Petition — Williams v. North Carolina

r Supreme Court, U. S.

FILED

MAR 20 1978

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No._@9= 1320

ROGER WILLIAMS,

Petitioner

v.

STATE OF NORTH CAROLINA

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF NORTH CAROLINA

March, 1978 Barry T. Winston

311 W. Rosemary Street

Chapel Hill, N.C. 27514

William F. Larimer

311 W. Rosemary Street

Chapel Hill, N.C. 27514

Attorneys for Petitioner

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

ROGER WILLIAMS,

Petitioner

v.

STATE OF NORTH CAROLINA

—

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF NORTH CAROLINA

—

“ —

March, 1978 Barry T. Winston

311 W. Rosemary Street

Chapel Hill, N. C. 27514

William F. Larimer

311 W. Rosemary Street

Chapel Hill, N.C. 27514

Attarneys for Petitioner

INDEX

Page

Opinions Below 1

Jurisdiction 2

Questions Presented 2

Constitutional Provisions Involved 2

Statement of the Case 3

Reasons for Granting the Writ 5

Conclusion 8

Appendix A

(Opinion of the North Carolina

Court of Appeals) Al

Appendix B

(Judgment of the Supreme Court

of North Carolina dismissing the

Petitioner’s Appeal and Denying

Petition for Discretionary Review) A9

Appendix C

(Judgment and Commitment of the

Superior Court for Wilkes County,

North Carolina) Al0

AUTHORITIES

Cases:

Chandler v. Fretag, 348 U.S. 3 (1954) 6

Faretta v. California, 422 U.S. 806

(1975) 6

Vv; Mayo, 324 U.S. 42 (1947) 6

In re Groban, 352 U.S. 330 (1957) 6

Johnson v. Zerbst, 304 U.S, 450 (1938) 8

v. Alabama, 287 U.S, 45 (1932) 7

State v. Gibson, 229 N. C. 497 (1948) 7

Constitutional Provisions:

Constitution of the United States:

Fifth Amendment 6

Sixth Amendment 5

Fourteenth Amendment 6,

8

Constitution of the State of North Carolina:

Article I, $23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

*

No.

ROGER WILLIAMS,

Petitioner

v.

STATE OF NORTH CAROLINA

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF THE STATE OF NORTH CAROLINA

The Petitioner, ROGER WILLIAMS, respectfully

prays that a Writ of Certiorarl issue to review the

judgment and opinion of the North Carolina Court of

Appeals rendered in these proceedings on November

6, 1977; suid judment and opinion being affirmed by

the Supreme Court of North Curolinu on December

19, 1977.

OPINIONS BELOW

The opinion of the North Carolina Court of Appeals

is attached hereto and appears at Appendix A, infra.,

pp. Al-A8. The Supreme Court of North Carolina

without opinion dismissed the Petitioner’s Appeal and

Denied his Petition for Discretionary Review by

judgment which is attached hereto and appears at

Appendix B, infra., p. A9.

JURISDICTIONAL STATEMENT

The Judgment of the Supreme Court of North Carolina

dismissing the Petitioner’s Appeal and denying his

Petition for Discretionary Review was entered on

December 19, 1977. This Petition for Certioruri

wus filed less than 90 days from the dute aforesaid.

The jurisdiction of this honorable Court is invoked

pursuant to 28 U.S.C, #1257 (3).

1

. 1

QUESTION PRESENTED

The Petitioner’s lead counsel prior to the calling

of the Petitioner’s case for trial in the Superior

Court of Wilkes County, North Carolina timely filed

a motion for a Continuance of the Petitioner’s trial

based upon his simultaneously required presence in

Orange County, North Carolina as the Attorney of

record for an incarcerated, indigent Defendant tried

for Attempted Armed Robbery. The motion for a

Continuance filed in the Petitioner’s case was denied

and the Petitioner was tried for First Degree Murder

without his head counsel being present to conduct his

trial. The question which thereby arises is as follows:

Whether the actions of the Trial Judge in denying

the Petitioner’s Motion for a Continuance denied the

Petitioner his right to due process of law as provided

by the Fifth and Fourteenth Amendments to the

Constitution of the United States and his right to have

the assistance of Counsel selected and retained by

him as provided by the Sixth and implemented by the

Fourteenth Amendments to the Constitution of the

United States.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment V:

No person shall. . .be deprived of

life, liberty, or property without due

process of law. . .’’

