State v. Parton, 81

• Decision Date: 05 May 1981
• Docket Number: No. 81,81
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Danny Allen PARTON.

Page 410

277 S.E.2d 410

303 N.C. 55

STATE of North Carolina v. Danny Allen PARTON.

No. 81.

Supreme Court of North Carolina.

May 5, 1981.

Charles E. Burgin, Marion, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the State.

COPELAND, Justice.

Defendant argues eleven assignments of error on appeal. We have carefully considered each assignment and conclude that the trial court committed no error which would entitle defendant to a new trial.

Defendant first contends that the trial court erred in denying defendant's motion to participate as co-counsel at his trial, in violation of his constitutional right to represent himself. It has been established that the sixth amendment to the United States Constitution, made applicable to the states by the due process clause of the fourteenth amendment, guarantees the accused in a state criminal action the right to proceed without counsel and represent himself at trial when he voluntarily and knowingly elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976); State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972). Defendant urges us to interpret the holding of the United States Supreme Court in Faretta v. California, supra, as establishing not only the right to represent oneself in a criminal action, but also as establishing the right of an accused to represent himself as co-counsel with an attorney. This Court has previously held in State v. House, supra, that the Faretta decision extends only to an accused's right to forego all assistance of counsel and does not create a right to be simultaneously represented by himself and an attorney. It has long been established in this jurisdiction that a party has the right to appear in propria persona or, in the alternative, by counsel. There is no right to appear both in propria persona and by counsel. G.S. 1-11; G.S. 15A-1242; State v. Phillip, 261 N.C. 263, 134 S.E.2d 386 (1964); New Hanover County v. Sidbury, 225 N.C. 679, 36 S.E.2d 242 (1945); McClamroch v. Colonial Ice Co., 217 N.C. 106, 6 S.E.2d 850 (1940). See also U. S. v. Lang, 527 F.2d 1264 (4th Cir. 1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1127, 47 L.Ed.2d 328 (1976); Moorefield v. Garrison, 464 F.Supp. 892 (W.D.N.C.1979). The vast majority of jurisdictions which have interpreted the Faretta decision have also refused to extend the holding to include a sixth amendment right for an accused to serve as co-counsel with his attorney. United States v. Daniels, 572 F.2d 535 (5th Cir. 1978); United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); United States v. Cyphers, 556 F.2d 630 (2d Cir. 1977), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977); People v. Wheeler, 68 Cal.App.3d 1056, 137 Cal.Rptr. 791 (1977); People v. Culhane, 45 N.Y.2d 757, 408 N.Y.S.2d 489, 380 N.E.2d 315 (1978), cert. denied, 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706 (1979). Consequently, we find that since defendant in this case elected to retain the services of his court-appointed attorney, the trial court properly denied defendant's motion to participate as co-counsel at the trial, and defendant's allegations to the contrary are without merit.

By his second assignment of error, defendant argues that the trial court violated his constitutional right to due process in denying his motion for change of venue on the ground of prejudicial pretrial publicity. Defendant complains that several articles appearing in The McDowell News over the period from 20 July 1979 to 20 August 1979 gave such biased and inflammatory accounts of the events surrounding the offenses of which he was charged that it was impossible for him to obtain a fair trial by an impartial jury in McDowell County. Defendant notes as particularly inflammatory the newspaper's continued reference to the fact that the bodies of Kathy Mosley and Kathryn Carnes were found in shallow graves, the possibility that defendant killed as many as eight women, and the fact that police were engaged in searches for the six additional bodies.

A motion for change of venue is addressed to the sound discretion of the trial judge and the ruling thereon will not be disturbed on appeal absent an abuse of that discretion. State v. Faircloth, 297 N.C. 101, 253 S.E.2d 890 (1979); State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1046, 59 L.Ed.2d 90 (1979); State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S.Ct. 3212, 49 L.Ed.2d 1211 (1976). The burden is on the defendant to show that the pretrial publicity was so prejudicial that he could not obtain a fair trial in the county in which the offense was committed. State v. Faircloth, supra; State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). We find that defendant in this case failed to meet his burden to show that he could not obtain a fair trial in McDowell County, and the trial judge did not abuse his discretion in denying defendant's motion for change of venue.

The newspaper articles at issue were factual accounts of defendant's confessed actions and the evidence uncovered by the law enforcement officials investigating the crimes. None of the articles seem calculated to inflame the public. Defendant himself initially confessed to having murdered eight women and having buried their bodies in shallow graves in a secluded wooded area of McDowell County. He cannot complain that the newspaper chose to print the contents of his confession and the facts of the subsequent police investigation. The newspaper's coverage was within the bounds of propriety and no more inflammatory or prejudicial than any coverage likely to be found in any jurisdiction to which the trial might be moved. See State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). In addition, we note that the record of the proceedings below fails to show that defendant exhausted his peremptory challenges during the selection of the jury, or that defendant was forced to accept any juror which he found objectionable. There is nothing to indicate that any juror held an opinion prior to the trial that would prevent him or her from acting in an impartial manner. Under such circumstances we have held that a defendant has failed to show that he was prejudiced by pretrial publicity. State v. Tilley, supra; State v. Brower, supra; State v. Harrill, supra. The trial judge committed no prejudicial error in denying defendant's motion for change of venue, and defendant's assignment of error is overruled.

Defendant next argues that the trial court erred in delaying until trial its decision on defendant's motion to require the State to elect which of the first degree murder charges against defendant to first call for trial. Defendant initially moved to require the State to elect on 17 October 1979. The trial court deferred ruling on the motion until defendant's arraignment on 23 October 1979, at which time defendant again moved that the State be required to elect which of the capital cases would be first called to trial. The State advised the Court that it intended to try both murder charges at the 3 December 1979 Criminal Session of Superior Court in McDowell County, but did not indicate which of the charges it would call first. The State also moved at this time to consolidate the two charges for trial. The trial court held a hearing on the State's motion to consolidate on 29 November 1979, at which time the trial judge informed defendant's counsel that he should be prepared to try both cases at the opening of court on 3 December 1979. The State's motion to consolidate the two murder charges was granted 3 December 1979.

Defendant claims that the trial court's delay in ruling on his motion to require the State to elect deprived him of an opportunity to adequately prepare his defense on either charge. We disagree. The State repeatedly informed defendant that it intended to call both murder charges to trial during the 3 December 1979 session of court. After the State filed its motion to consolidate the two charges on 23 October 1979, defendant was aware of the possibility that both charges would be called to trial on 3 December 1979 and should have been prepared for that eventuality. In addition, the trial judge clearly warned defendant three days before trial that he should be prepared to defend either charge, or both, at the opening of the court session. Consequently, we hold that the trial court in this case committed no prejudicial error in delaying its ruling on defendant's motion to elect until the time of trial.

By his fourth and tenth assignments of error defendant maintains that the trial court erred in granting the State's motion to consolidate the two murder charges for trial and in denying defendant's motion for mistrial on the ground that the charges were improperly consolidated. G.S. 15A-926(a) authorizes the consolidation of charges and provides as follows:

"Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan."

This Court has repeatedly held that in deciding whether two or more offenses should be joined for trial, the trial court must determine whether the offenses are "so separate in time and place and so distinct in circumstances as to render the consolidation unjust and prejudicial to defendant." State v. Johnson, 280 N.C. 700, 704, 187 S.E.2d 98, 101 (1972). Thus, there must be some type of "transactional connection" between the offenses consolidated for trial. State v. Powell, 297 N.C. 419, 255 S.E.2d 154 (1979); State v. Greene,...