State v. Watson, 394A83

• Decision Date: 06 March 1984
• Docket Number: No. 394A83,394A83
• Citation: 312 S.E.2d 448,310 N.C. 384
• Parties: STATE of North Carolina v. Richard Eugene WATSON.
• Court: North Carolina Supreme Court

Page 448

312 S.E.2d 448

310 N.C. 384

STATE of North Carolina v. Richard Eugene WATSON.

No. 394A83.

Supreme Court of North Carolina.

March 6, 1984.

Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the state.

Isabel Scott Day, Public Defender, Twenty-Sixth Judicial Dist., Charlotte, for defendant.

MARTIN, Justice.

We begin with a procedural note which we suggest is worthy of consideration by trial counsel in appropriate cases: Prior to the trial of this case, counsel for this defendant submitted the following motion to Judge Snepp:

Now comes Defendant, by and through his counsel, Fritz Y. Mercer, Jr., and Isabel S. Day, and moves the Court to schedule a hearing prior to the trial of this case with regard to whether there is sufficient evidence to support the submission to the jury of the Aggravating Circumstances NCGS 15A-2000(e)(8).

The Defendant shows unto the Court the following:

1. Defendant is charged with the First Degree Murder of Ernest Coleman;

2. In the event of guilty verdict of First Degree Murder, the State intends to request that the Aggravating Circumstance NCGS 15A-2000(e)(8) be submitted to the jury at the sentencing phase for a possible sentence of death;

3. The State contends that only one Aggravating Circumstance is supported by the evidence, NCGS 15A-2000(e)(8);

4. The Defendant contends that such evidence as will be presented by the State, whether at trial or at sentencing, is insufficient as a matter of law to call for the submission to the jury of the Aggravating Circumstances NCGS 15A-2000(e)(8);

5. A pre-trial determination as to whether the evidence supports the applicability of this Aggravating Circumstance is important for the following reason:

If the Aggravating Circumstance is inapplicable, the time-consuming processes peculiar to a capital case--e.g., filing and hearing numerous motions, selecting a "death qualified" jury--will have been avoided.

Therefore, Defendant moves the Court to grant this request for a hearing prior to trial to determine the applicability of NCGS 15A-2000(e)(8).

The pertinent aggravating circumstance is: "The capital felony was committed against a law enforcement officer ... while engaged in the performance of his official duties or because of the exercise of his official duty." N.C.Gen.Stat. § 15A-2000(e)(8) (1983). The able trial judge, finding "under the circumstances of this case, it is in the best interests of justice, the public, and the judicial system, that this be determined prior to trial," ruled that Officer Coleman was not shot by defendant because of the exercise of his official duty and that the case therefore would be tried as a non-capital first degree murder case.

We do not here question or consider the correctness of this ruling. We do commend this procedure for its judicial economy and administrative efficiency.

Defendant raises seven issues on appeal, the first four having to do with the following set of circumstances surrounding this shooting incident: On the day Ernest Coleman was killed, a Mecklenburg County jury had earlier convicted and given a life sentence to the accused killer of another Charlotte police officer. The deaths of these two men had occurred within a seven-month period. Not unexpectedly, during the summer of 1982 local press and media coverage of the Coleman shooting included recitals of the earlier killing, interviews with jurors from the first trial, and general exhortations from the mayor, the police, and the public concerning the need to deal more severely with the problem of "cop-killing."

Based on these factors, counsel for defendant Watson: (1) moved the court to appoint an expert to determine, at state expense, the extent and impact of pretrial publicity about this case in Mecklenburg and adjoining counties; (2) moved the court for a change of venue or in the alternative for a special venire from another county; (3) moved the court at trial to allow counsel to voir dire the prospective jurors individually and to sequester the jurors from the courtroom during the voir dire; and (4) moved at trial for additional peremptory challenges during jury selection.

The trial judge's denial of each of these motions is the subject of defendant's first four arguments on appeal to this Court. We consider each in turn and, for reasons which follow, find no error in the rulings on these motions.

