{
  "id": 8554591,
  "name": "STATE OF NORTH CAROLINA v. GILBERT M. SHOOK, JR.",
  "name_abbreviation": "State v. Shook",
  "decision_date": "1978-11-07",
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  "casebody": {
    "judges": [
      "Judges VAUGHN and WEBB concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. GILBERT M. SHOOK, JR."
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nThe defendant assigns error to the denial of his motion for payment of fees for a psychiatric examination. He acknowledges that our courts have held that there is no constitutional right to have an expert witness to aid in an indigent\u2019s defense, State v. Tatum, 291 N.C. 73, 229 S.E. 2d 562 (1976), and that the decision to allow or deny an indigent defendant\u2019s motion for fees for an expert witness is within the discretion of the trial judge. Id.; G.S. 7A-454. However, G.S. 7A-450(b) states that \u201c[whenever a person ... is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation,\u201d and the defendant argues that under this section he was entitled to have his motion granted. Our Supreme Court has interpreted this statute to mean that such assistance need be provided \u201conly upon a showing by defendant that there is a reasonable likelihood that it will materially assist the defendant in the preparation of his defense or that without such help it is probable that defendant will not receive a fair trial.\u201d State v. Gray, 292 N.C. 270, 278, 233 S.E. 2d 905, 911 (1977). The question, then, is whether the trial court properly applied this standard of \u201creasonable likelihood\u201d in exercising its discretion by denying defendant\u2019s motion.\nA discretionary order of the trial court will not be disturbed in the absence of abuse or arbitrariness. 1 Strong\u2019s N.C. Index 3d, Appeal & Error \u00a7 54. So it is not for us to determine whether the court could have ruled in defendant\u2019s favor, but whether it was required to do so. It appears from the record that defendant argued, at the hearing on the motion, the facts of his psychiatric history as set out in the affidavit in support of his motion to suppress. On those facts the judge was not required to grant the motion. It was within the exercise of his discretion for the court to find that a psychiatric examination 2k years after the shooting incident would not materially assist the defendant in showing his mental condition at the time of the incident. Defendant refers us to State v. Patterson, 288 N.C. 553, 220 S.E. 2d 600 (1975), where the defendant was allowed fees for a second opinion after a state psychiatrist had pronounced him competent to stand trial, and argues that here he seeks only a first opinion. We note, however, that the purpose of the psychiatric examination in Patterson was to determine the defendant\u2019s mental condition at that time, the time he was to stand trial, not to establish a condition which might have existed 2xh years earlier. Here, defendant received psychiatric evaluation both four months before, and two and four months after, the shooting incident, and evidence of those diagnoses was before the judge when he ruled on the motion for fees. He quite reasonably may have concluded that such evidence, being closer in time to the shooting, was more probative of defendant\u2019s mental condition then than any current examination could be. The judge\u2019s ruling will stand.\nWe next turn to defendant\u2019s assertion that his motion to suppress the statement he made to the police was improperly denied. The judge based his denial on two grounds, in the alternative: (1) he considered that everything in defendant\u2019s first trial in 1976, up to and including arraignment, was valid, so that the denial of defendant\u2019s motion to suppress made before the first arraignment remained in force; or (2) he denied defendant\u2019s new motion in his discretion. We agree with the trial judge that everything up to and including the first arraignment remains valid for this trial. See State v. Farrell, 223 N.C. 804, 28 S.E. 2d 560 (1944). That may not settle the matter, however. The motion to suppress at defendant\u2019s first trial was denied on the ground that it was not timely; this was not a ruling on the merits and did not bar defendant from renewing his motion at the proper time. The trial judge was incorrect when he indicated that he thought the earlier arraignment \u201ccut off the Court having to rule on the present motion.\u201d The defendant was entitled to have his motion considered on its merits.