{ "id": 8524384, "name": "STATE OF NORTH CAROLINA v. RODNEY L. LITTLE", "name_abbreviation": "State v. Little", "decision_date": "1982-04-20", "docket_number": "No. 8118SC1097", "first_page": "765", "last_page": "771", "citations": [ { "type": "official", "cite": "56 N.C. App. 765" } ], "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": "275 S.E. 2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": -1 }, { "cite": "51 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646311 ], "year": 1981, "opinion_index": -1, "case_paths": [ "/nc-app/51/0064-01" ] }, { "cite": "11 S.E. 2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "218 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620275 ], "year": 1940, "pin_cites": [ { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0415-01" ] }, { "cite": "234 S.E. 2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571372 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0543-01" ] }, { "cite": "279 S.E. 2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574086 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0500-01" ] }, { "cite": "255 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "369" } ], "opinion_index": 0 }, { "cite": "297 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570457 ], "year": 1979, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0388-01" ] }, { "cite": "270 S.E. 2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564503 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0164-01" ] }, { "cite": "64 L.Ed. 2d 796", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "100 S.Ct. 2165", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "446 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6277664, 6275708, 6276260, 6274984, 6278350, 6275343, 6278644, 6279286, 6278967, 6277367, 6276539, 6275996, 6278014 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0941-08", "/us/446/0941-03", "/us/446/0941-05", "/us/446/0941-01", "/us/446/0941-10", "/us/446/0941-02", "/us/446/0941-11", "/us/446/0941-13", "/us/446/0941-12", "/us/446/0941-07", "/us/446/0941-06", "/us/446/0941-04", "/us/446/0941-09" ] }, { "cite": "257 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "298 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568503 ], "year": 1979, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0086-01" ] }, { "cite": "255 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570500 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0399-01" ] }, { "cite": "224 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560150 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0056-01" ] }, { "cite": "271 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566259 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0348-01" ] }, { "cite": "80 Cal. Rptr. 418", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1969, "pin_cites": [ { "page": "423" } ], "opinion_index": 0 }, { "cite": "275 Cal. App. 2d 984", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2234437 ], "year": 1969, "pin_cites": [ { "page": "993" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/275/0984-01" ] }, { "cite": "234 S.E. 2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "744" }, { "page": "745" }, { "page": "747" } ], "opinion_index": 0 }, { "cite": "292 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571595 ], "year": 1977, "pin_cites": [ { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0609-01" ] }, { "cite": "287 U.S. 45", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 369864 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/287/0045-01" ] }, { "cite": "53 S.E. 2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629973 ], "opinion_index": 0, "case_paths": [ "/nc/230/0345-01" ] }, { "cite": "214 S.E. 2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "114-15" } ], "opinion_index": 0 }, { "cite": "287 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561384 ], "year": 1975, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0226-01" ] } ], "analysis": { "cardinality": 711, "char_count": 12924, "ocr_confidence": 0.796, "pagerank": { "raw": 2.5701209819721477e-07, "percentile": 0.8161695913545539 }, "sha256": "aeecbb2f323da942e6cf61c01ca937a66cd161440bdea6e83c91d47350632fba", "simhash": "1:576bb02234307cd6", "word_count": 2207 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and BECTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RODNEY L. LITTLE" ], "opinions": [ { "text": "HILL, Judge.\nThe State\u2019s evidence tends to show that on 21 November 1971, Gail Cotter Murphy lived in an apartment which constituted the second floor of a two-story brick house owned by Greensboro College. Miss Murphy rose late that morning and went to work as the college\u2019s assistant director of admissions without eating breakfast or showering. She returned to her apartment at approximately 12:30 p.m. to shower and eat lunch. After her shower, Miss Murphy, dressed only in a towel, saw a black male standing on the roof of the house looking inside. Miss Murphy next saw the black male, whom she identified as defendant, inside her apartment. She said, \u201cWho are you, what do you want?\u201d Defendant replied, \u201cI\u2019m looking for a book store.\u201d Miss Murphy directed defendant to the college library, and he left through the back door. As she went to put on her bathrobe, Miss Murphy testified, \u201cI ran into this young black man with the butcher knife in his hand raised.\u201d Defendant told her, \u201cI\u2019ll hurt you, shut up. Get those glasses off. Get back to that bed.\u201d Defendant then began pulling on Miss Murphy\u2019s towel and eventually pushed her onto a love seat in the bedroom. Miss Murphy screamed \u201cbloody murder\u201d, and defendant jumped back, dropped the knife, and ran out of the apartment. Defendant offered no evidence.