{ "id": 8547510, "name": "STATE OF NORTH CAROLINA v. LUTHER HAGER", "name_abbreviation": "State v. Hager", "decision_date": "1971-08-04", "docket_number": "No. 7120SC484", "first_page": "90", "last_page": "94", "citations": [ { "type": "official", "cite": "12 N.C. App. 90" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "174 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "8 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553454 ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0535-01" ] }, { "cite": "166 S.E. 802", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618747 ], "opinion_index": 0, "case_paths": [ "/nc/203/0675-01" ] }, { "cite": "136 S.E. 2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566653 ], "opinion_index": 0, "case_paths": [ "/nc/262/0237-01" ] }, { "cite": "32 S.E. 2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "224 N.C. 848", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616363 ], "pin_cites": [ { "page": "850" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0848-01" ] }, { "cite": "53 S.E., 311", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "141 N.C., 769", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254058 ], "opinion_index": 0, "case_paths": [ "/nc/141/0769-01" ] }, { "cite": "223 N.C., 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608606 ], "opinion_index": 0, "case_paths": [ "/nc/223/0381-01" ] }, { "cite": "90 S.Ct. 2250", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "26 L. Ed. 2d 805", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "399 U.S. 934", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219504, 6218817, 6219050, 6219270 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/399/0934-04", "/us/399/0934-01", "/us/399/0934-02", "/us/399/0934-03" ] }, { "cite": "388 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] }, { "cite": "22 L. Ed. 2d 402", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6173399 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0440-01" ] }, { "cite": "894 U.S. 440", "category": "reporters:federal", "reporter": "U.S.", "year": 1969, "opinion_index": 0 }, { "cite": "430 F. 2d 689", "category": "reporters:federal", "reporter": "F.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "431 F. 2d 1156", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2228052 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/431/1156-01" ] }, { "cite": "433 F. 2d 659", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2120959 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/433/0659-01" ] }, { "cite": "156 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563824 ], "opinion_index": 0, "case_paths": [ "/nc/271/0323-01" ] }, { "cite": "157 S.E. 2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566140 ], "opinion_index": 0, "case_paths": [ "/nc/271/0611-01" ] }, { "cite": "158 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 282", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572755 ], "opinion_index": 0, "case_paths": [ "/nc/272/0282-01" ] }, { "cite": "170 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559907 ], "opinion_index": 0, "case_paths": [ "/nc/276/0001-01" ] }, { "cite": "399 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167869 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/399/0001-01" ] } ], "analysis": { "cardinality": 520, "char_count": 8855, "ocr_confidence": 0.56, "pagerank": { "raw": 7.682524327565526e-08, "percentile": 0.45273450305403906 }, "sha256": "55b24347665e1c9ce6dca03ababbf6fdcc39329846fff819113ae783b6e1faa7", "simhash": "1:47897018201252e7", "word_count": 1510 }, "last_updated": "2023-07-14T18:50:27.087613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Brock and Vaughn concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LUTHER HAGER" ], "opinions": [ { "text": "GRAHAM, Judge.\nDefendant contends his constitutional right to counsel was violated in that counsel was not provided for him at a preliminary hearing. In support of this contention he cites Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S.Ct. 1999 (1970). In that case, the Supreme Court of the United States held that a preliminary hearing is a critical stage of the prosecution so as to constitutionally require the furnishing of counsel to protect the rights of a defendant. The case was remanded to the Alabama Supreme Court for a determination of whether the failure to provide counsel for defendant at his preliminary hearing constituted harmless error.\nBefore the decision in Coleman, our Supreme Court had consistently held that counsel at a preliminary hearing was not necessary where the proceedings were not in any way prejudicial to the trial itself. State v. Hill, 276 N.C. 1, 170 S.E. 2d 885; State v. Clark, 272 N.C. 282, 158 S.E. 2d 705; State v. Miller, 271 N.C. 611, 157 S.E. 2d 211; Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740.\nColeman was decided 22 June 1970. This defendant\u2019s preliminary hearing was held 10 June 1969. The question is therefore whether the decision in Coleman is retroactive. If it is not, defendant is entitled to no relief because he has not shown that the proceedings at his preliminary hearing were prejudicial to the trial itself.\nFederal courts of appeal in at least three circuits have refused to apply the ruling in Coleman retroactively. Phillips v. State of North Carolina, 433 F. 2d 659 (4th Cir. 1970); Kornvalin v. Sigler, 431 F. 2d 1156 (8th Cir. 1970); United States ex. rel. Bonner v. Pate, 430 F. 2d 689 (7th Cir. 1970).\nIn Phillips it is stated:\n\u201cWe conclude that the limited purpose which might be served by making Coleman retroactive is clearly outweighed by the state\u2019s proper reliance on the former standard and the resulting burden on the administration of criminal justice. We hold, therefore, that Coleman should apply only to those preliminary hearings held after June 22, 1970.\u201d\nIn Konvalin we find:\n\u201cAlthough it might be said that the ruling in Coleman had been foreshadowed, there is no doubt that a great many states followed the rule as applied in this circuit, that counsel at the preliminary hearing was not necessary where the proceedings were not in any way considered prejudicial to the trial itself. . . . State law enforcement officials undoubtedly have relied upon this weight of authority. To apply the rule retroactively would be the genesis for literally hundreds of post-conviction evidentiary hearings which in sheer numbers would virtually shatter the bounds of reality. ...