\nWe believe, however, contrary to defendant\u2019s arguments, that the merits of his motion were sufficiently considered. It is true that the motion was denied without a hearing. It is also true, however, that consideration of the motion immediately followed the hearing on defendant\u2019s motion for payment of fees, and at that hearing defense counsel argued defendant\u2019s psychiatric history. In addition, that history was set out in an affidavit in support of the motion to suppress. We find that defendant\u2019s psychiatric history was adequately before the court, and since defendant has not shown us any other evidence he would have offered to support his motion had a hearing been held, we find that the merits were sufficiently considered.\nNor would we reverse the trial judge\u2019s ruling on the motion. The defendant argues that his mental condition at the time of his arrest made it impossible for him to understandingly, knowingly waive his rights and make a voluntary statement. Lack of mental capacity, while an important factor in determining voluntariness, does not of itself render incompetent a voluntary confession. State v. Whittemore, 255 N.C. 583, 122 S.E. 2d 396 (1961); State v. Basden, 19 N.C. App. 258, 198 S.E. 2d 494 (1973). The judge determined that the confession was voluntary, and evidence presented at trial supports that conclusion. Defendant was twice advised of his rights, and asked if he had any questions. He said he understood, and signed the waiver form. He not only gave the officers a statement about the incident, he expressed his concern. According to Officer Campbell: \u201cMr. Shook said he was sorry. . . . [H]e wanted to know if he could go out and make arrangements to see him, could he pay the hospital bill and asked me how bad was this man hurt.\u201d There is ample evidence in the record to support the judge\u2019s ruling on the motion.\nDefendant next objects to the admission of Barbara Hubbard\u2019s testimony about a prior shooting incident, alleging that it was irrelevant and prejudicial. We agree with the State that because defendant did not object to this testimony at the time it was admitted, he cannot now assign it as error. The record shows that defendant objected to Ms. Hubbard\u2019s testimony that she had seen defendant at the Charcoal Tavern on 3 July, some three weeks prior to the shooting. He also objected and moved for voir dire when she testified that she knew a man named Grady Yar-borough. There was then a bench conference and a conference in chambers about the content of Ms. Hubbard\u2019s testimony, after which the court announced that \u201cthe Court overrules the motion for voir dire hearing and will entertain and rule upon such objections as may hereafter be interposed by the Defendant.\u201d Defendant excepted to this, but failed to object during the remainder of Ms. Hubbard\u2019s testimony, which related to a shooting incident on 3 July involving Grady Yarborough and the defendant. \u201cWhere there is no objection ... in the lower court . . . , appellant may not challenge the issues for the first time on appeal. . . .\u201d 1 Strong\u2019s N.C. Index 3d, Appeal & Error \u00a7 24. See Dale v. Dale, 8 N.C. App. 96, 173 S.E. 2d 643 (1970); 4 Strong\u2019s N.C. Index 3d, Criminal Law \u00a7 162.\nDefendant argues that it was error for the court to allow Officer Campbell to testify that defendant \u201cwas fixing to sign the statement\u201d when his wife came in and stopped him. We agree. A witness may not give his opinion of another person\u2019s intention. 1 Stansbury\u2019s N.C. Evidence \u00a7 129 (Brandis Rev. 1973). The State argues that \u201cfixing to\u201d indicates preparation, not intention, but we find that a meaningless distinction here. Unless defendant were actually in the act of beginning to sign, of which there is no indication, any \u201cpreparation\u201d must have been mental and thus not visible for Officer Campbell\u2019s observation. However, even where the evidence wrongly admitted is possibly prejudicial, \u201cthe burden is on the appellant not only to show error but to enable the court to see that he was prejudiced or the verdict of the jury probably influenced thereby.\u201d 1 Strong\u2019s N.C. Index 3d, Appeal & Error \u00a7 48 (emphasis added). Defendant did not make such a showing here, and we believe that he could not in view of the other evidence that tended to show that defendant willingly made the statement and indicated it was true.\nDefendant is also correct in his contention that it was error for the court to admit Officer Cook\u2019s testimony that defendant appeared to understand and know what he was doing in waiving his rights and making a statement. What defendant understood \u201cmust be proved if at all by his actual responses, verbal or otherwise, to the explanations given him of his rights.