Constitution of the United States, Amendment VI:

“In all criminal prosecutions the

accused shall enjoy the right to. . .and

to have the assistance of counsel for

his defense.’’

Constitution of the United States, Amendment XIV 81:

7. «nor shall any state deprive any

person of life, liberty, or property

without due process of law;.. .’’

Constitution of North Carolina, Article I, §23:

“In all criminal prosecutions, every

person charged with crime has the right

to. . -have counsel for defense.

STATEMENT OF FACTS

The facts relevant to the question presented by

this Petition are uncontroverted and therefore may be

introduced to the Court in a summary fashion.

This is a criminal action arising in Wilkes County,

North Carolina where the Petitioner was arrested and

Charged in a warrant dated September 11, 1976

with the offense of First Degree Murder. On October

4, 1976 the Petitioner, having been released on bond,

traveled to Chapel Hill, Orange County, North Carolina

and there discussed his case with Barry T. Winston,

a duly licensed attorney. Following their discussion

the Petitioner retained and employed Mr. Winston as

his lead counsel for the purpose of representing him

in the criminal matter then pending against him. The

Petitioner also retained as secondary counsel Mr.

Max Ferree and Mr. John Hall of the Wilkes County

Bar.

On October 15, 1976, Barry T. Winston traveled to

Wilkes County and there appeared as counsel of record

on behalf of the Petitioner at a Preliminary Hearing

held in regard to this matter. Subsequent to the Pre-

liminary Hearing a Bill of Indictment Charging the

Petitioner with First Degree Murder was submitted

to the Wilkes County Grand Jury in November of 1976

und the indictment wus returned a true Bill. During

the period between his having been retained as primary

counsel and the Petitioner’s trial, Attorney Winston

conducted numerous in-depth interviews with the

Petitioner and interviewed numerous witnesses

involved in the Petitioner’s case.

On December 22, 1976 Attorney Barry T. Winston,

having been advised that the District Attorney for

Wilkes County had calendared the Petitioner’s case

for trial, timely filed a written Motion of Continuance

of the Petitioner’s trial. In substance, this Motion

Stated that he (Attorney Winston) was counsel of

record for the Petitioner; that he had been advised

that the District Attorney had calendared this case

for trial on Monday, January 3, 1977; that the

Petitioner was at that time free on bond; that he

(Attorney Winston) had, in September of 1976, been

appointed to represent one Frank Haskins in Orange

County Superior Court onan Attempted Armed Robbery

charge; that Haskins was and had been in jail since

his arrest in September, unable to make bond, and

did not want a continuance of his case; that the Haskins

case was also calendared for trial in Orange County

Superior Court on January 3, 1977; that the Petitioners’

case had been continued once before at counsel’s

request because of a similiar conflict; that the Wilkes

County District Attorney, having been apprised in

advance of Attorney Winston’s irreconcible conflict,

refused to agree toa further continuance; that Attorney

Winston would be able to appear at the February 14,

1977, session of Wilkes County Superior Court and

would be ready for trial at that time.

The Petitioner’s case was called for trial in Wilkes

County Superior Court on Wednesday, January 5, 1977;

court having been cancelled on January 3 and 4 due

to inclement weather. At time the Petitioner’s

secondary attorneys, Messrg. Max Ferree and John

Hall, were present in Court. Upon the calling of this

case for trial, Attorney Ferree orally moved for a

continuance on the same grounds set forth in Attorney

Winston’s written Motion. Mr. Ferree stated that he

had talked with Mr. Winston over the telephone the

evening before (January 4, 1977) and that in this

conversation Mr. Winston stated that the Haskins

armed robbery trial had begun in Orange County

Superior Court on January 3, 1977 and that the trial

would consume the remainder of the week. The Trial

Judge, after considering Attorney Winston’s Motion

for a Continuance as such was presented both in

writing and orally by Attorney Ferree, denied the

motion and proceeded with the Petitioner’s trial.