\u201d\nIn Pate, the court held:\n\u201cSince denial of an attorney at a preliminary hearing when no rights are lost does not \u2018invariably deny a fair trial, * * * \u2019 we hold that the ruling announced in Coleman is not retroactive.\u201d\nUnder the retroactivity rule expressed in Foster v. California, 894 U.S. 440, 22 L. Ed. 2d 402, 89 S.Ct. 1127 (1969) ; Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S.Ct. 1967 (1967); Phillips v. North Carolina, supra; Konvalin v. Sigler, supra; and United States ex rel. Bonner v. Pate, supra, we are of the opinion and so hold that the principles of law set forth in Coleman ought not to be applied retroactively under the facts of this case and that the defendant\u2019s contention in this respect is without merit. See also Wetzel v. North Carolina, 399 U.S. 934, 26 L. Ed. 2d 805, 90 S.Ct. 2250 (1970).\nDefendant assigns as error several portions of the charge. In each instance it appears likely that the statements giving rise to exception resulted from error on the part of the court reporter in transcribing the charge. For instance, the record reflects the following which are subjects of exception:\n\u201cThe burden of proof never rests upon the defendant to show his innocence, but to disprove the facts necessary to establish the crime for which he is charged.\n\u2756 \u2756 \u2756\n\u201cAlthough, in this case there has been evidence, as I have argued, introduced by the State of North Carolina tending to show that at the time mentioned in the bill of indictment that the defendant in this case did offer this check for payment for value. . . .\n\u201cNow, in the second count in the bill of indictment, . . . there are four separate elements to that charge. You may find from the evidence and beyond a reasonable doubt, that all the elements are present in this case on the second count before you may return a verdict of guilty on that count.\u201d (Emphasis added.)\nThe first portion of the charge set forth above which relates to the burden of proof is clearly erroneous for it tends to place a burden upon defendant to disprove evidence presented by the State. \u201c \u2018Where no admission is made or presumption raised, calling for an explanation or reply on the part of the defendant, the plea of not guilty challenges the credibility of the evidence, even if uncontradicted, since there is a presumption of innocence which can only be overcome by a verdict of the jury.\u2019 S. v. Davis, 223 N.C., 381, 26 S.E. (2d), 869; S. v. Hill, 141 N.C., 769, 53 S.E., 311....\u201d State v. Stone, 224 N.C. 848, 850, 32 S.E. 2d 651, 652.\nThe charge contained in the record shows that in other portions the jury was correctly instructed with respect to the burden of proof. However, conflicting instructions upon a material aspect of a case must be held prejudicial error since it cannot be known which instruction was followed by the jury. Hardee v. York, 262 N.C. 237, 136 S.E. 2d 582; Hubbard v. R. R., 203 N.C. 675, 166 S.E. 802.\nIt is with reluctance that we remand the case for a new trial for we feel that the possibility is great that the errors which dictate this result are stenographical rather than judicial. However, the record before us has been accepted by the solicitor and certified here by the clerk. We are bound by the record as certified to this Court. See State v. Locklear, 8 N.C. App. 535, 174 S.E. 2d 641. Perhaps the case will serve to encourage counsel and solicitors to review records with care and to call to the attention of the trial judge any material errors which appear to have resulted from an inaccurate transcript.\nNew trial.\nJudges Brock and Vaughn concur.", "type": "majority", "author": "GRAHAM, Judge." } ], "attorneys": [ "Attorney General Morgan by Assistant Attorney General Briley for the State.", "Charles P. Brown for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LUTHER HAGER\nNo. 7120SC484\n(Filed 4 August 1971)\n1. Constitutional Law \u00a7 32; Criminal Law \u00a7 21\u2014 counsel at preliminary hearing \u2014 nonretroactivity of U. S. Supreme Court decision\nU. S. Supreme Court decision that an accused has a constitutional right to counsel at a preliminary hearing is not retroactive and applies to preliminary hearings held after 22 June 1970.\n2. Criminal Law \u00a7 112\u2014 instructions \u2014 placing burden on defendant to disprove State\u2019s evidence\nInstruction that \u201cthe burden of proof never rests upon the defendant to show his innocence, but to disprove the facts necessary to establish the crime for which he is charged\u201d constitutes prejudicial error, since it tends to place a burden upon defendant to disprove evidence presented by the State.\n3. Criminal Law \u00a7 168\u2014 conflicting instructions on material aspect\nConflicting instructions upon a material aspect of a case must be held prejudicial error since it cannot be known which instruction was followed by the jury.\n4. Criminal Law \u00a7 158\u2014 conclusiveness of record\nThe Court of Appeals is bound by the record as certified to it.\nAppeal by defendant from Godwin, Special Judge, 1 June 1970 Session of Superior Court held in Stanly County.\nDefendant was tried upon a bill of indictment, proper in form, charging him with the felonies of forgery and uttering a forged instrument.\nThe jury found the defendant not guilty of forgery but guilty of uttering a forged instrument.\nDefendant\u2019s appeal was originally heard in this Court during the 1970 Fall Session. At that time defendant asserted by affidavit that notwithstanding his diligent efforts he had been unable to obtain from the court reporter a transcript of the evidence and the court\u2019s charge. One of the assignments of error was that the defendant had been denied the right to a meaningful appeal because of his inability to obtain and the State\u2019s failure to provide a transcript. Before opinion was rendered a transcript was obtained by the Director of the Administrative Office of the Courts and delivered to defendant\u2019s counsel. Thereafter, in compliance with an order of the Supreme Court, this Court remanded the case to the Superior Court of Stanly County to the end that defendant could, if so advised, proceed to perfect his appeal. The record on appeal, this time containing a narrative of the testimony and the court\u2019s charge, was again docketed in this Court and the case was reviewed a second time during our 1971 Spring Session.\nAttorney General Morgan by Assistant Attorney General Briley for the State.\nCharles P. Brown for defendant appellant." }, "file_name": "0090-01", "first_page_order": 116, "last_page_order": 120 }