{ "id": 8564103, "name": "STATE OF NORTH CAROLINA v. SIDNEY RICHARD BROWN", "name_abbreviation": "State v. Brown", "decision_date": "1975-06-06", "docket_number": "No. 126", "first_page": "523", "last_page": "529", "citations": [ { "type": "official", "cite": "287 N.C. 523" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "212 S.E. 2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "25 N.C. App. 10", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549913 ], "opinion_index": -1, "case_paths": [ "/nc-app/25/0010-01" ] }, { "cite": "21 L.Ed. 2d 780", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "89 S.Ct. 876", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "393 U.S. 1087", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11427041, 11427083, 11427182, 11427218, 11426998, 11427255, 11427127 ], "opinion_index": 0, "case_paths": [ "/us/393/1087-02", "/us/393/1087-03", "/us/393/1087-05", "/us/393/1087-06", "/us/393/1087-01", "/us/393/1087-07", "/us/393/1087-04" ] }, { "cite": "163 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560020 ], "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0295-01" ] } ], "analysis": { "cardinality": 643, "char_count": 16251, "ocr_confidence": 0.568, "pagerank": { "raw": 6.135432583323292e-08, "percentile": 0.3818819166677285 }, "sha256": "60ebe7b0891863de1df6195c63b0459b3b33d207285815c3bdffa07138484002", "simhash": "1:bce26eb315248868", "word_count": 2761 }, "last_updated": "2023-07-14T16:20:34.133436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. SIDNEY RICHARD BROWN" ], "opinions": [ { "text": "LAKE, Justice.\nThe conflict between the testimony of the police officers and that of the defendant raised a question of fact for the jury. The jury simply did not believe the defendant\u2019s unlikely explanation of his presence in the store along with two drug thieves.\nThe decision of the Court of Appeals being unanimous, the defendant\u2019s only right to appeal to this Court, as distinguished from a petition for certiorari, is upon the basis of a substantial constitutional question. G.S. 7A-30. He asserts his constitutional rights have been denied, but his assignments of error raise no substantial constitutional question. \u201c[A]n appellant seeking a second review by the Supreme Court as a matter of right on the ground that a substantial constitutional question is involved must allege and show the involvement of such question or suffer dismissal. The question must be real and substantial rather than superficial and frivolous. It must be a constitutional question which has not already been the subject of conclusive judicial determination. Mere mouthing of constitutional phrases like \u2018due process of law\u2019 and \u2018equal protection of the law\u2019 will not avoid dismissal.\u201d State v. Colson, 274 N.C. 295, 305, 163 S.E. 2d 376, cert. den., 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed. 2d 780. (Emphasis added.)\nThe defendant contends that he was denied his constitutional rights in the following respects: (1) He was denied his right to a speedy trial; (2) in denying his pretrial motions to quash the indictments, the trial court denied him the right \u201cto present a defense\u201d; and (3) the prosecution procedures employed were \u201cso fundamentally unfair and basically unjust that they operated to forever deprive the defendant of his Sixth and Fourteenth Amendments Rights to a fair and impartial speedy trial.\u201d\nThe offenses are alleged to have been committed on 25 March 1974. The defendant was brought to trial at the 8 July 1974 Session of the Superior Court. In the meantime, counsel was appointed to represent him. His counsel so appointed moved in the District Court that a court reporter be appointed at the State\u2019s expense to record proceedings at the preliminary hearing. This request was denied, but the court stated that the recording system which was used in the Juvenile Domestic & Relations Court would be available to record the preliminary hearing and ordered such hearing to be set at the earliest practicable time. This order was entered 28 March 1974, three days after the defendant\u2019s arrest. The defendant becoming dissatisfied with his court-appointed counsel and requesting appointment of another attorney, this was done, the second attorney representing him from that time to the present. Through his second court-appointed counsel, the defendant waived a preliminary hearing on 13 May 1974. There is no showing whatever of a denial of the defendant\u2019s right to a speedy trial.\nPrior to trial the defendant filed, pro se, a motion to quash the indictments. His court-appointed counsel filed a lengthy brief in support thereof. When the cases were called for trial in the Superior Court, the trial judge announced that he had previously considered and \u201cthoroughly reviewed\u201d the motion to quash and the supporting brief and the motion was denied. The defendant now asserts that it was a denial of his constitutional right t\u00f3 so rule upon his motion to quash \u201cwithout hearing.\u201d There is no substance to this contention.\nThe defendant contends he was denied the right to communicate with his witness Gibson by the denial of his request that they be put in the same jail cell so that they could confer about their \u201cjoint defense.\u201d Defendant\u2019s testimony at his trial was upon the theory that he and Gibson had no joint defense, the defendant contending that he did not know Gibson and had nothing to do with Gibson\u2019s activities in the store. Furthermore, there is nothing whatever to indicate that either of defendant\u2019s court-appointed attorneys was limited in any respect in his opportunity to confer with the defendant and with Gibson.