{ "id": 4750689, "name": "STATE OF NORTH CAROLINA v. RALPH RANKIN", "name_abbreviation": "State v. Rankin", "decision_date": "1985-01-08", "docket_number": "No. 346A84", "first_page": "592", "last_page": "600", "citations": [ { "type": "official", "cite": "312 N.C. 592" } ], "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": "295 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": -1 }, { "cite": "306 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573565 ], "year": 1982, "opinion_index": -1, "case_paths": [ "/nc/306/0712-01" ] }, { "cite": "185 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571097 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0273-01" ] }, { "cite": "154 S.E. 2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566940 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0247-01" ] }, { "cite": "388 U.S. 14", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167274 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/us/388/0014-01" ] }, { "cite": "221 S.E. 2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "289 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568034 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/nc/289/0286-01" ] }, { "cite": "115 S.E. 2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 1 }, { "cite": "252 N.C. 803", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626033 ], "year": 1960, "opinion_index": 1, "case_paths": [ "/nc/252/0803-01" ] } ], "analysis": { "cardinality": 745, "char_count": 16238, "ocr_confidence": 0.857, "pagerank": { "raw": 4.643594115661138e-08, "percentile": 0.29109940386485855 }, "sha256": "b99d980026d2c0ecc159d1083b2373ae77bdbfb509917879c91fd4356d664906", "simhash": "1:ae2e4be33b2a4c5b", "word_count": 2742 }, "last_updated": "2023-07-14T18:10:57.145273+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice VAUGHN did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. RALPH RANKIN" ], "opinions": [ { "text": "BRANCH, Chief Justice.\nDefendant assigns as error the trial court\u2019s denial of his pretrial motion to produce and compel the attendance of a proposed witness, George Totten.\nOn 27 February 1984, the day before defendant\u2019s case was calendared for trial, defense counsel filed the following motion:\nNow Comes The Defendant, by and through his attorney, and hereby moves the Court pursuant to 15A-805 to secure the attendance of George Totten, Larry Poole, Bobby James Stanley, Anthony G. Clements and Robert Powell at the trial of the defendant on February 27, 1984. As grounds thereof, he respectfully shows unto the Court the following:\n1. That based upon the investigation by the defendant\u2019s attorney, the above-named individuals are deemed to be necessary, essential and material to the defendant\u2019s case.\n2. That their attendance is essential to insure the defendant\u2019s right to a fair and impartial trial as per the United States and North Carolina Constitution.\nAt the hearing on defendant\u2019s motion, the following dialogue took place between the trial judge and defense counsel:\nThe Court: All right.\nMr. Murphy: Well, Your Honor-\nTHE COURT: I will allow and require habeas corpus ad testificandum as to Larry Poole and Bobby Stanley. The court finds that an affidavit was filed on the 27th of February, 1984, of Anthony Clements, but it does not relate to the trial of this matter.\nMr. MURPHY: If Your Honor please \u2014\nThe COURT: And as to Robert Powell and George Totten, the court finds that no affidavits are submitted as to why they should be brought to court at this time; and the court finds that they were not witnesses in the previous trial and \u2014\nMr. Murphy: If Your Honor please\u2014\nThe COURT: Just a minute!\nMr. Murphy: Yes, sir.\nThe COURT: \u2014and that their presence was requested at a very late date. The court denies the motion to secure witnesses as to Totten and Powell and Clements. EXCEPTION NO. 1\nAll right. Now, what\u2019s your next motion?\nMr. MURPHY: If Your Honor please, may I be heard before we proceed?\nTHE COURT: I have already ruled on that.\nMr. MURPHY: Yes, Your Honor. I would like for the record to reflect that it is the defense\u2019s contention that the motion was filed in apt time; that apt time means that it is filed in appropriate time, but I also ask the record to reflect that in 15A-805, there is no mention about anything having to be filed before time.\nTHE COURT: I have denied the motion\u2014\nMR. MURPHY: Yes, sir, Your Honor.\nTHE COURT: -as to those-\nMr. MURPHY: I would-\nThe COURT: Just a moment! I have denied the motion as to those EXCEPTION No. 2 and allowed it as to three of them; and I will request that it be issued at this time and I will sign it.