Petition — Hunter v. North Carolina
Supreme Court brief1977
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FILED
NOV 26 1975
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
"76" 741 |
HARRY HUNTER,
Petitioner,
STATE OF NORTH CAROLINA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NORTH CAROLINA
Of Counsel: SAM J. ERVIN, JR.
JAMES E. GRIFFIN P.O. Box 69
P.O. Box 236 Morganton, North Carolina
Monroe, North Carolina 28655
28110 Counsel for Petitioner.
CHARLES D. HUMPHRIES
P.O. Box 904
Monroe, North Carolina
28110
SS EID
Washington, 0.C. + THIEL PRESS + (202) 638-4521
(:)
, . — P;
TABLE OF CONTENTS =
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nn +. is 56 unas 6066606 ee k 04086008 84 2
CSUN WUMIDUUEEED cc ccc ccc ecee sec eeceres 2
CONSTITUTIONAL PROVISIONS, STATUTES,
AND CANONS OF ETHICS INVOLVED............. 3
SEU E GW GES cee ehhh eee secre eveseeeses 5
REASONS FOR GRANTING THE WRIT:
I. The Decision Below Involves A Substantial
Federal Question Relating To The Right To C
Counsel Under The Sixth And Fourteenth
Amendments Apparently Not Heretofore
Ee Hr We Ic oc co cect eee nnecescecees 15
Il. The Decision Below Decides Such Question In
A Way Incompatible With Previous Decisions
Se PEP GR co cecccerbeccueedsesteseceseos 23
ill. The Decision Below Presents Significant And
Recurring Problems Concerning The Right
To Counsel Under The Sixth and Fourteenth
PPP TET TET TTT CTCL ETT Tee 25
REE 6 S66 a webceeeneeseeesete. seen 27
APPENDIX A — Judgment of the North Carolina
PEPUEE Sen ccteeeweeeneeneseensenr la
APPENDIX B — Constitutional Provisions, Statutes,
and Canons of Ethics Involved ............-.+.- lb
TABLE OF CITATIONS
Cases:
Sats o. Tish, BE GER. GD nce cscs cscecccscess @&
Ghandi wo. Groeten, B08 UB. 3 on wc ccccvcccescecsdae
Chapman v. California, 386 U.S. 18 .... 0... ee ee 24
’»
Becobede ow. Gilneid, 376 US. 478... ww cece cccses
(22)
Cases, continued: Page
Gideon v. Wainwright, 372 U.S. 335 .......2 22 ee 22, 24
Geeten, Be. BGs Dek Bowe Sec tecsccvceseseecen 23, 26
Hawk v. Olson, 326 U.S. 271 2... 2c eee cee ee reece 23
House v. Mayo, 324 U.S. 42 2... 6 ee ee ee eee 23
Powell v. Alabama, 287 U.S. 45. ....... 45 ee eee wees 23
Reynolds v. Cochran, 365 U.S. 525 2... ee ee ee ee eee 24
United States v. Bergamo, 154 F.2d 31 ..........4.4. 25, 26
White v. Ragen, 324 U.S. 760... 2... eee ee ee eee 23
Miscellaneous:
Constitutional Provisions, Statutes, and Canons of
Ethics Involved (Appendix B) ........+2-40505e06% lb
IN TBE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1976
No.
HARRY HUNTER,
Petitioner,
STATE OF NORTH CAROLINA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NORTH CAROLINA
The petitioner Harry Hunter respectfully prays that a
writ of certiorari issue to review the judgment and
opinion of the Supreme Court of North Carolina entered
in this proceeding on September 1, 1976.
OPINION BELOW
The judgment and opinion of the Supreme Court of
North Carolina is reported in the North Carolina Supreme
Court Reports Advance Sheets, Volume 290, No. 4, pages
556 to 586, and is printed in Appendix A hereto
attached. ;
2
JURISDICTION
The judgment of the Supreme Court of North Carolina
was entered on September 1, 1976, and adjudges that the
Court of first instance, i.e., the Superior Court of Union
County, North Carolina, committed no error in the
petitioner’s trial, conviction, and sentence to life im-
prisonment. Rule 31(g) of the North Carolina Rules of
Appellate Procedure prohibits petitions for rehearing in
criminal cases. (North Carolina Supreme Court Reports,
Vol. 287, p. 750.) The jurisdiction of this Court is
invoked under 28 U.S.C. section 1257(3).
QUESTIONS PRESENTED
1. Whether a North Carolina Court denied the
petitioner, a citizen and resident of South Carolina, who
was charged with serious felonies in the North Carolina
Court, his right under the Sixth and Fourteenth
Amendments to have the assistance of counsel for his
defense by refusing to permit him to be represented at his
trial by a South Carolina attorney in good standing whom
he had chosen and retained for that purpose.
2. Whether a North Carolina Court, which had just
taken action against the petitioner as indicated by
question No. 1, denied the petitioner his right under the
Sixth and Fourteenth Amendments to have the assistance
of counsel for his defense by refusing to continue the
trial of the charges against him to permit him to retain
other counsel to replace the excluded counsel and by
proceeding forthwith with the trial of the charges.
3. If the answer to these questions or either of them
is ‘Yes’, was the action of the North Carolina Court
denying him his right to counsel under the Sixth and
Fourteenth Amendments rendered harmless error by the
3
fact that other attorneys actually defended him at his
- trial.
CONSTITUTIONAL PROVISIONS, STATUTES, AND
CANONS OF ETHICS INVOLVED
These constitutional provisions, statutes, and canons of
ethics, which are stated in pertinent part in Appendix B,
are involved for varying reasons:
1. Article VI of the Constitution of the United
States.
2. The Sixth and Fourteenth Amendments to the
Constitution of the United States.
3. Section 1-255 of the Code of Laws of South
Carolina of 1962.
4. Sections 14-5 and 14-6 of the General Statutes of
North Carolina. (Replacement Vol. 1B-1969)
5. Section 14-17 of the General Statutes of North
Carolina. (Replacement Vol. 1B-1969)
6. Section 14-87 of the General Statutes of North
Carolina. (Replacement Vol. 1B-1969)
7. Section 84-2 of the General Statutes of North
Carolina. (Replacement Vol. 2C-1975)
8. Section 84-4.1 of the General Statutes of North
Carolina. (Replacement Vol. 2C-1975 and 1975 Supple-
ment)
9. Canon of Ethics No. 46C of the North Carolina
State Bar. (General Statutes of North Carolina, Replace-
ment Vol. 4A-1970, pages 437-438)
10. Canon of Ethics No. 9 of the Code of Profes-
sional Responsibility of the North Carolina State Bar.
(The General Statutes of North Carolina: 1975 Cumula-
tive Supplement to Replacement Vol. 4A, pages 256-257)
4
HOW FEDERAL QUESTIONS PRESENTED
The petitioner presented the Federal questions set
forth above timely and properly in the court of first
instance, i.e., the Superior Court of Union County, North
Carolina, by immediately excepting to the ruling of the
presiding judge denying him the right to be represented at
his trial by the attorney chosen and retained by him, to
wit, James M. Long (Record, Exception No. 1, p. 23),
and the ruling of the presiding judge refusing to continue
the trial of the charges against him for the purpose stated
(Record, Exception No.2, p.23) as set forth in
paragraphs Nos. 12, 13, and 14 of the ensuing Statement
of Case. The petitioner properly presented these Federal
questions on his appeal to the Supreme Court of North
Carolina in conformity with its Rules by assigning them
as errors in the case and record on appeal (Record,
Assignments of Error Nos. | and 2, p. 253), as set forth
in paragraph No. 19 of the ensuing Statement of Case,
and by presenting them to the Supreme Court by the oral
argument and brief of his counsel in that Court
(Petitioner’s Brief in the Supreme Court of North
Carolina, pp. 92-99) as also set forth in paragraph No. 19
of the ensuing Statement of Case. Indeed, pages | to 10
of the brief filed by the State of North Carolina in the
North Carolina Supreme Court and pages 566 and 572 of
the judgment of the Supreme Court of North Carolina
(which is set forth in Appendix A as well as in North
Carolina Supreme Court Advance Sheets Volume 290,
No. 4, pages 556 to 586) make it manifest that the
petitioner properly and timely presented the Federal
questions at all stages of the proceedings in the North
Carolina Courts as set forth in paragraphs Nos. 12, 13,
14, 19, 20, and 21 of the ensuing Statement of Case.
Copies of the Record, Briefs, and Judgment of the North
5
Carolina Supreme Court have been certified to the Clerk
of this Court by the Clerk of the Supreme Court of North
Carolina.
STATEMENT OF CASE
The facts are as follows:
1. The petitioner, Harry Hunter, a citizen and
resident of South Carolina, operates a motel at Myrtle
Beach, in Horry County, South Carolina, and regularly
retains Ralph Stroman, of Conway, Horry County, South
Carolina, an attorney regularly admitted to practice in
courts of record of South Carolina and in good standing
therein, who is rather inexperienced in the practice of
criminal law, to advise him in respect to his business
affairs. (Record, pp. 21-22)
2. On February 7, 1975, Billy Devine, who was aided
and abetted by Gary Allen Watkins and James Earl
Locklear, shot and killed William Benjamin Potts at his
home in Union County, North Carolina, while attempting
to perpetrate a robbery upon him. (Record, pp. 38-87)
3. On or about April 7, 1975, Billy Devine, Gary
Allen Watkins, and James Earl Locklear entered pleas of
guilty to the second degree murder of William Benjamin
Potts in the Superior Court of Union County, North
Carolina, a division of the North Carolina General Court
of Justice, and each of them was thereupon sentenced to
life imprisonment in the North Carolina State Prison.
(Record, pp. 65, 77) On that occasion the petitioner,
who has always denied any complicity in the slaying of
William Benjamin Potts, testified for the prosecution that
Billy Devine, Gary Allen Watkins, and James Earl
Locklear visited his temporary home in the neighborhood
of the home of William Benjamin Potts before and after
the slaying. (Record, p. 146)
6
4. On May 5, 1975, a Grand Jury, which had been
empaneled in the Superior Court of Union County, North
Carolina, returned two indictments against the petitioner.
The first of them charged him with the murder of William
Benjamin Potts contrary to the relevant North Carolina
Statute, i.e., Section 14-17 of the General Statutes of
North Carolina, and the second charged him with
committing an armed robbery upon William Benjamin
Potts contrary to the relevant North Carolina Statute,
i.e., Section 14-87 of the General Statutes of North
Carolina. (Record, pp. 4-6)
5. On the return of the two indictments, i.e., on or
about May 5, 1975, the petitioner retained James M.
Long, of Conway, Horry County, South Carolina, an
attorney regularly admitted to practice in courts of
record of South Carolina and in good standing therein, to
join his regularly retained atiorney, Ralph Stroman, in
defending him on the trial of the criminal charges
embraced within the two indictments which had been
returned against him in the Superior Court of Union
County, North Carolina. (Record, pp. 21-22)
6. At such time James M. Long, who was highly
skilled in the trial of criminal cases, was, and still is, the
duly elected and qualified Solicitor, i.e., prosecuting
attorney, of the 15th Judicial Circuit of South Carolina,
whose courts have jurisdiction of felonies and substantial
misdemeanors, i.e., misdemeanors punishable by a fine of
more than $100 or by imprisonment for more than 30
days, committed in Horry and Georgetown Counties.
(Record, pp. 16-20)
7. Under the law of South Carolina in force at the
times involved in this case, i.e., Section 1-255 of the Code
of Laws of South Carolina of 1962, (which ‘s set forth in
Appendix B hereto attached) it was ethical and lawful for
7
James M. Long to accept the retainer to defend the
petitioner upon the criminal charges pending against him
in the Superior Court of Union County, North Carolina,
notwithstanding he held the office of Solicitor in the
15th Judicial Circuit of South Carolina. This is true
because such solicitorship was not a full-time office in
South Carolina, and a South Carolina Solicitor was free
to practice law in any case in which the State of South
Carolina was not a party. The State of South Carolina
was certainly not involved as a party or otherwise in the
criminal cases against the petitioner in the Superior Court
of Union County, North Carolina. (Record, p. 18;
Appendix B)
8. On or about June 1, 1975, the petitioner retained
james E. Griffin, of Monroe, Union County, North
Carolina, an attorney regularly admitted to practice in
courts of record of North Carolina and in good standing
therein, to assist his South Carolina attorneys, James M.
Long and Ralph Stroman, in defending him on the trial
of the criminal charges pending against him in the
Superior Court of Union County, North Carolina.
(Record, p. 21)
9. Subsequent to the time when James M. Long
ethically and lawfully agreed to defend the petitioner
upon the indictments returned against him in the
Superior Court of Union County, North Carolina, charges
were brought against the petitioner in Horry County,
South Carolina, alleging that he and Billy Devine and
Gary Allen Watkins had committed certain felonies in
Horry County, South Carolina, during times preceding
the slaying of William Benjamin Potts. (Record, p. 17)
Immediately after these charges were made in Horry
County, South Carolina, James M. Long disqualified
himself to appear in connection with such charges, and
8
entrusted their prosecution solely to an assistant prosecu-
tor. About this time, the Attorney General of South
Carolina applied to Associate Justice Woodrow Lewis of
the South Carolina Supreme Court for an order enjoining
James M. Long from participating in any way in the
Horry County, South Carolina cases involving the
petitioner. Upon learning that James M. Long had totally
disqualified himself in those cases and that their
prosecution had been entrusted solely to an assistant
prosecuting attorney, the Attorney General of South
Carolina withdrew his application for the restraining
order, (Record, p. 18) and the action which had been
taken by James M. Long in respect to the Horry County,
South Carolina cases was approved by “the proper
authorities in South Carolina.”’ (Record, pp. 22-23)
10. When the indictments against the petitioner were
called up for trial at the August 18, 1975, criminal
session of the Superior Court of Union County, North
Carolina, James M. Long and Ralph Stroman, as members _
in good standing of the South Carolina bar, made
motions before the Presiding Superior Court Judge, Julius
A. Rousseau, Jr., in strict conformity with the relevant
North Carolina statute (i.e., Section 84-4.1 of the General
Statutes of North Carolina, which is set forth in
Appendix B) to be admitted to practice in the Superior
Court of Union County, North Carolina, and the General
Court of Justice of North Carolina for the sole and
limited purpose of appearing for their client, the
petitioner, on the trial of the indictments against him.
