Appeal by defendant from Seay, J., 4 February 1980 Session of Cabarrus Superior Court.
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.
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, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (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, 65 L. Ed. 2d 1137, 100 S. Ct. 3050, reh. denied, 448 U.S. 918, 65 L. Ed. 2d 1181, 101 S. Ct. 41 (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, 50 L. Ed. 2d 69, 97 S. Ct. 46 (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 guaranted 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, 29 L. Ed. 2d 822, 91 S. Ct. 2140 (1971).
The United States Supreme Court considered a question of prior restraint in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (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.
292 N.C. at 278, 233 S.E.2d at 911. See also, State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980).
We considered a motion for the appointment of associate counsel in State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979), and there stated:
Defendant contends that the trial judge erred in denying his motion for appointment of associate counsel. Defendant cites no authority in support of this contention but states that additional counsel should have been appointed. As in the case of providing private investigators or other expert assistance to indigent defendants, we think the appointment of additional counsel is a matter within the discretion of the trial judge and required only upon a showing by a 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. (Citations omitted.)
Id. at 362-63, 259 S.E.2d at 758. See also, State v. Easterling, supra; State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976).
In addition to the statutory authority above cited, defendant relies strongly upon the "reasonable likelihood" standard which was adopted in the foregoing opinions. He contends that he has shown that the allowance of additional assistance requested by his motions would have materially assisted in the preparation and presentation of his case and that without such assistance he was denied a fair trial.
Defendant has presented no evidence to show that the jury selection process was challenged or that the services of a statistician would have resulted in the selection of a more favorable jury. Neither do we find any indication that a jury selection expert would have enabled defendant's counsel to conduct a better voir dire of the jury panel. Our review of the record indicates that defendant's two court-appointed counsel aggressively and vigorously represented defendant at trial and conscientiously pursued his case on appeal.
In summary, the record discloses nothing which shows that there is a reasonable likelihood that the appointments requested by defendant's motions would have materially assisted defendant in the preparation or presentation of his defense or that without such assistance it is probable that defendant did not receive a fair trial.
These assignments of error are overruled.
Defendant contends that the trial court erred in denying his motion to allow him to act as co-counsel with his court-appointed attorneys. This contention is without merit.
Although a criminal defendant cannot be required to accept the services of court-appointed counsel, State v. Mems, 281 N.C. 658, 190 S.E.2d 164 (1972); State v. Morgan, 272 N.C. 97, 157 S.E.2d 606 (1967), we have previously said that a criminal defendant cannot represent himself and, at the same time, accept the services of court-appointed counsel. State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978), answered this very question as follows:
It is well settled that a defendant in a criminal action has a right to represent himself at the trial and cannot be required to accept the services of court-appointed counsel. (Citations omitted.) It is, however, equally well settled that "[a] party has the right to appear in propria persona or by counsel, but this right is alternative," so that "one has no right to appear both by himself and by counsel." (Citations omitted.) Thus, while the defendant elected to retain the services of the court-appointed counsel, the court did not err in holding that the interrogation of prospective jurors and of witnesses must be done through his counsel.
Id. at 204, 244 S.E.2d at 662.
The Court's decision in House clearly answers the question posed by this assignment of error adversely to defendant's contention.
Several of defendant's remaining assignments of error relate to the denial of other pretrial motions.
The first of these is addressed to the trial court's failure to allow a continuance of the trial until the disposal of the charges brought against him in the Gastonia killing and robbery. He contends that in order to preserve the chronological continuity of events the Gastonia matter should have been heard before the Cabarrus County charges were tried. Failure to dispose of the charges in chronological order, he argues, prejudiced his case in the eyes of the jury through the introduction of evidence regarding the Gastonia events in the trial of the Cabarrus County matter.
It is well settled in this State that a motion for continuance which is not based on constitutional guarantees is ordinarily addressed to the sound discretion of the trial court. In the absence of an abuse of discretion, the denial of a continuance will not be held error on appeal. State v. Easterling, supra; State v. Thomas, 294 N.C. 105, 240 S.E.2d 426 (1978).
Defendant's assignment of error on this point is overruled for the reason that there is no showing that the trial court abused its discretion in denying the motion for continuance.
Defendant, in three assignments of error related to witness Linda Massey's statements to police and trial testimony, argues that the indictments should have been quashed and the charges against him dismissed, and that Massey should have been precluded from testifying against him at trial.
