State v. Wray
| Decision Date | 04 April 1978 |
| Docket Number | No. 7727SC769,7727SC769 |
| Citation | 35 N.C.App. 682,242 S.E.2d 635 |
| Parties | STATE of North Carolina v. Milton Edgar WRAY. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. M. Ann Reed, Raleigh, for the State.
Asst. Public Defender F. Douglas Canty, Shelby, for defendant-appellant.
We first consider the defendant's contention that the verdicts were insufficient to support the judgments. In considering this assignment of error we noted that the record on appeal relating to the verdicts and judgments reveals that the trial judge rejected the verdicts first returned by the jury and then proceeded to take the verdicts by asking questions correctly worded to insure proper verdicts. The record further reveals that there was no answer to these questions, but that, thereupon, the trial judge imposed judgments as though the questions had been answered in the affirmative. The judgment rendered in Case No. 76CR6582 recites the following: "Having been found guilty of the offense of speeding 66 m. p. h. in a 55 m. p. h. zone . . . ." The judgment rendered in Case No. 76CR6585 recites the following: "Having been found guilty of the offense of resisting arrest . . . ." In view of the apparent contradictions in the record, this Court on 13 February 1978, entered the following order:
"The record on appeal, pages 30 and 31, discloses the following:
'THE VERDICT
(The jury returns into the courtroom at 5:31 p. m.)
It appears from the record that the foreman of the jury made no answer to the two questions of the trial court which would have been determinative of whether proper verdicts were returned by the jury, but that the trial court thereafter proceeded to judgment on both charges as though the jury had answered 'Yes' to the aforesaid questions.
Though the parties agreed to the record on appeal, the contradiction in, or possible omissions from, the record on appeal are such that we remand to the trial court for its determination of whether there was an answer to the said questions by the foreman of the jury which the trial court heard, or whether the questions were answered by sign, gesture or other conduct.
IT IS, THEREFORE, ORDERED that if the trial court cannot make such determination, this Court shall be so notified; that if the trial court does make such determination, the added record on appeal shall be settled by the trial court and the same shall be certified by the clerk, filed in this court and added to the record on appeal without printing.
The parties may elect to file supplemental briefs relating only to issues raised by the added record, the appellant within 10 days after the added record is docketed in this court and the appellee within 10 days after the appellant's brief has been served on appellee. If filed, the briefs shall not be printed. The case will be disposed of without oral argument.
In addition to transmitting a copy of this Order to the Clerk of Superior Court of Cleveland County, to F. Douglas Canty, Assistant Public Defender, 15 S. Washington Street, Shelby, North Carolina 28150, Telephone: 7 04/482-8928, and to W. Hampton Childs, District Attorney, Lincoln County Courthouse, Lincolnton, North Carolina 28092, Telephone: 704/735-2232, it is directed that a copy of this Order be mailed directly to the trial judge, The Honorable Lacy H. Thornburg at his home address."
On 20 February 1978, a certified Order and Affidavits were filed in this Court as follows:
"ORDER
THIS CAUSE coming on to be heard before the undersigned Trial Judge Presiding pursuant to Order of the North Carolina Court of Appeals entered in cases above entitled, 76-CR-6582 and 76-CR-6585; and the Court having personal recollection of the event inquired about in the Order of the North Carolina Court of Appeals, it is the Order of the Court that case on appeal shall be settled as follows:
The Foreman : Yes (Remaining jurors answering Yes or nodding in the affirmative.)
The Foreman : Yes (Remaining jurors answering Yes or nodding in the affirmative.)
The Court finding as fact that the questions were answered as above set forth with the Foreman of the Jury answering Yes and all remaining jurors either answering Yes or nodding affirmatively to indicate their assent to the verdict rendered by the Foreman.
Added to this Order by way of affidavit is an affidavit of the Assistant District Attorney indicating his recollection of the event and an affidavit of defense counsel if he has an independent recollection of what occurred.
This Order, together with accompanying affidavit or affidavits shall constitute an addendum to the record as certified by the Assistant Clerk of Superior Court.
Done in Chambers in Charlotte, North Carolina, in the presence of W. H. Childs, District Attorney of the 27-B Prosecutorial District, Douglas Canty, defense attorney, and William L. Morris, Assistant District Attorney.
This the 16th day of February, 1978.
I, William L. Morris, Assistant District Attorney, 27-B, State of North Carolina depose and say:
1. That I was the Prosecuting Attorney in the above entitled cases, 76 CRS 6582 and 76 CRS 6585 and having a personal recollection of the event inquired about in the Order of the North Carolina Court of Appeals having been personally present at the time I remember the following:
The Foreman : Yes (Remaining jurors answering Yes or nodding in the affirmative.)
The Foreman : Yes (Remaining jurors answering Yes or nodding in the affirmative.)
This the 17th day of February, 1978.
I, Charles D. Randall, Attorney at Law, depose and say:
1. That I was an Assistant Public Defender for the 27th Judicial District and represented the above named defendant in Cleveland County Superior Court in the above entitled cases, 76 CRS 6582 and 76 CRS 6585 and having a personal recollection of the event inquired about in the Order of the North Carolina Court of Appeals having been personally present at the time, I remember the following:
I have no personal recollection as to the answer, if any.
The Foreman : Yes (Remaining jurors answering Yes or nodding in the affirmative.)
This the 17th day of February, 1978.
(Verified)"
Also filed with the foregoing papers were certified copies of Minutes of the 25 and 26 April 1977 Session of the Superior Court of Cleveland County, showing that the jury returned verdicts of "Guilty As Charged" on both the speeding charge (76CRS6582) and the resisting arrest charge (76CRS6585).
Supplemental Briefs were filed by the defendant and the State. Thus, we have before us the issue of whether this Court may add the foregoing new matter to the record on appeal for the purpose of correcting contradiction in the original record on appeal.
Defendant takes the position that this Court is bound by the original record as certified citing Smith v. Bottling Co., 221 N.C. 202, 19 S.E.2d 626 (1942); State v. Williams, 280 N.C. 132, 184 S.E.2d 875 (1971); State v. Fields, 279 N.C. 460, 183 S.E.2d 666 (1971); State v. Hickman, 2 N.C.App. 627, 163 S.E.2d 632 (1968). These cases and many others in this State have firmly established that principle of law.
There is at least one exception to this established rule of law. In State v. Old, 271 N.C. 341, 344, 156 S.E.2d 756, 758 (1967), it is stated:
". . . However, if a...
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...parties may stipulate to the narrative, or, if the parties cannot agree, the trial court may settle the record. See State v. Wray, 35 N.C.App. 682, 690, 242 S.E.2d 635, 639 (explaining that where the parties cannot agree that transcript is “absolutely correct,” the trial court may settle re......
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State v. Wray
...Deputy Attorney General, for the State. Defendant's notice of appeal and petition for discretionary review under GS 7A-31. 35 N.C.App. 682, 242 S.E.2d 635. Petition denied. Motion of the Attorney General to dismiss the appeal for lack of substantial constitutional question. ...