State v. Leonard, 96

• Decision Date: 03 June 1980
• Docket Number: No. 96,96
• Citation: 300 N.C. 223,266 S.E.2d 631
• Parties: STATE of North Carolina v. Peggy Massey LEONARD.
• Court: North Carolina Supreme Court

Page 631

266 S.E.2d 631

300 N.C. 223

STATE of North Carolina v. Peggy Massey LEONARD.

No. 96.

Supreme Court of North Carolina.

June 3, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jane Rankin Thompson, Raleigh, for the State.

R. B. Smith, Jr., Lexington, for defendant.

BROCK, Justice.

APPEAL CONCERNING THE TRIAL PROCEEDINGS

Defendant's first assignment of error reads as follows: "The trial court erred in denying the defendant's motion to dismiss all charges based on the State's failure to provide the defendant a speedy trial in violation of her Constitutional rights and in failing to provide the defendant a trial free from prejudicial error." (Emphasis ours.)

The latter portion of the defendant's first assignment of error (underlined above) is broadside and presents nothing for review. It will therefore be disregarded.

The remaining part of assignment of error No. 1 asserts that defendant's constitutional right to a speedy trial has been denied. However in her brief, defendant fails to argue or cite any constitutional principle or authority supporting this assignment of error. Instead she argues that she is entitled to dismissal due to the prosecution's violation of North Carolina General Statute 15A-701(a)(5). Assuming arguendo that the assignment of error supports the argument brought forward, defendant's reliance on the statute is nonetheless misplaced. G.S. 15A-701, the statute itself, which became effective 1 October 1978, exempts this defendant from its application with the following words: "This act shall apply to any person who is arrested, served with criminal process, waives an indictment, or is notified pursuant to G.S. 15A-630 that an indictment has been filed with the superior court against him, on or after October 1, 1978." Session Laws 1977, c. 787, p. 2. Defendant was arrested 18 May 1977; a true bill of indictment was returned in September 1977; and defendant was first placed on trial in November 1977, all well before the effective date of G.S. 15A-701.

We also note that defendant has not been denied her constitutional right to a speedy trial. In State v. Spencer, 281 N.C. 121, 124, 187 S.E.2d 779, 781 (1972) this Court held that "whether defendant has been denied the right to a speedy trial is a matter to be determined by the trial judge in light of the circumstances of each case. . . . The constitutional right to a speedy trial prohibits arbitrary and oppressive delays by the prosecution. (Citations omitted.) But this right is necessarily relative and is consistent with delays under certain circumstances. (Citations omitted.)" It is apparent from the history of defendant's involvement in this case, that the courts and the mental institutions of this State have been most generous with their time and facilities in according to her all reasonable protections. Defendant's first assignment of error is overruled.

Defendant next brings forward in one argument her assignments of error Nos. 2 and 8. In these assignments defendant contends the trial court erred in allowing the State to introduce evidence of statements made by the defendant to the arresting officers after the defendant refused to sign a waiver of her constitutional rights. At trial, upon defendant's objection to any of these statements being introduced into evidence, an evidentiary hearing was conducted in the absence of the jury. On voir dire the State's evidence tended to show the following: When defendant was arrested at her home she was advised of her constitutional rights but was not interrogated and she made no statement. After she was transported to the Sheriff's office she was again advised of her constitutional rights and was asked to sign a waiver which she refused to do. She was not interrogated, but while waiting to be formally served with a warrant and transported to a jail cell defendant asked the arresting officer: "How many times did I shoot her?" She also asked the officer if the State still had the death penalty. The officer did not respond to either question. After the voir dire Judge Long found that defendant was advised of her Miranda rights and that the two questions asked by defendant were not in response to interrogation but were volunteered by defendant and were made admissible in evidence. The testimony of the officer relating the two questions asked by defendant were thereafter admitted before the jury in the State's case in chief.

