, Judge Hasty found, in summary:

(1) That counsel for the defendants were specifically allowed, if they so desired, to be present when blood was extracted from their clients and a copy of said Order was served on counsel on 28 February 1974;

(2) That counsel was not present during the taking of these samples on 28 February 1974;

(3) That counsel at their request were furnished samples of the tests conducted at the hospital;

(4) That while counsel addressed complaints to their absence at the hospital during the taking of the defendants' blood, they conceded that their serious objection was to their being compelled to furnish blood and the introduction of evidence based thereon;

(5) That counsel were repeatedly told that they could have all blood tests results when received and were or would be furnished same; And most importantly

(6) That the court indicated, should it be the request of defense counsel, that it would order the blood withdrawing procedure disregarded, and another one staged in their presence. No such request was made. (Emphasis added.)

Thus, counsel for defendants, by their failure to appear when the samples were taken and to request further blood tests, effectively waived their right to complain on appeal. Even without such waiver their argument here would be unavailing, for as we said in State v. Wright, 274 N.C. 84, 90--91, 161 S.E.2d 581, 587 (1968):

'The authorities hold, however, that handwriting samples, blood samples, fingerprints, clothing, hair, voice demonstrations, even the body itself, are identifying physical characteristics and outside the protection of the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Gilbert v. California (388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)); United States v. Wade (388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)); State v. Gaskill, 256 N.C. 652, 124 S.E.2d 873; Annotation: Accused's Right to Counsel under the Federal Constitution, 18 L.Ed.2d 1420. Such pretrial police investigating procedures are not of such a nature as to constitute 'critical' stages at which the accused is entitled to the assistance of counsel guaranteed by the Sixth Amendment and made obligatory upon the states by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d...