(Record, pp. 6-7; Appendix A, p. 567; Appendix B)
11. Thereupon Carroll Lowder, the North Carolina
District Attorney charged with responsibility for prose-
cuting criminal cases in the Superior Court of Union
County, North Carolina, objected to the motion of James
9
M. Long and prayed Judge Rousseau to deny to the
petitioner the right to be defended by James M. Long, an
attorney chosen and retained by him, on the trial of the
indictments against him. As a basis for his position,
District Attorney Lowder argued that Long was Prosecut-
ing Attorney in the 15th Judicial Circuit of South
Carolina where criminal charges were pending against
Harry Hunter and that his appearance for Harry Hunter
on the trial of the indictments would be “unethical”
under Canon of Ethics No. 46C of Part VI of the Rules of
The North Carolina State Bar, which was then in force
and which is set forth in Appendix B hereto attached.
(Record, pp. 16-22; Appendix A, pp. 566-570; Appendix
B)
12. After making a detailed inquiry into the facts
and hearing the argument of District Attorney Lowder
and Attorneys Griffin, Long, and Stroman, Judge
Rousseau made the following findings of fact: “That a
bill of indictment was issued against the defendant Harry
Hunter on or about May 5, 1975; that Mr. James E.
Griffin of the Union County bar was employed by Mr.
Hunter approximately June 1, 1975; that prior to that
time the defendant had employed Mr. James M. Long,
and prior to that time had employed Mr. Stroman; that
Mr. J. M. Long is the duly elected Solicitor or Prosecuting
Attorney for the 15th Judicial Circuit in South Carolina,
consisting of Horry and Georgetown Counties; that since
the issuance of the Bill of Indictment from Union County
the defendant has been indicted in the 15th Judicial
Circuit of South Carolina for a felony; that Mr. Long has
obtained permission from the proper authorities in South
Carolina to not prosecute the defendant in South
Carolina, but to leave it to his assistants and the Attorney
General’s office of the State of South Carolina.” Based
10
on the foregoing, Judge Rousseau made this adjudication:
“The Court in its discretion denies the written motion of
Mr. Long to appear in the trial of this case in Union
County; there being no objection to Mr. Stroman
appearing, the Court will allow him to appear in behalf of
the defendant.”’ (Record, pp. 22-23)
13. In conformity to North Carolina practice the
petitioner noted an immediate exception—his Exception
No. 1—to the ruling of Judge Rousseau denying him the
right to be represented on his trial in the Superior Court
of Union County, North Carolina, by James M. Long, an
attorney chosen and retained by him. (Record, p. 23)
14. James E. Griffin, the North Carolina attorney for
the petitioner, then moved for a continuance of the case
in order to permit the petitioner to employ additional
counsel. Since Judge Rousseau had just denied Harry
Hunter the right to be represented by James M. Long, an
attorney chosen and retained by him, Attorney Griffin
believed that the motion required no argument in its
support, and announced that he did “not care to argue
it.” Without making an inquiry as to whether the
petitioner desired to retain other counsel to replace Long,
Judge Rousseau denied the motion for a continuance,
and the petitioner noted his Exception No. 2 to the
ruling. (Record, p. 23)
15. Immediately after these events the petitioner was
placed on trial before Judge Rousseau and a petit jury
upon the indictments charging him with murder and
armed robbery. He was defended on his trial by
Attorneys James E. Griffin and Ralph Stroman, without
the assistance of the excluded Attorney, James M. Long.
(Record, pp. 34-36)
16. The evidence of the prosecution and that of the
defense were in sharp conflict. While the Supreme Court
1]
of North Carolina ruled on the subsequent appeal that
the testimony of the prosecution required the trial judge
to submit to the jury the question whether the petitioner
was guilty of being an accessory before the fact to the
murder of William Benjamin Potts (Appendix A, pp.
576-577), the testimony offered by the petitioner clearly
indicated that he did not participate in any way in the
activities culminating in the death of William Benjamin
Potts. (Record, pp. 161-214) Although they consistently
declared at ali times prior to the times he testified at their
trial in the Superior Court of Union County on April 7,
1975, that the petitioner was not involved in any way in
their crime, Billy Devine and Gary Allen Watkins were
the chief witnesses for the prosecution and _ their
testimony was indispensable to its case. (Record, pp.
38-87)
17. At the close of all the evidence Judge Rousseau
withdrew from the consideration of the jury all charges
arising under the indictments except the charge that the
petitioner was guilty of being an accessory before the fact
to the murder of William Benjamin Potts, which was a
charge of a lesser and included offense under the
indictment for murder under North Carolina Practice.
(S. V. Bryson, 173 N. C. 803) The jury returned a verdict
finding the petitioner guilty of this offense, and Judge
Rousseau sentenced him to life imprisonment in the
North Carolina State Prison as mandated by the North
Carolina statute, i.e., Section 14-6 of the General Statutes
of North Carolina which prescribes the punishment of
one convicted as an accessory before the fact to the crime
of murder. (Record, pp. 248-249)
18. The petitioner appealed the case to the North
Carolina Supreme Court, assigning as errors on the trial
the ruling of Judge Rousseau denying him the right to be
12
represented at the trial by James M. Long, an attorney
chosen and retained by him (Record, pp. 22-23, 253); the
ruling of Judge Rousseau refusing to continue the trial of
the case to permit him to employ additional counsel to
replace the excluded attorney, James M. Long (Record,
pp. 23, 253); rulings of judge Rousseau denying his
motions to nonsuit the case involuntarily for insuffici-
ency of the prosecution’s evidence (Record, pp. 161,
220, 259); rulings of Judge Rousseau admitting evidence
offered by the prosecution (Record, pp. 38-134,
254-259) and excluding testimony offered by him
(Record, pp. 198, 259); various instructions given by
Judge Rousseau in his charge to the petit jury (Record,
pp. 223-245, 259-260); and rulings of Judge Rousseau
denying his motions to set aside the verdict of the jury
and award him a ncw trial (Record, pp. 246, 247, 260).
19. When the appeal was heard by the Supreme
Court of North Carolina, the Attorney General and his
assistant and the attorneys for the petitioner argued both
orally and in their briefs the various exceptions and
assignments of error made by the petitioner, including
those challenging the rulings of Judge Rousseau denying
the petitioner the right to be represented at the trial by
James M. Long, an attorney chosen and retained by him,
and those challenging the ruling of Judge Rousseau
refusing to continue the trial of the case to permit the
petitioner to retain an additional attorney of his own
choice to replace the excluded attorney, James M. Long.
These observations are made manifest by pages 92
through 99 of the brief of the petitioner and pages |
through 10 of the brief of the State of North Carolina,
which were filed in the North Carolina Supreme Court
and which have been certified to the Supreme Court of
the United States by the Clerk of the Supreme Court of
13
North Carolina. This was done at the instance of the
petitioner Harry Hunter to make it plain that he insisted
at all times that the ruling of Judge Rousseau excluding
from the trial James M. Long, an attorney chosen and
retained by him, and the ensuing ruling of Judge
Rousseau refusing to continue the case for the purpose
stated denied him his constitutional rights under the
Sixth and Fourteenth Amendments to have the assistance
of counsel of his choice for his defense on his trial.
20. On September 1, 1976, the Supreme Court of
North Carolina entered its final judgment on the appeal
holding that no error had been committed on the trial of
the petitioner in the Superior Court of Union County,
North Carolina, and leaving his life sentence in force. As
appears by pages 566 through 571 of the judgment (a
copy of which is set forth in Appendix A), the Supreme
Court of North Carolina specifically held that the
constitutional right of the petitioner under the Sixth and
Fourteenth Amendments to have the assistance of
counsel for his defense had not been violated by the
rulings of Judge Rousseau denying him the right to be
represented at his trial by James M. Long, an attorney
chosen and retained by him, and refusing to continue the
case in order to permit him to retain additional counsel
of his choice to replace the excluded attorney.
21. The rationale underlying the judgment of the
North Carolina Supreme Court in respect to the Sixth
and Fourteenth Amendment questions may be summa-
rized substantially in its own words as follows:
(A) “An out-of-state attorney has no absolute right
to practice law in another forum”; whether he is to be
permitted to appear in a particular case is a matter
“resting in the sound discretion of the Presiding Judge”;
“the decision of Judge Rousseau” denying the petitioner
14
the right to be represented by James M. Long, an
attorney chosen and retained by him, “was made solely
in his discretion”; Judge Rousseau exercised his discre-
tion wisely because his action harmonized with Canon 9
of the Code of Professional Conduct of the North
Carolina Siaie Bai, which provides that “a lawycr should
avoid even the appearance of professional impropriety”
and Section 84-2 of the General Statutes of North
Carolina, which makes it a crime for a full-time North
Carolina district attorney to practice law; in any event
the petitioner Harry Hunter was ably defended by other
counsel, James E. Griffin, and Ralph Stroman, and “‘was
not prejudiced by the court’s decision.” For these
_reasons, the petitioner was not denied his constitutional
right to have the assistance of counsel for his defense by
the action on Judge Rousseau in refusing to permit James
M. Long to appear for him at his trial. (Judgment of the
Supreme Court of North Carolina, Appendix A, pp.
566-570)
(B) District Attorney Carroll Lowder advised Attor-
ney James E. Griffin about June 1, 1975, that he would
object to James M. Long appearing for the petitioner at
the trial and in consequence the petitioner Harry Hunter
“had ample time to arrange for the services of another
attorney in addition to Mr. Stroman and Mr. Griffin if he
so desired”; the petitioner was ably defended by
Attorneys Griffin and Stroman at the trial; no “substan-
tial issues concerning the constitutional guarantees” of
the Sixth and Fourteenth Amendments in respect to the
assistance of counsel “is even involved” in the case; in
any event the petitioner “has not been prejudiced by the
court’s failure to continue the case” in order to permit
him to employ additional counsel. For these reasons, the
action of Judge Rousseau in refusing to continue the case
5 Sanne,
oe lt ne me a eh BE te
15
for that purpose did not deny the petitioner his Sixth and
Fourteenth Amendment rights to the assistance of
counsel for his defense. (Judgement of the Supreme
Court of North Carolina, Appendix A, pp. 570-571)
22. The only Federal questions arising in the case are
those based upon the claim of the petitioner that rulings
of Judge Rousseau denied him his right under the Sixth
and Fourteenth Amendments to have the assistance of
counsel in his defense.
REASONS FOR GRANTING THE WRIT
THE DECISION BELOW INVOLVES A SUBSTAN-
TIAL FEDERAL QUESTION RELATING TO THE
RIGHT TO COUNSEL UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS APPARENTLY NOT
HERETOFORE DECIDED BY THIS COURT.
On May 5, 1975, the grand jury returned to the
Superior Court of Union County, North Carolina, two
indictments charging the petitioner with attempted
armed robbery and murder of William Benjamin Potts in
Union County, North Carolina, on February 7, 1975.
Immediately after the return of the indictments, the
petitioner, who resided in Horry County, South Carolina,
and who has steadfastly claimed to be innocent of the
charges, retained James M. Long, of Horry County, South
Carolina, an attorney in good standing at the South
Carolina bar, to defend him at his trial upon such charges
in the Superior Court of Union County, North Carolina.
The petitioner was undoubtedly prompted to take this
action by his confidence in Long as a lawyer experienced
and skilled in the trial of criminal cases.
At the times germane to this case Long was the duly
elected and qualified Solicitor, i.e., Prosecuting Attorney,
16
of the 15th South Carolina Judicial Circuit, whose circuit
courts had jurisdiction of felonies and_ substantial
misdemeanors allegedly committed in Horry and George-
town Counties, South Carolina.
Since the office of Solicitor in South Carolina was not
a full-time post, and an occupant of that office was free
to practice law privately in any case to which the State of
South Carolina was not a party, Long entered into an
entirely ethical and lawful engagement when he accepted
the petitioner’s retainer and agreed to defend him at the
trial of the indictments in the Superior Court of Union
County, North Carolina. Moreover, there is nothing
whatever indicating that he had any reason to suspect
that the petitioner would ever be charged with commit-
ting any crimes anywhere in the 15th South Carolina
Judicial Circuit.
At some time not revealed by the record, but which
was substanually after the events set forth above, charges
were made in some court in Horry County, South
Carolina, that the petitioner had participated in certain
felonies in Horry County, South Carolina, during times
preceding the slaying of William Benjamin Potts.
Upon this occurrence, Long immediately disqualified
himself to appear in any way in the Horry County, South
Carolina, cases, and the assistant prosecuting attorneys of
Horry County assumed sole responsibility for the
prosecution of the same. Shortly thereafter this arrange-
ment was approved by the office of the Attorney General
of South Carolina, which apparently had supervisory
jurisdiction of the matter under Section 1-255 of the
Code of Laws of South Carolina of 1962.
When the indictments were called up for trial at the
August 18, 1975, Criminal Session of the Superior Court
of Union County, North Carolina, Long made a written
motion conforming strictly with the provisions of the
es -
ow eos
17
relevant North Carolina statute, i.e., Section 84-4.1 of the
General Statutes of North Carolina, to be admitted to
practice in the Superior Court of Union County for the
sole and limited purpose of defending the petitioner at
the trial of the indictments pending in that Court.
The North Carolina District Attorney objcted to
Long’s motion on the ground that he was Prosecuting
Attorney in Horry County, South Carolina, where felony
charges were then pending against the petitioner, and for
that reason it would be unethical under Canon of Ethics
No. 46C of the North Carolina State Bar for Long to
appear for the petitioner on the trial of the indictments
in the Superior Court of Union County, North Carolina.
As appears from its wording, which is set out in detail in
Appendix B, Canon of Ethics No. 46C of the North
Carolina State Bar prescribed a rule to guide the conduct
of Prosecuting officers in North Carolina trial courts and
Federal courts and had no application whatever to Long.
In closing the argument before the presiding judge,
Superior Court Judge Rousseau, for his motion, Long
stated: “I see nothing I have done which in any
way - - - affected the effective prosecution of this matter
~ in that he (the petitioner) is before — this court ready
to stand trial —, and I ask and he asks that I| be allowed to
participate.” (Record, p. 20)
After making the findings of fact set out on pages 22
and 23 of the Record and in Paragraph 12 of the
foregoing Statement of Case, which harmonize com-
pletely with the matters set forth above, Judge Rousseau
made this ruling: “The Court in its discretion denies the
written motion of Mr. Long to appear in the trial of this
case in Union County.”
