State v. Sellars

• Decision Date: 16 June 1981
• Docket Number: No. 8015SC991,8015SC991
• Citation: 278 S.E.2d 907,52 N.C.App. 380
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Kelvin Wendell SELLARS.

Page 907

278 S.E.2d 907

52 N.C.App. 380

STATE of North Carolina v. Kelvin Wendell SELLARS.

No. 8015SC991.

Court of Appeals of North Carolina.

June 16, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Donald W. Stephens, Raleigh, for the state.

Paul H. Ridge and James K. Roberson, Graham, for defendant-appellant.

MORRIS, Chief Judge.

The record of this complex case reveals a number of pretrial motions and orders which involved at least seven judges in both Alamance and Chatham counties. Defendant took exception to, and appealed from, the actions of six of these judges. On this appeal, defendant argues twenty-five assignments of error, all of which we have considered.

Pretrial Issues

Defendant raises four questions concerning alleged errors occurring prior to his second trial. The first question involves the failure of the trial court to conduct a probable cause hearing. The record shows that, on 2 January 1979, at defendant's probable cause hearing, the state moved for a continuance which was granted by Alamance County District Court Judge Harris, who set a 4 January 1979 date for the hearing. Judge Harris's order stated as the reason for the continuance the fact that the state was not prepared for the hearing. Later during the day of 2 January 1979, the grand jury of Alamance County returned four indictments against defendant, and, as a result, defendant's probable cause hearing was never held.

Defendant assigns as error the denial of his 17 January 1979 motion to dismiss for failure of the trial court to hold a probable cause hearing prior to his indictment. Similarly, he assigns as error the denial of his post-indictment demand for a probable cause hearing. In support of his assignments of error, defendant refers to G.S. 15A-606(a) and (f):

(a) The judge must schedule a probable-cause hearing unless the defendant waives in writing his right to such hearing....

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(f) Upon a showing of good cause, a scheduled probable-cause hearing may be continued by the district court upon timely motion of the defendant or the State. Except for extraordinary cause, a motion is not timely unless made at least 48 hours prior to the time set for the probable cause hearing.

Defendant argues that he did not waive his right to a probable cause hearing, that the state did not show good cause for the 2 January 1979 continuance of the probable cause hearing, and that the state did not file a timely and proper motion to continue.

The purpose of a probable cause hearing is to determine whether the accused should be discharged or whether sufficient probable cause exists to bind the case over to superior court and to seek an indictment against the defendant. State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978); State v. Cradle, 281 N.C. 198, 188 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed.2d 499 (1972). Section (f) of G.S. 15A-606 is designed to prevent unnecessary delay in the procedure leading to charges or dismissal of charges against a defendant. In light of the purpose of a preliminary hearing and of G.S. 15A-606(f), we can find no prejudicial harm resulting from the decision by Judge Harris to continue the probable cause hearing. We are not here deciding whether the trial court acted properly under the guidelines of G.S. 15A-606(f). That decision is unnecessary since defendant has failed to show that his case was prejudiced in any way by the continuance of the probable cause hearing. Furthermore, as noted in State v. Siler, 292 N.C. 543, 234 S.E.2d 733 (1977), there is a substantial question as to whether the provisions of G.S. 15A-606(f) were designed to provide a defendant with additional rights, rather than to set rules for the orderly and efficient administration of justice. Id. at 555, 234 S.E.2d at 741.

Defendant's post-indictment efforts to have a probable cause hearing were properly unavailing. In State v. Lester, supra, the North Carolina Supreme Court held that G.S. 15A-606(a) requires a probable cause hearing only in situations in which no indictment has been returned by a grand jury. In the present case, therefore, defendant was not entitled to a probable cause hearing after his 2 January 1979 indictments.

We, therefore, hold that the continuance of defendant's probable cause hearing was not prejudicial to him and that his subsequent indictment rendered unnecessary a probable cause hearing.

The second pretrial issue concerns defendant's 12 February 1979 indictment on the charge of armed robbery. The indictment read in part that defendant

unlawfully, wilfully, and feloniously having in his possession and with the use and threatened use of firearms ... whereby the life of (the prosecuting witness) was endangered and threatened, did then and there unlawfully, wilfully, forcibly, violently and feloniously take, steal, and carry away $274.50 while at the Village Motel and.$9.00 from the person of (the prosecuting witness), of the value of $283.50 dollars, from the presence, person place of business, of the Village Motel and (the prosecuting witness).