On January 5, 1977, during the morning recess of

Orange County Superior Court, Attorney Winston

requested the Judge Presiding at the Haskins trial to

call the Judge Presiding in Wilkes County hearing the

Petitioner’s case and inform the Wilkes County Judge

that Mr. Winston was present in Orange County trying

the Haskins Armed Robbery case and inquire as to

whether that fact created any problems. The Judge

Presiding in Wilkes County responded to this message

4

by saying, ‘‘No problems, we are trying the Williams’

(Petitioner’s) case without Mr. Winston.“

At his trial in Wilkes County the Petitioner entered

a plea of not guilty and a jury trial occured. On

January 7, 1977 the jury hearing the Petitioner’s

matter returned a verdict of guilty of murder in the

second degree and an active prison sentence of not

less than 30 years nor more than 35 years was

imposed. The Petitioner in open Court gave notice of

Appeal to the North Carolina Court of Appeals and

duly prepared and presented his appeal to that Court.

Among the assignments of error and questions

presented to the Court of Appeals was the question

presented in this Petition. The North Carolina Court

of Appeals overruled this assignment of error and

affirmed the Judgment of the Trial Court. Following

the decision and opinion of the North Carolina Court

of Appeals, the Petitioner gave notice of Appeal to

the Supreme Court of North Carolina and in the

alternative filed a Petition in that court seeking

discretionary review of the decision and opinion of

the Court of Appeals. The Supreme Court of North

Carolina dismissed the Petitioner’s appeal and denied

his Petition seeking discretionary review without

opinion on December 19, 1977. On December 27, 1977

the Judgment of the Wilkes County Superior Court

was certified and the Petitioner was taken into custody

to begin his 3035 year sentence.

REASONS FOR GRANTING THE WRIT

THE NORTH CAROLINA COURT OF

APPEALS HAS DECIDED THE QUES-

TION PRESENTED HEREIN IN A MAN-

NER NOT IN ACCORD WITH THE

CONSTITUTION OF THE UNITED

STATES AND THE APPLICABLE

DECISIONS OF THIS COURT.

The Sixth Amendment to the Constitution of the

United States provides in pertinent part that the

accused in all criminal prosecutions shall enjoy the

right to have the assistance of counsel for his

defense. This right along with all of the other rights

set forth in the Sixth Amendment is guaranteed to

all criminal defendants whether they be tried in the

Federal or State Courts. As enunciated by this

Court in Faretta W California, 422 N.S. 806 (1975),

the rights set forth in the Sixth Amendment, being so

very basic to our adversary system of criminal

justice, are part of Due Process of Law that is

guaranteed by the Fourteenth Amendment to defendants

facing charges in the criminal courts of the various

states.

Throughout the years the scope of the Sixth

Amendment right to counsel has been expanded by the

decisions of this Court. Thusly, this right is now

enjoyed by all criminal defendants facing imprisonment

whether they be indigent or of means. In the matter

presently before the Court, the right which the

Petitioner sought to exercise was his right to be

heard through his own privately retained attorney.

This right has stedfastly been recognized by this

Court even before such landmark cases as Gideon

v. Wainwright and Powell v. Alabama. The case

of Chandler F. Fretag, 348 U.S, 3 (1954) serves as

an example of this contention. In the Chandler case,

decided prior to Gideon, this court stated that there

was a clear distinction between an accused asking

a trial judge to furnish him counsel and an accused

asking for a Continuance so that he could obtain his

own. The Court went on to state that regardless

of whether the Petitioner (Chandler) would have been

entitled to the appointment of counsel, his right to be

heard through his own privately retained counsel

was unqualified. (Emphasis added). This principle as

espous n er, Supra, served as the authority

for this Court when they stated in the case of In re

Groban, 352 U.S. 330 (1957), as follows:

It is clear that a Defendant in a

State criminal trial has an unqualified

right, under the Due Process Clause,

to be heard through his own counsel.’’