\nFinally, the defendant asserts that, through the State\u2019s delay of the preliminary hearing and the denial of his request for a court reporter to take such testimony at such hearing, the defendant lost the opportunity to record Gibson\u2019s intended testimony absolving the defendant from complicity in the breaking and entering of the store and possession of the burglary tools. He contends that Gibson committed suicide and the State, through its negligence, failed to prevent this. The record shows that had a preliminary hearing been held, facilities were available for the recording of the testimony. The record shows no effort by the defendant or his counsel to expedite a preliminary hearing after the District Court, three days after the defendant\u2019s arrest, ordered such hearing to be held at the \u201cearliest practicable time.\u201d No such hearing was held because the defendant waived it.\nNothing in the record indicates any effort by the defendant or his counsel to take the deposition of Gibson for the purpose of preserving his testimony. Furthermore, nothing in the record shows that the State had any indication that Gibson would testify as the defendant now says he would have done, nor does the record show that the State had any indication that Gibson\u2019s early death was a probability. The record does not show when Gibson died nor does it show anything about the cause of his death except the defendant\u2019s own testimony at his trial that Gibson \u201ckilled himself or something in the jail.\u201d\nNothing whatever in this record indicates that the defendant has not had a fair trial or that any of his rights under the State or Federal Constitution has been denied him. In addition to the above contentions of the defendant on this appeal, we have examined the rulings of the trial court concerning the admission of evidence and the charge of the court to the jury. We find therein no substantial error.\nAppeal dismissed.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, and T. Buie Costen, Assistant Attorney General, for the State.", "L. H. Wall for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SIDNEY RICHARD BROWN\nNo. 126\n(Filed 6 June 1975)\n1. Criminal Law \u00a7 146\u2014 appeal from Court of Appeals to Supreme Court \u2014 substantial constitutional question\nAn appellant seeking to appeal to the Supreme Court from a decision of the Court of Appeals as a matter of right on the ground that a substantial constitutional question is involved must allege and show the involvement of a real and substantial constitutional question which has not already been the subject of conclusive judicial determination, the mere mouthing of constitutional phrases like \u201cdue process of law\u201d and \u201cequal protection of the law\u201d being insufficient to avoid a dismissal. G.S. 7A-30.\n2. Constitutional Law \u00a7 30\u2014 speedy trial \u2014 ,.3i/2 month delay between arrest and trial\nDefendant was not denied his right to a speedy trial by the delay between the defendant\u2019s arrest on 25 March 1974 and defendant\u2019s trial on 8 July 1974 where counsel was appointed to represent defendant and moved that a court reporter be provided to record the preliminary hearing, three days after defendant\u2019s arrest the court denied this request but stated that a recording system would be available to record the preliminary hearing, another attorney was appointed to represent defendant, and defendant waived a preliminary hearing through his second court-appointed counsel on 13 May 1974.\n3. Indictment and Warrant \u00a7 14\u2014 motion to quash \u2014 denial without hearing\nThe trial court did not err in the denial of defendant\u2019s motion to quash the indictments without a hearing where the trial court denied the motion after having reviewed the motion to quash and the lengthy brief filed in support thereof.\n4. Constitutional Law \u00a7 31\u2014 refusal to put defendant and witness in same cell\nDefendant was not denied the right to communicate with his witness by the denial of his request that they be put in the same jail cell so that they could confer about their \u201cjoint defense\u201d where defendant\u2019s testimony at trial was upon \u25a0 the theory that he and the witness had no joint defense, the defendant contending he did not know the witness and had nothing to do with the witness\u2019s activities at the time of the crimes, and there is nothing to indicate that defendant\u2019s counsel was limited in his opportunity to confer with defendant and the witness.\n5. Constitutional Law \u00a7 31\u2014 denial of court reporter at preliminary hearing\u2014 recording facilities available \u2014 waiver of hearing \u2014 witness now deceased\nThere is no merit in defendant\u2019s contention that his constitutional rights were violated through the State\u2019s delay of the preliminary hearing and the denial of his request for a court reporter to record the testimony at such hearing so that defendant lost the opportunity to record the intended testimony of a witness, now deceased, absolving defendant of complicity in the crimes for which he was tried where the record shows that facilities were available for recording the testimony at a preliminary hearing, the record shows no effort by defendant or his counsel to expedite a preliminary hearing after the court, three days after defendant\u2019s arrest, ordered such hearing at \u201cthe earliest practicable time,\u201d no such hearing was held because defendant waived it, and nothing in the record shows that the State had any indication that the witness would have testified as defendant now says he would have done or that the State had any indication that the witness\u2019s early death was a probability.\nAppeal by defendant from the judgment of the Court of Appeals, reported in 25 N.C. App. 10, 212 S.E. 2d 187, finding no error on the defendant\u2019s appeal to it from Thornburg, at the 8 July 1974 Session of Caldwell.\nUpon indictments, proper in form, consolidated for trial, the defendant was found guilty of felonious breaking or entering and of possession without lawful excuse of implements of housebreaking. The two charges were consolidated for judgment and the defendant was sentenced to 10 years in the State Prison.\nThe evidence for the State was to the following effect:\nAt 3 a.m. on 25 March 1974, the burglar alarm at the Sav-Mor Drugstore in Lenoir signalled the police station that the store had been entered. Within two minutes, two officers arrived at the store, the first going to the front door and second to the back door. The main portion of the store was lighted but a storage room at the back of the building which led to the back door was dark. There was a light outside the building over the back door.