After challenging the validity of the exclusion of Long
from the case by an appropriate exception, the peti-
tioner’s Norih Carolina attorney, James E. Griffin, moved
18
that the trial of the indictments be continued to allow
the petitioner to obtain other counsel “if he desires.”
Believing it to be certain that the presiding judge would
grant the motion and thus allow the petitioner a
reasonable opportunity to replace his excluded attorney,
Long, with other counsel of his choice, Attorney Griffin
did not deem it necessary to argue the motion, and
thereupon Judge Rousseau denied the motion without
pausing to inquire whether the petitioner desired to
obtain other counsel to replace Long or needed further
time to prepare his defense in the light of the exclusion
of Long from the trial.
While the Record is silent on the matter, it seems
possible that Judge Rousseau may have been actuated to
make his percipitate denial of the petitioner’s motion for
a continuance by a matter on which the North Carolina
Supreme Court laid stress in its opinion, namely, the
statement of the North Carolina District Attorney that he
advised Attorney Griffin about June 1, 1975, that he
would move “to have Mr. Long disqualified as defense
counsel for Mr. Hunter—in the event Mr. Long attempted
to appear for Mr. Hunter.” (Record, p. 23)
The petitioner respectfully submits that the warning of
the North Carolina District Attorney does not merit the
importance which Judge Rousseau may have given to it
and which the North Carolina Supreme Court actually
gave to it. Surely an accused who is charged with serious
criminal offenses is not obliged to discharge a skilled
attorney in good standing at the bar whose retainer by
him is both ethical and lawful and replace him with other
counsel merely because the District Attorney warns him
in advance that he will move to disqualify the attorney if
he appears at the trial to fulfill his ethical and lawful
engagements to the accused.
Se A Re
19
Surely, moreover, such an advance warning on the part
of the District Attorney does not make it obligatory for
an accused ‘to anticipate that the presiding judge will
deny him the right to be represented at his trial by an
attorney in good standing chosen and retained by him in
an ethical and lawful manner and subject him to an
immediate trial without affording him any time to obtain
replacement counsel or to make an additional preparation
for trial which the exclusion of his chosen attorney may
necessitate.
Having been convicted by a petit jury of the felony of
being an accessory before the fact to the crime of murder
and sentenced to life imprisonment, the petitioner
appealed to the Supreme Court of North Carolina on the
ground, among others, that Judge Rousseau had denied
him his right under the Sixth and Fourteenth Amend-
ments to have the assistance of counsel for his defense by
denying him the right to be represented by Long, his
chosen and retained attorney, at his trial and by refusing
to continue the case to permit him to obtain other
counsel to replace Long or to make such other
preparations for his defense as the exclusion of Long
might necessitate.
The North Carolina Supreme Court overruled the
claims of the petitioner to these Federal rights and
adjudged that Judge Rousseau had not committed any
legal errors in his rulings excluding Long from the case
and refusing to continue the trial of the case. The
rationale underlying the judgment of the North Carolina
Supreme Court is stated in paragraph 21 of the foregoing
Statement of Case.
When all is said, the North Carolina Supreme Court
based its rulings on the Federal questions presented by
the petitioner upon these conclusions:
20
1. That Judge Rousseau did not deny the petitioner
his right under the Sixth and Fourteenth Amendments to
have the assistance of counsel for his defense by his
rulings excluding the petitioner’s chosen and retained
attorney Long from the case and refusing to continue the
trial of the case for the purpose indicated because those
rulings related to matters which rested in his sound
discretion and he did not abuse his discretion in making
those rulings.
2. That even if the rulings of Judge Rousseau
excluding Attorney Long from the case and refusing to
continue the case did violate the petitioner’s right under
the Sixth and Fourteenth Amendments to have the
assistance of counsel for his defense at his trial, the
rulings constituted harmless error of which the petitioner
cannot complain because the petitioner was ably de-
fended by other counsel, Attorneys Griffin and Stroman,
and in consequence, was not prejudiced by the rulings.
It is undoubtedly true that under common law
principles as well as under the statutory provision
embodied in subsection (6) of Section 84-4.1 of the
General Statutes of North Carolina a motion of an
out-of-state attorney to be admitted to practice in a
North Carolina Superior Court for the sole and limited
purpose of appearing for a particular client in particular
litigation is ordinarily addressed to the sound discretion
of the presiding judge. It is likewise true that under North
Carolina law a motion to continue a civil or criminal
action pending in a North Carolina Superior Court is also
ordinarily addressed to the sound discretion of the
presiding judge.
Under the supremacy clause of Article VI of the
Constitution of the United States, however, these North
Carolina laws must yield to the Sixth and Fourteenth
21
Amendments which secure to the accused in all criminal
prosecutions in Federal or State Courts “the right—to
have the assistance of counsel for his defense.’
In ruling that Judge Rousseau had exercised his
discretionary power wisely in denying the petitioner the
right to be represented by Attorney Long, his chosen and
retained attorney, at his trial, the Supreme Court of
North Carolina asserted, in substance, that the ruling was
in harmony with the public policy of North Carolina as _
embodied in Canon of Ethics No. 9 of the North Carolina
State Bar declaring that North Carolina attorneys should
avoid the appearance of impropriety in their professional
conduct and Section 84-2 of the General Statutes of
North Carolina making it a crime for a North Carolina
prosecuting attorney to practice law privately.
Without pausing to observe that neither this Canon nor
this statute has any application to his chosen and retained
attorney, James M. Long, under the circumstances
delineated in the Record, the petitioner respectfully
maintains that under the Supremacy Clause of Article VI
of the Constitution of the United States any public
policy of North Carolina embodied in the Canon or
Statute must yield to the Sixth and Fourteenth Amend-
ments guarantee that the accused in any criminal
prosecution in any Federal or State Court “shall enjoy
the right-to have the assistance of counsel for his
defense.”
In judging the validity of the petitioner’s claims, it is
wise to distinguish between the questions which this case
does not present and the question which it does present.
This case does not present the question of the power
of a state to deny to an out-of-state attorney not licensed
by it to practice law the right to engage in the habitual or
22
general practice of law within its borders or its courts. It
does not present the question of the power of a state to
deny to an out-of-state attorney not licensed by it to
practice law the right to participate in a particular case in
its courts when the out-of-state attorney is not in good
standing at the bar of the state in which he is licensed to
practice, or has acquired by his previous conduct the
record or reputation of disrupting judicial proceedings in
which he participates.
On the contrary, this case presents this simple
question’ Does a nonresident accused charged with
serious crimes in a court of the forum have the right
under the Sixth and Fourteenth Amendments to be
represented at his trial by an attorney of his own state
who is in good standing in his own state and whose
retainer by him is both ethical and lawful?
The petitioner respectfully submits that this simple
question must be answered in the affirmative. Otherwise,
a state can nullify in its courts the right-to-counsel
guarantee of the Sixth and Fourteentii Amendments,
which expressly covers the entire United States, by the
simple device of clothing its courts with the discretionary
power to deny out-of-state attorneys the right to appear
before them in particular cases.
Although the right-of-counsel clause of the Sixth
Amendment was originally designed to apply to the
Federal government only, the Fourteenth Amendment
made it applicable to the states because it is basic to due
process and fairness. Escobedo v. Illinois, 378 U.S. 478,
Gideon v. Wainwright, 372 U.S. 335; Burgett v. Texas,
389 U.S. 109.
As a consequence, an accused in a criminal prosecution
in a state court has an unqualified right to retain counsel
23
of his choice and to be represented in the fullest measure
by such counsel at his trial. Re Groban, 352 U.S. 330;
Reynolds v. Cochran, 365 U.S. 525; Chandler v. Fretag,
348 U.S. 3; Hawk v. Olsen, 326 U.S. 271; House v. Mayo,
324 U.S. 42.
The Record compels the conclusion that Judge
Rousseau denied the petitioner his Sixth and Fourteenth
Amendment right to have the assistance of counsel for his
defense when he excluded his chosen and retained
attorney, James M. Long, from the trial. Moreover, the
Judge compounded his violation of these Amendments
by denying the petitioner’s motion for a continuance and
forcing him to immediate trial without allowing him a
reasonable time to obtain replacement counsel or to
make such other preparations for his trial as the exclusion
of his chosen and retained counsel made advisable. White
v. Ragen, 324 U.S. 760; Powell v. Alabama, 287 U.S. 45.
THE DECISION BELOW DECIDES SUCH QUES-
TION IN A WAY INCOMPATIBLE WITH PREVIOUS
DECISIONS OF THIS COURT.
To be sure none of the cases cited involved the
exclusion of an out-of-state attorney. Indeed, diligent
research has failed to reveal any decision of the Supreme
Court of the United States relating to the exclusion of
such an attorney.
The Sixth and Fourteenth Amendments constitute the
supreme law of the land in all areas within the borders of
the United States, make no distinction between local and
out-of-state attorneys, and secure to every person in any
criminal prosecution in any court, Federal or State, the
right to have the assistance of an attorney chosen and
retained by him for his defense.
As the Supreme Court states, in essence, in the
landmark case of Powell v. Alabama, supra, (287 U.S. 45)
24
the constitutional right to counsel is one of those
“immutable principles of justice which inheres in the very
idea of free government” and “which no member of the
Union may disregard.” (287 U.S. pp. 71-72)
Hence, neither North Carolina nor any other state can
pullify this immutable principle of justice in criminal
prosecutions in its courts by the simple expedient of
vesting them with discretionary power to deny the
accused the right to be defended by an out-of-state
attorney chosen by him.
The North Carolina Supreme Court adjudged that in
any event Judge Rousseau’s denial of the right of the
petitioner under the Sixth and Fourteenth Amendments
to have the assistance of his chosen and retained counsel,
James M. Long, for his defense constituted harmless error
of which he cannot complain because he was ably
defended by other attorneys at his trial.
This adjudication makes the petitioner’s constitutional
right to the assistance of counsel of his choosing a hollow
mockery and reduces the Constitution itself to a
worthless scrap of paper. It certainly cannot be recon-
ciled with the Supremacy Clause of Article VI of the
Constitution which declares that “this Constitution —shall
be the supreme law of the land; and the Judges in every
state shall be bound thereby; any thing in the Constitu-
tion or laws of any state to the contrary notwithstand-
”
ing.
Moreover, it is incompatible with the holdings of this
Court that “‘there are some constitutional rights so basic
to a fair trial that their infraction can never be treated as
harmless error,” Chapman v. California, 386 U.S. 18; and
that among them is the constitutional right to the
assistance of counsel for the accused’s defense in a
criminal prosecution. Gideon v. Wainwright, supra (372
U.S. 335); Reynolds v. Cochran, supra, (365 U.S. 525,
footnote 12); Chandler v. Fretag, 348 U.S. 3.
25
While it is a decision of an inferior Federal Court
involving the exclusion by the United States District
Court of the Middle District of Pennsylvania of New
Jersey attorneys chosen and retained by New Jersey
residents charged with crime in such District Court, the
decision of the United States Court of Appeals tor the
Third Circuit in United States v. Bergamo, 154 F.2d 31,
sheds light on the problem under present consideration.
‘= reversing the convictions of the New Jersey
residents, the Circuit Court said:
“The Sixth Amendment provides inter alia that ‘in all
criminal prosecutions, the accused shall enjoy the
right * * * to have the assistance of counsel for his
defense.’ The Supreme Court has held that the right to
the assistance of counsel includes the right to counsel of
the defendant’s choosing. * * * To hold that defendants
in a criminal case cannot be defended by out-of-district
counsel selected by them is to vitiate the guarantees of
the Sixth Amendment. * * * Since they were deprived of
a constitutional nght the judgment of conviction pro-
nounced by the court was void.”
THE DECISION BELOW PRESENTS SIGNIFICANT
AND RECURRING PROBLEMS CONCERNING THE
RIGHT TO COUNSEL UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS.
The petitioner urges with all emphasis that the
Supreme Court should grant the writ of certiorari and
review the judgment of the Supreme Court of North
Carolina.
It is highly important for it to do so for these reasons:
1. The North Carolina Supreme Court has decided a
federal question of substance which has apparently never
26
been heretofore determined by this Court, namely, that
the Sixth and Fourteenth Amendments permit a state to
confer upon its courts the discretionary power to deny an
out-of-state resident the right to be defended in a
criminal prosecution by counsel of his own choosing who
is an attorney in good standing at the bar of the state in
which the accused resides.
2. The North Carolina Supreme Court has decided
this federal question in a way which is not in accord with
the decisions of this Court, such as Re Groban, supra,
(352 U.S. 330), which consirue the Sixth and Fourteenth
Amendments to secure to an accused in a criminal
prosecution “‘an unqualified right * * * to be heard
through his own counsel.”
3. As the Bergamo Case indicates, the mobility of the
American people and their desire to be defended by
attorneys whom they know and who reside in their own
localities when they are subjected to criminal prosecu-
tions in other states render the question presented by this
case one of high pragmatic importance and make its
decision by this Court imperative if the Sixth and
Fourteenth Amendments to the Constitution are to
operate with uniformity throughout the United States.
27
CONCLUSION
For these reasons, a writ of certiorari should be
granted to review the judgment and opinion of the
Supreme Court of North Carolina.
This the 15th day of November, 1976.
Respectfully submitted,
SAM J. ERVIN, JR.
P.O. Box 69
Morganton, North Carolina
28655
(704) 437-5532
Counsel for the Petitioner.
JAMES E. GRIFFIN
P.O. Box 236
Monroe, North Carolina
28110
(704) 283-8578
-Of Counsel for Petitioner.
CHARLES D. HUMPHRIES
P.O. Box 904
Monroe, North Carolina
28110
(704) 289-5594
Of Counsel for Petitioner.
28
CERTIFICATE OF SERVICE
I hereby certify that on this the 26th day of November,
1976, I mailed three copies of the petition for a writ of
certiorari by registered mail with postage prepaid to
Rufus L. Edmisten, the Attorney General of North Caro-
lina, who is counsel for the respondent, at his office in
the North Carolina Department of Justice, Justice Buil-
ding, Raleigh, North Carolina 27602. I further certify
that all parties required to be served have been served.
SAM J. ERVIN
P.O. Box 69
Morganton, N.C. 28655
(704) 437-5532
Counsel for Petitioner.
