State v. McAllister

• Citation: 287 N.C. 178,214 S.E.2d 75
• Decision Date: 06 May 1975
• Docket Number: No. 62,62
• Parties: STATE of North Carolina v. Douglas McALLISTER.
• Court: United States State Supreme Court of North Carolina

Page 75

214 S.E.2d 75

287 N.C. 178

STATE of North Carolina v. Douglas McALLISTER.

No. 62.

Supreme Court of North Carolina.

May 6, 1975.

Atty. Gen. Rufus L. Edmisten and Associate Attys. Wilton E. Ragland, Jr., and C. Diederich Heidgerd, Raleigh, for the State.

Thomas F. Loflin III, Durham, for defendant appellant.

MOORE, Justice.

Defendant brings forward nine assignments of error which we will treat separately.

Defendant first contends that the court erred in refusing to grant his motion for a free transcript of a separate trial of defendant on similar charges in which nonsuit was entered. In support of this contention, defendant relies on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). In Britt, the Supreme Court of the United States reaffirmed its previous holding that a transcript of prior proceedings must be given to an indigent defendant if the court determines the transcript is needed for an effective defense. That Court stated that in making this determination, the trial court should consider the value of the transcript to the defendant in connection with the trial for which it is sought and the availability of alternative devices that would fulfill the same function as a transcript. In applying those rules to the facts in Britt, the Supreme Court held that Britt's attorney could have obtained the information needed by simply making a request to the court reporter. The Court therefore held that under the facts in Britt there was no showing of need and the denial of a free transcript was not prejudicial error.

As in Britt, the facts in the present case are important in determining the need of defendant's counsel for the transcript in preparing his defense. The most important fact is that in the present case the transcript requested was not of a prior proceeding in these cases, but was that of a trial in an entirely separate and distinct case. As in Britt, counsel for defendant in this case also represented him in the separate trial for which he sought to obtain a transcript. Furthermore, there is no indication in the record that defendant's counsel made any effort to obtain the information which he desired through other methods or that he attempted to procure such information by personally contacting the court reporter as suggested in Britt. Inasmuch as the transcript requested was one of a separate and distinct proceeding rather than a prior proceeding in the present case, and defendant's attorney did not take advantage of any other formal or informal alternative methods for discovering the information sought, we hold that under Britt the denial of his motion was not prejudicial error. See 51 N.C.L.Rev. 621 (1973).

Three cases against defendant for forgery and uttering were called for trial. The State moved to consolidate these cases. Defendant moved to sever and the court allowed consolidation of two of the cases over defendant's objection. Defendant assigns this as error.

The two checks here involved were both dated September 6, 1973 and made payable to defendant in his assumed name, James D. Jones or James Jones. Both were drawn on the checking account of Frederick A. Crowell in the Union National Bank on numbered checks given to Mr. Crowell by the bank when he opened his account, and both were deposited by defendant in his account with Central Carolina Bank in the name of James D. Jones, after he endorsed the checks as James Jones. Under these facts, this assignment obviously has no merit. '. . . When a defendant is charged with crimes of the same class and the offenses are not so separate in time or place and not so distinct in circumstances as to render a consolidation unjust and prejudicial, consolidation is authorized in the discretion of the court by G.S. 15--152, State v. White, 256 N.C. 244, 123 S.E.2d 483 (1962); State v. Johnson, 280 N.C. 700, 187 S.E.2d 98 (1972).' State v. Anderson, 281 N.C. 261, 264--65, 188 S.E.2d 336, 339 (1972). (G.S. § 15--152 was repealed effective 1 July 1975 by Session Laws of 1973, Chapter 1286, Section 26.)

Defendant next contends that the trial court erred in permitting, over defendant's objection, the State's witness Detective Parham to testify regarding an out-of-court statement made by defendant to Detective Parham concerning the charges in these two cases.

By this assignment, defendant asserts that the warning given by the Durham police regarding his constitutional right to remain silent was insufficient due to the fact that the warning was not given in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and G.S. § 7A--451.

In State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968), this Court reviewed the exact warning and waiver of counsel given by Detective Parham to defendant in the present case. We there held, after quoting in the opinion the warning given to defendant and the waiver signed by him, that these were sufficient under Miranda. We then overruled the defendant's objection to the introduction of defendant's inculpatory statements made by him to the officer of the Durham Police Department.