Similar language can be found in other decisions of

this Court such as House v. Mayo, 324 U.S. 42 (1947)

where the court stated that persons charged with the

commission of crimes enjoyed the Constitutional right

to a fair trial with the aid and assistance of counsel

whom he or she had retained.

The Supreme Court of North Carolina in past

decisions dealing with the question now before this

Court has set forth basic principles similar to the

language of the above mentioned cases. For example,

in the case of State v. Gibson, 229 N.C. 297 (1948),

the Supreme Court of North Carolina stated:

Both the state and federal Consti-

tutions guarantee to every man the right

to be represented in criminal

Prosecutions by counsel whom he hus

selected and employed.’’ Citing U.S,

Const., Amend XIV. N.C. Const. Art.

I, 323, U.S. ex. rel. Mills v. Ragan,

D. C., 77 F. Supp. 15.

Numerous other decisions of the Supreme Court

of North Carolina can be enumerated which stand for

the same basic proposition.

The North Carolina Court of Appeals in their

decision and opinion on the question now before this

Court ignored the prior decisions of this Court

including the interpretations given those decisions

by the Supreme Court of North Carolina and placed

limitations and qualifications on a right which this

Court previously characterized as unqualified. In

so doing the North Carolina Court of Appeals saw

no error, Constitutional or otherwise, in trying the

Petitioner without his primary counsel being present.

The Court saw no error in denying the Petitioner the

skills and extensive pre-trial preparation of his

primary counsel.

In conclusion, the Petitioner would like to call

the Court’s attention to the language of this Court

in the case of Powell vy. Alabama, 287 U.S. 45

(1932). In that case, the Courts attention was fo-

cused on a proper balance between the desire for

the prompt and efficient administration of justice

and the individual rights of those accused of crime.

In examining these noble, but sometimes inconsistent,

objectives, the Court stated as follows:

it is true that great and inexcusable

delay in the enforcement of our criminal

law is one of the grave evils of our

time. The prompt disposition of criminal

cases is to be commended and

encouraged. But in reaching that result,

the defendant charged with a serious

crime must not be stripped of his

right to have sufficient time to advise

with counsel and prepare his defense.

To do that is not to proceed promptly

in the calm spirit of justice, but to go

forward with the haste of the mob.“

While it may be true that defendants in criminal

prosecutions will not be afforded the right to be

represented by his own counsel in situations where

the exercise of this right occurs ina manner calculated

to obstruct the orderly procedure of the Courts, such

principle has no applicability to the Petitioner. The

Petitioner in the instant case timely exercised his

right to select counsel when he retained Attorney

Winston some 3 months prior to trial. Furthermore,

it would be greatly unjust and unreasonable to charge

the Petitioner with his primary attorneys court

schedule conflict. Apparently, none of this made any

difference to the North Carolina Court of Appeals when

they decided that in the instant case, the Petitioner’s

Sixth Amendment rights must yield. In so deciding,

the Court of Appeals failed to recognize the holding

of this Court in the case of Johnson v. Zerbst, 304

U.S. 458 (1938) where it was stated that the Sixth

Amendment stands as a ccastant admonition that if

the Constitutional safeguards it provides be lost,

justice will not still be done.

CONCLUSION

For the reasons set out above, it is respectfully

submitted that the Petitioner herein was denied certain

vital constitutional rights affecting the integrity of the

fact finding process and for this reason a Writ of

Certiorari should issue to the North Carolina Court

of Appeuls to review their decision and opinion en-

tered in this case.

Respectfully submitted.

Barry T. Winston

Winston and Blue

311 W. Rosemary Street

Chapel Hill, North Carolina 27514

William F. Lar’ .er

Winston and Bl.