\nMr. MURPHY: Your Honor, may I please be allowed to continue reading into the record\u2014\nTHE COURT: What are you reading from? What was that that you are reading from?\nMr. Murphy: 15A-805.\nThe COURT: I have a copy of that, and the court will take judicial notice of it.\nMr. Murphy: Thank you.\nThe COURT: What\u2019s your next motion?\nNorth Carolina General Statute \u00a7 15A-805 provides, in pertinent part, as follows:\n(a) Upon motion of the State or any defendant, the judge of a court in which a criminal proceeding is pending must, for good cause shown, enter an order requiring that any person confined in an institution in this State be produced and compelled to attend as a witness in the action or proceeding.\nAs indicated by the language of the official commentary, we find the procedure for obtaining habeas corpus ad testificandum to be much more complicated than the procedure pursuant to which defendant\u2019s motion was filed. See N.C.G.S. \u00a7 17-41 et seq.\nDefendant\u2019s motion followed the language of N.C.G.S. \u00a7 17-42 which provides for the application for habeas corpus ad testificandum. Obviously his written motion was not sufficient to meet the \u201cgood cause\u201d burden imposed by N.C.G.S. 15A-805. Nevertheless, that statute does not require that the motion to produce and compel the attendance of witnesses be in writing, that it be made within a certain time, nor does it specify any particular method by which the movant must state \u201cgood cause\u201d for the production of the person to be offered as a witness.\nIn addition to the statutory provisions of N.C.G.S. \u00a7 15A-805(a), the United States Supreme Court has recognized a defendant\u2019s right to compel the attendance of witnesses as a fundamental constitutional right.\nIn Washington v. Texas, 388 U.S. 14 (1967) the United States Supreme Court reversed defendant\u2019s murder conviction because the state law precluded an alleged codefendant from testifying for defendant. In holding that defendant was denied his sixth amendment right to compulsory process, the Court stated:\nThe right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant\u2019s version of the facts as well as the prosecution\u2019s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution\u2019s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.\nId. at 19.\nIt appears that the trial judge denied defendant\u2019s motion to produce the witness Totten on the grounds that (1) no affidavits were submitted as to why the witness should be brought to court; (2) the witness did not testify at the previous trial; and (3) the witness\u2019s presence was requested at a late date.\nCertainly the statute does not require that affidavits be submitted to show the \u201cgood cause\u201d requirement of the statute. Neither can we find viable reason why a witness must have testified in a previous trial in order to be subject to production as a witness for any other given trial. We do recognize, however, that a trial judge has the duty to supervise and control the course and conduct of a trial, and that in order to discharge that duty he is invested with broad discretionary powers. Shute v. Fisher, 270 N.C. 247, 154 S.E. 2d 75 (1967).\nA late filed motion might delay the course of a trial and invite dilatory tactics by other parties to litigation. Therefore in instant case it was incumbent on defendant to show substantial reasons why his motion to produce and compel the presence of the witness Totten was not filed until the day before the trial was to commence. Our examination of this record discloses, however, that defendant\u2019s motion was denied without permitting him to show the \u201cgood cause\u201d requirement of the statute or to advance any reasons, if any he had, why the motion was made at the eve of the trial. For this reason, under the particular facts of this case, we hold that defendant was effectively denied his right of compulsory process.\nIn considering whether the violation of a constitutional right constitutes prejudicial error, we must determine whether the error was \u201charmless beyond a reasonable doubt.\u201d State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677 (1972). We cannot say that the failure to produce and compel the attendance of the eyewitness to the alleged crime was harmless error beyond a reasonable doubt and therefore there must be a\nNew trial.\nJustice VAUGHN did not participate in the consideration or decision of this case.