State v. Sams

• Decision Date: 02 July 1986
• Docket Number: No. 173A85,173A85
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Wesley Addison SAMS.

Page 179

345 S.E.2d 179

317 N.C. 230

STATE of North Carolina v. Wesley Addison SAMS.

No. 173A85.

Supreme Court of North Carolina.

July 2, 1986.

Lacy H. Thornburg, Atty. Gen. by Ralf F. Haskell, Sp. Deputy Atty. Gen., Raleigh, for State.

Charles T. Browne, Asheboro, for defendant-appellant.

FRYE, Justice.

Defendant brings six assignments of error before this Court. The first concerns the Speedy Trial Act; the second, the sufficiency of the evidence; the third and fourth, the trial judge's acts in sustaining two of the prosecutor's objections; and the last two, jury instructions. After considering each of these assignments, we find no reversible error.

The facts underlying this case are bizarre. Around 10:00 p.m. on 28 February 1979, the Randolph County Sheriff's Department was called to the home of the victim, defendant's brother-in-law. The deputies found him lying on the floor of his living room beside a sliding glass door with broken glass. There were what appeared to be powder burns on his body. A shotgun lay nearby. The deceased's widow told the deputies that her husband had taken his shotgun outside to investigate noise made by his chickens, some of which were kept for fighting. Upon hearing a shot and a cry, she rushed into the living room and found the victim on the floor. Before he died, he told her and her son that he had fallen and shot himself in the process. The deputies subsequently found a break in the chain-link fence around the property and, nearby, a pair of bolt cutters and a ski mask. The authorities concluded that deceased had died as the result of an accidental self-inflicted wound.

As a result of new information, law enforcement officials exhumed deceased's body in 1983 and sent it to the office of the Chief Medical Examiner in Chapel Hill. The autopsy revealed that deceased's wounds were consistent with those caused by a rifle, and not a shotgun. The authorities arrested one Steven Luther Douglas, also under investigation for other charges, and charged him with first-degree murder. In early 1984, Douglas offered information in return for plea bargain arrangements. Douglas told the police that defendant had hired him to kill the deceased, and that he had done so with a .30-30 rifle and had been paid $5,000 for the job. Douglas had a long criminal history, with four other murders, about twenty-five robberies and kidnappings, and various assaults and other crimes to his credit. Douglas testified for the State at defendant's trial in return for a life sentence to be served concurrently with two life sentences for his other murders.

Defendant was arrested on 24 and 25 April 1984, pursuant to warrants charging him with being an accessory before the fact to murder and with conspiracy to commit murder. On 30 April 1984, the grand jury returned bills of indictment for both offenses. Defendant and his sister, the victim's widow, were tried together at the 22 October 1984 Criminal Session of Superior Court, Randolph County, before Seay, J. At the close of the State's evidence, the trial judge dismissed the charges against the widow. Defendant then elected not to put on any evidence in his own behalf. The jury found him guilty of both offenses, and the trial judge sentenced him to life imprisonment for being an accessory before the fact to murder and ten years for conspiracy to commit murder. Defendant appealed his life sentence to this Court. His motion to bypass the Court of Appeals on his appeal of his conviction for conspiracy was allowed 8 April 1985.

I.

As his first assignment of error, defendant argues that the trial judge erred in denying his motion to dismiss for failure of the State to try him within the limits fixed by the Speedy Trial Act, N.C.G.S. § 15A-701.

The Speedy Trial Act requires the State to try a defendant charged with a felony within 120 days from the date the defendant is arrested, served with criminal process, waives indictment or is indicted, whichever occurs last, unless that time is extended by certain specified events. N.C.G.S. § 15A-701 (1983 and Cum.Supp.1985). In defendant's case, the starting date was the date of his indictment, 30 April 1984. His trial did not begin until 23 October 1984, 176 days later. Unless at least 56 of the days between defendant's indictment and his trial are excludable from computation for one of the statutory reasons, the trial judge should have granted defendant's motion.

While the burden of proof on this question remains with the defendant, the State bears the burden of going forward with evidence to show that time should be excluded. N.C.G.S. § 15A-703 (1983). Defendant's motion to dismiss was heard when his case was called for trial on 22 October 1984. At that time, the State produced an order signed by Beatty, J., granting a continuance from 23 August 1984 until 22 October 1984 and directing that this time be excluded under the Speedy Trial Act. The Speedy Trial Act allows delays resulting from a continuance to toll the running of time under the Act "if the judge granting the continuance finds that the ends of justice served by granting the continuance outweigh the best interests of the public and the defendant in a speedy trial and sets forth in writing ... the reasons for so finding." N.C.G.S. § 15A-701(b)(7) (Cum.Supp.1985). This subsection also requires that motions for such a continuance be in writing. Id.