\nIn defendant\u2019s first assignment of error, he argues that the trial judge erred in denying his motion for a continuance in order to allow the . counsel of his choice to prepare his defense. On 3 June 1981, defendant\u2019s case was called for trial. The public defender, then representing defendant, informed the trial judge that defendant\u2019s mother had indicated a desire to retain private counsel. In fact, on that date, another attorney was retained to represent defendant. The record indicates that defendant\u2019s mother had been in contact with the privately retained attorney \u201cfor two or three weeks,\u201d and that the Commission on Racial Justice paid a part of the retainer fee.\nThe public defender moved to withdraw from the case saying, \u201cThere has been some friction in this case between myself and [defendant] all along in terms of trial tactics, ... I think they would be much happier with [the privately retained counsel].\u201d The privately retained counsel moved for a continuance to prepare the case for trial. However, the trial judge stated the following:\nNow, I\u2019m not going to continue this case for you to go out and employ a lawyer. The case is set for trial the first thing in the morning. . . .\n... You have known over two months that you had a new trial, that you were entitled to a new trial, and I\u2019m not going to delay the trial of the case for you to go out and employ a lawyer. Now, you can either have [the public defender] continue to represent you or if you don\u2019t want [the public defender], I will let him withdraw and I will let [the privately retained counsel] represent you and we will try it tomorrow or either you can be tried without a lawyer.\nDefendant indicated that he had rather represent himself, but he advised the judge on the following morning that he had elected to proceed with the public defender.\nThe rule is firmly established that a motion to continue ordinarily is addressed to the sound discretion of the trial judge, and his ruling thereon is not subject to appellate review unless it is shown that the judge abused that discretion. \u201cBut when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the court below is reviewable.\u201d State v. Smathers, 287 N.C. 226, 230, 214 S.E. 2d 112, 114-15 (1975).\nJustice Ervin, speaking for the court in State v. Speller, 230 N.C. 345, 53 S.E. 2d 294, unequivocally declared: \u201cBoth the State and Federal Constitutions secure to every man the right to be defended in all criminal prosecutions by counsel whom he selects and retains. N.C. Const., Art. I, sec. 11; U.S. Const., Amend. XIV.\u201d The United States Supreme Court recognized this constitutional right in Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, with this language: \u201cIt is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.\u201d\nState v. McFadden, 292 N.C. 609, 611, 234 S.E. 2d 742, 744 (1977). Thus, the denial of defendant\u2019s motion in this case presents a constitutional question concerning his right to have counsel of his choice.\nOur Supreme Court has recognized, however, that the right to be defended by chosen counsel is not absolute. State v. McFadden, supra. Quoting from People v. Brady, 275 Cal. App. 2d 984, 993, 80 Cal. Rptr. 418, 423 (1969), our Court stated that\n. . . [d]ue process is not denied every defendant who is refused the right to defend himself by means of his chosen retained counsel; other factors, including the speedy disposition of criminal charges, demand recognition, particularly where defendant is inexcusably dilatory in securing legal representation. . . .\nState v. McFadden, supra at 613, 234 S.E. 2d at 745. In the same vein, the Court observed, \u201c[A]n accused may lose his constitutional right to be represented by counsel of his choice when he perverts that right to a weapon for the purpose of obstructing and delaying his trial.\u201d Id. at 616, 234 S.E. 2d at 747. We note that a disagreement over trial tactics generally does not render the assistance of counsel ineffective so as to compel the appointment of new counsel. State v. Thacker, 301 N.C. 348, 271 S.E. 2d 252 (1980); State v. Robinson, 290 N.C. 56, 224 S.E. 2d 174 (1976).\nDefendant sub judice was represented ably by the public defender in his first trial, and the public defender stood by to represent him at this trial. The case was certified to the Guilford County Superior Court from this Court two months before the start of this trial. The record shows that defendant\u2019s mother had been in contact with the private counsel two or three weeks before she was retained on the day of the trial. Thus, we find that defendant was dilatory in securing the privately retained counsel. Under these circumstances, when balancing defendant\u2019s right to have counsel of his choice with the need for speedy disposition of criminal charges and the orderly administration of the judicial process, it is clear that defendant\u2019s constitutional rights have not been denied. Moreover, the only apparent basis for defendant\u2019s dissatisfaction with the public defender was a disagreement over trial tactics. We do not find that defendant was prejudiced in any way by beginning the trial as scheduled with the public defender as his counsel, whom the record shows conducted the defense with preparation and skill. This assignment of error is overruled.\nDefendant\u2019s second argument assigns as error the trial judge\u2019s denial of his motion to delete a portion of his confession in which he said, \u201cI ran down the steps and ran to the probation office.\u201d Defendant contends that this portion of his confession contains \u201cprejudicial information unrelated to the offenses for which he was charged.\u201d\nAlthough evidence of an unrelated crime is not admissible to prove defendant\u2019s guilt of the crime for which he is being tried, State v. Simpson, 297 N.C. 399, 255 S.E. 2d 147 (1979), \u201c[i]f such evidence tends to prove any other relevant fact, ... it will not be excluded merely because it also shows defendant to have been guilty of an independent crime.