\u201d State v. Patterson, supra at 566, 220 S.E. 2d at 610. Opinion testimony by the officer is unacceptable. Nevertheless, here, as in Patterson, there is other competent evidence of defendant\u2019s understanding. Officer Campbell testified: \u201cWe read him his rights and asked him if he had any questions. He said he understood it and signed it.\u201d Also: \u201cMr. Shook indicated he understood his rights.\u201d Officer Cook testified that defendant signed the advisement of rights form, and that when the statement was typed: \u201cI read it to him. Then I asked him if it was true. He said yes, sir.\u201d The admission of the testimony complained of, though error, was not prejudicial.\nWe have considered all of defendant\u2019s arguments, and have found no prejudicial error in the trial.\nNo error.\nJudges VAUGHN and WEBB concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Douglas A. Johnston, for the State.",
      "Tye Hunter for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. GILBERT M. SHOOK, JR.\nNo. 7812SC513\n(Filed 7 November 1978)\n1. Constitutional Law \u00a7 31; Criminal Law \u00a7 5\u2014 mental capacity \u2014 motion for psychiatric fee denied \u2014 no error\nThe trial court did not abuse its discretion in denying defendant\u2019s motion for payment of fees for a psychiatric examination to determine defendant\u2019s ability, at the time of his alleged confession made shortly after the shooting in question, knowingly and understandingly to waive his rights and make a voluntary statement since it was within the exercise of the court\u2019s discretion for him to find that a psychiatric examination 272 years after the shooting incident would not materially assist defendant in showing his mental condition at the time of the incident. G.S. 7A-450(b).\n2. Criminal Law \u00a7 75.14\u2014 defendant\u2019s statement \u2014 no hearing on motion to suppress \u2014 evidence of voluntariness sufficient\nThe trial court did not err in denying defendant\u2019s motion to suppress a statement made by defendant to police shortly after the shooting in question, though the court failed to hold a hearing on the motion, since defendant\u2019s psychiatric history was adequately before the court, and defendant showed-no other evidence he would have offered to support his motion had a hearing been held; moreover, evidence was sufficient to support the court\u2019s conclusion that defendant\u2019s confession was voluntary where it tended to show that defendant was twice advised of his rights and asked if he had any questions; defendant said he understood and signed the waiver form; and defendant not only gave the officers a statement about the incident but also expressed his concern about the shooting victim.\n3. Criminal Law \u00a7 162\u2014 failure to object to evidence at trial \u2014 no consideration on appeal\nDefendant cannot complain on appeal about a witness\u2019s testimony concerning a prior shooting incident involving defendant since defendant did not object to the testimony at trial.\n4. Criminal Law \u00a7 75\u2014 defendant \u201cfixing to sign\u201d confession \u2014 evidence improperly admitted\nThough the trial court erred in allowing an officer to testify that defendant \u201cwas fixing to sign\u201d a confession when his wife came in and stopped him, such error was not prejudicial in view of other evidence which tended to show that defendant willingly made the statement and indicated it was true.\n5. Criminal Law \u00a7 75.10\u2014 waiver of rights \u2014 opinion testimony improperly admitted\nOpinion testimony by an officer that defendant appeared to understand and know what he was doing in waiving his rights and making a statement was improperly admitted, but such evidence was not prejudicial in view of other competent evidence of defendant\u2019s understanding.\nAPPEAL by defendant from Godwin, Judge. Judgment entered 17 January 1978 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 27 September 1978.\nDefendant was charged with shooting into an occupied building and assault with a deadly weapon with intent to kill inflicting serious injury. On 2 February 1976, prior to arraignment, the defendant moved to suppress an alleged oral confession. The motion was denied, the court ruling that it was not timely. Defendant was then arraigned, tried immediately, and convicted on both charges. This Court found no error, 31 N.C. App. 749, 230 S.E. 2d 702 (1976), but the Supreme Court ordered a new trial due to the violation of G.S. 15A-943(b) whereby the defendant may not be tried without his consent during the week following his not guilty plea at arraignment. 293 N.C. 315, 237 S.E. 2d 843 (1978).