Defendant argues that it was error for the trial judge to refuse to hear from defendant's witnesses (including psychiatrists) upon the question of defendant's mental competence to understand the nature and gravity of her statements. She further argues that it was error to admit the statements into evidence without first making a determination of her mental competence to understand the nature and gravity of those statements. Defendant cites numerous cases which support the proposition that a determination of the defendant's mental competence as it bears upon the voluntariness of her confession must be made prior to admitting into evidence her confession obtained through custodial interrogation. See State v. Ross, 297 N.C. 137, 254 S.E.2d 10 (1979); State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961). These cases, however, are inapposite to the factual situation presented in the present case. In Ross and Whittemore the defendants' incriminating statements (i. e.., confessions) were made in response to custodial interrogation. An interrogation of the defendant in this case is not in issue, for there was no interrogation. Therein lies the difference. See Blackburn v. Alabama, 361 U.S. 199, 4 L.Ed.2d 242, 80 S.Ct. 274 (1960). In the case sub judice the first question asked by the defendant, as to how many times she shot her sister, is merely a question asked upon the sole initiative of the defendant. Also the question concerning the death penalty was asked upon the sole initiative of the defendant. Notwithstanding the defendant's claim of insanity, the State may offer, without a preliminary inquiry into defendant's mental competence, testimony describing the defendant's acts in shooting the deceased and fleeing the scene. In a like manner the State may offer testimony describing the defendant's other self-initiated acts, statements and questions, without a preliminary inquiry into defendant's mental competence, so long as they are relevant to an issue under inquiry. Any intimation to the contrary in State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975) is disapproved. The evidence proffered by defendant on voir dire would have been appropriate before the jury for its determination of the credibility of the confession, but not upon the question of its admissibility.

This argument by defendant on the admissibility of her confession strays far from the real issue in this case. There were two eyewitnesses to the shooting; defendant admitted the shooting to her psychiatrists; defendant testified at trial that she shot her sister and the murder weapon was in her possession. The basic and real contested issue in this case is whether defendant was insane at the time she shot her sister, not whether she shot her. Assignments of error Nos. 2 and 8 are overruled.

By her third assignment of error defendant argues that the trial judge erred in denying defendant's motion to dismiss all charges made at the close of the State's evidence. After the denial of her motion, defendant proceeded to offer evidence. Having elected to offer evidence defendant waived her motion to dismiss at the close of the State's evidence, and proper consideration is thereafter upon her motion to dismiss made at the close of all the evidence. G.S. 15-173; accord, State v. Davis, 282 N.C. 107, 113, 191 S.E.2d 664, 668 (1972); State v. Jones, 296 N.C. 75, 77, 248 S.E.2d 858, 859 (1978). The provisions of G.S. 15A-1227 do not alter this salutary and long standing rule in North Carolina. In any event, defendant's motion to dismiss was properly denied as the State's evidence, by way of the testimony of two eyewitnesses, when viewed in the light most favorable to the State, is clearly ample to support a verdict of guilty of first degree murder. See State v. Haywood, 295 N.C. 709, 717, 249 S.E.2d 429, 434 (1978). Defendant's third assignment of error is overruled.

Defendant brings forward in one argument her assignments of error Nos. 4 and 7. On cross-examination of defendant, the prosecutor was permitted, over objections, to question defendant concerning her prior conduct in the shooting and killing of Nellie Somner in the State of Florida in 1973. The use of this evidence was restricted by the trial judge for impeachment purposes, and for the purpose of identification, and he so instructed the jury. Defendant argues that both the admission of the evidence and the court's instruction to the jury constituted error.

Defendant argues that the evidence of the homicide in Florida was inadmissible for impeachment purposes. She contends that since she was found not guilty by reason of insanity in the Florida case, that such a determination alleviated her from all criminal responsibility for the Florida homicide. However defendant's argument for exclusion of this evidence is premised upon an alleged determination of insanity in the Florida proceedings. From the record on appeal, we note that the only evidence concerning the Florida proceedings which was before the trial judge when defendant objected to the introduction of this evidence was defendant's self-serving and partly hearsay testimony obtained during the voir dire examination. Defendant stated on voir dire that she shot Nellie Somner on May 15, 1973; that she was not convicted of killing Nellie Somner; that they said she was temporarily insane; that they put her back in the hospital and then the doctor let her go. The defendant's hearsay testimony on voir dire is not adequate evidence upon which the trial judge could make a ruling that defenda...