By assignment of error number 3 defendant asserts that the trial court erred in denying his motion to quash the indictments and dismiss the charges against him on the ground that the indictments were based upon a coerced confession by the witness Massey which implicated defendant. A motion to quash an indictment lies where a defect appears on the face of the indictment and will be granted when it appears from an inspection of the indictment that no crime is charged or that the indictment is otherwise so defective that it will not support a judgment. State v. Underwood, 283 N.C. 154, 195 S.E.2d 489 (1973); State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (1973); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. McBane, 276 N.C. 60, 170 S.E.2d 913 (1969); accord, Wolfe v. North Carolina, 364 U.S. 177, 4 L. Ed. 2d 1650, 80 S. Ct. 1482 (1960). Such is not the case here. The indictments are proper in form and nothing appears upon the face of either indicating that it will not support a judgment.
By assignments of error numbers 46 and 47, defendant attempts to assign error to the admission of Massey's testimony at trial. In our opinion, neither defendant's right to due process nor his right to confrontation was violated by the admission of Massey's statement.
Our holding in State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976), squarely answers defendant's contention regarding Massey's allegedly coerced statements. There we said:
It is self evident that a denial of due process occurs when the State contrives a conviction by the knowing use of perjured testimony. However, when a witness testifies as to facts earlier obtained by coercive police action and all of the circumstances surrounding the alleged coercive acts are before the jury, the requirements of due process are met. It is then for the jury to determine the weight, if any, to be given to the testimony. (Citations omitted.)
Evidence of any police coercion or of contradictory statements and withholding of information on the part of the witnesses goes to their credibility. This, of course, is a jury question.
Id. at 240-41, 229 S.E.2d at 907-08.
Evidence of any police coercion in obtaining Massey's statement went to the credibility of the witness, which was a jury question. The force of defendant's argument on this assignment of error is further diluted by failure of counsel to pursue the judge's permission to take the matter to another judge for ruling. Therefore, neither the statements to police nor the trial testimony complained of here violated defendant's right of due process and the testimony of the witness Massey was admissible.
Neither do we find any merit in defendant's contention that he was denied his constitutional right of confrontation because the witness Massey refused to testify at the pretrial voir dire concerning the alleged inculpatory statements made by her to police officers. At the time of the pretrial voir dire hearing, Massey was a co-defendant charged with the same crime as defendant. She exercised her fifth amendment guarantee against self-incrimination, and the trial judge properly sustained her objection to giving testimony at this hearing. The charges against her were later dropped, and at the time Massey was called as a witness at defendant's trial, she was no longer a co-defendant. At trial defense counsel extensively cross-examined the witness Massey, and therefore defendant is in no position to complain that he was denied his constitutional right to confront a witness who testified against him.
Defendant attacks the constitutionality of the death statute contending that it is discriminatory and constitutes cruel and
unusual punishment in violation of the eighth and fourteenth amendments to the United States Constitution. He further argues that the statute impermissibly extends the court's jurisdiction without a constitutional amendment in violation of Article IV, Section 12, of the North Carolina Constitution. This Court rejected a contention that our death penalty statute is unconstitutional on the ground that it constituted cruel and unusual punishment in State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137, 100 S. Ct. 3050, reh. denied, 448 U.S. 918, 65 L. Ed. 2d 1181, 101 S. Ct. 41 (1980). Even so, defendant now contends that the statute is unconstitutional because it is discriminatory in that its provisions result in a differential treatment of minorities. We reject this argument. The very contention that defendant here advances is one of the principal precipitating factors that caused the General Assembly to adopt our present death statute. It is drafted and implemented so as to preclude the arbitrary and capricious imposition of the death penalty upon any segment of the state's population.
Defendant's challenge to G.S. 15A-2000(d) as an impermissible expansion of this Court's jurisdiction is groundless. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976), recognizes that this Court's jurisdiction is limited "to review upon appeal any decision of the court below upon any matter of law or legal inference" as allowed by Article IV, Section 12, Constitution of North Carolina. G.S. 15A-2000(d) provides by way of review of judgment and sentence that:
(1) The judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of North Carolina pursuant to procedures established by the Rules of Appellate Procedure. In its review, the Supreme Court shall consider ...