311 W. Rosema. y Street

Chapel Hill, North Carolina 27514

Attorneys ſor Petitioner

NO. 77238C 423

NORTH CAROLINA COURT OF APPEALS

Filed: 16 November 1977

STATE OF NORTH CAROLINA

v. Wilkes County

ROGER MLLIAMS No. 76C R650 7

Appeal by defendant from Crissman, Judge.

Judgment entered 7 January 1977 in Superior Court,

Wilkes County. Heard in the Court of Appeals 18

October 1977.

Upon a plea of not guilty, defendant was tried on a

bill of indictment charging him with the murder of

Jimmy Lee Wilson on 11 September 1976. Evidence

presented by the State tended to show:

Deceased was the former husband of Brenda

Williams, wife of defendant. Deceased and Brenda

were married on 1 March 1965 and had one child,

Richard. Following a custody hearing, an order was

entered on 9 September 1976 awarding Richard’s

custody to deceased effective at 12:00 noon on Saturday,

11 September 1976.

On that date, deceased, his wife and their child,

together with David and Helma Wilson, went to the

residence of defendant to pick up Richard. The Wilsons

were in the front seat while deceased, his wife and

child were in the back seat. Upon stopping the auto-

mobile David Wilson got out on the driver’s side and

observed defendant and one Plato Shepherd sitting

in chairs in the carport.

Defendant jumped up and with a high-powered rifle

in his hand ran toward the car and said. Vou son of

a bitch, I told you not to step on my property’’. De-

ceased, who was still in the back seat of the automobile

said, Sir, I am not on your property.“ Before

. deceased finished making that statement defendant

fired the rifle, hitting deceased in his neck. Deceased

said nothing to defendant except the statement aforesaid

and never got out of the car.

Defendant then pointed the rifle at Helma Wilson,

who was outside of the automobile, and said, Get

the hell out of here or I will kill you all.“ The Wilsons

Al

got back into the car and drove away. Deceased

died from the gunshot wound inflicted.

Defendant presented evidence tending to show:

He met Brenda in the fall of 1972 while she was

separated from deceased. Brenda and deceased were

divorced in January of 1973 and defendant married

her in March of 1973.

On 22 July 1973 deceased told defendant that if he

ever whipped Richard, or touched him or spoke

harshly to him, deceased would kill defendant even

if he had to spend 20 years of his life in jail. On

several occasions after that defendant tried to carry

on casual conversations with deceased, but as deceased

was talking there was something about his tone of

voice to indicate that he ‘‘was ready to explode any

minute.’’

In August of 1976 defendant asked his wife to write

a letter to deceased telling him not to come to their

home. On the day of the shooting, when the car drove

up, defendant observed deceased in the car. Defendant

picked up his rifle and approached the car with the

intention of talking to deceased. Defendant thought that

deceased had a pistol and was going to shoot him,

thereupon, defendant jerked his rifle around and fired,

hoping it would give him a chance to get away.

On cross-examination defendant stated that the

only threats made against him by deceased were the

incidents in July of 1973, anincident around Christmas

of 1973 in which deceased allegedly followed Brenda,

a telephone call by deceased to Brenda in August of

1976, and the appearance at defendant’s home on the

day in question. Defendant admitted that deceased

never touched him or shot at him.

On 9 August 1976, at defendant’s request, Brenda

wrote deceased a letter telling him to stay away

from defendant’s property. There after deceased

telephoned Brenda and stated, ‘‘. . . I can shoot

too and I can shoot pretty damn good.

The jury returned a verdict finding defendant

guilty of second degree murder and from judgment

imposing a prison term of not less than 30 nor more

than 35 years, he appeals.

Attorney General Edmisten, by Associate Attorney

A2

Norma S. Harrell, for the State.

Winston, Coleman and Bernholz, by Barry T.

Winston, for defendant appellant.

BRITT, Judge. Defendant assigns as error the

failure of the trial court to grant his motion for a

continuance of the trial on the ground that his

principal attorney was engaged in the trial of another

case and could not be present.