\u201d State v. Cherry, 298 N.C. 86, 109, 257 S.E. 2d 551, 565 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed. 2d 796 (1980). The portion of defendant\u2019s confession quoted above tends to show his departure from Miss Murphy\u2019s apartment, which is a relevant fact; thus, its sole relevancy is not to show evidence of an independent crime. See generally State v. Taylor, 301 N.C. 164, 270 S.E. 2d 409 (1980). This assignment of error is without merit.\nIn his final argument, defendant contends that the trial judge erred by misstating the evidence in his charge to the jury and by failing to correct the misstatements as defendant requested. Apparently, when the judge reviewed the statements given by defendant to the police, he reversed the order of the content of the first two statements. These misstatements were noted to the trial judge, who stated the following:\n[Counsel for defendant has] called to my attention the fact that when I recapitulated the evidence or the statement that the defendant gave the police officer that I probably had it in reverse order somewhere, but I tell you again, members of the jury, that you take your own recollection of it, not that of mine or that of counsel, and if I misstated some of the evidence, you be sure to be guided solely by your own recollection of the evidence and not what I have said or what counsel has said. You take it solely and simply from what the witness has said.\nIt is elementary that\nany intimation or expression of opinion by the trial judge at any time during the trial which prejudices the jury against the accused is ground for a new trial. Whether the accused was deprived of a fair trial by the challenged remarks must be determined by what was said and its probable effect upon the jury in light of all attendant circumstances, the burden of showing prejudice being upon the appellant.\nState v. Fair cloth, 297 N.C. 388, 392, 255 S.E. 2d 366, 369 (1979). See G.S. 15A-1222 & -1232. However, when the challenged remarks are brought to the trial judge\u2019s attention prior to the jurors\u2019 deliberations, State v. Jones, 303 N.C. 500, 279 S.E. 2d 835 (1981), and a curative instruction is given, it is assumed that the jurors understood and complied with such an instruction. State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977).\nIn State v. Brown, 218 N.C. 415, 422, 11 S.E. 2d 321, 325 (1940),\n[t]he court charged the jury: \u201cGentlemen of the jury, the court may be in error as to [an inadvertence of the trial judge called to his attention by defendant]; you will remember the evidence as to that, you will not take the court\u2019s recollection. Counsel may be correct in that, the court is not certain as to that, but you will rely upon your recollection as to what the evidence was as to that.\u201d If defendant wanted exactly what was said, he could have requested the court to review the evidence on that aspect. If error, it was harmless and not prejudicial.\nIn the present case, the misstatements were brought to the trial judge\u2019s attention in a timely manner. The judge responded thereto with a curative instruction very similar to that in Brown. Based upon Brown and the principles noted above, we find no prejudicial error in the trial judge\u2019s charge to the jury. See also State v. Jones, supra.\nFor these reasons, in defendant\u2019s trial, we find\nNo error.\nJudges WELLS and BECTON concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Lemuel W. Hinton, for the State.", "Assistant Public Defender S. Kent Smith for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RODNEY L. LITTLE\nNo. 8118SC1097\n(Filed 20 April 1982)\n1. Constitutional Law \u00a7 46; Criminal Law \u00a7 91.4\u2014 denial of motion for continuance-withdrawal of counsel\nThe trial judge did not err in denying defendant\u2019s motion for a continuance in order to allow privately retained counsel time to prepare his case for trial, where (1) defendant\u2019s court-appointed attorney noted a disagreement over trial tactics, (2) defendant\u2019s mother had been in contact with a privately retained attorney \u201cfor two or three weeks,\u201d and (3) where defendant was represented ably by the public defender in his first trial, and the public defender stood by to represent him at his retrial.\n2. Criminal Law \u00a7 34.4\u2014 denial of motion to delete portion of confession proper\nThe trial court did not err in denying defendant\u2019s motion to delete a portion of his confession in which he said, \u201cI ran down the steps and ran to the probation office,\u201d since it tended to show his departure from the victim\u2019s apartment, which was.a relevant fact, and its sole relevancy was not to show evidence of an independent crime.\n3. Criminal Law \u00a7 113.9\u2014 error in charge \u2014 curative instruction\nWhere challenged remarks in the trial court\u2019s instructions were brought to the trial judge\u2019s attention prior to the jury\u2019s deliberation, and a curative instruction was given, it is assumed that the jurors understood and complied with such an instruction.\nAPPEAL by defendant from Rousseau, Judge. Judgments entered 5 June 1981 in Superior Court, GUILFORD County. Heard in the Court of Appeals 10 March 1982.\nDefendant was indicted for breaking or entering and assault with intent to commit rape. This is defendant\u2019s second trial upon these indictments. He was awarded a new trial by this Court in State v. Little, 51 N.C. App. 64, 275 S.E. 2d 249 (1981). Defendant again was convicted of both offenses and appeals from judgments of imprisonment.\nAttorney General Edmisten, by Assistant Attorney General Lemuel W. Hinton, for the State.\nAssistant Public Defender S. Kent Smith for defendant-appellant." }, "file_name": "0765-01", "first_page_order": 797, "last_page_order": 803 }