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APPENDIX
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APPENDIX A .
[Judgment of the Supreme Court of North Carolina|
556 IN THE SUPREME COURT [290
STATE OF NORTH CAROLINA v. HAKKY HUNTER
No. 44
(Filed 1 September 1976)
1. Constitutional Law § 32— out of state counsel not permitted — right
to counsel not abridged
Defendant was not denied his right to counsel under the Sixth
and Fourteenth Amendments to the U. S. Constitution by the trial
court’s refusa] to allow a S. C. solicitor from the district in which
defendant's beach motel was located to represent defendant in this
N. C. prosecution, since defendant was represented by an able N. C.
attorney and by the S. C. attorney who normally handled defendant's
business affairs.
2. Criminal Law § 91— continuance to obtain additional counsel — denial
proper
The trial court did not err in denying defendant's motion to con-
tinue the case in order to permit him to employ additional counsel,
since defendant was represented by two attorneys and there was no
indication or allegation that he even wished to in another lawyer
or that other counsel was necessary to prepare adequately the defense.
3. Criminal Law § 169— objectionable testimony — similar testimony ad-
mitted without objection — no prejudice
Defendant was not prejudiced by testimony concerning his partic-
pation in a separate crime since testimony of like import was there-
after admitted without objection.
4. Criminal Law § 34— defendant's participation in other crimes — evi-
dence admissible
In a prosecution of defendant for first degree murder and armed
robbery or attempted robbery where >e court submitted to the jury
only the issue of defendant's guilt as an accessory before the fact to
murder, evidence of defendant's participation in other breakings, en-
terings and larcenies together with other evidence showing the rela-
tionship of the defendant with the other men involved in the crimes
tended to establish a common plan or scheme embracing the commis-
a series of larcenies so related to each other that proof of
to prove the crime charged and to connect
its commission; therefore, the trial court properly
of defendant's participation in other crimes.
Law § 43— slides of murder victim's wounds — admissibility
trial court did not err in allowing the jury to view slides
of the wounds of a murder victim, since the slides were relevant upon
the question of cause of death and the slides illustrated the testimony
6. Criminal Law § 10— accessory before the fact — proof required
To convict defendant of being an accessory before the fact the
State must prove (1) that the defendant counseled, procured, com-
2a
N.C.) SPRING TERM 1976 557
manded, encouraged, or aided another to commit the offense; (2) the
defendant was not present when the crime was committed; and (3)
the principal committed the crime.
. Homicide § 21— accessory before the fact to murder — sufficiency of
evidence
In a prosecution for accessory before the fact to murder, evi-
dence was sufficient to be submitted to the jury where it tended to
show that defendant was not present when the crime was committed,
the principal committed the crime, defendant told one of the parties
to the crime that the victim kept a substantial amount of money on
him or in his possession which they could steal, defendant told another
person that he wonld help set up the crime, defendant informed his
companions in the crime that he planned to have he larceny occur
while the victim dined at his house, defendant later informed them
that they would have to catch the victim at home because defendant
did not know where the money was, defendant showed his cohorts
where the victim's home was, he instructed them to come back to his
house after the “job,” and it was understood that defendant was
to get 25% of the money stolen.
Criminal Law § 112— proof beyond a reasonable doubt — sufficiency of
instructions
Though two sentences of the trial court’s instructions as to the
elements of the crime that the State must prove in order for the
jury to find defendant guilty failed to inform the jury that such
proof must be shown by evidence establishing the enumerated elements
beyond a reasonable doubt, such failure did not amount to a violation
of G.S. 1-180, since the court's charge as a whole made it clear to the
jury that each element had to be proved by evidence establishing the
same beyond a reasonable doubt.
. Homicide § 25— accessory before the fact to murder —jury instruc-
tions proper
In a prosecution of defendant for accessory before the fact to
murder, the trial court’s instructions (1) concerning the immediate
causal connection between the counseling of the principal by the
defendant and the commission of the crime by defendant, (2) as to
whether defendant and the principal entertained the common design
that the principa] take money from the person or presence of
deceased by violence or intimidation, and (3) summarizing the evi-
dence were proper.
Homicide § 25— felony-murder — failure to instruct on elements of
underlying felony — no prejudicial error
Although the trial court should have spelled out the essential
elements of the underlying felony of attempted armed robbery in its
instructions as to what the State must prove to convict defendant of
being an accessory before the fact to felony-murder, his failure to
do so was not prejudicial error because: (1) the occurrence of the
attempted armed robbery was not disputed and thus was not in issue
under the evidence of the case, (2) defendant failed to request spe-
cifically instructions on the underlying felony, (3) the court did
3a
558 IN THE SUPREME COURT [290
define “attempted armed robbery” as “attempted robbery with a
firearm,” and (4) these terms were essentially self-explanatory un-
der the circumstances of this case.
Judge Exu™M concurs in result.
Justice LAKE dissenting.
APPEAL by defendant pursuant to G.S. 7A-27(a) from
Rousseau, J., at the 18 August 1975 Criminal Session of UNION
County Superior Court.
On two separate indictments, proper in form, defendant
was charged (1) with first-degree murder of William Benjamin
Potts and (2) with armed robbery or attempted robbery of
William Benjamin Potts. The court submitted to the jury only
the issue of his guilt as an accessory before the fact to murder.
The jury returned a verdict of guilty, and a sentence of life
imprisonment was imposed.
The evidence for the State tended to show the following:
Rilly Wade Devine, Gary Allen Watkins, and James Ear! Lock-
lear had pleaded guilty to second-degree murder of Potts at a
previous teim and received life sentences. Devine and Watkins
testified for the State.
The defendant had lived at Myrtle Beach, South Carolina,
during the summer months for many years. He was past 6!
years in age and was married to his present wife in 1974. He
owned and operated the Bay Shore Mote! at Mvrtle Beach,
South Carolina. He had a home in Union County, North Car-
olina, located between Monroe, North Carolina, and Pageland,
South Carolina. It was his custom to spend the winter season
at his Union County home.
Gary Watkins testified that he supported himself by steal-
ing and that he and Charles Duncan (also known as Charles
Evans) had not worked at any lawful occupation for at least
314 years. Watkins, who was with Duncan and another man at
the time, met the defendant about August, 1973, at the Bay
Shore Motel.
Billy Devine testified that the defendant and Charles Dun-
can were not friends of his. They were just people who put him
onto “jobs” (larcenies). In the summer of 1974, Devine met the
defendant at the Bay Shore Motel in the presence of Watkins
and Duncan.
4a
N.C.] SPRING TERM 1976 559
Devine and Watkins first visited the defendant with Dun-
can at the defendant’s Union County home in the summer or
winter of 1974. Prior to 7 February 1975, Devine visited the
defendant about three times at his Union County home. Watkins
visited the defendant there a tota! of three or four times.
Devine, Watkins, and Duncan visited the Bay Shore Motel
six or seven times during the 1974 summer, and the defendant
was there on every occasion. Devine and Watkins paid rent
there only once or twice. The inference was that generally no
rent was charged.
During the summer of 1974, the defendant discussed a
“job” with Devine and Watkins involving the theft of a safe
from the home of Tony Thompson at Myrtle Beach. The de-
fendant told them the Thompson family had some money because
they owned Dino’s Restaurant. He gave Watkins the tools to
open the safe. When Watkins and Devine broke into the house
through the back door on 21 July 1974, they unexpectedly en-
countered a Greek lady, whom Watkins threw to the floor and
tied up with the assistance of Devine. They hauled the safe
away, but it was found to be empty when they opened it. They
dumped the safe in a canal.
During the summer of 1974, the defendant, Charles Dun-
can, Devine, and Watkins had a conversation about breaking
into the Atlas Construction Company at Myrtle Beach and steal-
ing some diamonds and guns. The defendant explained to the
others what could be obtained and where the company was lo-
cated. Watkins, Devine, and Duncan broke into the establish-
ment on 30 August 1974. No diamonds were found, but they
did take thirty guns of various descriptions. These were brought
back to the Bay Shore Motel, and the defendant picked out two
or three guns for himself. One of these was a .25 Colt Automatic
Pistol (identified in evidence as State’s Exhibit 1), which was
later found as a result of a valid search at the Bay Shore
Motel on 14 May 1975 when the defendant reached in a drawer
and handed it to officers. Another of these was a Police Special
.38 Pistol (identified as State’s Exhibit 2), which Devine testi-
fied Watkins had on 7 February 1975 and was found on that
date under the driver's side of the front seat of the Grand
Prix automobile that Watkins was operating. It was apparently
understood that anyone who planned a “job” would receive a
part of the proceeds. The remaining guns were disposed of by
5a
560 IN THE SUPREME COURT [290
Duncan, and the money was distributed among Duncan, De-
vine, and Watkins.
On the night of the Atlas Construction Company break-in
or immediately afterwards, the defendant told Devine about
two men, a Mr. Potts in Union County and a Mr. Cato in Page-
land, South Carolina, nearby. The defendant said they kept a
substantial amount of money on them or in their possession that
the defendant and Devine could steal. The defendant a!so dis-
cussed these two men and the available money with Watkins.
The defendant told him that he would help set it up for them.
Another break-in and larceny was discussed by Gary Wat-
kins and the defendant. He suggested a house that was owned
by Allison Davis and located just past Ocean Drive in North
Myrtle Beach. He described the house and said that the Davis
family had a lot of money because they paid cash for a
Mercedez-Benz and still had a safe in the house. On 17 Decem-
ber 1974, Devine, Watkins, and Duncan broke into the house
through a back door but found no safe and left.
After two weeks before 7 February 1975, the defendant
told Watkins that he would invite Mr. Potts for supper and
Watkins and the others would break in the Potts’ house and
take the money.
About a week before 7 February 1975, Devine, Watkins,
Duncan, Locklear, and a Curt Petty drove in Duncan's 1974
Grand Prix automobile to the home of defendant Hunter in
Union County. They went to Hunter’s home to find out if he
had any further information on Mr. Cato or Mr. Potts. When
they arrived, Locklear and Petty stayed in the car while the
others went inside. Devine showed Hunter his .9 mm. Automatic
Pistol, later identified as State’s Exhibit 3. Hunter wanted to
trade the .25 Colt Automatic Pistol that he had received from
the Atlas Construction break-in for the .9 mm. Automatic Pis-
tol. Devine declined, saying that he would be laughed at if he
tried armed robbery with a .25 Colt Automatic. As Devine,
Watkins, and Duncan were getting ready to leave. Hunter told
him that he would try to arrange for Mr. and Mrs. Potts to
come to his house for dinner and they could go and take
the money at the Potts’ house, but at the time he had not found
out where the Potts kept the money. Later he indicated to Wat-
kins that they would have to catch Potts at his home because
Hunter did not know where the money was. He stated that
Oa
N.C.) SPRING TERM 1976 561
Potts had had an eye operation and could not see well. Hunter
pointed out the nearby house of Potts to them. Hunter told
Devine that they were to come back to Hunter’s house after
the robbery if anything went wrong.
On 7 February 1975, Devine, Watkins, and Locklear were
in a motel in Mecklenburg County, North Carolina. Devine was in
danger of being caught concerning a breaking and entering
in South Carolina, and they had to leave the motel rapidly.
Later that afternoon, Devine and Watkins had a conversation
with Duncan and borrowed his Grand Prix automobile. Devine,
Watkins, and Locklear then left Charlotte, North Carolina, and
drove to Monroe. On the way they stopped and broke into a
veterinarian’s office for the purpose of stealing some drugs,
but stole money instead and then proceeded to the home of
Potts. Watkins was driving and let out Devine and Locklear
-at. the Potts’ house. They went to the door, and Devine asked
£6 use the telephone. He was permitted in the house with his
pistol (State's Exhibit 3) under his coat. Potts came to the
door, and as Mrs. Potts was about to show him the telephone,
Devine thought he saw a pistol in Potts’ hand. Potts grabbed
at Devine’s arm, and Devine started shooting. He thought Potts
fired back, and Devine continued shooting. Devine did not know
how many times he shot. Potts died as a result of the gunshot
wounds. Mrs. Potts turned on the burglar alarm.
Devine and Locklear fled from the Potts’ house to defend-
ant Hunter’s house nearby. Hunter came out and asked what
was wrong. Devine said that nothing was wrong. He indicated
they were supposed to meet Watkins there. Hunter asked them
in, but they stayed inside only a few moments. About that time,
Hunter came out and said, “Somebody has been shot. Get the
hell out of my yard. I don’t want nobody to see you.” Devine
and Locklear left by a route through the woods. When they
were about 500 yards from Hunter's house, they saw Watkins
drive up at Hunter’s house. They were afraid to return and
watched as Watkins drove away. Devine discarded his pistol
and coat. They walked some six miles and were later appre-
hended. When Watkins drove up in the Grand Prix, he was
told by Hunter to “get the hell out” and was soon apprehended
near Monroe. Hunter had told Devine and Watkins to come
back to his house after the “job.” It was understood that Hunter
was to get twenty-five percent of the money stolen.
7a
562 IN THE SUPREME COURT (290
After the shooting occurred, Mrs. Potts called her neigh-
bors, and in turn the Hunter residence was called. Apparently
this happened about the time that Devine and Locklear arrived.
Neither Hunter nor his wife went to the home of Potts that
evening, and neither Hunter nor his wife have been to the
Potts’ house since the murder. Hunter and Mrs. Potts had been
reared together as children in Pageland, South Carolina.
The Sheriff's Department made a prompt investigation and,
in the course of it, called Hunter about 12:00 o’clock that night.
Hunter told the Sheriff about Devine, Watkins, Locklear, and
Duncan’s being at his home on the afternoon of February 7
but on that night never mentioned that Devine, Locklear, and
Watkins visited his house about 10:00 p.m. that evening. The
sheriff talked to Hunter again the next morning. Mrs. Hunter
was not present although the sheriff understood she would be
there. On this occasion Hunter told the sheriff about Devine,
Locklear, and Watkins’ coming by the house about 10:00 p.m.,
the night before. He had no particular explanation for why
they came to his house at that time.
Hunter testified for the State when Devine, Watkins, and
Locklear pled guilty to second-degree murder. He had previ-
ously identified them from photographs on 8 February 1975
when Sheriff Fowler was at his house.