On 22 December 1976 Attorney Barry T. Winston

of Chapel Hill, N.C., filed a motion in this cause

Stating that he was counsel of record for defendant;

thut he was advised that the district attorney had

calendared this case for trial on Monday, 3 January

1977; that defendant was free on bond; that he (Attorney

Winston) had been appointed to represent one Haskins

in Orange County Superior Court for attempted armed

robbery; that Haskins was in jail, unable to make

bond, and did not want a continuance of his case; that

the Haskins case was calendared for trial in Orange

County on January 1977; that this case (Williams)

had been continued once before at counsel’s request

because of a similar conflict; that the district attorney

had refused to agree to a further continuance; that

counsel would be able to appear at the 14 February

1977 Session of Wilkes Superior Court and would be

ready for trial at that time.

The case was called for trial by the district attorney

during the week of 3 January 1977, evidently on 5

Junuury 1977. At thut time defendant’s attorneys,

Messrs. Max Ferree and John Hall of the Wilkes

County Bar, were present. Mr. Ferree asked for a

continuance on the grounds set forth in Mr. Winston’s

motion. He stated that he had talked with Mr. Winston

over the telephone the night before; that Mr. Winston

advised him that the Haskins trial was in its second

day and would probably consume the remainder of

the week. Mr. Ferree further stated that defendant’s

decision to employ Mr. Winston was without any

suggestion from Mr. Hall or him, but that they readily

agreed for Mr. Winston to appear with them in the case.

The district attorney opposed the motion for con-

tinuance, stating that the case had been continued

once before on the same grounds. He pointed out that

A3

— — — — n —

defendant had able representation in Messrs. Ferree

and Hall; that this was the fourth time witnesses

had travelled 197 miles to testify in the case, at

considerable financial loss to them.

After stating that he felt that defendant was ably

represented by Messrs. Ferree and Hall, the trial

judge denied the motion for continuance.

Included in the record on appeal is an affidavit

by Judge Hobgood, dated 4 April 1977, Stating that

he was the presiding judge at the 3 January 1977

Session of Orange Superior Couet; that Haskins

trial began on the first day of the session and ended

on Friday; thatjon Wednesday, 5 January, at the request

of Mr. Winston, he attempted to call Judge Crissman

on the telephone; that the lady who answered the

telephone advised that Judge Crissman was on the

bench; that he requested the lady to write Judge

Crissman a note informing him of the call and that

Mr. Winston was engaged in the trial of a case in

Orange County; and that the lady returned to the

telephone a short while later and stated that Judge

Crissman said there ‘‘was no problem,’’ that he was

proceeding with the Williams trial without Mr. Winston.

Also included in the record is an affidavit by Attorney

Winston dated 4 April 1977 stating, among other

things, that he was privately employed to represent

defendant Williams on 4 October 1976; that although

Messrs. Ferree and Hall were also employed to

represent defendant, neither of them had the oppor-

tunity to review his file in the case or the benefit

of interviews he had conducted with numerous

witnesses.

Although the record does not reveal just when

Messrs. Ferree and Hall were employed in the case,

all indications are that they were employed prior to

the time Mr. Winston was employed.

A motion for continuance is ordinarily addressed

to the sound discretion of the trial court and its

ruling thereon is not subject to review absent abuse

of discretion. State v. Baldwin, 276 N.C. 690, 174

S. E. 2d 526 (1970); State v. Stinson, 267 N.C. 661,

148 S.E. 2d 593 (1966). However. if the motion is

based on a right guaranteed by the federal or state

A4

constitution, the question presented is one of law

and not of discretion and the decision of the court

below is reviewable. State v. oe 261 N.C. 263,

134 S.E. 2d 386, cert. denied 377 U.S. 1003, 12 L. Ed.

2d 1052, 84 S. Ct. 1939 (1964). . . Justice Huskins

in State v. Miller, 288 N.C. 582, 587, 220 S. E. 2d

326, 331 (1975).

