State v. Spicer

• Decision Date: 01 February 1980
• Docket Number: No. 120,120
• Citation: 261 S.E.2d 893,299 N.C. 309
• Parties: STATE of North Carolina v. Christopher SPICER.
• Court: North Carolina Supreme Court

Page 893

261 S.E.2d 893

299 N.C. 309

STATE of North Carolina v. Christopher SPICER.

No. 120.

Supreme Court of North Carolina.

Feb. 1, 1980.

Ernest B. Fullwood, Wilmington, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard L. Griffin, Raleigh, for the State.

COPELAND, Justice.

Defendant's first argument is that he was denied due process of law when the trial judge refused to grant him an evidentiary hearing upon his motion to dismiss all of the charges. He also maintains that the right to such an evidentiary hearing is inherent in G.S. 15A-954. Defendant's contentions are without merit. In order to discuss defendant's due process and statutory claims, it is necessary to examine the underlying claim upon which defendant sought an evidentiary hearing.

Defendant stated that the district attorney's office in the Fifth District has established a policy of not prosecuting any defendant when the prosecuting witness has indicated that he or she does not desire to have the case prosecuted. Defendant obtained affidavits from Nixon, Rowell and Williams that they had received restitution and did not desire to prosecute any of the charges against the defendant. Defendant obtained an affidavit from McRae that he did not wish to testify or be involved in the case in any manner whatsoever and he desired that all charges be dropped. The district attorney refused to drop the charges.

Defendant filed a motion seeking to have the trial judge dismiss all of the charges. He contends that singling him out for prosecution when other members of the same class of people similarly situated (the class consisting of all defendants with felony charges brought against them in which the prosecuting witness no longer desired to prosecute) is a denial of his Fourteenth Amendment right to the equal protection of the laws. Defendant's attorney was heard on this motion. At this hearing, he requested a full evidentiary hearing at which he could present his proof that he had been denied equal protection of the laws. The trial judge denied his motion to dismiss and denied his request for an evidentiary hearing.

District attorneys have wide discretion in performing the duties of their office. This encompasses the discretion to decide who will or will not be prosecuted. In making such decisions, district attorneys must weigh many factors such as "the likelihood of successful prosecution, the social value of obtaining a conviction as against the time and expense to the State, and his own sense of justice in the particular case." Comment, The Right to Nondiscriminatory Enforcement of State Penal Laws, 61 Columbia L.Rev. 1103, 1119 (1961). The proper exercise of his broad discretion in his consideration of factors which relate to the administration of criminal justice aid tremendously in achieving the goal of fair and effective administration of the criminal justice system.

Of course, the district attorney may not, during the exercise of his discretion, transcend the boundaries of the Fourteenth Amendment's guarantee of equal protection. The equal protection clause is not limited to the enactment of fair and impartial legislation, State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972), but also extends to the Application of those laws by administrative officials, Yick Wo v. Hopkins 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and district attorneys, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

In the case Sub judice, defense counsel produced statistics tending to show that other defendants had charges dismissed when the prosecuting witness so desired. Standing alone, these statistics simply show that the district attorney has in fact exercised his discretion. If these statistics alone were enough to establish a denial of equal protection, then a mandatory rule would be created requiring the district attorney to dismiss charges in all cases where the prosecuting witness so desired and there would be no discretion in this area. Defense counsel could not even state that All other such cases had been dismissed while this one had not. He stated at the hearing on the motion that he had been informed by the district attorney's office that there were "some cases . . . which prosecuting witnesses had asked that they be dismissed which were not dismissed." However, he added that all such cases that he had seen had been dismissed.

Even if all other cases had been dismissed, defendant has still not sufficiently alleged a denial of equal protection. A defendant must show more than simply that discretion has been exercised in the application of a law resulting in unequal treatment among individuals. He must show that in the exercise of that discretion there has been intentional or deliberate discrimination by design. Oyler v. Boles, supra; Edelman v. California, 344 U.S. 357, 73 S.Ct. 293, 97 L.Ed. 387 (1953); Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154 (1918).