\n. Official Commentary \u2014 This section replaces the old \u201chabeas corpus ad testificandum\u201d with a simple motion and order for the production of a prisoner (or other person confined in an institution). If a conflict arises between two cases, and it cannot be resolved at the trial level, provision is made for resort to the appellate division. The statutes in Article 8, Chapter 17 of the General Statutes are left untouched because of their preexisting applicability to other proceedings.", "type": "majority", "author": "BRANCH, Chief Justice." }, { "text": "Justice MARTIN\ndissenting.\nI respectfully dissent. On 12 September 1984 the state filed a motion in this appeal asking this Court to take judicial notice of certain records of the North Carolina Department of Correction. Ruling on the motion was reserved until the determination of the appeal.\nThe records in question indicate that George Totten was not in prison at the time the motion for his production as a witness was made by defendant. According to the affidavit of the manager of combined records of the Department of Correction, Totten was released from prison on 28 January 1984. The documents verify this affidavit by recording the release date of Totten as 28 January 1984. The motion to secure the attendance of Totten was made on 27 February 1984. These records were certified on 12 September 1984. When these records are considered as evidence (there is no evidence to the contrary), the failure of the trial judge to allow defendant\u2019s motion that Totten be produced as a witness could not be prejudicial error. If the trial judge had ordered that Totten be produced as a witness by the Department of Correction, it would have availed the defendant naught, because Totten was not there to be produced as a witness.\nSo the determining question is whether we should take judicial notice of the records of the Department of Correction. The Department of Correction was duly created by the legislature. N.C. Gen. Stat. \u00a7 143B-260 (1983). It is an agency of the state. Pharr v. Garibaldi, 252 N.C. 803, 115 S.E. 2d 18 (1960). The Department is required to provide the necessary custody and supervision of criminal offenders. N.C. Gen. Stat. \u00a7 143B-261 (1983). In order to carry out this duty, it is essential that the Department keep accurate records of when prisoners are received and discharged from custody. The records in question are such documents. They are public records within the meaning of N.C.G.S. 8C-1, Rule 803(8) (Cum. Supp. 1983). See 1 Brandis on North Carolina Evidence \u00a7 153 (1982). The courts may take judicial notice of the adjudicative facts contained in public records. Utilities Comm. v. Southern Bell Telephone Co., 289 N.C. 286, 221 S.E. 2d 322 (1976); 1 Brandis, supra, \u00a7\u00a7 11, 13; N.C. Gen. Stat. \u00a7 8C-1, Rule 201 (Cum. Supp. 1983). Judicial notice may be taken at any stage of the proceeding. N.C. Gen. Stat. \u00a7 8C-1, Rule 201(f). This Court should allow the state\u2019s motion that it take judicial notice of the records in question.\nAssuming the defendant could have established \u201cgood cause\u201d for the issuance of an order by the trial judge for the production of Totten by the prison authorities, the failure of the trial judge to issue such order did not prejudice defendant in this case. If error, it was harmless beyond all reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (1983). The state has carried its burden to show that any error by the trial judge was harmless beyond a reasonable doubt. Therefore, I find no legal reason to require this case to be tried a fourth time.", "type": "dissent", "author": "Justice MARTIN" } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Isham B. Hudson, Jr., Special Deputy Attorney General, for the State.", "Adam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RALPH RANKIN\nNo. 346A84\n(Filed 8 January 1985)\nConstitutional Law \u00a7 31; Witnesses \u00a7 10\u2014 pretrial motion to compel attendance of witness \u2014 denial as violation of constitutional right to compulsory process\nDefendant was effectively denied his constitutional right to compulsory process in his retrial for first-degree sexual offense by the trial court\u2019s denial of his pretrial motion pursuant to G.S. 15A-805(a) to compel the attendance of a proposed witness on grounds that (1) no affidavits were submitted as to why the witness should be brought to court, (2) the witness did not testify at defendant\u2019s prior trial, and (3) the witness\u2019s presence was requested at a late date, since the statute does not require that affidavits be submitted to show the \u201cgood cause\u201d requirement of the statute, a witness need not have testified in a previous trial in order to be subject to production as a witness for any other trial, and the motion should not have been denied without giving defendant an opportunity to show the \u201cgood cause\u201d requirement of the statute and to advance substantial reasons why the motion was not filed until the day before trial.