State v. Mems, 2

• Decision Date: 31 July 1972
• Docket Number: No. 2,2
• Citation: 190 S.E.2d 164,281 N.C. 658
• Parties: STATE of North Carolina v. Charles E. MEMS.
• Court: North Carolina Supreme Court

Page 164

190 S.E.2d 164

281 N.C. 658

STATE of North Carolina v. Charles E. MEMS.

No. 2.

Supreme Court of North Carolina.

July 31, 1972.

James Godwin Taylor, Asst. Public Defender, for defendant.

LAKE, Justice.

The defendant has argued upon his appeal eight assignments of error. We have considered each carefully and find no merit in any of them. The only one meriting detailed discussion is that the trial judge erred in failing to grant the defendant's motion to suppress the in-court identifications of the defendant by Mrs. Boras and Mrs. Williams.

In his brief, the defendant asserts:

'Under North Carolina law in effect at the time of the present lineup the defendant was clearly, unequivocally entitled to the services of counsel at the lineup. He was guaranteed this right by Article 36 of Chapter 7A of the General Statutes of North Carolina and could not waive this right. The provisions of NCGS 7A--457(a) prohibit his waiver of right to counsel at any critical stage of the proceedings in a capital case. A lineup such as that conducted here is such a critical stage of the proceedings. NCGS 7A--451(b) (1). See STATE v LYNCH, 279 NC 1, 181 SE2d 561 (1971) and STATE v CHANCE, 279 NC 643 (185 SE2d 227) (1971).'

Nothing in the record indicates that in the superior court the defendant relied upon the provision in G.S. § 7A--457(a), 'A waiver shall not be allowed in a capital case.' On the contrary, all the examination on voir dire related only to whether the lineup was impermissibly suggestive and to whether his written waiver of counsel was made with full knowledge of the surrounding circumstances. It was not until the defendant filed his brief in this Court that he advanced the contention that his waiver of counsel at the lineup was ineffective by reason of this provision in G.S. § 7A--457(a). The State, in its brief, asserts that this attack must fail because this provision of the statute is unconstitutional.

The State had no opportunity to attack the constitutionality of this statutory provision in the lower court. Its evidence was admitted by the lower court. There was no contention therein that this provision of the statute made the evidence incompetent. Thus, the State's contention as to its invalidity is not barred from our consideration by the familiar rule to the effect that a question as to the constitutionality of a statute may not be raised for the first time in this Court when the party raising it could have done so in the lower court. See: Lane v. Iowa Mutual Insurance Co., 258 N.C. 318, 128 S.E.2d 398; Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893; Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90; Phillips v. Shaw, Comr. of Revenue, 238 N.C. 518, 78 S.E.2d 314; 16 Am.Jur.2d, Constitutional Law, § 115; 16 C.J.S. Constitutional Law § 96 b. The reason for this rule is that a litigant's failure to make a timely assertion of his constitutional right is deemed a waiver of it. See: Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794; State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778. It has no application where, as here, the statutory provision in question is injected into the litigation for the first time in the appellate court.

The State also contends in its brief that the defendant failed to object to the testimony in question when it was offered before the jury and, therefore, may not now assert that its admission constituted reversible error. If this were correct, we would not reach on this appeal the constitutional question raised by the State, for it is also a well established rule that a statute will not be declared unconstitutional if the appeal can be determined on another ground. State v. Blackwell, 246 N.C. 642, 99 S.E.2d 867; Fox v. Board of Commissioners of Durham, 244 N.C. 497, 94 N.E.2d 842; State v. Jones, 242 N.C. 563, 89 S.E.2d 129; In re Parker, 209 N.C. 693, 184 S.E. 532; 16 Am.Jur.2d, Constitutional Law, § 113.