On 23 February 1979, well over four months before defendant's first trial, defendant made a Motion for Election or Dismissal for Duplicity, alleging that the armed robbery indictment charged defendant with two offenses in violation of G.S. 15A-924. Judge McKinnon, who heard the motion, signed an order dated 12 June 1979, denying defendant's motion and stating in part:

The Court has considered the bill of indictment and the arguments of counsel and is of the opinion that it charges only one charge of armed robbery whereby the personal property of two persons was taken and is of the opinion that no duplicity exists in the bill of indictment....

Defendant assigns as error this order by the trial court, and he argues that the count charged two offenses; that, in fact, defendant could have been charged in two counts with two offenses; and that the state should have been forced to elect between the two offenses.

We do not agree. Defendant was charged with one offense, the armed robbery of the prosecuting witness. The fact that in that robbery defendant obtained money both from the prosecuting witness and the Village Motel does not create separate offenses. Defendant's argument is, therefore, without merit.

The third pretrial issue is related to defendant's arraignment. The record shows that defendant was subjected to two sets of indictments, the first being returned on 2 January 1979, and the second being returned on 12 February 1979. The chief difference in the two sets of indictments is that, in the second set, defendant was charged with first degree rape whereas, in the first set, he had been charged with second degree rape. At defendant's first trial, beginning 16 July 1979, he was arraigned, over his objection, on the second set of indictments. Over his further objections, his trial began on the same day as his arraignment. Eleven months later at his second trial, defendant objected to his being tried upon the arraignment of the first trial, and he argues that the only arraignment properly held for him was the one with respect to the original bills of indictment. He argues then, as he does now, that his arraignment at his first trial had not been calendared pursuant to G.S. 15A-943(a) and that, furthermore, he was tried that same week over his objection and in violation of G.S. 15A-943(b). He cites State v. Shook, 293 N.C. 315, 237 S.E.2d 843 (1977), to support his argument and his conclusion that he is entitled to a new trial.

Defendant's argument is without merit. The G.S. 15A-943(a) requirements for calendaring arraignments apply only to those North Carolina counties "in which there are regularly scheduled 20 or more weeks of trial sessions of superior court at which criminal cases are heard, and in other counties the Chief Justice designates...." We here take judicial notice of the dates and terms of superior court and of the fact that Chatham County is not one of those which, in 1979, held at least 20 weeks of trial sessions involving criminal cases. State v. Shook, supra. Consequently, G.S. 15A-943 does not apply to the facts of this case.

G.S. 15A-944 does apply to defendant's situation. It reads:

In counties other than those described in G.S. 15A-943 the prosecutor may, but is not required to, calendar arraignments in the manner described in that section.

In the present case, therefore, no calendaring of defendant's arraignment was necessary. Furthermore, his trial the week of his arraignment violated no statutory mandate applicable to defendant.

The final pretrial issue raised by defendant involves his right to expert assistance.

Before defendant's first trial in 1979, defendant filed a Motion for Private Investigator and Expert Assistance in which he alleged that the state's inadequate response to his discovery requests necessitated defendant's own investigation. That motion was denied by Judge John Martin on 5 March 1979. In Judge Martin's order, he directed the state to respond to certain of defendant's discovery requests.

On 9 July 1979, defendant filed another Motion for Expert Assistance in which he sought the court's approval of the state's payment of money necessary to secure Dr. Robert Buckhout, "an expert in the area of reliability of eyewitness identification." Judge Battle denied defendant's motion without prejudice to the right of defendant to renew the motion before the judge assigned to defendant's case. On 16 July 1979, prior to defendant's first trial, defendant's Motion for Expert Assistance was again denied, this time by Judge Rouse. Defendant, prior to his second trial, renewed his motion which was denied by Judge Smith. We here consider the question of whether defendant, an indigent, showed the respective courts that the expenses of a private investigator and of Dr. Buckhout were "necessary expenses of...