State v. Tolley

• Decision Date: 14 July 1976
• Docket Number: No. 97,97
• Parties: STATE of North Carolina v. Perry Lee TOLLEY.
• Court: North Carolina Supreme Court

Page 353

226 S.E.2d 353

290 N.C. 349

STATE of North Carolina v. Perry Lee TOLLEY.

No. 97.

Supreme Court of North Carolina.

July 14, 1976.

Clarence L. Pemberton, Yanceyville and Melzer A. Morgan, Jr., Reidsville, for defendant-appellant.

Rufus L. Edmisten, Atty. Gen., and Richard L. Griffin, Associate Atty., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

On the day before oral arguments were heard in this case, defendant's appellate counsel filed in the Office of the Clerk of the Supreme Court a written motion to amplify the record on appeal, pursuant to Rules 9(b)(6) and 37(a) of the Rules of Appellate Procedure, to include four documents, marked Exhibits A, B, C, and D, which were attached to said motion. For the reasons which follow, this motion must be disallowed.

We note initially that the portion of defendant's motion containing a recitation of fact is outside the scope of Rule 9(b)(3), which enumerates what the record on appeal in criminal cases shall contain. Moreover, that portion of the motion seeking to bring forward the pretrial orders of confinement and the post-trial order for payment of legal fees (Exhibits A, C and D) are irrelevant to the question whether defendant's motion for a continuance was properly denied. Finally, that portion of the motion referring to a statement by the jury foreman to the trial judge after the jury had been discharged, and the court reporter's affidavit in support thereof (Exhibit B), are improper as an attempt to impeach the verdict with hearsay evidence based upon statements by the jurors themselves. This the law does not permit. See State v. Hollingsworth, 263 N.C. 158, 139 S.E.2d 235 (1964). Defendant's motion to amplify the record on appeal is therefore denied.

The crimes in question were committed on 20 August 1975. Defendant was arrested on 22 August 1975 and a preliminary hearing was held on 19 September 1975. The Grand Jury of Caswell County returned true bills of indictment on 20 and 21 October 1975 charging defendant with rape of Tracy Allen and Karen Davis. Upon arraignment, the State announced that it would seek convictions only for second degree rape.

Prior to arraignment on 21 October 1975, defendant moved for a continuance for that both bills of indictment had been returned within one day of trial. When the motion was denied defendant's counsel stated: 'Your Honor, some of the witnesses for the defendant are across the (State) line and I did not learn that they were not going to be here until this morning. Some of the brothers and sisters of the defendant, they were to be here but they are not here.' The court replied, 'Well, you are going to have to get them here, you have the same bridge to cross later on.'

Following arraignment the cases were consolidated for trial without objection, but defendant renewed his motion for continuance until the December Term and restated the basis for it as follows: 'I have been unable since the witnesses came from Virginia and since the Grand Jury brought in the second charge, I have not had time to see the witnesses. . . .' Defendant's motion was again denied with the following exchange:

'COURT: Of course the Grand Jury brought in one bill yesterday and I don't believe that you will be in any better shape in the December Term than you are now about bringing the witnesses from Virginia.

DEFENSE COUNSEL: I don't know and can't say. We can't subpoena witnesses from Virginia.

COURT: No, sir, that is correct.

DEFENSE COUNSEL: That is the situation that we are in. (Note by appellate counsel--defendant claimed to have two witnesses (women) who were out with him that night.)'

Denial of his motion for a continuance constitutes defendant's first and second assignments of error.

It is settled law that a motion for continuance is ordinarily addressed to the sound discretion of the trial judge whose ruling thereon will not be reviewed absent abuse of discretion. It is equally well settled that if the motion is based on a right guaranteed by the federal or state constitutions, the question presented is one of law, not discretion, and the ruling of the trial court is reviewable on appeal. State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976), and cases therein cited; State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975). Here, defendant contends the trial court's ruling effectively denied him the right to offer testimony and the right to compel the attendance of out-of-state witnesses, thereby denying him 'a fundamental element of due process of law' under both federal and state constitutions. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); 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). The question presented is therefore one of law rather than discretion. State v. Brower, supra; State v. Phillip, 261 N.C. 263, 134 S.E.2d 386, Cert. denied 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964).