Defendant argues that since he is financially able

to employ counsel of his choice, he has a constitutional

right to be represented by any duly licensed attorney

he might employ. Assuming, arguendo, that this is

nerally true, we think there have to be certain

fünnfkatlons. Were the right unlimited, conceivably all

persons charged offenses in North Carolina, or within

a given area of the State, and able to employ their

own counsel, could agree to employ one particular

attorney and thus completely frustrate the trials of

criminal cases.

We do not believe this is a right without limitation.

We think a reasonable line must be drawn between

the rights of defendants to be represented by counsel

of their choice, and the rights of society to have the

many criminal courts of the State operated with a

reasonable degree of efficiency. That being true,

considerable discretion has to be vested in the trial

judge who is on the scene and has the superior vantage

point to view and consider the merits of a particular

case.

As of the time of the trial of the case at hand,

Judge Crissman had presided over many sessions of

criminal court in Wilkes County. He was well

acquainted with the various lawyers at that bar,

particularly with Messrs. Ferree and Hall, and was

well qualified to pass upon their abilities to provide

defendant with proper representation. While another

judge might have ruled differently on defendant’s

motion for u continuance, we fail to perceive that

Judge Crissman abused his discretion or deprived

defendant of his constitutional right to be represented

by competent counsel at his trial.

We think the case at hand is easily distinguished

from the recent case of State v. McFadden, 292 N.C.

609, 234 S.E. 2d 742 (1977), cited by defendant.

AS

In that case the Supreme Court ordered a new trial

where the trial court denied defendant’s motion for

a continuance on the ground that defendant’s retained

counsel was engaged in the trial of a case in federal

court. In McFadden, it was shown that on the day the

case was set for trial retained counsel’s junior

associate appeared and moved for a continuance;

that the court ordered the trial to proceed, requiring

said associate to represent defendant although he

had practiced law only 18 months, had previously

tried only one jury case, knew nothing about the case

until 90 minutes before trial, and defendant insisted

on his retained counsel being present. In the case

at hand the two attorneys who represented defendant

at trial were proven advocates of many years’

experience, who had been employed by defendant

for several months pror to the trial and had every

reason to be thoroughly familiar with the cuse.

Defendant’s first assignment of error is overruled.

Next, defendant assigns as errors the trial court’s

exclusion of evidence tending to show the attitude

of deceased as perceived by defendant and the number

of occasions on which deceased had assaulted Brenda.

We find no merit in these assignments. The record

fails to disclose what the answers to the questions

would have been, therefore, defendant has failed to

show prejudicial error. State v. Miller, supra.

By the next assignment of error argued inhis brief,

defendant contends the court erred in sustaining the

State’s objection to a question asked Dr. Rollins, a

psychiatrist, as to whether he considered defendant

a reliable informant. We find no merit in this

assignment. We think the evidence was properly

excluded on the ground that it invaded the f ovince

of the jury, it being their function to determine the

credibility of a witness. See State v. Carr, 196 N.C.

129, 144 8. E. 698 (1928); State v. Metcalf, 18 N.C.

App. 28, 195 S. E. 2d 592 (1973).

By his next assignment of error, defendant contends

the trial court erred in excluding opinion testimony

by Dr. Rollins as to what might or could have prompted

defendant to kill deceased. We find no merit in this

assignment.

A6

Defense counsel propounded to Dr. Rollins a long

hypothetical question which concluded by asking if he

had an opinion as to what might or could have

prompted defendant to kill deceased. In the absence

of the jury Dr. Rollins replied that in his opinion

defendant might or could have been acting out of

fear of deceased, that defendant’s perception and

judgment might or could have been impaired by the

stress of the situation, and that defendant might or

could have felt that he was acting in self-defense.

Here again we think the answer would have invaded

the province of the jury and that the trial court did

not err in excluding the testimony. State v. Carr,

supra.