In the course of the investigation, the pistol that Devine
had discarded was located at the place he indicated. Tracks
were found leading from the Potts’ house to the Hunter house
and away from it. The jacket of Devine was found along the
route. Sunglasses that Devine had lost as he was running away
were also located.
Devine and Watkins did not agree to testify against Hun-
ter until after they had been sentenced for second-degree mur-
der. Watkins was incarcerated in the prison camp at Lillington,
and Devine was in Central Prison. Some time after Watkins
was sentenced to prison, his father committed suicide because of
what had happened to his son. Watkins’ mother came to the
prison camp and talked to him. As a result Watkins contacted
Sheriff Fowler, who met with Watkins’ attorney and the Dis-
trict Attorney at the prison camp at Lillington, whereupon
Watkins proceeded to implicate defendant Hunter. Later Devine
did likewise. ;
8a
N.C.]J SPRING TERM 1976 563
On 1 May 1975, a man named Richard Mears contacted
the defendant at Myrtle Beach. He told the defendant that he
had talked with Charles Duncan in Charlotte about purchasing
stolen jewelry from Hunter. On 3 May 1975, the defendant told
Mears that he wanted “to place a contract on Devine and Wat-
kins.”’ They discussed the terms for this proposed killing, and
it was agreed that Hfunter would pay Mears $5,000 to kill the
two. He paid him $100 in advance for expenses. In the course
of the conversation. the defendant told Mears that he had
planned the robbery of Potts and that Watkins and. Devine,
instead of doing the robbery, broke into a store and later went
berserk when they attempted to rob the “old man.” Mears also
discussed this “contract” with Hunter on 6 and 8 May 1975.
The state offered corroborative evidence from officers at
Myrtle Beach that there were break-ins at Myrtle Beach in the
summer of 1974 as Devine and Watson had testified.
Defendant's evidence tended to show:
Duncan received a telephone call from Sheriff Fowler
about 11:40 p.m. on the night of the murder. The call concerned
the Grand Prix automobile that Duncan had loaned Devine and
Watkins. Duncan denied knowing anything of the break-ins at
Myrtle Beach. Duncan had known the defendant for 4% years.
He indicated that he might see Devine and Watkins two or
three days each week in the Charlotte area. He denied commit-
ting any crimes for Hunter. His business was buying and selling
merchandise ranging from TV’s to guns. He denied ever seeing
Richard Mears. Duncan admitted to having served a total of
15's years in prison for breaking, entering, and larceny. At the
time of the murder, Duncan was wanted on a burglary charge
and was running from the law. He went to the jail to see Wat-
kins and Devine several times while they were awaiting trial.
Duncan said neither Watkins nor Devine ever told him that the
defendant was involved in the robbery and murder.
The defendant testified that he had operated a motel and
liquor store at Myrtle Beach for the past 17 years. He had a
residence south of Monroe, which he occupied during the winter
months. He knew Duncan, Watkins, Devine, and Locklear. He
admitted that Duncan, Watkins, and Devine stayed at his motel
at Myrtle Beach but said he did not know Locklear before 7
February 1975. Duncan, Watkins, Devine, and Locklear came
to his house on the afternoon of 7 February 1975. Duncan and
Soaree |
9a \
564 IN THE SUPREME COURT , [290
Watkins spoke briefly with Mrs. Hunter, who was in the bed-
room. Afterwards, Duncan, Watkins, Devine, and Locklear in-
quired as to when the motel would open. Watkins and Devine
had asked several times for work at the motel. The defendant
denied any conversation about Potts with Duncan, Watkins, or
Devine at any time.
Devine and Locklear came to Hunter’s house between 10:00
and 10:30 p.m. on the night of 7 February 1975. They said that
Watkins was supposed to pick them up. Hunter invited them
in to look at television. While this was happening, his wife was
on the telephone, and he heard her say “Oh, no.” She ran down
the hall and told him that Mr. Potts had been shot and robbed. He
went back to the living room, and Devine and Locklear were
gone. Potts’ name had never been mentioned by them.
Shortly after Devine and Locklear left, two neighbors, Mr.
and Mrs. Goodall, came in and borrowed a shotgun. Shortly
thereafter, Gary Watkins arrived. He rang the back doorbell and
asked about Devine and Locklear. Hunter told him they had left.
Nobody mentioned Potts.
Hunter had a conversation with Sheriff Fowler about
midnight. He said he told Sheriff Fowler about Devine, Lock-
lear, and Watkins’ coming to his house that night and that they
with Duncan had been by his house that afternoon. The next
morning, Sheriff Fowler called again and wanted to see Hun-
ter and his wife. When the sheriff and others arrived at Hun-
ter’s house, his wife, who had gone to the doctor, was not there.
On this occasion, Hunter identified pictures of Devine, Locklear,
and Watkins and again told the sheriff about their being there
the afternoon before as well as later that night. Hunter said
Devine and Watkins knew Mr. and Mrs. Potts, having met
them at his house about a week before. Hunted had no knowl-
edge of Potts’ financial condition but traded at his store from
time to time, changed money, and cashed checks. Hunter said
that he did not go to Potts’ house the next day because he was
waiting for the sheriff. He had called Mrs. Potts two or three
times since then, but she was never in a position to see him
and his wife.
Hunter identified State’s Exhibit 1, the Colt Automatic .25.
He said Gary Watkins had pawned it to him at the beach for
$25. This gun was kept by Hunter at the beach. Hunter admitted
to having dealings with Devine and Watkins, having bought
10a
N.C.] SPRING TERM 1976 565
two shotguns from them in Deccmber 1974 for $400. He ad-
mitted seeing Richard Mears on 14 May 1975 when the defend-
ant was in the jail in Conway, South Carolina, for possession
of a stolen pistol, State’s Exhibit 1, but denied ever seeing him
prior to that time or talking to him about killing Devine and
Watkins as alleged by Mears. He also denied having ever bene-
fited from anything stolen by Watkins or Devine and having
ever discussed any crimes with them. Charles Duncan was a
good friend with whom he had been out on a social basis two
or three times. He did not know what Duncan’s business was.
Hunter said he had not been to the Potts’ store for 8 weeks
before Potts’ death because he had a bad back. He had known .
Mrs. Potts since he was a small boy, and she was his friend. He
denied ever discussing Potts or Cato with Devine, Watkins, or
Locklear.
He said he did not go to the Potts’ house on the night of
the killing because his wife was sick and asked him to stay
home. He did not go later because Mrs. Potts was upset. He
cooperated with the sheriff. He had never been arrested for
anything prior to 14 May 1975. When he paid Devine and
Watkins $400 for the two shotguns in December 1974, the check
was written by Mrs. Potts and made out to cash and later
cashed by Duncan from a man named Ross, who had been
called by Hunter.
Elizabeth Ann Hunter, the wife of defendant, said she
knew Duncan, Devine, and Watkins. She was married to the
Defendant in 1974. She said that at her request the defendant
did not go to the Potts’ house on the night of the murder be-
cause of her ill health. She talked to Sheriff Fowler the next
morning but told him she had to go to the doctor.
Duncan, Devine, and Watkins had been to Hunter’s house
in Union County two or three times. They stayed at the motel
at the beach during the summer of 1974 and always paid their
bills. Mrs. Hunter was a close friend of Duncan and his girl
friend. They were in and out of the motel during August and
September, 1974, as well as the July 4th weekend of that year.
Duncan always paid his room rent in cash. Mrs. Hunter’s doctor
said she did not have an appointment with him on February 8
but she came to his office.
Some witnesses from Myrtle Beach gave the defendant a
good reputation.
lla
566 IN THE SUPREME COURT [290
On rebuttal State’s Evidence tended to show the following:
Sheriff Fowler talked with Mrs. Hunter about midnight on
7 February 1975 when she told him that Duncan, Devine, Wat-
kins, and another man came to their house in the afternoon and
she spoke with two of them briefly. However, she said nothing
at that time about Devine, Locklear, and Watkins’ coming back
that night about ten o'clock. Neither did she tell him about
yoing to the doctor when he talked to her on the morning of
February 8. She agreed to meet him but was yone when he
arrived. Two Myrtle Beach officers gave the defendant a bad
reputation but admitted that he had never been arrested for
anything.
It has been difficult for us to ascertain the facts from
the brief of defendant and the State. The facts in defendant's
brief cover 80 pages. The State’s brief had no statement of
facts, except as discussed in the assignments of error. We note
that Rule 28(b) (2) of the Rules of Appellate Procedure,
among other things, requires that the appellant's brief
51 . should additionally contain a short, non-argumentative
summary of the essential facts underlying the matter in con-
troversy where this will be helpful to an understanding of the
questions presented for review.” The State is not required by
Rule 28(c) of the Rules of Appellate Procedure to state the
facts unless there is some disagreement.
Because of the failure to comply with the rules, it has been
difficult for us to glean the facts from a complicated situation.
Other pertinent facts will be discussed in the opinion.
Attorney General Rufus L. Edmisten by Special Deputy
Attorney General John M. Silverstein for the State.
James E. Griffin, Charles D. Humphries, Robert M. Me-
Innis (on brief, from North Myrtle Beach, South Carolina)
and Sam J. Ervin Jr., for defendant.
COPELAND, Justice.
{1} Defendant contends that the court erred in not permitting
James M. Long of the South Caroiina Bar to represent Hunter
at the trial. He says that this action of the trial court denied
him his right to counsel under the Sixth and Fourteenth Amend-
ments. As authority for this position he cites United States v.
Johnston, 318 F. 2d 288 (6th Cir. 1963) and United States v.
12a
N.C.] SPRING TERM 1976 567
Bergamo, 154 F. 2d 31 (3d Cir. 1946). The present case is dis-
tinguishable from these cases on the basis of its facts.
Defendant was ably represented by local counsel in Union
County, Mr. James Griffin, as well as by a South Carolina
attorney by the name of Mr. Ralph Stroman, who normally
handled defendant’s business affairs. On 18 August 1975, the
date set for the trial of this case, defendant made a motion
to admit counsel James M. Long to appear in the case. The
trial judge made an exhaustive inquiry, and it was determined
that Mr. Long was the solicitor (chief prosecuting attorney)
for the Fifteenth Judicial Circuit in South Carolina, which in-
cluded Horry County, in which Myrtle Beach is located. § 1-255
of the Code of Laws of South Carolina (1962) provides:
“The solicitors may defend any persons brought to trial
before any criminal courts of this State when their duty
shal! not require them to prosecute such persons and their
assistance shall not be required against such persons by
the Governor or Attorney General.”
Long told the trial court that he had been retained by
defendant on 5 May 1975, after having been informed by Dis-
trict Attorney Lowder of Union County that a bill of indictment
had been returned against Hunter in Union County. Mr. Stro-
man had been contacted by the defendant about this matter
several days before Mr. Long was contacted. Mr. Griffin was
retained by defendant about 1 June 1975.
District Attorney Lowder told the trial court that Mr. Long
had originally been requested to assist him in the arrest of Mr.
Hunter but he received no help from Mr. Long. In fact, Long
assisted Hunter in making bond on the murder charge.
Sometime after Long was retained, criminal charges were
brought against defendant Hunter in Long’s district. Long indi-
cated that these cases were being handled by his assistants. The
Attorney General of South Carolina filed a writ in the Supreme
( ‘ourt of South Carolina to restrain Mr. Long from participat-
ing in South Carolina in cases involving defendant Hunter. Af-
ter Mr. Long explained that his assistants were handling the
prosecution in South Carolina and that he was totally removed
from the South Carolina prosecution, the matter was withdrawn
by the Attorney General. At the time of this motion, however,
the matter was still before Chief Justice Lewis of the Supreme
Court of South Carolina.
a
13a
568 IN THE SUPREME COURT [290
It is well settled that an out-of-state attorney has no ab-
solute right to practice law in another forum. It is permissive
and subject to the sound discretion of the Court. Thomas v.
Cassidy, 249 F. 2d 91 (4th Cir. 1957), cert. denied, 355 U.S.
958, 78 S.Ct. 544, 2 L.Ed. 2d 533 (1958) ; Cooper v. Hutchinson,
184 F. 2d 119 (3d Cir. 1950) ; Parker v. Parker, 97 So. 2d 136
(Fla. App. 1957) ; State v. Kavanaugh, 52 N.J. 7, 243 A. 2d 225
(1968), cert. denied, 393 U.S. 924, 89 S.Ct. 254, 21 L.Ed. 2d
259 (1968); Manning v. Railroad, 122 N.C. 824, 28 S.E. 963
(1898) ; Smith v. Brock, 5382 P. 2d 843 (Okl. 1975); 7 Am. Jur.
2d, Attorneys at Law, § 10 (1963 and Cum. Supp. June, 1976) ;
7 C.J.S. Attorney and Client § 15(b) (1937 and Cum. Supp.
1976).
G.S. 84-4.1 (1975 and 1975 Supp.) gives the conditions
that must be met by out-of-state attorneys in order for them
to be admitted to practice for limited purposes in North Car-
olina. Subsection 6 thereof states:
“Compliance with the foregoing requirements. shall
not deprive the court of the discretionary power to allow
or reject the application.”
Our Court in Manning v. Railroad, supra at 828, 28 S.E.
at 964 had this to say concerning nonresident counsel:
“(T]he appearance of such counsel is a matter of
courtesy in each and every case, and on motion in each case,
and only for the occasion on which it is allowed. The statute
forbids the courts from allowing non-resident counsel
(when citizens of other States and not holding license from
this Court) from practicing habitually in our courts, and
they cannot acquire the right to do so.”
In Smith v. Brock, supra, Oklahoma considered a rule of
practice analogous to our G.S. 84-4.1. The foreign attorney had
in the past engaged in disorderly and disruptive tactics in both
the Oklahoma and Texas Courts. The Oklahoma Court declined
to permit the out-of-state counsel to appear. The Oklahoma Su-
preme Court relied in part on State v. Kavanaugh, supra,
wherein that court rejected Mr. F. Lee Bailey's contention that
the defendant had a constitutional right to select an attorney
who was not a member of the New Jersey Bar. In denying his
right to appear, the New Jersey and Oklahoma Supreme Courts
quoted with approval the following from Thomas v. Cassidy,
supra:
l4a
N.C.]J SPRING TERM 1976 569
“It is well settled that permission to a non-resident attor-
ney, who has not been admitted to practice in a court, to
appear pro hac vice in a case there pending is not a right
but a privilege, the granting of which is not a matter of
grace resting in the sound discretion of the presiding
judge. [Cases cited.]’” Smith v. Brock, supra at 848.