\nThe first officer, who went to the front door, found it had been pried open and observed the defendant and two other men inside the store. When these three men saw this officer, they all ducked down behind a counter and went into the dark, back room. The officer followed them into that room and heard them removing a bar which was across the back door. When the door was thus opened, this officer could see by the light from the outside that the defendant and one of the other men were at the back door. The second officer, on the outside of the building, was only six or seven feet from the back door when it opened. The defendant stuck his head out, looked right into the face of the officer, pulled back into the building and closed the door, following which the door again opened and the other man ran out and, though wounded by shots fired by that officer, escaped. The defendant ran back into a corner of the dark storage room where the officer, who had entered the store by the front door, located him with the officer\u2019s flashlight and placed him under arrest.\nThe locked cabinet in which the store\u2019s stock of narcotic drugs was kept had been pried open and a quantity of various types of such drugs, together with a number of containers of jewelry, was piled on the counter within arm\u2019s reach of the defendant. Also, on the counter at that place, the officer found two crowbars which, without objection, he testified were used to gain entrance into the store. The crowbars were introduced in evidence. The man who fled from the store, when shot, dropped a bag containing a drill, bit, screwdriver and hammer, all of which were introduced in evidence.\nAfter the defendant was arrested, the officers continued to search the store for the third man, Gibson, and found him hiding under the counter on which the drugs and crowbars had been found. Gibson, when found and arrested, had a pair of gloves in the pocket of his jacket. These were introduced in evidence. When found under the counter, Gibson also had a bottle of demerol pills, some of which he had taken. Demerol is a stimulant which drug addicts use. Some time after his arrest, while in custody awaiting trial, Gibson died.\nThe officer, who entered the building through the front door and who arrested the defendant, knew and recognized the defendant when he saw him. When this officer entered the store, the three intruders were two or three feet apart and were behind the drug counter. No drugs or tools were found on the defendant\u2019s person.\nThe president of the corporate owner of the store testified that he closed the store at 6:15 p.m. on the evening preceding the arrest of the defendant in the store. When he left the store, both the front and back doors were locked, the back door having a bar across it. The narcotic drugs were then in a locked compartment. There were no such drugs and no crowbars then on the counter. When he returned to the store, in response to a call from the officers, at approximately 4 a.m., the narcotics cabinet had been broken open and there were eight or ten bottles of narcotic drugs piled on the counter, in addition to the one which Gibson had beneath the counter and from which Gibson was taking pills.\nThe defendant testified in his own behalf to the following effect:\nHis home is in Bessemer City. On the night in question, he was returning home from California, hitchhiking. His last ride ended at Lenoir. He then walked along the highway and came to the Sav-Mor Drugstore which was lighted and in which he saw a man. Thinking the store was open, he went into it to buy a pack of cigarettes. Just as he entered the front door, the officer came in behind him with his pistol drawn, ordered him to get up against the wall and placed him under arrest, saying that the charge was \u201cpublic drunkenness right now.\u201d He knew nothing about the narcotics piled on the counter in the back room and had nothing to do with opening the narcotics cabinet or taking the drugs therefrom. He did not force open the front door to the store and, prior to his arrest, knew nothing about the burglary tools. He has never used narcotic drugs. He did not try to hide when the officer came into the store.\nLater, when Gibson was arrested, the two were placed briefly in the same holding cell. Gibson then told the defendant that he, Gibson, had been arrested for breaking and entering and possession of burglary tools and the officers would probably charge the defendant with those offenses. Gibson told the defendant he would testify that the defendant had nothing to do with the breaking and entering or with the possession of the burglary tools.\nA few minutes later, the officers placed the defendant and Gibson in different parts of the jail and the defendant had no further conversation with Gibson. The officers took them to court together and they asked for a hearing. No date for a hearing was set and Gibson \u201ckilled himself or something in the jail.\u201d (The police officers who were witnesses for the State testified that Gibson died in jail but they had no information that he committed suicide.)\nOn cross-examination, the defendant testified that he did not know Gibson prior to that night, that he had been drinking and that he had previously served three prison sentences and had been convicted several times for assault with a deadly weapon, escape, larceny and traffic violations.\nThe arresing officer testified in rebuttal that he did not arrest the defendant for public drunkenness, that he found the defendant hiding in the storage room and that the defendant, when arrested, did not tell him that he just happened to be in the store for the purpose of getting a pack of cigarettes.\nRufus L. Edmisten, Attorney General, and T. Buie Costen, Assistant Attorney General, for the State.\nL. H. Wall for defendant." }, "file_name": "0523-01", "first_page_order": 551, "last_page_order": 557 }