State v. Williams, 4

• Decision Date: 01 December 1981
• Docket Number: No. 4,4
• Citation: 304 N.C. 394,284 S.E.2d 437
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Larry Darnell WILLIAMS.

Page 437

284 S.E.2d 437

304 N.C. 394

STATE of North Carolina v. Larry Darnell WILLIAMS.

No. 4.

Supreme Court of North Carolina.

Dec. 1, 1981.

Rufus L. Edmisten, Atty. Gen. by Thomas F. Moffitt, Asst. Atty. Gen., Raleigh, for the State.

Webster S. Medlin and Steve L. Medlin, Concord, for defendant-appellant.

BRANCH, Chief Justice.

Defendant's brief brings forward forty-seven assignments of error with little semblance of continuity. We have therefore elected to consider the assignments of error under the general headings of pretrial motions, guilt phase of the trial, and sentencing phase of the trial.

I. PRETRIAL MOTIONS

Defendant first assigns as error the denial of his pretrial motions for change of venue or in the alternative for a special venire due to the publicity his case had received prior to trial.

The record includes as exhibits articles which appeared in newspapers in the Cabarrus County area. Defendant asserts these articles were "reasonably likely" to prejudice potential jurors. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). Examination of these articles discloses that they are factual, non-inflammatory, accurate reports. Defendant's motion was addressed to the sound discretion of the trial judge. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137, reh. denied, 448 U.S. 918, 101 S.Ct. 41, 65 L.Ed.2d 1181 (1980). We cannot say, after a thorough examination of these exhibits, that the trial judge abused his discretion when he ruled that defendant had not met the burden of establishing "so great a prejudice ... that he [could] not obtain a fair and impartial trial." G.S. 15A-957. See State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981); State v. Barfield, supra; State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated, sub nom, Carter v. North Carolina, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976).

Defendant also assigns as error the denial of his motion to control pretrial publicity. By this motion, defendant sought to prohibit all attorneys, their assistants, investigators, and employees, the Cabarrus County Superior Court Clerk, the County Sheriff, the County Jailer, police officials and other law enforcement officers and employees, and all witnesses associated with the case from commenting on it to any newspaper, radio, or television reporters, agents, or employees within Cabarrus County during the course of the proceedings.

The motion was filed on 11 September 1979 and was heard by Judge Collier on 14 November 1979. His order denying the motion was entered on 27 November 1979.

The first and fourteenth amendments to the United States Constitution and Article I, Section 14, of the North Carolina Constitution guarantee freedom of speech and freedom of the press. These constitutions are equally clear in their guarantee that every criminal defendant shall receive a fair trial. U.S.Const., Amend. VI, XIV; N.C.Const., art. I, §§ 19, 23, 24. The framers of our federal and state constitutions gave no priorities to these fundamental guarantees but left to the courts the delicate task of balancing the defendant's constitutionally guaranteed right to a fair trial against the constitutional guarantees of freedom of speech and freedom of the press. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

The United States Supreme Court considered a question of prior restraint in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). In ruling that the order restraining publication of news was too vague and too broad to survive the scrutiny given to restraints on first amendment rights, the Court noted that even pervasive, adverse publicity does not inevitably lead to an unfair trial and that any prior restraint on expression comes to the courts with a heavy presumption against its constitutional validity. Thus one seeking to impose a "gag" rule carries a heavy burden of showing justification for the imposition of such a rule.

Here the motion did not directly seek to restrain the news media but sought to restrain a large group of unnamed public officials and lawyers from commenting on the case to the agents or employees of the news media. Even so, it was an attempt to indirectly impose a prior restraint upon the news media and to impose a "gag" order upon assorted people in violation of the state and federal constitutional guarantees. Seventeen of the nineteen news articles submitted in support of defendant's motion were printed shortly after the killing occurred in June, 1979, over four months before the hearing before Judge Collier. Thus, there was no showing that at the time the matter was before Judge Collier there existed any intense or pervasive pretrial publicity which was adverse to defendant. Had he allowed the motion to control the pretrial publicity, his conclusion as to the impact of such publicity would at best have been merely speculative. Further, the very nature of the relief that defendant sought brings into clear focus the impossibility of enforcing such a pretrial order. There was no in personam jurisdiction sought, and a group such as defendant sought to restrain cannot as a matter of practicality be restrained from discussing pending cases with others. We therefore hold that Judge Collier correctly denied defendant's motion. Our holding is strongly supported by the fact that at trial defendant apparently did not pursue his "publicity tainted" argument during jury voir dire since the record gives no indication whether any juror was stricken because of prejudice allegedly caused by pretrial publicity.

By his next assignment of error defendant contends that a quotation in The Charlotte Observer attributed to the trial judge resulted in prejudicial error warranting a new trial.

The 8 January 1980 edition of The Charlotte Observer quoted Judge Seay as saying:

"There is not a lot of sweetness and light when you are talking about someone going to the gas chamber," Seay said. "This is an extremely adversary proceeding."

Defendant takes the position that the use of the words "gas chamber" in the article published about thirty days before the trial resulted in prejudicial error. He also seems to contend that the statement indicated a lack of impartiality on the part of the trial judge. We do not agree. The more reasonable interpretation of the statement is that Judge Seay was merely indicating the obvious fact that a case involving the death penalty is one that will be hotly contested. Neither can we find anything in the quoted statement which indicates that he was partial to either the State or defendant. Further, the record does not indicate that any juror was even aware of the statement attributed to the judge or that the defendant was forced to accept a juror who had knowledge of the quoted remark.

Defendant has failed to show any possible prejudice resulting from the remark attributed to Judge Seay.

Assignments of error 2, 6, 23, and 26 will be considered collectively since they relate to court-appointed assistance at trial. It is defendant's position that the trial judge erred by denying his motions for additional counsel, a research assistant, a statistician, and a jury selection expert. In support of his position, he relies upon the provisions of G.S. 7A-450(b) and 7A-454 which in pertinent part provide:

G.S. 7A-450(b). Whenever 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.

G.S. 7A-454. The 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.

This Court has considered similar motions on several occasions. In State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976), the indigent defendant moved that a private investigator be appointed. We there expressed our opinion concerning the appointment of "experts" for indigent defendants in this language:

[O]ur statutes and the better reasoned decisions place the question of whether an expert should be appointed at State expense to assist an indigent defendant within the sound discretion of the trial judge. We adopt that rule. However, we feel that the appointment of an investigator as an expert witness is a matter sui generis. There is no criminal case in which defense counsel would not welcome an investigator to comb the countryside for favorable evidence. Thus, such appointment should be made with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense. Mere hope or suspicion that such evidence is available will not suffice. For a trial judge to proceed otherwise would be to impede the progress of the courts and to saddle the State with needless expense.

Id. at 82, 229 S.E.2d at 567-68.

Thereafter we were faced with a motion for the appointment of a serologist and a private investigator for an indigent defendant in State v. Gray, 292 N.C. 270, 233 S.E.2d 905 (1977). We there held:

There are, then, no constitutional or legal requirements that private investigators or expert assistance always be made available simply for the asking. (Citation omitted.) Our statutes, G.S. 7A-450(b) and 7A-454, as interpreted in Tatum and Montgomery require that this kind of assistance be provided only upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial. Neither the state nor the federal constitution requires more.

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