The Oklahoma Supreme Court in Smith v. Brock, supra at
850, also quoted with approval the following statement made in
Cooper v. Hutchinson, supra at 122:
“The narrower question here is the extent to which an
accused person’s choice of counsel is a constitutional right.
The argument insists that there is a constitutional right, at
least in a capital case, to whatever counsel an accused per-
son pleases to have. If that counsel is not a member of the
bar of the state where the prosecution is being conducted,
still, the argument runs, the accused may effectively choose
him just as freely as he could choose a lawyer admitted to
practice locally. The person chosen by the accused may
then insist upon conducting the defense in the local courts.
Control by the states over the persons who may be licensed
to practice law in their courts would thus be greatly dimin-
ished in every capital criminal prosecution where the
accused desires counsel from somewhere else.
“The length to which this argument takes one is
startling. It has always been thought that the license to
practice law is limited, except as a matter of grace, to per-
sons who had fulfilled the local requirements for practice.”
From the very beginning it is clear that Mr. James E.
Griffin would be the lead counsel in the case. It is well known
that Mr. Griffin is one of the leading trial attorneys in Union
and surrounding counties. The District Attorney made it clear
to Mr. Griffin approximately 1 June 1975 that he would object
to having Mr. Long appear in the case on behalf of defendant.
The trial judge permitted Mr. Stroman, defendant’s personal
attorney in Horry County, South Carolina, to appear with
Mr. Griffin. Certainly under this set of facts, defendant cannot
contend he was prejudiced by the court's decision. His constitu-
tional right to counsel was not abridged.
‘It is interesting to note that the 1976 South Carolina Gen-
eral Assembly (recently adjourned) required all solicitors to
l5a
570 IN THE SUPREME COURT [290
serve as full-time employees for the State of South Carolina
effective 1 January 1977, but those in office on 1 July 1976
whose terms expired in 1979 were not required to comply dur-
ing their terms. “An Act... To Provide That Solicitors In
This State Shall Be Full Time Beginning January 1, 1977 And
To Provide Exceptions. ...” R 819, S 785. Approved the 30th
day of June, 1976.
The decision of Judge Rousseau was made solely in his
discretion. He acted wisely and properly to insure compliance
with Canon 9 of the Code of Professional Responsibility of
the North Carolina State Bar (G.S. Vol. 4A (Cum. Supp. 1975) ),
which states:
“A Lawyer Should Avoid Even the Appearance of
Professional Impropriety.”” See DR9-101(B).
Canon 5 of the Code of Professional Responsibility states:
“A Lawyer Should Exercise Independent Professional
Judgment on Behalf of a Client.’ See DR 5-105.”
Additionally, our law makes it a crime for a full-time district
attorney to practice law. G.S. 84-2 (1975). This assignment of
error is overruled.
{2] Under the second assignment of error, defendant con-
tends that the court erred in denying the motion of defendant
to continue the case in order to permit defendant to employ
additional counsel.
When this motion was made, Mr. Griffin stated that it
was “to allow Mr. Hunter to obtain other counsel if he so
desires.”” There was no indication or allegation that the defend-
ant even wished to obtain another lawyer or that other counsel
was necessary to adequately prepare the defense. In fact, de-
fendant’s counsel, Mr. Griffin, declined to argue this motion.
As previously noted, Mr. Griffin had been aware for more than
two and one-half months that the District Attorney would
object to Mr. Long’s appearance in the case. It is apparent from
the foregoing that defendant had ample time to arrange for
the services of another attorney in addition to Mr. Stroman
and Mr. Griffin if he so desired.
The constitution guarantees that the defendant and his
counsel shall have a reasonable time to prepare the case for
trial. State v. Phillip, 261 N.C. 263, 134 S.E. 2d 386 (1964),
16a
NCJ SPRING TERM 1976 571
cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed. 2d 1052
(1964); State v. Lane, 258 N.C. 349, 128 S.E. 2d 389 (1962) ;
State v. Speller, 230 N.C. 345, 53 S.E. 2d 294 (1949). The right
to the assistance of counsel is guaranteed by the Sixth and
Fourteenth Amendments to the U. S. Constitution and by Arti-
cle 1, $$ 19 and 23 of the North Carolina Constitution. Powell
v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) ;
State v. Cradle, 281 N.C. 198, 188 S.E. 2d 296 (1972), cert.
denied, 409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed. 2d 499 (1972).
However, under the facts of this case, we do not believe any
substantial issue concerning these constitutional guarantees is
even involved. Certainly, defendant has not been prejudiced
by the court’s failure to continue the case for this purpose. The
motion for continuance was properly denied. State v. Harrill,
289 N.C. 186, 221 S.E. 2d 325 (1976) ; State v. Branch, 288 N.C.
514, 220 S.E. 2d 495 (1975); State v. Gibson, 229 N.C. 497,
50 S.E. 2d 520 (1948). The assignment of error is overruled.
Under Assignments of Error 9-13, 16, 17, 19, 20, 25-32,
34-36, 38-40, defendant contends the court erred in admitting
evidence of other offenses committed by the defendant.
As a general rule, in a prosecution for a particular crime
the State cannot offer evidence tending to show that the ac-
cused has committed another distinct, independent, or separate
offense. However, this rule is subject to certain well recognized
exceptions. In the landmark case of State v. McClain, 240 N.C.
171, 176, 81 S.E. 2d 364, 367 (1954), the sixth exception which
we will subsequentiy discuss, is stated as follows:
“6. Evidence of other crimes is admissible when it
tends to establish a common plan or scheme embracing the
commission of a -eries of crimes so related to each other
that proof of one or more tends to prove the crime charged
and to connect the accused with its commission. [Citations
omitted.] Evidence of other crimes receivable under this
exception is ordinarily admissible under the other excep-
tions which sanction the use of such evidence to show crimi-
nal intent, guilty knowledge, or identity.”
As stated in McClain, for a determination of whether evi-
dence of other distinct crimes proper!y falls within any of the
recormized exceptions, “[t}]he acid test is its lovical relevancy
to the particular excepted purpose or purposes for which it is
sought to be introduced. If it is logically pertinent in that it
l7a
572 IN THE SUPREME COURT [290
reasonably tends to prove a materia! fact in issue, it is not to be
rejected merely because it incidentally proves the defendant
guilty of another crime. But the dangerous tendency and mis-°
leading probative force of this class of evidence require that
its admission should be subjected by the Courts to rigid scru-
tiny. . . . Hence, if the Court does not clearly perceive the
connection between the extraneous criminal transaction and the
crime charged, that is, its logical relevancy, the accused should
be given the benefit of the doubt, and the evidence should be
rejected.” State v. Lyle, 125 S.C. 406, 417, 118 S.E. 803, 807
(1923) ; accord, State v. McClain, supra at 177, 81 S.E. 2d at
368; State v. Gregory, 191 S.C. 212, 221, 4 S.E. 2d 1, 4 (1938).
In borderline cases the courts scrutinize whether the probative
value of the evidence outweighs the undue prejudicial effect
that may result. 22A C.J.S. Criminal Law § 683 (1961).
Defendant specifically objects to the State’s evidence show-
ing that the defendant was an accessory before the fact to
crimes involving breaking and entering with intent to commit
larceny, these crimes being committed (1) by Devine and
Watkins at the home of Tony Thompson in Myrtle Beach on
21 July 1974, (2) by Duncan, Devine, and Watkins at the
Atlas Construction Company in Myrtle Beach on 30 August
1974, and (3) by Duncan, Devine, and Watkins at the home
of Allison Davis in North Myrtle Beach on 19 December 1974.
{3] The admission of the testimony to which defendant ob-
jected concerning the breaking, entering, and larceny of the
Atlas Construction Company cannot be regarded as prejudicial
because testimony of like import was thereafter admitted with-
out objection when Richard Mears was testifying for the State.
State v. Swift, 290 N.C. 383, S.E. 2d (1976) ; State v.
Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974); State v. Van
Landingham, 283 N.C. 589, 197 S.E. 2d 539 (1973); State v.
Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972). See also
State v. Carey, 288 N.C. 254, 218 S.E. 2d 387 (1975); State
v. Grace, 287 N.C. 243, 213 S.E. 2d 717 (1975). Defendant’s
contention that there was no requirement for him to object to
the testimony of Mears on this subject because he made a “line
objection” within the meaning of G.S. 1A-1, Rule 46(a) (1)
(1969) is without merit. The rationale behind this rule of civil
procedure is persuasive, and we might later determine that the
concept of this rule is applicable in an appropriate criminal
case, ¢.g., where the trial judge sanctions the use of such con-
18a
N.C.] SPRING TERM 1976 573
tinuing objections. However, this rule provides that “when there
is objection to the admission of evidence involving a specified
line of questioning, it shall be deemed that a like objection has
been taken to any subsequent admission of evidence involving
the same line of questioning.” Defendant has merely taken gen-
eral objections. At no time has he made an objection to a speci-
fied line of questioning so as to bring himself within the
scope of the rule by asserting, for example, that the line of ques-
tions involves testimony irrelevant for stated reasons: See
generally 1 Stansbury’s N.C. Evidence, $ 30 (Brandis Rev. 1973).
[4] The admission of the evidence as to the breaking, entering,
and robbery of the empty safe at the Tony Thompson home and
the breaking and entering with intent to steal the money in
the safe at the Allison Davis home was, under the acid test
enunciated in State v. McClain, supra, logically relevant for
the purpose of proving the defendant’s participation as an ac-
cessory before the fact to the murder of Potts in the attempted
armed robbery. The defendant’s participation as an accessory
before the fact was a material fact in issue. In fact, this was
the crucial issue going to the heart of defendant’s defense.
Scrutiny of this evidence shows that it was admissible
under the sixth exception to the general rule stated in State v.
McClain, supra. Evidence of these offenses in context with
other evidence showing the relationship of the defendant wit:
the other men involved tended to establish a common plan or
scheme embracing the commission of a series of larcenies so
related to each other that proof of these other crimes tended
to prove the crime charged and to connect the accused with its
commission.
Evidence of these collateral crimes was relevant to show
that, in fact, the defendant was aiding, counseling, and assist-
ing the same group of men to serve as the instrumentalities by
which the defendant profited from the larcenous scheme he
concocted. The collateral crimes and the principal crime were
connected by the following facts: (1) that the situs of the
crimes and residences of the defendant were in close proximity
(place), (2) that they occurred within a seven-month period
during which the defendant and the other men were contin-
uously in close contact (time), (3) that they were committed
for the purpose of larceny (type of crime), (4) that the defend-
ant counseled essentially the same principals, was familiar with
19a
574 IN THE SUPREME COURT [290
the targets involved, and provided the same kind of information
for all of the crimes (method), (5) that essentially the same
principals at the situs involved committed the crimes (princi-
pals).
A detailed analysis of the facts in this case shows that the
defendant provided Watkins with the same kind of counsel and
information for the Thompson and Davis crimes as he had
provided to him for the Potts and Atlas Construction Company
crimes. The defendant also provided Devine the same kind of
counsel and information for the Thompson crime as he had
provided to him for the Potts and Atlas Construction Company
crimes. The evidence further indicated that Duncan was simi-
larly informed by the defendant as to the Potts and Atlas Con-
struction crimes. Furthermore, other evidence showing the kind
of relationship that the defendant, Duncan, Devine, and Wat-
kins had, indicated that all of them participated with the de-
fendant in the planning of all these crimes. The defendant,
Duncan, Devine, and Watkins were in close contact with each
other during this seven-month period, and they were continually
pursuing a common plan or scheme to commit larceny in areas
in close proximity to the homes of the defendant and about
which he was familiar and provided them information. On the
night of the Atlas Construction Company larceny or immediately
afterwards, the defendant began his discussions with Devine
concerning the robbery of Mr. Potts and a Mr. Cato, who lived
nearby in Pageland, South Carolina.
Other evidence showed that Devine and Watkins were prin-
cipals at the situs of all the crimes. Duncan was a principal at
the situs of the crimes committed against the Atlas Construc-
tion Company and Davis. Evidence of the principal crime and
the collateral crimes showed that the residences of the defendant
were used as places to meet for purposes of planning as well as
for purposes of distributing any proceeds owed to the defend-
ant or making a rendezvous in case of trouble.
In State v. Grace, supra, we held concerning that robbery
case that the challenged evidence relating to three previous rob-
beries of similar establishments by the same persons and by the
use of the identical pistol in the hands of the defendant on each
occasion was admissible under the sixth exception to the ygen-
eral rule set forth in State v. McClain, supra. The same princi-
ple applies in our case and renders the evidence of the collateral
20a
N.C] SPRING TERM 1976 575
offenses admissible. See also State v. McClain, 282 N.C. 357,
193 S.E. 2d 108 (1972); State v. Atkinson, 275 N.C. 288, 167
S.E. 2d 241 (1969) ; State v. Christopher, 258 N.C. 249, 128 S.E.
2d 667 (1962); 22A C.J.5. Criminal Law §$ 683 (1961). The
facts in State v. Grace, supra, concerned a principal at the situs
rather than an accessory before the fact and the evidence of
similar crimes might also have been applicable on the question
of identity. Still the cases are similar in that for each crime the
role and identifying characteristics of the defendant remained
the same and thus tended to show the defendant’s role in the
principal crime.
These assignments of error are overruled.
(5) Under assignments of error 41 and 42, defendant contends
that the trial court erred in allowing the jury to view, and
admitting into evidence, slides of the victim’s wounds.
The record indicated that the trial court denied introduc-
tion into evidence of photographs but permitted the jury to view
several slides on a screen in the courtroom, giving the following
proper instruction:
“These photographs, or slides, are introduced for
the purpose of illustrating the Doctor’s testimony, if you find
that it does illustrate his testimony, and for no other pur-
pose. They are not to be considered by you as substantive
evidence, but only for the purpose of illustrating the Doc-
tor’s testimony, if you find that it does illustrate his tes-
timony.”
After this instruction was given, the doctor explained what
each slide portrayed as the picture was shown on the screen.