The facts of Oyler v. Boles, supra, are strikingly similar to the facts here. In Oyler, the defendant produced statistical evidence showing that from January, 1940 to June, 1955, he was the only person prosecuted as a habitual offender in Taylor County, West Virginia. Five other defendants who could have been prosecuted as habitual offenders were not so prosecuted. The United States Supreme Court held:

"Thus petitioners' contention is that the habitual criminal statute imposes a mandatory duty on the prosecuting authorities to seek the severer penalty against all persons coming within the statutory standards but that it is done only in a minority of cases. This, petitioners argue, denies equal protection to those persons against whom the heavier penalty is enforced. . . . This does not deny equal protection due petitioners under the Fourteenth Amendment. See Sanders v. Waters, 199 F.2d 317 (CA 10th Cir. 1952); State (Oregon) v. Hicks, 213 Or. 619, 325 P.2d 794 (1958).

Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. " Oyler v. Boles, supra 368 U.S. at 455-56, 82 S.Ct. at 505-06, 7 L.Ed.2d at 452-53.

Here, defendant's statistical evidence was insufficient to allege a denial of equal protection. He presented no evidence that he was subjected to any intentional or deliberate discrimination upon any unjustifiable standard. State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979); State v. Rudolph, 39 N.C.App. 293, 250 S.E.2d 318, Cert. denied, 297 N.C. 179, 254 S.E.2d 40 (1979); New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979).

The hearing afforded the defendant in this case met the requirements of due process and the right to a full evidentiary hearing is not inherent in G.S. 15A-954.

G.S. 15A-954 provides that the charges shall be dismissed on a motion by the defendant when it is determined that the statute alleged to have been violated is unconstitutional as applied to him. Defendant is certainly entitled to be heard on this motion and he received a hearing in this case.

At this hearing, defense counsel argued his legal points and read into the record the names of seven cases that arose during 1977, 1978 and 1979 in which the district attorney's office had dismissed the charges when the prosecuting witness stated that they no longer desired to have the case prosecuted. His request for a full evidentiary hearing was properly denied.

Such hearings would inevitably lead to having the district attorney take the stand to be cross-examined concerning his motive and purpose in prosecuting the case. When a defendant has alleged intentional discrimination he must have substantial evidence that it existed or no evidentiary hearing will be allowed. United States v. Baechler, 509 F.2d 13 (4th Cir. 1974), Cert. denied, 421 U.S. 993, 95 S.Ct. 2000, 44 L.Ed.2d 483 (1975); See, State v. Cherry, supra. A fortiori, no evidentiary hearing will be allowed when defendant has not even sufficiently alleged a denial of equal protection or produced any evidence of intentional discrimination. This assignment of error is overruled.

Defendant's second argument is that his cross-examination of the state's witnesses was improperly restricted. He maintains that questions that would have impeached the credibility of the witnesses and would have shown bias against the defendant were improperly excluded by the trial judge.

Defense counsel failed to have the answers of the witnesses placed in the record so that we would know what the answers to those questions would have been. This failure is sufficient grounds upon which to overrule this assignment of error. State v. Curry, 288 N.C. 660, 220 S.E.2d 545 (1975); State v. Felton, 283 N.C. 368, 196 S.E.2d 239 (1973). In any event, it is clear from the arguments made in defendant's brief that the excluded testimony would not have shown bias against the defendant or that the witnesses may have been testifying untruthfully for the State. Indeed, the evidence shows the opposite. The witnesses desired to have all of the charges dropped and were very reluctant to testify for the State. We fail to see how this evidence would have impeached the credibility of these witnesses to the benefit of the defendant or would have shown that they were biased against the defendant.

Also, it is apparent from the record that the substance of this information was in fact placed into evidence. Witness Green testified that an order for his arrest was issued and he was told that if he did not attend the trial and testify he would be arrested. His affidavit that he wanted...