Here, the requirements of the Speedy Trial Act were met. The State's motion for a continuance was in writing. Judge Beatty's order contains the mandatory finding about the ends of justice and sets forth two reasons for granting the continuance: the temporary unavailability of a witness and the inability of the judge assigned to the intervening terms to try the case.

However, defendant argues that Judge Seay should not have excluded the time covered by Judge Beatty's order for continuance because that order was ex parte. N.C.G.S. § 15A-951 (1983) requires written motions to be served upon the opposing party and proof of service filed with the court. Defendant introduced uncontradicted evidence that the State's motion for continuance was never served upon either the defendant or his attorney, and that although both had been in court for a hearing on defendant's motion to reduce bond on the date that appears on Judge Beatty's order, neither knew anything about the order. No return of service appeared in the file.

Thus, the question before this Court is whether Judge Seay should have disregarded Judge Beatty's order. We note initially that this question is the only one before this Court. Although defendant argues that one of the reasons given in Judge Beatty's order, that an essential witness was unavailable within the meaning of N.C.G.S. § 15A-701(b)(3), was an erroneous conclusion of law, and that Judge Beatty abused his discretion in granting the order, defendant took no exception to Judge Beatty's order. He has therefore failed to preserve any error or mistake of law found therein for appellate review. N.C.R.App. P. 10(a). We note further that Judge Seay could not have given defendant relief for either alleged error. See Calloway v. Motor Co., 281 N.C. 496, 189 S.E.2d 484 (1972) ("The well established rule in North Carolina is that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law ..."). Judge Seay had the power to grant relief only if Judge Beatty's order was either void or voidable.

An order is void ab initio only when it is issued by a court that does not have jurisdiction. Such an order is a nullity and may be attacked either directly or collaterally, or may simply be ignored. Manufacturing Co. v. Union, 20 N.C.App. 544, 202 S.E.2d 309, cert. denied, 285 N.C. 234, 204 S.E.2d 24 (1974) (consent order issued without the parties' consent would be void); see also State v. Boone, 310 N.C. 284, 311 S.E.2d 552 (1984) (pretrial order denying suppression motion was a nullity where signed and entered out of session, out of county, and out of district); Stroupe v. Stroupe, 301 N.C. 656, 273 S.E.2d 434 (1981) (order directing husband to pay wife's attorney's fees was void where the judge had not been assigned to preside over a session of court in the county on that date and was not authorized to hear motions and enter interlocutory orders on that date); Pifer v. Pifer, 31 N.C.App. 486, 229 S.E.2d 700 (1976) (judge had no jurisdiction under URESA to condition child support payments on visitation rights; order was therefore void); accord, Lumber Co. v. West, 247 N.C. 699, 102 S.E.2d 248 (1958); Windham Distributing Co. v. Davis, 72 N.C.App. 179, 323 S.E.2d 506 (1984), cert. denied, 313 N.C. 613, 330 S.E.2d 617 (1985) ("a judgment is not void 'if the court had jurisdiction over the parties and the subject matter and had authority to render the judgment entered' ").

In contrast, a voidable order stands until it is corrected. It may only be corrected by a direct attack; it may not be attacked collaterally. An irregular order, one issued contrary to the method of practice and procedure established by law, is voidable. Manufacturing Co. v. Union, 20 N.C.App. 544, 202 S.E.2d 309, cert. denied, 285 N.C. 234, 204 S.E.2d 24. Accord, Menzel v. Menzel, 250 N.C. 649, 110 S.E.2d 333 (1959), and Lumber Co. v. West, 247 N.C. 699, 102 S.E.2d 248 (1958).

An order issued without notice where actual notice is required is irregular and thus voidable, but it is not void. It stands until set aside by a motion to vacate. See Collins v. Highway Commission, 237 N.C. 277, 74 S.E.2d 709 (1953). Upon receipt of such a motion, the court may declare the order void. Id. See also Hagins v. Redevelopment Commission, 275 N.C. 90, 165 S.E.2d 490 (1969); Pask v. Corbitt, 28 N.C.App. 100, 220 S.E.2d 378 (1975).

Because N.C.G.S. § 15A-951 requires actual notice by service of process where, as here, a motion is written, Judge Beatty's ex parte order of continuance may...