State v. McNeil
| Decision Date | 15 January 1965 |
| Docket Number | No. 661,661 |
| Citation | 139 S.E.2d 667,263 N.C. 260 |
| Parties | STATE of North Carolina v. Cephus Dixon McNEIL, Nathan Sylvester Waller, James Eugene Waller, Larry Eugene Leak, and Bobby White Ferrell. |
| Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Richard T. Sanders, for the State.
Rudolph L. Edwards, Durham, for defendant Cephus Dixon McNeil.
R. Roy Mitchell, Jr., Durham, for defendant James Eugene Waller.
Anthony M. Brannon, Durham, for defendant Bobby White Ferrell.
When McNeil appealed to the Supreme Court, Judge Copeland found that he was an indigent, and, pursuant to the provisions of G.S. § 15-4.1, appointed Rudolph L. Edwards of the Durham County Bar to prosecute his appeal in the Supreme Court. When Bobby White Ferrell appealed to the Supreme Court, Judge Copeland found that he was an indigent, and, pursuant to the provisions of G.S. § 15-4.1, appointed Anthony M. Brannon of the Durham County Bar to prosecute his appeal in the Supreme Court. Roy R. Mitchell, Jr., has continued his services as counsel for defendant James Eugene Waller in the prosecution of his appeal in the Supreme Court. The case on appeal and the briefs of attorneys for the three appealing defendants have been mimeographed at public expense in the same form as is done by any defendant in this State who is well able financially to prosecute his appeal.
The State's evidence shows these facts: Ben F. Green about 9:30 p. m. on Sunday, 15 March 1964, was preparing to close a grill he operated at 1201 Juniper Street in the city of Durham. He was alone. He turned off all the lights except one. His TV was on. Bobby White Ferrell knocked at the door. He paid him 'no mind.' There is no evidence Ferrell came in the grill or what door he knocked at. Two or three minutes later, he cut off the TV and the remaining light and went out the back door with his pistol in one hand and a pan of dog food in the other. When he got outside, he put his pistol in his pocket and turned round to lock the door. At that time two men, one of whom was Cephus Dixon McNeil, grabbed him from behind. While two men held him, McNeil ran in front of him in the light, and said: 'Get his pocketbook, get his pocketbook,' and grabbed his pistol. Then McNeil said, 'make him hush hollering,' and hit him once or twice with a pistol on the side of his head. He kept tussling and every time he whirled round, McNeil pointed a pistol at him, and looked like he was trying to shoot him, but McNeil was scared he would shoot one of his companions. The men grabbed his pocketbook containing $160, his driver's license and receipts, and ran off. He had known McNeil five or six years, knew his twin brother Clarence, and knew them apart. Three big lights made it bright as day, and McNeil was the one who held the pistol on him. He never told Lt. Haithcock of the Durham Police Force that Ferrell robbed him; he told him Ferrell was there.
The State called as its second witness detective A. L. Hight of the Durham Police Force. Over the objection and exception of Ferrell, the court permitted Hight to testify that defendant Leak, in the presence of two other detectives of the Durham Police Force and of defendant Ferrell and of Clarence McNeil twin brother of defendant McNeil, made the following statement:
The court instructed the jury not to consider this statement against defendants McNeil and James Eugene Waller. The solicitor then asked Hight what Ferrell said about Leak's statement. Hight replied:
'Bobby Ferrell never made any comment to the statement except the fact that he denied it, and he told us that we were the detectives and we could find out the best way we could.'
Then the solicitor asked Hight: 'I ask you whether he ever denied it at that time?' Hight replied:
Detective Hight then testified, without objection, that defendant McNeil on 1 May 1964 made the following statement in the interrogation room in the Police Department in the presence of another police detective:
'[H]e and Larry Leak and James Waller and Nathan Waller, along with Bobby Ferrell, robbed a colored man that operated Green Sport Shop on Juniper Street. Cephus stated to me that they got approximately $75 from the colored man. He stated that they divided the money between the four of them. He stated they each received 18 or 20 dollars each. Cephus said the boy they called 'Hero,' who is Bobby Ferrell.
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'He stated that he didn't, didn't mind confessing to what he had done, that he didn't mind talking to us about it, but that he would rather not sign anything.'
After all the statement had been admitted without objection, defendant McNeil objected to it. Judge Copeland instructed the jury that they should not consider defendant McNeil's statement against the other defendants.
Detective Hight further testified that defendant James Eugene Waller on 7 May 1964 voluntarily came to the Durham Police Headquarters, and voluntarily gave himself up. Hight told him he had been implicated in these robberies by other persons who participated in these robberies, and did he want to make any statement in reference to these robberies he had been implicated in. Hight said he took a few notes as Waller spoke, and these were not signed by Waller. The record then states: 'After more discussion the Court found the 'confession' voluntary and to this the defendant James Eugene Waller excepts and assigns as error No. 1.' The record is as bare of what the 'more discussion' was as old Mother Hubbard's cupboard, when she went to it 'to get her poor dog a bone.' Judge Copeland instructed the jury that they sould not consider Waller's statement against the other defendants, but consider it against Waller alone. Hight then testified that Waller said in effect that he, Larry Leak, Nathan Waller, Cephus MeNeil, and Bobby White Ferrell went to the Green Sport Shop, waited for a while, robbed Mr. Green as he closed, left and then went to Cephus McNeil's house to divide the money.
After Hight had testified, defendant McNeil recalled him for further cross-examination. He testified in substance: They found the shotgun introduced in evidence underneath the garage immediately back of defendant McNeil's house. The informant said it was there, and they went there and found it.
McNeil's first assignment of error is that the trial court did not appoint counsel to represent him at his trial after he had discharged his previously court-appointed counsel, Standish S. Howe.
McNeil was charged in the indictment with the commission of a serious felony in a State court. By virtue of the Fourteenth Amendment to the United States Constitution, he was entitled to representation in the trial court. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733.
Before this trial the superior court judge, recognizing McNeil's constitutional right and acting under the provisions of G.S. § 15-4.1, appointed Standish S. Howe of the Durham County Bar to represent him in the trial court. Howe, according to the unchallenged findings of fact of Judge Copeland, is a graduate of the law school of Duke University, has practiced his profession for the last thirteen years, and is a well-qualified lawyer. In defendant McNeil's brief it is stated that Standish S. Howe's professional competency is not challenged.
Before pleading to the indictment McNeil stated to the court that he did not want Mr. Howe as his lawyer, that he wanted a lawyer but he did not want Mr. Howe, that he had rather have nobody than have Mr. Howe, that he wanted to discharge him. McNeil stated the reason he did not want Mr. Howe as follows:
Before the instant case was argued in the Supreme Court, Rudolph L. Edwards, attorney for defendant McNeil, filed in the Supreme Court a motion suggesting a diminution of the record in order to add thereto an affidavit of Standish S. Howe, McNeil's discharged court-appointed lawyer, and attached to the motion the affidavit. The Attorney General of North Carolina did not resist it, and this Court allowed the motion. Standish S. Howe's sworn affidavit states in substance, except when quoted: He represented the defendant McNeil in two criminal trials in the Durham County superior court. In one of these cases defendant McNeil was tried with four other defendants for armed robbery on 24 March 1964, was convicted and received a sentence of from 20 to 30...
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