The admission of incompetent evidence, without objection, is not ground for a new trial, except when use of the evidence is precluded by a statute enacted in furtherance of public policy. Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529; Stansbury, North Carolina Evidence 2d, § 27. We do not now need to determine whether, by reason of G.S. Chapter 7A, Article 36, the testimony of the witnesses here in question falls within the exception to this rule. While there was no objection made at the moment that Mrs. Boras and Mrs. Williams testified before the jury, the record shows clearly that, in the course of the voir dire examination resulting from his objection to a proposed in-court identification of him by Mrs. Machamer, the defendant also brought to the attention of the court his objection to any testimony by Mrs. Boras and Mrs. Williams identifying him as the man seen by them. Thereupon, the voir dire examination was expanded and the court ruled that such testimony would be competent. The defendant excepted. The jury then returned to the courtroom and the testimony was immediately offered and received. While it would have been the better practice for the defendant then to have renewed his objection, we think that, under these circumstances, it was not necessary for him to do so in order to preserve the question for appellate review.

There is nothing in the record to indicate a violation of the defendant's constitutional rights in the admission of this evidence. It is now established that 'a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him,' and the rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, is limited to lineups conducted after 'the onset of formal prosecutorial proceedings.' Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. The lineup here in question was held only two or three hours after the offense was committed. The defendant was in custody 'for investigation of rape,' but no indictment had been returned or even sought, no formal charge had been lodged against him, no warrant had been issued and no preliminary hearing had been set. The lineup was merely a step in the police investigatorial process. All of the evidence compels the finding that there was nothing in the lineup procedure which made it 'unnecessarily suggestive and conducive to irreparable mistaken identification' so as to violate the defendant's rights under the Due Process Clause of the Fifth and Fourteenth Amendments, as construed in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402. Furthermore, the record shows clearly that the defendant, after being given the full warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, with full understanding of his constitutional right to counsel, waived it voluntarily. This he may do. Miranda v. Arizona, supra.

The defendant's assignment of error must, therefore, fail unless it is supported by Article 36, Chapter 7A of the General Statutes. G.S. § 7A--451, which is part of that article, provides that an indigent person is entitled to services of counsel in 'any felony case,' which entitlement begins as soon as feasible after he is taken into custody and 'continues through any critical stage of the action or proceeding, including * * * A Pretrial identification procedure at which the presence of the indigent is required * * *.' (Emphasis added.) G.S. § 7A--452 provides, 'Counsel for an indigent person shall be assigned by the court,' except that a public defender may tentatively assign himself or his assistant to represent an indigent person, subject to subsequent approval by the court. G.S. § 7A--453 provides that if a defendant, taken into custody in a district which has a public defender, 'states that he is indigent and desires counsel, the authority having custody shall immediately inform the defender' who shall make a preliminary determination as to the person's entitlement to his services, and 'proceed accordingly.' G.S. § 7A--457(a), prior to the 1971 Amendment which has no application to this appeal, provided:

'(a) An indigent person who has been informed of his rights under this subchapter may, in writing, waive any right granted by this subchapter, if the court finds of record that at the time of the waiver the indigent person acted with full awareness of his rights and of the consequences of a waiver. In making such a finding, the court shall consider, among other things, such matters as the person's age, education, familiarity with the English language, mental condition, and the complexity of the crime charged. A waiver shall not be allowed in a capital case.' (Emphasis added.)

This was a capital case. The trial court found:

'16. That at the time of his arrest at his home in Fayetteville during the afternoon of March 2, 1971, the defendant was advised of his constitutional rights as required by Miranda.

'17. That after he reached the courthouse in custody of Sheriff's Officers, following his arrest, he was advised that Sheriff's Officers desired to establish a lineup of several men to be viewed by Mrs. Machamer and other witnesses in order that they might determine if they could identify the defendant as a person seen by them earlier that day in the neighborhood of the Machamer mobile home, and that he was entitled to be represented by counsel in connection with the lineup; that if he was unable to employ counsel, counsel would be appointed for him without expense to him; that thereupon the defendant advised the Sheriff's Officer that he wished to have counsel present with him at the time of the lineup;

'18. That Sheriff's Officers agreed to see that legal counsel was furnished to him without expense to him,...