Defendant's primary contention appears to be that his motion for continuance was denied under a misapprehension of the law in that the court was unaware of the provisions of G.S. 15A--811 Et seq. (formerly G.S. 8--65), the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings, whereby witnesses residing in other states which have adopted the Act may be summoned to appear in criminal trials in North Carolina. An examination of the record demonstrates the unsoundness of this contention.

The record clearly reflects that the trial judge was not inadvertent to the provisions of G.S. 15A--811 Et seq. On 13 October 1975 he issued certificates pursuant to the provisions of that Act to procure the attendance at trial of three prosecution witnesses who resided in Virginia. Moreover, nothing in the record suggests that defense counsel, before moving for a continuance, had sought the court's assistance in summoning witnesses pursuant to the Act. In fact, it is not clear from counsel's remarks that he desired the court's help in that respect at the time his motion was lodged. In any event, counsel's statements in support of his motion contain no intimation or suggestion that he could not have investigated the case, spoken to defense witnesses, arranged for their appearance in court, and generally prepared the defense during the month between the preliminary hearing and the day of the trial. See State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948); Compare State v. Whisnant, 271 N.C. 736, 157 S.E.2d 545 (1967); State v. Lane, 258 N.C. 349, 128 S.E.2d 389 (1962); State v. Speller, 230 N.C. 345, 53 S.E.2d 294 (1949), Cert. denied 340 U.S. 835, 71 S.Ct. 18, 95 L.Ed. 613 (1950); State v. Farrell, 223 N.C. 321, 26 S.E.2d 322 (1943). Furthermore, the only absent witnesses mentioned were 'some of the brothers and sisters of the defendant.' No names and addresses were furnished the court; no affidavit or other proof was offered in support of the motion for a continuance, See State v. Miller, supra; State v. Flowers, 244 N.C. 77, 92 S.E.2d 447 (1956); State v. Gibson, supra; and, under the circumstances, it may be assumed that absent brothers and sisters, even if present, would not have added significantly to the testimony of defendant's mother and sister who testified in his behalf. G.S. 15A--812 and 813 require a finding that the witnesses sought to be summoned are 'material and necessary.' All things considered, it can hardly be said On this record that the trial court committed prejudicial error amounting to a denial of due process in failing to continue the case so that additional members of defendant's family might be subpoenaed as witnesses for him.

The record is silent as to whether the trial judge was informed when the motion for continuance was made that 'defendant claimed to have two witnesses (women) who were out with him that night.' Defense counsel made no statement that he was attempting to locate the two female witnesses. If such witnesses existed, it would seem that during the month preceding the trial counsel could have procured sufficient information about them to enable him to provide the trial judge, at the time of his motion, with their names and addresses, and inform him of the nature of their testimony. 'A continuance ought to be granted if there is an apparent probability that it will further the ends of justice. Consequently, a postponement is proper if there is a belief that Material evidence will come to light and such belief is reasonably grounded on known facts. But a mere intangible hope that something helpful to a litigant may possibly turn up affords no sufficient basis for delaying a trial to a later term. (Citation omitted)' (Emphasis added) State v. Gibson, supra; Accord, State v. Phillip, supra. Considered in totality, the record before us does not suggest that defendant reasonably believed that Material evidence would be brought to light by a continuance. Rather, the record suggests a natural reluctance to proceed to trial, engendered by the seriousness of the charge and lack of a substantial defense, rather than scarcity of time or absence of bona fide witnesses. See State v. Gibson, supra. In our view, a continuance would not have enabled defendant and his counsel to obtain additional witnesses whose testimony would have provided a stronger defense. Assignments one and two are therefore overruled.

Tracy Lee Allen testified that she and Karen Davis were examined by a doctor on Friday after they were raped on Wednesday; that the doctor was now on vacation but she had the doctor's report. Defendant's objection was sustained, whereupon the district attorney said: 'I am not going to introduce it. I just wanted to show that she went to a doctor.' Defense counsel replied: 'I don't know if it does or not, it is two days late.' By his third assignment of error defendant contends he was prejudiced by the district attorney's reference to the medical report which he knew was...