There were only 6 of these, one of the chest, one of the upper
chest and face, one of the back, one of an arm, and two close-ups
of the entrance wound in the chest. Each showed wounds re-
ceived and appeared to be relevant upon the question of the
cause of death. Under the circumstances, the fact that the slide
photographs depicted a gruesome or gory spectacle does not
render them inadmissible. State v. Williams, 289 N.C. 439, 222
S.E. 2d 242 (1976) ; State v. Frazier, 280 N.C. 181, 185 S.E. 2d
652 (1972), death penalty vacated, 409 U.S. 1004, 93 S.Ct. 453,
34 L.Ed. 2d 295 (1972).
Under Assignment of Error No. 46, defendant contends the
court erred in denying his motion for a nonsuit.
2la
576 IN THE SUPREME COURT [290
In considering this question, the evidence must be consid-
ered in the ligst most favorable to the State, and the State must
receive the benefit of every inference that can reasonably be
drawn therefrom. 2 Strong, N. C. Index 2d, Criminal Law,
§ 104 (1967 and March, 1976, Supp.)
[6] To convict the defendant of being an accessory before the
fact the State must prove (1) that the defendant counseled, pro-
cured, commanded, encouraged, or aided another to commit the
offense; (2) the defendant was not present when the crime was
committed ; and (3) the principal committed the crime. State v.
Branch, supra; State v. Bass, 255 N.C. 42, 120 S.E. 2d 580
(1961).
[7] Defendant does not contest the fact that the evidence
shows that he was not present when the crime was committed
and that the principal committed the crime. Furthermore, al-
though defendant argues otherwise, there is plenary direct as
well as circumstantial evidence showing that he counseled, pro-
cured, commanded, encouraged, or aided Devine, Locklear, and
Watkins to commit the offense.
The defendant told Devine that Mr. Potts of Union County
kept a substantial amount of money on him or in his possession
that they could steal. He also discussed Mr. Potts and the avail-
able money with Watkins and told Watkins he would help set
it up for them.
When the defendant asked Devine to trade guns, Devine
told the defendant that he would be laughed at if he tried armed
robbery with a .25 Colt Automatic. The defendant informed
Devine, Watkins, and Duncan that he planned to have the larceny
occur while the Potts dined at his house, but later he indicated
to Watkins that they would have to catch Mr. Potts at his home
because the defendant did not know where the money was. The
defendant showed Devine, Locklear, and Watkins where the
Potts’ home was. He told Devine and Watkins to come back to
his house after the “job.” It was understood that Hunter was
to get twenty-five percent of the money stolen.
The above evidence, especially as supported by the defend-
ant’s admissions as testified to by Mears and the additional
evidence indicated in the statement of facts, is more than am-
pie to overcome the motion for nonsuit. This assignment is
without merit and overruled.
22a
N.C.] SPRING TERM 1976 577
[8] Under Assignments of Error Nos. 47 through 54, defend-
ant contends the trial court did not declare and explain to the
jury the law arising on the evidence in the case as required by
G.S. 1-180 (1969).
Defendant complains that two sentences of the court’s in-
structions as to the elements of the crime that the State must
prove in order for the jury to find him guilty failed to inform
the jury that such proof must be shown by evidence establish-
ing the enumerated elements beyond a reasonable doubt. Defend-
ant’s argument rests solely on the fact that the words “beyond
a reasonable doubt” are not used in the two sentences. Defend-
ant totally overlooks the fact that at the beginning of the
charge the trial court stated that defendant “is presumed to be
innocent, and the State of North Carolina must prove to you
that the defendant is guilty beyond a reasonable doubt.” The
court then gave a complete definition of reasonable doubt. More-
over, when first listing the initial elements of the crime, the
court specifically required the proof to be beyond a reasonable
doubt. Similarly, at the conclusion of the charge when reciting
all the elements of the crime, the court again specifically re-
quired that the proof be beyond a reasonable doubt. Finally, the
court concluded, “However, if you do not so find or have a
reasonable doubt as to one or more of those things, it would be
your duty to return a verdict of not guilty.” A charge must be
read contextually, and when this is done, it is manifest that
the jury understood that each element had to be proved by evi-
dence establishing the same beyond a reasonable doubt. State v.
Branch, supra; State v. McWilliams, 277 N.C. 680, 178 S.E.
2d 476 (1971). This contention of defendant is without merit.
19] Defendant argues that the court erred in failing to charge
the jury that in order to find the defendant guilty as an ac-
cessory before the fact to murder, the counseling of the princi-
pal by the defendant must have had an immediate causal
connection to the commission of the crime by the principal.
Since, in effect, this is precisely what the charge of the court
required, defendant’s argument is without merit. In this case,
the trial court adequately stated the three essential elements that
must concur in order to justify conviction of the defendant as
an accessory before the fact: (1) he must have counseled, pro-
cured, commanded, or knowingly aided Billy Devine to attempt
to commit armed robbery; (2) he must have not been present
when the killing and attempted armed robbery occurred; and
23a
578 IN THE SUPREME COURT [290
(3) the principal, Billy Devine, murdered William Benjamin
Potts while attempting to commit armed robbery. State v.
Branch, supra; State v. Benton, 276 N.C. 641, 174 S.E. 2d 793
(1970) ; State v. Bass, supra; G.S. 14-5 (1969). Inherent in the
first element as charged by this court is the requirement that
the counsel, procurement, command, or aid have a causal con-
nection to the commission of the crime. Otherwise, there would
be no real counsel, procurement, command, or aid. That the
trial court in fact required an immediate causal connection is
most clearly shown by the final mandate of the trial court. The
court charged that the jury must find the defendant not guilty
unless they found that “before the killing was committed the
defendant, that is, Harry Hunter, pointed out the Potts Resi-
dence and store to Billy Devine and told Billy Devine Mr. Potts
had a large sum of money and told him that he couldn’t locate
the money and that he would have to rob Mr. Potts when he
was at home, and that the defendant was to get part of the
money, and that in so doing the defendant, Harry Hunter, coun-
seled or procured, or commanded or knowingly aided Billy
Devine to attempt to commit armed robbery and that the defend-
ant was not present at the time of the killing. .. . ” Since there
was no special request for the particular instruction that de-
fendant now believes should have been given, since such an in-
struction was in effect given, and since the question of the causal
connection herein raised was not disputed or in issue under the
evidence of the case (the central issue being whether the de- |
fendant counseled, procured, or commanded the principal at all),
there can be no prejudice to defendant. See generally State v.
Vinson, 287 N.C. 326, 215 S.E. 2d 60 (1975) ; State v. Cole, 270
N.C. 382, 154 S.E. 2d 506 (1967) (discussed herein).
Defendant maintains that the charge failed to require the
jury to find that the defendant and Devine entertained the com-
mon design that Devine take money from the person or presence
of the deceased by violence or intimidation and that the taking
was to be done with a felonious intent. The above recitation of
part of the final mandate shows that the trial court in fact re-
quired the jury to find that the defendant told Devine “that he
would have to rob Mr. Potts when he was at home, and that the
defendant was to get part of the money.” Defendant’s position is
without merit because the charge that he now urges should
have been given was in essence given.
24a
N.C.] SPRING TERM 1976 579
Defendant asserts that the court’s summary of the evidence
when instructing on the law was prejudicial to defendant be-
cause it ignored and excluded evidence given by the slayer,
Devine, which was favorable to defendant. This evidence was
the testimony of Devine that the defendant planned for the
larceny to occur while he had the Potts over to his house for
dinner and the fact that Devine never testified definitely
whether these plans were later changed to contemplate a rob-
bery while the Potts were at their home. In fact, the trial court
included this testimony in its recapitulation of evidence although
it did not underscore the testimony that was not given. More-
over, the court omitted the testimony of Watkins favorable to
the State that the defendant “changed his mind, and [said] we’d
have to cat h .im at his home because he didn’t know where
the money w::..”” Certainly, in the absence of a request for an
addition to the court’s recapitulation of the evidence, defendant
cannot successfully maintain that there is reversible error.
State v. Rankin, 284 N.C. 219, 200 S.E. 2d 182 (1973); State
v. Butler, 269 N.C. 733, 153 S.E. 2d 477 (1967). The jury was
properly instructed that it was “to decide from the evidence
which you have heard what the facts are.” Moreover, the final
mandate to the jury that they find (from circumstantial evi-
dence impliedly) that the defendant told Devine “that he would
have to rob Mr. Potts when he was at home” placed an even
greater burden on the State than required by law. If the jury
determined that a conspiracy existed, it clearly would have been
adequate for purposes of convicting the defendant that he have
told this to Watkins and that Watkins passed this information
on to Devine. Defendant has failed to show any error prejudicial
to him.
Defendant additionally contends that the court failed to
charge the essential elements of armed robbery or an attempt
to commit armed robbery so the jury could determine (1)
whether Devine murdered Potts while committing or attempting
to commit an armed robbery upon him and (2) whether the
defendant was an accessory before the fact to such murder. He
particularly emphasizes the fact that the court failed to charge
that an essential element of armed robbery is “a felonious
intent” and in some sufficient form explain and define the term
“felonious intent.”
[10] Although the court should have spelled out the essential
elements of the underlying felony of attempted armed robbery
ee
25a
580 IN THE SUPREME COURT [290
in its instructions as to what the State must prove to convict
defendant of being an accessory before the fact to felony-murder,
his failing to do su was not prejudicial error for the following
reasons: (1) the occurrence of the attempted armed robbery
by Devine, Locklear, and Watkins was not disputed and thus
not in issue under the evidence in the case, (2) defendant failed
to specially request instructions on the underlying felony, (3)
the court did define “attempted armed robbery” as “attempted
robbery with a firearm,” and (4) these latter terms were essen-
tially self-explanatory under the circumstances of this case.
Although “reasonable doubt” is not an element of a crime,
it is the standard by which all elements must be proved to the
jury for defendant to be found guilty. Thus, the jury’s under-
standing of that term is as practically important as the jury’s
understanding of the elements of the crime. Nonetheless, the
trial judge is not required to tell the jury what “reasonable
doubt” is unless requested so to do. State v. Rankin, supra;
State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971), cert.
denied, 414 U.S. 874, 94 S.Ct. 157, 38 L.Ed. 2d 114 (1973);
State v. Ingland, 278 N.C. 42, 178 S.E. 2d 577 (1971). In part,
this is because “[t]he term ‘reasonable doubt’ is more easily
understood than defined.” State v. Edwards, 226 N.C. 140, 146,
209 S.E. 2d 789, 793 (1974). Additionally, this is because the
term is essentially self-explanatory, as is also true for the
term “attempted robbery by a firearm,” especially in a func-
tional sense so far as this jury’s decision is concerned because
there is no real dispute as to the “felonious intent” or the
actual occurrence of the attempted armed robbery and the
crime chargec is accessory before the fact to murder while
attempting armed robbery.
In State v. Cole, supra, we cited with approval the follow-
ing quotation from 26 Am. Jur., Homicide § 533, at 527 (1940),
“TWJhere, upon the undisputed facts, it clearly and conclusively
appears to a moral certainty that the unlawful act complained
of was the proximate cause of death, a failure so to charge,
especially where there was no request so to charge, is not re-
versible error.”’ Our Court held, “There being ‘no evidence tend-
ing to prove that deceased’s death was due to some cause other
than injuries inflicted by the accused,’ an instruction on proxi-
mate cause was unnecessary, and especially when there was no
request therefor.” State v. Cole, supra at 387, 388, 154 S.E.
2d at 511. This case is an example of the principle that how
26a
N.C.]
much the law needs to be explained in the charge depends on
the evidence presented.
State v. Sanders, 288 N.C. 285, 218 S.E. 2d 352 (1975),
cert. denied, 423 U.S. 1091, 96 S.Ct. 886, 47 L.Ed. 2d 102
(1976), is another example of a case where the court’s charge
on an element of the crime might have raised serious problems
but did not where the element complained about was not dis-
puted or in issue under all the evidence. In that case, we stated
that the court’s charge as to the crime of willful and malicious
damage to occupied personal property by means of explosives
had portions that were not models of clarity. Defendant con-
tended that the charge only required that there be injury to the
person occupying the personal property and did not require that
there be injury to the personal property. We determined that
when the charge was read contextually, the court’s reference
to the crime as “damaging personal property, it being occupied
at the time, by use of explosives” and its giving to the jury a
sheet of paper immediately before they retired repeating the
fact that this was the crime involved, prevented there being
any prejudicial error. We also noted that “[a]ll of the evidence
showed extensive damage to the automobile [the personal prop-
erty] as well as serious injury to Stout [the person].”
In State v. Vinson, supra, defendant complained in a rape
case that the trial judge failed to define “‘sexual intercourse”
and thus failed to charge that rape required penetration by the
male organ. The evidence disclosed two completed acts of inter-
course, and there was no evidence to the contrary. Justice Hus-
kins, speaking for our Court, said:
“Although defendant’s plea of not guilty required the
State to prove penetration beyond a reasonable doubt, the
defense was not grounded on lack of penetration. Under
these circumstances, the term ‘sexual intercourse’ con-
veyed the idea of completed intercourse, including penetra-
tion, and the jury must have so understood.” State v.
Vinson, supra at 342, 215 S.E. 2d at 72.
As in the case of State v. Vinson, supra, the element in our
case that was not defined, j.e., the attempted armed robbery,
was essentially self-explanatory and that element was not dis-
puted and thus not in issue under all the evidence. Defendant
Hunter’s defense was not grounded on the absence of attempted
armed robbery and the murder resulting therefrom. Rather, it
SPRING TERM 1976 581
SMe
————————
ee ee aes Cen ee eee ee
97a
582 IN THE SUPREME COURT [290
was grounded on the contention that he did not participate in
the planning of the attempted armed robbery and did not coun-
sel, procure, or command the principals Devine, Locklear, and
Watkins to commit the attempted armed robbery.
In State v. Spratt, 265 N.C. 524, 526, 527, 144 S.E. 2d
569, 571, 572 (1965), our Court enunciated the principle that
while G.S. 1-180 requires the court to “declare and explain the
law arising on the evidence,” the comprehensiveness and speci-
ficity “of the definition and explanation of [the essential ele-
ment] ‘felonious intent’ required in a charge [on attempted
armed robbery] depends on the facts in the particular case.”
