State v. Lester

• Decision Date: 24 January 1978
• Docket Number: No. 76,76
• Citation: 240 S.E.2d 391,294 N.C. 220
• Parties: STATE of North Carolina v. Michael Allen LESTER.
• Court: North Carolina Supreme Court

Page 391

240 S.E.2d 391

294 N.C. 220

STATE of North Carolina v. Michael Allen LESTER.

No. 76.

Supreme Court of North Carolina.

Jan. 24, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

Walter E. Clark, Jr., Greensboro, for defendant-appellant.

COPELAND, Justice.

Defendant brings forward seven assignments of error. For reasons hereinafter discussed, we find each of these assignments to be without merit; therefore, defendant's conviction must be affirmed.

Defendant first contends that the trial court erred in denying his motion for a probable cause hearing in District Court, which was made one month after return of the bill of indictment. It is well-settled in this state that, at common law, a defendant could be tried on a bill of indictment without the necessity of a probable cause hearing. State v. Vick, 287 N.C. 37, 213 S.E.2d 335, cert. dismissed, 423 U.S. 918, 96 S.Ct. 228, 46 L.Ed.2d 367 (1975). Defendant argues, however, that under authority of G.S. 15A-606(a), "The judge must schedule a probable-cause hearing unless the defendant waives in writing his right to such hearing." From this, he maintains, arises a requirement that a probable cause hearing be held as a matter of course, regardless of whether an indictment has been returned.

This argument ignores the purpose of such hearings, known prior to enactment of Chapter 15A as preliminary hearings, which is simply to determine whether sufficient probable cause exists to bind the case over to Superior Court and seek an indictment in order to place the defendant on trial. State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed.2d 499 (1972). Moreover, the discharge of a defendant after a preliminary hearing for lack of probable cause does not bar a later indictment, State v. Cradle, supra. Thus, a probable cause hearing is unnecessary after the grand jury finds an indictment. State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972).

While defendant impliedly contends that G.S. 15A-606(a) changes all this, it must be remembered that statutes in derogation of the common law must be strictly construed. State v. Vaughan, 268 N.C. 105, 150 S.E.2d 31 (1966). Indeed, the Official Comment to G.S. 15A-611 indicates that proceedings begun by indictment were once included in subsection (d) of that section as being among those in which no probable cause hearing could be held. An amendment in a legislative committee deleted mention of indictments, however, and sought to restrict the power of district attorneys to bypass probable cause hearings. Subsequently, this latter restriction was itself deleted and, although no mention of indictments was restored to subsection (d), it was the conclusion of the drafters of the Comment that, "In view of the preexisting jurisdictional law and the fairly clear legislative intent . . . it seems certain that no probable-cause hearing may be held in district court once the superior court has gained jurisdiction through the return of a true bill of indictment." We find the logic of this Comment persuasive and therefore hold that G.S. 15A-606(a) requires a probable cause hearing only in those situations in which no indictment has been returned by a grand jury.

Defendant also asserts that refusal of a probable cause hearing in this case resulted in a denial of due process and equal protection under the Fourteenth Amendment. This court has previously held, however, that neither the Constitution of the United States nor that of North Carolina requires a preliminary hearing as a necessary step in the prosecution of a defendant. State v. Foster, supra. While the Fourth Amendment requires a timely determination of probable cause for significant pretrial restraint, it is not necessary that such a determination be reached by a procedure including all the trappings of a full adversary hearing. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). In the instant case, the finding of probable cause by the grand jury clearly satisfied the requirement of determination by a neutral judicial official, outlined in Gerstein v. Pugh, supra.