On 19 October 1982, counsel for the defendant filed a motion to appoint Dr. Paul Brandes to conduct the above-mentioned survey of Mecklenburg County and adjoining counties. Dr. Brandes is affiliated with Legal Experimental Consultants in Chapel Hill, a company offering its clients a research service wherein a statistical determination is made of the effects of pretrial publicity on possible juror bias. The trial judge heard evidence and arguments on the motion during that same week, whereupon he denied the motion.

Defendant argues that the services of this expert were essential to the case he would later be making to the trial court for a change of venue in this matter. He further argues that he has a statutory and constitutional right to this assistance. A solvent defendant could have hired Dr. Brandes to aid in the effectiveness of his defense--in this case measuring the effects of the massive pretrial publicity. Defendant concedes that by statute the appointment of experts for an indigent lies within the discretion of the trial judge. In re Moore, 289 N.C. 95, 221 S.E.2d 307 (1976). In this case, he argues, the trial court "abused his discretion in chilling defendant's right to show the extent to which a fair trial was impossible in Mecklenburg County."

We disagree. The relevant statutory provisions are as follows:

N.C.G.S. 7A-454 provides that "[t]he court, in its discretion, may approve a fee for the service of an expert witness who testifies for an indigent person, and shall approve reimbursement for the necessary expenses of counsel. Fees and expenses accrued under this section shall be paid by the State." (Emphasis ours.)

N.C.G.S. 7A-450(b) provides that "[w]henever a person, under the standards and procedures set out in this Subchapter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation." (Emphasis ours.)

This Court has dealt at length with the questions of whether and when an indigent is entitled to the appointment of an expert witness at state expense to assist in his defense. State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976); State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976). In sum, the Court first recognizes that "all defendants in criminal cases shall enjoy the right to effective assistance of counsel and that the State must provide indigent defendants with the basic tools for an adequate trial defense or appeal." State v. Tatum, supra, 291 N.C. at 80, 229 S.E.2d at 566-67. Accord Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). We have held, however, that the state has no constitutional duty to provide an expert witness to assist in the defense of an indigent. State v. Tatum, supra; State v. Gray, supra; accord Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953). This is a question properly left within the sound discretion of the trial judge. State v. Tatum, supra. The applicable rule is that expert assistance need only be provided by the state when the defendant can show it is probable that he will not receive a fair trial without the requested assistance, State v. Craig and State v. Anthony, 308 N.C. 446, 302 S.E.2d 740 (1983), or upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense. State v. Gray, supra. Mere hope or suspicion that favorable evidence is available is not sufficient. State v. Tatum, supra.

We find upon studying the circumstances of this case and details of the proposed Brandes survey that defendant's argument fails in precisely this regard. He had the full opportunity before trial to assemble and document all available data on pretrial publicity in this case and to question each potential juror about exposure to the publicity and any effect this may have had. Defendant has not shown what, if anything, the requested survey would have added to this information. As the trial judge observed at the close of the hearing on this motion, the survey could not demonstrate to his satisfaction how much bias (as opposed to knowledge) remained six or seven months after the summer 1982 media coverage, nor how much of this publicity was even noted by individuals who might later serve as jurors in this trial. We find no abuse of discretion in his refusal to grant this motion.

Nor are we persuaded by defendant's equal protection argument regarding "the fundamental question of equality between the ability of a solvent and indigent defendant to present an effective defense." This Court has responded to this line of reasoning as follows:

The equal protection clause of the Fourteenth Amendment prevents a state from making arbitrary classifications which result in invidious discrimination. It "does not require absolute equality or precisely equal advantages." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 36 L.Ed.2d 16, 93 S.Ct. 1278. In this case the State has imposed no arbitrary barriers which hinder or impede defense counsel's investigation or preparation of his case. There has merely been a refusal to provide defendant with an additional defense tool which is available to wealthier persons accused of crime. It was recognized in Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585, which defendant cites in support of his argument, that this circumstance alone does not amount to a denial of equal protection by ...