\nJustice Vaughn did not participate in the consideration or decision of this case.\nJustice Martin dissenting.\nAPPEAL by defendant from Judge Hal H. Walker at the 27 February 1984 Criminal Session of GUILFORD County Superior Court.\nDefendant, Thomas Braswell and George Totten were indicted for common law robbery and first-degree sexual offense upon Jerry Dean Franklin. These offenses were alleged to have been committed while the men were confined in a four-man cell in Guilford County Jail on 21 April 1981.\nThis is the third time defendant has been tried upon the charge of first-degree sexual offense. At his first trial, defendant and codefendant Braswell were tried upon charges of first-degree sexual offense and robbery. At this trial, there was a mistrial because the jury was unable to reach a verdict on either charge. At the second trial, Rankin was tried alone while the charges were still pending against Braswell and Totten. At that time, counsel for Braswell and Totten notified defendant\u2019s counsel that they had advised their clients to claim the fifth amendment privilege if called to testify in Rankin\u2019s trial. Defendant attempted to have Braswell ordered to testify but the trial judge declined to do so. At the second trial, defendant denied that he had committed either of the charged offenses. The jury returned verdicts of guilty of first-degree sexual offense and not guilty of robbery.\nFollowing Rankin\u2019s conviction of first-degree sexual offense, Totten and Braswell pleaded guilty to the lesser included offense of second-degree sexual offense. Thereafter this Court granted defendant a new trial in an opinion reported at 306 N.C. 712, 295 S.E. 2d 416 (1982).\nAt defendant\u2019s third trial, the proceeding which is currently before the Court for review, the victim of the alleged assault, Jerry Franklin, testified that Braswell and Totten held him on the floor of the jail while Defendant Rankin put grease on his rectum and had forcible anal intercourse with him. Franklin reported this incident to the jailers when the cells were opened for lunch.\nDr. Wallace R. Nelms, admitted as a medical expert, testified that he examined Jerry Franklin on 3 April 1981 and that he observed a greasy substance and bloodstains on Franklin\u2019s underwear. He further testified:\nI concluded that, you know, there was no sign of venereal warts there [which would have indicated involvement with numerous homosexual partners]. There was obvious trauma to the outside of the rectum. He had two fresh external hemorrhoids that looked like they were there from trauma, not just because all of a sudden he developed hemorrhoids; and the anus appeared traumatized, means bruised or battered . . . without seeing the warts and the obvious signs of trauma, I was impressed that this young man probably had been assaulted.\nFrom my experience as a physician doing pelvic exams and doing genital exams, I would say that the thing that came in my mind as soon as I saw the hair [found in the victim\u2019s rectum] this looks like a black pubic hair.\nDr. Nelms also gave testimony which tended to corroborate Franklin\u2019s trial testimony.\nThe State also offered evidence tending to show that sperm was found in Franklin\u2019s anal canal and there was other evidence which tended to corroborate the testimony of the State\u2019s witnesses.\nDefendant testified that he had not assaulted Franklin in any manner; that Franklin had \u201cset him up\u201d in order to avoid going to jail on pending robbery charges.\nJohn Carson testified for the defendant and stated that Franklin had admitted to him that he had faked the alleged assault.\nLarry Wayne Poole, who had been in the Guilford County Jail in April of 1981, testified that he had discussed with Franklin how he might arrange a fake assault as a way for Franklin to avoid imprisonment for his pending robbery charges.\nThe jury returned a verdict of guilty of first-degree sexual offense and defendant was sentenced to life imprisonment. He appeals to this Court pursuant to N.C.G.S. \u00a7 7A-27(a).\nRufus L. Edmisten, Attorney General, by Isham B. Hudson, Jr., Special Deputy Attorney General, for the State.\nAdam Stein, Appellate Defender, by Malcolm Ray Hunter, Jr., Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0592-01", "first_page_order": 622, "last_page_order": 630 }