In that robbery case we held that the essential element of tak-
ing with “felonious intent” was defined with sufficient com-
prehensiveness and specificity where the court old the jury, in
effect, that before they could return a verdict of guilty, they
must find that defendant attempted to take the property with
“intent to rob.”’ The Court reasoned:
“*Rob’ or ‘robbery’ has a weil defined meaning and
imports an intent to steal. [Citation omitted.] The word
‘rob’ was known to the common law and the expression
‘intent to rob’ is a sufficient definition of ‘felonious intent’
as applied to the robbery statute, in the absence of evi-
dence raising an inference of a different intent or pur-
pose.”” Id.
The Court therein quoted with approval the following language :
“*(W]here the defense was an alibi and the evidence
developed no issue or contention that the taking was under
a bona fide claim of right or was without any intent to
steal, the instructions may be upheld notwithstanding a
failure to charge in specific terms with respect to an intent
to steal.’ 77 C.J.S., Robbery, £ 49, pp. 514, 515. [Citations
omitted.]”’ Id.
Since in our case defendant was charged with being an
accessory before the fact to felony-murder, the need for a full
definition of the underlying felony of attempted armed robbery
was analogous to the need for a full definition of ‘felonious in-
tent” in State v. Spratt, supra, where the charge was attempted
armed robbery. In both cases, the jury was required to find
that all the “central” elements existed, including “an attempted
armed robbery” in our case and “a felonious intent” in State
28a
N.C.] SPRING TERM 1976 583
v. Spratt, supra. In both cases, however, the court failed to
define or charge as to all the inner elements of the central
elements of the crimes charged. The fact that in the armed
robbery case of State ». Mundy, 265 N.C. 528, 144 S.E. 2d 572
(1965) the court did not even charge the jury that in order
to convict defendant as a principal, they must find the central
element of “felonious intent’ distinguishes that case from
State v. Spratt, supra, and the present case.
If counsel for defendant had desired further elaboration
on the term “armed robbery” or anything else, he should have
requested it when the court concluded the instruction and
asked counsel to step to the bench. We believe that the trial court
has adequately instructed on all the substantial features of the
case, and if the defendant desired a more detailed instruction a3
to any subordinate feature, then counsel should have made aa
appropriate request. This they failed to do. State v. Vinson,
supra; State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974);
State v. Gordon, 224 N.C. 304, 30 S.E. 2d 43 (1944); State 2.
Hendricks, 207 N.C. 873, 178 S.E. 557 (1935) ; State v. O’Neai,
187 N.C. 22, 120 S.E. 817 (1924).
For the aforementioned reasons, defendant’s assigment3
of error as to the charge are overruled.
Because of the serious nature of the crime for which de
fendant has been convicted, we have examined all the assigr-
ments of error in the record proper and find no prejudical error.
Defendant was “entitled to a fair trial but not a perfect
one.” Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481,
490, 97 L.Ed. 593, 605 (1953); accord, State v. Cogdale, 22"
N.C. 59, 40 S.E. 2d 467 (1946); State v. Beal, 199 N.C. 278
154 ser 604 (1930). A fair trial the defendant has had ané
we find
No error.
Justice EXUM concurs in result.
Justice LAKE dissenting.
__ The defendant appeals from a sentence to imprisonment fo!
life for the crime of being an accessory before the fact to +
murder committed in the perpetration of an attempt to commi'
Rl tal.
29a
584 IN THE SUPREME COURT [290
robbery with a firearm. The jury found him guilty of that
offense. The evidence fully supports the verdict. There was no
prejudicial error in the admission of that evidence. There was,
however, error in the failure of the trial judge to instruct the
jury as to all the elements of the offense with which the de-
fendant was charged and of which he was convicted. This the
trial judge was required to do by G.S. 1-180.
The judge instructed the jury:
“Now, the defendant was originally charged with mur-
der in the first degree. However, you will net be called
upon to find the guilt or innocence of the defendant on this
charge, but you will be called upon to find the guilt or
innocence of the defendant on a lesser included offense,
that is, accessory before the fact of murder in the perpetra-
tion of attempt to commit robbery with a firearm, commoniy
called armed robbery, the meaning of which I will explain
to you later on. (Emphasis added.)
“Now, lady and gentlemen, as | said, the defendant
has been accused of accessory before the fact of murder in
the perpetration of an attempt to commit robbery with a
firearm, which in common language is armed robbery.
“Now, I charge that for you to find the defendant
guilty as an accessory before the fact of murder in the per-
petration of attempted robbery with a firearm, the State
must prove the following things beyond a reasonable doubt.
First, the State must prove and prove beyond a reasonable
doubt that murder in the perpetration of attempted armed
robbery was committed by Billy Devine. Now, in order to
find that Billy Devine committed murder in the perpetra-
tion of an armed robbery, the State must prove 2 things
beyond a reasonable doubt, that is, that Billy Devine shot
William B. Potts while committing or attempting to com-
mit armed robbery, and, second, that the shooting proxi-
mately caused William Benjamin Potts’ death.
“So I repeat, in order to find the defendant guilty of
this charge, you first must find that murder in the per-
petration of attempted robbery was committed by Billy
Devine, and in order to find that you must find Billy
30a
N.C.] SPRING TERM 1976 585
Devine shot Mr. Potts while committing or attempting to
commit armed robbery, and that the shooting proximately
caused Mr. Potts’ death.
“Coming back to what the State must prove, again,
that before the crime was committed, the defendant, that
is, Harry Hunter, counseled, procured, commanded ur know-
ingly aided Billy Devine to commit or attempt to commit
armed robbery. And finally, the State must prove that the
defendant was not present when the killing of William
Benjamin Potts occurred.
* * *
“Therefore, lady and gentlemen, I charge if you find
from the evidence beyond a reasonable doubt that on or
about February 7, 1975, Billy Devine committed murder
in the perpetration of attempt to commit robbery, that is,
that Billy Devine shot William Benjamin Potts while at-
tempting to commit armed robbery and the shooting proxi-
mately caused William Benjamin Potts’ death and that
before the killing was committed the defendant, that is,
Harry Hunter, pointed out the Potts residence and store
to Billy Devine and told Billy Devine Mr. Potts had a large
sum of money and told him that he couldn't locate the
money and that he would have to rob Mr. Potts when he
was at home, and that the defendant was to get part of
the money, and that in so doing the defendant, Harry Hun-
ter, counseled or procured or commanded or knowingly
aided Billy Devine to attempt to commit armed robbery and
that the defendant was not present at the time of the kill-
ing, it would be your duty to return a verdict of guilty of
accessory before the fact of murder.”
In a charge otherwise free from error the trial judge in-
advertently failed to instruct the jury as to the elements of the
offense of robbery, the underlying felony which made the
killing of Mr. Potts murder.
Since robbery (or attempt to rob) is an essential element
of the offense for which the defendant was put on trial, G.S.
1-180 required the judge to instruct the jury as to the elements
of robbery. We may not lawfully assume that this was non-
prejudicial error on the theory that everyone knows what rob-
bery is. No such assumption may lawfully be made when a
defendant is charged with the crime of robbery itself. See:
i ee ee
at es
Sla
586 IN THE SUPREME COURT [290
State v. Logner, 269 N.C. 550, 551, 153 S.E. 2d 63 (1967);
State v. Fulford, 124 N.C. 798, 32 S.E. 337 (1899). Similarly,
no such assumption may lawfully be made when he is charged
with a crime of which robbery is an essential element.
“A correct charge is a fundamental right of every accused.”
State v. Orr, 260 N.C. 177, 181, 132 S.E. 2d 334 (1963). As
Justice Barnhill, later Chief Justice, said in State v. Friddle,
223 N.C. 258, 261, 25 S.E. 2d 751 (1943), “The chief object
contemplated in the charge of the judge is to explain the law
of the case, to point out the essentials to be proved on the one
side and on the other, and to bring into view the relation of
the particular evidence adduced to the particular issue involved.”
G.S. 1-180 confers upon litigants, including defendants charged
with crime, a substantial legal right to have the jury instructed
as to the law upon all substantial features of the case. State v.
Everette, 284 N.C. 81, 199 S.E. 2d 462 (1973); State v. Brady,
236 N.C. 295, 72 S.E. 2d 675 (1952); State v. Ardrey, 232 N.C.
721, 62 S.E. 2d 53 (1950). The judge must charge the jury
as to what constitutes the essential elements of the offense for
which the defendant is brought to trial. State v. Hairr, 244
N.C. 506, 94 S.E. 2d 472 (1956).
To convict the defendant of the offense of being an ac-
cessory before the fact to a murder committed in the perpetra-
tion of an attempt to commit robbery, the jury would have to
find that the killing was committed in the course of an attempt
to commit robbery. To so find, the jury would have to know
what constitutes robbery. The instructions given the jury do
not contain any definition of that offense.
i
8 OA a be ee
atta lind
= oo ee se i Oe he ees
Ib
APPENDIX B
| Constitutional Provisions, Statutes, and
Canons of Ethics Involved |
Set forth below are the pertinent parts of the
constitutional provisions, statutes, and canons of ethics
involved:
1. Article VI of the Constitution of the United
States: “This Constitution * * * shall be the supreme law
of the land; and the Judges in every state shall be bound
thereby; any thing in the Constitution and laws of any
state to the contrary notwithstanding.”
2a. Sixth Amendment to the Constitution of the
United States: “In all criminal prosecutions, the accused
shall enjoy the right to have the assistance of counsel for
his defense.”
2b. Section | of the Fourteenth Amendment to the
Constitution of the United States: No state “shall * * *
deprive any person of life, liberty, or property without
due process of law.”
3. Section 1-255 of the Code of Laws of South
Carolina of 1962: “The Solicitors may defend any
persons brought to trial before any criminal courts of this
state when their duties shall not require them to
prosecute such persons and their assistance shall not be
required against such persons by the Governor or
Attorney General.”
4a. Section 14-5 of the General Statutes of North
Carolina: “If any person shall counsel, procure or
command any other person to commit any felony,
whether the same be a felony at common law or by virtue
of any statute, the person so counseling, procuring or
commanding shall be guilty of a felony, and may be
indicted and convicted, either as an accessory before the
fact to the principal felon, or after the conviction of the
principal felon; or he may be indicted and convicted of a
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substantive felony, whether the principal felon shall or
shall not have been previously convicted, or shall or shall
not be amenable to justice, and may be punished in the
same manner as any accessory before the fact to the same
felony, if convicied as an accessory, may be punished.”
4b. Section 14-6 of the General Statutes of North
Carolina: “Any person who shall be convicted as an
accessory before the fact in either of the crimes of
murder, arson, burglary, or rape shall be imprisoned for
life in the State’s Prison.”
5. Section 14-17 of the General Statutes of North
Carolina: “A murder * * * which shall be committed in
the perpetration or attempt to perpetrate any * * *
robbery * * * shall be deemed to be murder in the first
degree and shall be punished with death.”
6. Section 14-87 of the General Statutes of North
Carolina: “Any person * * * who, having in possession or
with the use or threatened use of any firearms or other
dangerous weapon * * * whereby the life of a person is
endangered or threatened, unlawfully takes or attempts
to take personal property from another * * * or who aids
or abets any such person * * * in the commission of such
crime, shall be guilty of a felony and upon conviction
thereof shall be punished by imprisonment for not less
than five nor more than thirty years.”
7. Section 84-2 of the General Statutes of North
Carolina: “No *** full-time district attorney, (or)
full-time assistant district attorney * * * shall practice
law. Persons violating this provision shall be guilty of a
misdemeanor and fined not less than two hundred dollars
($200.00).
Note: Manifestly this statute applies only to full-time
district attorneys or assistant district attorneys holding
office in North Carolina.
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8. Section 84-4.1 of the General Statutes of North
Carolina; “Any attorney regularly admitted to practice in
the courts of record of another state and in good standing
therein, having been retained as attorney for any party to
a legal proceeding, civil or criminal, pending in the
General Court of Justice of North Carolina, or the North
Carolina Utilities Commission may, on motion, be
admitted to practice in the General Court of Justice or
North Carolina Utilities Commission for the sole purpose
of appearing for his client in said litigation, but only
upon compliance with the following conditions prece-
dent:
“(1) He shall set forth in his motion his full name,
post-office address and status as a practicing attorney in
such other state.
“(2) He shall attach to his motion a statement, signed
by his client, in which the client sets forth his post-office
address and declares that he has retained the attorney to
represent him in such proceeding.
“(3) He shall attach to his motion a statement that
unless permitted to withdraw sooner by order of the
court, he will continue to represent his client in such
proceeding until the final determination thereof, and that
with reference to all matters incident to such proceeding,
he agrees that he shall be subject to the orders and
amenable to the disciplinary action and the civil
jurisdiction of the General Court of Justice and the North
Carolina State Bar in all respects as if he were a regularly
admitted and licensed member of the Bar of North
Carolina in good standing.
*(4) He shall attach to his motion a statement to the
effect that the state in which he is regularly admitted to
practice grants like privileges to members of the Bar of
North Carolina in good standing.
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(5) He shall attach to his motion a statement to the
effect that he has associated and has personally appearing
with him in such proceeding an attorney who is a resident
of this State and is duly and legally admitted to practice
in the General Court of Justice of North Carolina, upon
whom service may be had in all matters connected with
such legal proceedings, or any disciplinary matter, with
the same effect as it personally made on such foreign
attorney within this State.
“(6) Compliance with the foregoing requirements shall
not deprive the court of the discretionary power to allow
or reject the application.”
9. Canon of Ethics No. 46C of the North Carolina
State Bar: “‘It shall be deemed unethical and unprofes-
sional for any attorney who is, or has been, a prosecuting
attorney * * * in any court inferior to the Supreme
Court, * * * to accept professional employment in any
matter of a civil or criminal nature, growing out of any
matter or thing which is, or has been in any way
connected with the office of such prosecuting offi-
cer * * * during his incumbency.”
Note: Manifestly this statute, which has been sus-
pended by Section 84-2 of the North Carolina General
Statutes and Canon No.9 of the Code of Professional
Responsibility of the North Carolina State Bar, applied
only to prosecuting attorneys in North Carolina courts
inferior to the North Carolina Supreme Court.
10. Canon of Ethics No.9 of the Code of Profes-
sional Responsibility of the North Carolina State Bar: “A
lawyer should avoid even the appearance of professional
impropriety * * * (1)R9-101(B) A lawyer shall not
accept private employment in a matter in which he had
substantial responsibility while he was a public em-
ployee.”
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Note: Manifestly this statute is applicable to North
Carolina only.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.