_ assigns as error the following instruction

to the jury:

If the State proves beyond a reasonable

doubt that the defendant intentionally killed

Jimmy Lee Wilson with a deadly weapon

or that he intentionally inflicted a wound

upon Jimmy Lee Wilson with a deadly

weapon that proximately caused his death,

you may but you need not infer, first, that

the killing was unlawful and, second, that it

was done with malice, and if nothing else

appears the defendant would be guilty of

second degree murder.“

We find no merit in this assignment.

Defendant argues that the holding of State v.

Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975),

should be further refined to disallow an inference

of unlawfulness unless appropriate guidelines are

provided to the jury. We find this argument unper-

suasive and hold that the instruction was free from

error.

Finally, by the last assignment of error argued in

his brief, defendant contends the court in its jury

charge did not properly correlate the defendant’s

apprehension of death or great bodily harm with the

evidence of the violent character of the deceased, and

the evidence of prior threats made by the deceased

toward the defendant. Suffice it to say, we have

carefully reviewed the jury charge relating to this

A7

contention but conclude that the charge was not

erroneous and that the assignment is without merit.

For the reasons stated, in defendant’s trial and

the judgment entered, we find

No error.

Judges HEORICK and MARTIN concur.

A TRUE COPY

Clerk of the Court of Appeals

of North Carolina

By Sheri L. Jewett , Deputy Clerk

November 18, 1977

A8

No. 99PC TWENTY-THIRD DISTRICT

SUPREME COURT OF NORTH CAROLINA

Fall Term 1977

R K eee „ ee & eK eK

STATE OF NORTH CAROLINA ) Judgment dismissing

v. ) appeal on Motion of At-

ROGER WILLIAMS )torney General and

)denying Petition for

) Discretionary Review

) 7723SC 423

R „ „ „„ „ „ „ + eRe eK

This matter came on to be considered upon

Defendant’s notice of appeal from the North Carolina

Court of Appeals, pursuant to G.S. 7A-30, upon the

Attorney General’s motion to dismiss the appeal for

lack of a substantial constitutional question, and

upon Defendant’s petition for discretionary review

of the decision of the North Carolina Court of Appeals,

pursuant to G.S. 7A-31; upon consideration whereof,

it is adjudged by the Court in conference this 15th

day of December 1977 that the motion to dismiss the

appeal be allowed, that the petition for discretionary

review be denied, and that it be so certified to the

North Carolina Court of Appeals. Petition for stay

of execution of judgment was also denied.

It is considered and adjudged further that defendant

do pay the costs incurred, to wit: the sum of nine and

00/100 ($9.00) Dollars and execution issue therefor.

Issued under my hand and the seal of the Supreme

Court this 19 day of December 1977.

John R. Morgan

Clerk of the Supreme Court

of North Carolina

cc: North Carolina Court of Appeals

Mr. William F. Larimer, Attorney at Law

Ms. Norma 8. Harrell, Associate Attorney

A9

Mr. Wayne Yates, Clerk of Superior Court

Mr. Donald K. Tisdale, District Attorney

Ald

STATE OF NORTH CAROLINA ) File # 76 Crs 6507

County of Wilkes ) Film #

) In the General

The State of North Carolina ) Court of Justice

vs. ) Superior Court

Roger Williams ) Division

JUDGMENT AND COMMITMENT

In open court, the defendant appeared for trial

upon the charges of Murder and thereupon entered a

plea of Not Guilty.

Having been found guilty of the offense of Murder

in the 2nd Degree which is a violation of

and of the grade of Felony.

It is ADJUDGED that the defendant be imprisoned

for the term of Thirty (30)to Thirty-Five (35) years

in the State Prison to be assigned to the State Depart-

ment of Correction.

It is ORDERED that the Clerk deliver two certified

copies of this judgment and Commitment to the Sheriff

or other qualified officer and that said officer cause

the defendant to be delivered, with such copies as

commitment authority, to the appropriate official of

the State Department of Correction.

This 7 day of January 1977.

Walter E. Crissman

Presiding Judge

Attorney for Defendant: Max Ferree and John Hall

Attorney for the State: Michael Ashburn

Date certified copies of judgment delivered to Sheriff

for commitment:

All