# Petition — Williams v. North Carolina

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0633%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 906

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0633%3A1. Public record. Not legal advice.