After Voir dire hearing, the court in the present cases made findings of fact based on competent evidence, and concluded that there was no offer of hope, reward, or inducement to the defendant to make to statement; that there was no threat or show of violence to persuade or induce the defendant to make a statement; that the statement made to Detective Parham was made voluntarily, knowingly, and understandingly at a time when defendant was in full understanding of his rights; and that he purposely, freely, knowingly, and voluntarily waived each of those rights. Such conclusions, when supported by competent evidence, are conclusive on appeal. State v. Thompson, 285 N.C. 181, 203 S.E.2d 781 (1974); State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974); State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972); State v. Hill, 276 N.C. 1, 170 S.E.2d 885 (1969). This assignment is overruled.

By his next assignment of error defendant contends that the trial court erred in permitting the solicitor, over defendant's objection, to question him concerning his use of heroin.

On cross-examination, defendant testified without objection: 'I started going under the name of James Jones approximately in 1969 or 1970. It was because someone was after me. I got the James Jones identification in New York. The medical card is for my medical treatment. When you are on welfare you can take that to any doctor to receive medical treatment.' The solicitor, then, over defendant's objection, asked defendant concerning his use of heroin. Defendant answered that he wasn't using heroin at the time of his return to North Carolina in July 1973, and that he never considered himself as having a habit.

As stated in State v. Williams, 279 N.C. 663, 675, 185 S.E.2d 174, 181 (1971): 'It is permissible, for purposes of impeachment, to cross-examine a witness, including the defendant in a criminal case, by asking disparaging questions concerning collateral matters relating to his criminal and degrading conduct. (Citations omitted.) . . .' In this case the questions related to matters within the knowledge of the witness, not to accusations of any kind made by others, and were competent for the purpose of impeachment. See State v. Lowery, 286 N.C. 698, 213 S.E.2d 255 (1975); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972); State v. Ross, 275 N.C. 550, 169 S.E.2d 875 (1969). This assignment is overruled.

The trial court, after reviewing some of the evidence, instructed the jury: '. . . I have not recapitulated all of the evidence in this case. I now instruct you that your verdict should be based on your own recollection of all of the testimony and not just the testimony recapitulated by the court.' Defendant contends that by the quoted sentence the trial court is telling the jury that the court's recollection of the testimony is correct. Although the defendant does not set out what the trial court should have charged, it is noted that prior to the instruction complained of the court also told the jury, '. . . it is your duty to recall all of the evidence as best you can as it relates to each of these cases . . .,' and '. . . (y)our verdict is to be based on your own recollection of the testimony and evidence in each of these cases, not what the District Attorney may have argued to you as the evidence, or the attorney for the defendant, or even the Court, but your verdict should be based on your own recollection of the evidence and testimony in each of these cases.'

In State v. Tyson, 242 N.C. 574, 89 S.E.2d 138 (1955), we approved a similar statement by the trial judge. We hold that this instruction did not constitute expression of opinion but was in strict compliance with G.S. § 1--180.

Defendant further contends, however, that the trial court in recapitulating the evidence misstated the evidence of Eugene Lindsey as to the amount of credits in defendant's bank account and incorrectly stated a part of Detective Parham's testimony. Defendant did not at the time request the court to correct those alleged errors.

Generally, an inadvertence in recapitulating the evidence must be called to the trial court's attention in time for correction and a slight inaccuracy in stating the evidence will not be held reversible error when the matter is not called to the court's attention in apt time to afford opportunity for correction. As stated in State v. Cornelius, 265 N.C. 452, 144 S.E.2d 203 (1965): 'We have repeatedly held that an inadvertence . . . in recapitulating the evidence must be called to the attention of the court in time for correction. After verdict, the objection comes too late. State v. Case, 253 N.C. 130, 116 S.E.2d 429; State v. Holder, 252 N.C. 121, 113 S.E.2d 15; State v. Adams, 245 N.C. 344, 95 S.E.2d 902.' See also 3 Strong, N.C. Index 2d, Criminal Law § 113 (1967). In any event, the alleged errors were...