\nOn 3 January 1978 defendant moved for payment of fees for a psychiatric examination, arguing to the court that there was a serious question of his ability at the time of his alleged confession to knowingly and understandingly waive his rights and make a voluntary statement. The court asked whether a motion to suppress had been filed and defense counsel answered that it had not because he wanted the information from the psychiatric examination to be in the affidavit accompanying the motion to suppress. The motion for payment.of fees for a psychiatric examination was denied. Defendant was then arraigned.\nOn 9 January 1978 defendant filed a motion to suppress the alleged oral confession. This motion was supported by the affidavit of defense counsel, which said: (1) that at the time of his arrest defendant asked to talk to a lawyer, but that he was questioned without being allowed to do so; (2) that during March 1975 defendant had been diagnosed as \u201cacute brain syndrome\u201d and had received psychiatric treatment; (3) that in September 1975 defendant was diagnosed as \u201cpsychosis with unspecified physical condition\u201d; (4) that in November 1975 defendant was discharged from Dorothea Dix Hospital with a diagnosis of alcohol addiction and a notation of mild mental retardation; (5) that due to his mental condition, the interrogation impaired his judgment and reasoning, making a voluntary waiver of rights or voluntary statement impossible; and (6) that defendant\u2019s mental condition and his voluntary abuse of alcohol impaired his recollection of the shooting and interrogation.\nOn 12 January defendant filed a second motion for payment of fees for a psychiatric examination. The court heard this motion and denied it, then considered the motion to suppress and denied it without a hearing, on the ground that everything in the first trial through the time of arraignment was valid, including the denial of the motion at that time. In the alternative the court denied the new motion in its discretion.\nAt trial the State presented evidence that sometime after 12:45 a.m. on 27 July 1975, Robert Louis Johnson was inside the Charcoal Tavern when shots from outside the building struck him, resulting in his permanent paralysis. On 28 July two police officers took the defendant into custody. Officer Campbell testified that he advised defendant of his Miranda rights and that defendant then tried to talk about the incident, but Campbell asked him to wait until they got to the Law Enforcement Center. When they arrived, defendant was again advised of his rights and asked if he had any questions. Defendant said he understood his rights and signed the waiver form. He then made the alleged confession that was the subject of the motion to suppress.\nThe statement was typed, but according to Campbell\u2019s testimony defendant\u2019s wife arrived at the time he \u201cwas fixing to sign the statement\u201d and told him not to sign anything, that she would get a lawyer. The statement was never signed. At trial Officer Cook read from his notes of defendant\u2019s statement:\nWhen I started up Gillespie Street, I spotted a car that I thought was a man\u2019s who pulled a gun on me about two weeks ago. When I seen the car at the Charcoal Diner, I went on home and got my .22 automatic rifle. My gun stays loaded at all times. I left my home with the gun and went back to the Charcoal Diner and was sitting in the parking lot waiting for him to come out. I waited and waited and never seen him come out. When I seen he didn\u2019t come out, I thought he was still inside, so everyone was leaving; I pulled up to the window about where the pool table is setting. I fired two or three times into the building. I fired through the passenger\u2019s side. I then left and went home. I then put the gun up and went back to the Crystal Drive-In and got up with a friend and went and got a six-pack of beer, came back to the Crystal Drive-In and then went home. I never told anyone what had happened.\nCook testified that the defendant read the statement after it was typed and said it was true. Cook was also allowed to testify over objection that at the time the defendant made the statement he appeared to understand his rights and know what he was doing.\nBarbara Hubbard, who worked at the Charcoal Tavern, testified over objection about a shooting incident on 3 July 1975 involving Grady Yarborough and the defendant.\nThe defense presented no evidence. The defendant was convicted of both charges and sentenced to two 10-year terms to run consecutively, with credit on the first sentence for the time of his pretrial confinement. Defendant appeals.\nAttorney General Edmisten, by Associate Attorney Douglas A. Johnston, for the State.\nTye Hunter for defendant appellant."
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