Defendant's contention that equal protection is violated where, as here, a state affords preliminary hearings to some criminal defendants but not others is likewise without merit. As we have already indicated, a defendant has no fundamental interest in having an adversary probable cause hearing. There are many situations in which a district attorney may deem it advisable to initiate criminal proceedings by indictment, e. g., where there is no fear of flight by a defendant, or where there exists a need for confidentiality to avoid needless harm to the reputation of a prospective accused. In such instances, a prosecutor may elect to eschew the needless waste of judicial and prosecutorial resources which an unnecessary probable cause hearing would engender. Since the availability of this discretion to a district attorney bears a rational relationship to a legitimate governmental objective, i. e., the more efficient administration of criminal justice, it is not subject to constitutional challenge. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

Defendant's second assignment of error challenges the denial of his motion for nonsuit. It is his contention that the testimony of May, the only State's witness to connect defendant with the crime, was inherently increditable because he was serving a life sentence for murder; had been convicted of numerous other offenses; had made no statement about the matter for two and one-half years; had at one point repudiated his statement in this case; had been under indictment in other cases, all but one of which were later dismissed; had received immunity for his part in this case and his testimony contradicted other evidence presented by the State.

Defendant argues that under State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), nonsuit must be granted when the only testimony implicating defendant is inherently increditable; however, that case involved evidence which was physically impossible and contrary to the laws of nature. The factors relied on by defendant, while tending to impeach the credibility of the witness, do not expose it as physically impossible. "In ruling on (a motion for nonsuit), the court does not pass upon the credibility of the witnesses for the prosecution, or take into account any evidence contradicting them offered by the defense. The court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. Whether the testimony is true or false and what it proves if it be true are matters for the jury." State v. Bowman, 232 N.C. 374, 376, 61 S.E.2d 107, 109 (1950). The unsupported testimony of an accomplice, if believed, is sufficient to support a conviction. State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 (1964). Further, the granting of immunity to a witness goes only to his credibility and not to his competency. State v. Johnson, 220 N.C. 252, 17 S.E.2d 7 (1941). This assignment is overruled.

Defendant contends in his third assignment of error that the statements by the victim before her death that she had been raped and stabbed by two rednecks or white boys with long hair were not properly admissible as dying declarations. He argues that the circumstances here do not satisfy G.S. 8-51.1, which renders dying declarations of a deceased admissible when they were voluntarily made at a time when the deceased was "conscious of approaching death and believed there was no hope of recovery."

Formerly dying declarations were admissible only in homicide prosecutions and wrongful death actions. 1 Stansbury's N.C. Evidence, (Brandis Rev. 1973), § 146. The overall effect of G.S. 8-51.1 was to liberalize this exception to the hearsay rule by expanding the admissibility of such statements to all civil and criminal trials. This statute results in more restrictive use of dying declarations in homicide and wrongful death cases, however, since the court must find, in addition to an apprehension of death with death in fact ensuing, that the deceased believed there was no hope of recovery. Nevertheless, "It is not necessary for the declarant to state that he perceives he is going to die. If all the circumstances, including the nature of the wound, indicate that the declarant realized death was near, this requirement of the law is satisfied." State v. Bowden, 290 N.C. 702, 712, 228 S.E.2d 414, 421 (1976).

In the instant case, while the trial court found that the victim was in actual danger of death at the time the statements were made and fully apprehended such danger, there was no specific finding that she believed there was no hope of recovery. Still, we conclude from the surrounding circumstances and the nature of the victim's wounds that she was aware that she had no hope of recovery. She had been stabbed once in the chest, with a laceration of the heart and a stab wound to the lung, and once in the abdomen, penetrating the intestine and right kidney. She was in a great deal of pain and asked the people who took her to the hospital to tell her parents that she loved them. The victim lost a great deal of blood on the way to the hospital and by the time she arrived was unable to sit up or walk. Witnesses testified that during the trip to the hospital the victim said she had been raped and stabbed by two rednecks. Upon her arrival at the hospital, tests revealed that the victim had no blood pressure. She told nurses attending to her that she had been raped and stabbed by two white boys with long hair. She repeatedly asked if she was going to die, saying that she was too young to die.

Considering the severity of her wounds, her loss of blood, intense pain, directions to tell her parents she loved them, and repeated expressions of fear of...