State v. Wells

• Decision Date: 14 July 1976
• Docket Number: No. 55,55
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Kelvin Keith WELLS.

Page 325

226 S.E.2d 325

290 N.C. 485

STATE of North Carolina v. Kelvin Keith WELLS.

No. 55.

Supreme Court of North Carolina.

July 14, 1976.

Certiorari Denied Oct. 3, 1997.

White & Crumpler by Fred G. Crumpler, Jr., and Melvin F. Wright, Jr., Winston-Salem, for defendant appellant.

Rufus L. Edmisten, Atty. Gen., William H. Boone, Associate Atty., and Myron C. Banks, Special Deputy Atty. Gen., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

Upon the call of this case defendant and his witnesses were present and ready for trial. The prosecuting witness had not been notified the case was calendared for trial that day and was not in court. The trial court issued an instanter subpoena to require her presence. She was brought into court and the trial proceeded. At the end of the first day of the trial, defense witness Willie Lee Mackie was on the witness stand and had been examined and cross-examined. The court recessed for the day, and when it reconvened at 9:30 a.m. the following morning, Mackie was not present. Defendant was ordered to proceed with his other witnesses. He examined two witnesses and then, after a 38-minute recess to wait for Mackie and Davida Dunca to arrive, the State recalled Officer Lawson in rebuttal and examined him. Defendant himself then took the stand and offered rebuttal evidence. Willie Lee Mackie never returned to court and was unavailable for further question on redirect examination. Davida Duncan never returned. Neither of these witnesses was under subpoena and neither had been excused. Failure of the court to issue an instanter subpoena for these witnesses or to declare a mistrial is the basis for defendant's first assignment of error. He contends he has been denied his Sixth Amendment right 'to have compulsory process for obtaining Witnesses in his favor.' He further contends that he was denied equal protection of the laws when the court issued an instanter subpoena for the prosecuting witness but refused to exercise the same power on behalf of the defendant.

The right of an accused to reasonable notice of a charge against him and an opportunity to be heard in his defense are basic rights and include, as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). The right of an accused to offer the testimony of witnesses and to compel their attendance by compulsory process, if necessary, is a basic ingredient of the right to present a defense, I.e., the right to present the defendant's version of the facts, as opposed to the prosecution's, so the jury may decide where the truth lies. 'Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.' Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Since defendant's right to compulsory process to compel the attendance of witnesses is not debatable, the question remains whether such right was violated under the circumstances of this case.

The record before us reflects that defendant's two alibi witnesses, Willie Lee Mackie and Davida Duncan, were present in court on 3 December 1975--the first day of the trial. Although both were important witnesses, neither had been subpoenaed. A subpoena for the purpose of obtaining the testimony of a witness in a pending cause, criminal or civil, Must be issued by the clerk of superior court for the county in which the trial is to be held at the request of any party. In fact, such subpoena may be issued (1) by the clerk, (2) by any judge of the superior court, judge of the district court, or magistrate, or (3) By the party or hia attorney. G.S. 8--59; GS. 1A--1, Rule 45, Rules of Civil Procedure. Every witness under subpoena in a criminal prosecution must continue to attend from day to day and from session to session until discharged by the court, the prosecuting officer, or the party at whose instance he was summoned, and in default thereof shall forfeit and pay $80.00 for the use of the State or the party summoning him. G.S. 8--63. When witnesses are not under subpoena, no penalty is prescribed for failure to attend; and their absence places no obligation upon the trial judge to subpoena them.

We said in State v. Graves, 251 N.C. 550, 112 S.E.2d 85 (1960): 'We do not suggest that an accused may be lsee than diligent in his own behalf in preparing for trial. He may not place the burden on the officers of the law and the court to see that he procures the attendance of witnesses and makes preparation for his defense. But the officers and the court have a duty to see that he has Opportunity for so doing.' (Emphasis added) Here, defendant's lack of diligence in placing his witnesses under subpoena when he had ample opportunity to do so, thus requiring their attendance from day to day, forestalls his belated attempt to place responsibility on the trial judge for their absence. Willie Lee Mackie had been examined and cross-examined already. What additional favorable testimony defendant sought to elicit from him is not shown. Nor does the record reflect what evidence Davida Duncan would have given. Moreover, the record in silent as to why these witnesses were absent on the second day of the trial. It could be that no one told them to return. Viewing the circumstances in their totality, we hold that defendant's rights under the Sixth and Fourteenth Amendments were neither denied nor abridged by the actions of the trial court. Defendant's first assignment of error is overruled.

Defendant's second assignment of error is based on the trial court's definition of reasonable doubt. He defined it as follows:

'A reasonable foubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented or the lack or insufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt.'

Absent request, the trial court is not required to define reasonable doubt, but if it undertakes to do so, the definition must be substantially correct. State v. Shepherd, 288 N.C. 346, 218 S.E.2d 176 (1975).

We think the court's definition of reasonable doubt is substantially correct and accords with the more elaborate definitions approved by this Court in many cases. See State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975); State v. Flippin, 280 N.C. 682, 186 S.E.2d 917 (1972); State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970); State v. Britt, 270 N.C. 416, 154 S.E.2d 519 (1967); State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954); State v. Steele, 190 N.C. 506, 130 S.E. 308 (1925); State v. Schoolfield, 184 N.C. 721, 114 S.E. 466 (1922). When the various definitions of reasonable doubt, approved in numerous decisions, are distilled and analyzed, the true meaning of the term is adequately expressed in the brief definition here assigned as error. Brevity makes for clarity and we think the jury fully understood the meaning of reasonable doubt as that term is employed in the administration of the criminal laws. Defendant's second assignment is overruled.

Defendant contends the trial court erred in its definition of rape and in failing to explain the difference between rape, assault with intent to commit rape and simple assault. This constitutes defendant's third assignment of error.

The court defined rape as 'forcible sexual intercourse with a woman against her will.' We find no fault with this definition. In State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969), we said: 'Rape is the carnal knowledge of a female person by force and against her will.' The challenged definition is synonymous with this one. The meaning is the same.

Moreover, the trial judge was not required to delineate the difference between rape, assault with intent to commit rape, and simple assault. Defendant was not charged with rape. Rather, he was charged with burglary in the first degree--breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein, i.e., the felony of rape. Felonious intent is an essential element of the burglary which the State must allege and prove, 'and the felonious intent proven, must be the felonious intent alleged . . ..' State v. Jones, 264 N.C. 134, 141 S.E.2d 27 (1965). In an indictment for burglary it is not enough 'to charge generally an intent to commit 'a felony' in the dwelling house of another. The particular felony which it is alleged the accused intended to commit must be specified. . . . The felony intended, however, need not be set out as fully and specifically as would be required in an indictment for the actual commission of said felony, where the State is relying only upon the charge of burglary. It is ordinarily sufficient to state the intended offense generally, as by alleging an intent . . . to commit therein the crime of larceny, rape, or arson. (Citations omitted)' State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923).

So it is here. The indictment having specified defendant's ulterior intent, I.e., the intent to commit rape, the State was required to prove that intent at the time of the breaking and entering in order to make out the offense of burglary. Hence, with respect to the burglary, there was no necessity to charge on unrelated matters such as assault with intent to commit rape or simple assault. Even though they are lesser included offenses of the crime of rape, they are not lesser included offenses of the burglary alleged in the bill of indictment. The actual commission of the intended felony (rape) is not essential to the crime of burglary. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). The crime of burglary is completed by the breaking and entering of...