State v. Montgomery

• Decision Date: 04 November 1976
• Docket Number: No. 46,46
• Parties: STATE of North Carolina v. John Newman MONTGOMERY.
• Court: North Carolina Supreme Court

Page 572

229 S.E.2d 572

291 N.C. 91

STATE of North Carolina v. John Newman MONTGOMERY.

No. 46.

Supreme Court of North Carolina.

Nov. 4, 1976.

Rufus L. Edmisten, Atty. Gen., by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

D. Blake Yokley, Winston-Salem, for defendant.

LAKE, Justice.

The defendant attacks the judgment of the Superior Court alternatively. First, he contends that he is entitled to a new trial for errors in the admission of evidence, in the instructions of the court to the jury and in the denial of certain pretrial motions. Second, he contends that, if the trial was free from error in these respects, the imposition of the sentence to death was a violation of his rights under the Constitution of the United States.

We find no merit in any of his assignments of error relating to his first contention. Since we are compelled to accept as correct, interpretations placed by the Supreme Court of the United States upon provisions of the United States Constitution and to comply with and to follow its decisions applying those provisions to the statutes of this State, and since that Court, in Woodson v. North Carolina, --- U.S. ---, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), held that the provisions of GS 14--17, imposing the death penalty for murder in the first degree, violate the Constitution of the United States and, so, may not be given effect by the courts of North Carolina, and since the provisions of GS 14--21, imposing the death penalty for the offense of first degree rape, cannot be distinguished, in this respect, from the provisions of GS 14--17, we must hold that there is merit in the defendant's attack upon the death sentence imposed upon him.

We turn first to the assignments of error which the defendant says entitle him to a new trial.

Some two months prior to trial the defendant, through his court appointed counsel, moved that the court appoint, at State expense, a private investigator to assist his counsel. At the pretrial hearing of the motion, the defendant's counsel stated that he had interviewed his client at length and talked with members of the family. He advised the court: '(T)here is extensive investigation that needs to be done in the area of pretrial publicity. There is extensive investigation that needs to be done in other counties in the form of interviewing potential witnesses for the defendant as well as other witnesses who may appear in the case. I don't know what the strategy of the District Attorney will be at this time.'

Eighteen months elapsed between the commission of the offense and the trial. The complete procedure followed in the selection of the jury is set forth in the record on appeal. Nothing therein, or elsewhere in the record, indicates the nature of any pretrial news story about the alleged offense or that the jury panel, or any member of it, was affected by any publicity given to it. The defendant did not exhaust the peremptory challenges allowed him by the law of the State. The defendant, who did not take the stand as a witness in his own behalf, sought to establish an alibi through testimony of his mother, his wife, his brother and a friend. Nothing whatever in the testimony of these witnesses, or elsewhere in the record, suggests the existence of any other person who might have testified that he or she observed the defendant at any place other than the scene of the alleged rape at or about the time when it is alleged to have occurred. The defendant, himself, was obviously the person best prepared to inform his counsel as to his whereabouts at the time in question and as to the identity of any person who might be able or willing to testify in support of his alibi. Nothing whatever in the record suggests the existence of any person who might be able or willing to testify that the alleged offense did not occur, or that it was perpetrated by someone other than the defendant. Consequently, there is nothing to indicate that the employment of an investigator would have been of any assistance whatever to counsel appointed by the court to represent the defendant in this matter.

GS 7A--450(b) provides: 'Whenever a person, under the standards and procedures set out in this subchapter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel And the other necessary expenses of representation. * * *.' (Emphasis added.) This statute has never been construed to extend to the employment of an investigator in the absence of a showing of a reasonable likelihood that such an investigator could discover evidence favorable to the defendant. We docline so to construe it. We do not have before, us, and do not pass upon, the right of an indigent defendant to have such an investigator employed at the expense of the State upon a showing of a reasonable basis for belief that such employment would be productive of evidence favorable to him. See State v. Tatum, N.C., 229 S.E.2d 562, decided this day.

Pursuant to GS 7A--465, the office of 'Public Defender' has been established in five of the 30 judicial districts of this State, Forsyth County not being included in any of these. GS 7A--468 provides: 'Each public defender is entitled to the service of one investigator, to be appointed by the defender to serve at his pleasure. The Administrative Officer of the Courts shall fix the compensation of each investigator, and may authorize additional investigators, fulltime or part-time, upon a showing of need.' Nothing in this statute requires or contemplates the employment or use of an investigator for the purpose of embarking upon a statewide, or worldwide, search for evidence in the absence of any indication whatever that such evidence exists anywhere. We have not been advised of any such use of his investigative staff by any Public Defender in the State.

The contention of the defendant that the refusal of the court to appoint a private investigator to assist his counsel denies him his constitutional right to counsel in violation of the Sixth Amendment to the Constitution of the United States and his constitutional right to equal protection of the laws in violation of the Fourteenth Amendment thereto is without merit.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court of the United States said, '(R)eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.' The court, therefore, held that the right to counsel, guaranteed, as against the Federal government, by the Sixth Amendment to the United States Constitution, was extended by the Fourteenth Amendment to the states.

Clearly, an indigent charged with first degree rape, for which the statutory penalty is death (presently life imprisonment), is entitled to counsel appointed by the court and paid by the State. GS 7A--450(b) so provides. In recognition of this constitutional and statutory right, counsel was appointed for this defendant and diligently represented him at the trial and in this Court. It does not follow that, without any showing of a reasonable basis for believing that substantial benefit to the defendant would result therefrom, the State must also appoint, at its expense, a private investigator for use of such appointed counsel. Our attention has been directed to no decision of the Supreme Court of the United States so indicating and we decline so to hold. The Equal Protection Clause does not compel the waste of the public's money in Forsyth County merely because it is theoretically possible that some public defender in another judicial district may be extravagant in his use of investigators appointed to assist him, nor is this required merely because some wealthy person accused of a crime may see fit to spend his own money in extravagant and unpromising investigation.

The defendant, by his plea of not guilty, puts in issue all material elements of the State's case. However, where, as here, the defendant seeks to establish an alibi, the crucial question is that of identification of the defendant as the perpetrator of the alleged offense. In the present case, the in-court identification of the defendant as the perpetrator of the alleged rape was clear and positive by each of the three witnesses present at and shortly before the commission of the offense. Their testimony was corroborated, and the defendant's effort to establish an alibi was dealt a staggering blow, by the positive in-court identification of the defendant by Mr. Warner as the driver of the automobile parked in the close vicinity of the alleged crime at approximately the time the State contends it was committed and traced by the officers to the defendant's then place of abode. The defendant contends that each of these in-court identifications was improperly admitted in evidence. We find no merit in the these contentions.

As to the identification of the defendant by the victim of the alleged rape and by her two young companions, the defendant contends that these were based upon unlawful out-of-court photographic identification. The first picture so observed by these three witnesses was the composite picture of the assailant prepared by Detective Barker in collaboration with the victim of the alleged attack. She, not the detective, selected the plastic components (eyes, hair, nose, ears, lips, etc.) which went into the basic composite picture and then, from her recollection of the appearance of her assailant, directed the detective in the drawing in of details necessary to make the final product represent her recollection of the appearance of the man who raped her. The two boys, seeing the final result, agreed that it properly portrayed the man with whom they had conversed and walked from the churchyard to a point near the place of the alleged crime. At this stage,...