State v. Beam

319 S.E.2d 616, 70 N.C. App. 181, 1984 N.C. App. LEXIS 3661
CourtCourt of Appeals of North Carolina
DecidedSeptember 4, 1984
DocketNo. 8327SC1103
StatusPublished
Cited by1 cases

This text of 319 S.E.2d 616 (State v. Beam) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Beam, 319 S.E.2d 616, 70 N.C. App. 181, 1984 N.C. App. LEXIS 3661 (N.C. Ct. App. 1984).

Opinion

JOHNSON, Judge.

The State’s evidence tended to show the following: Emmett Kenneth Hawkins was born 27 August 1956. On 7 March 1975, he was admitted as a patient to the Western Carolina Center for the mentally retarded in Morganton, North Carolina. Upon his admission Emmett underwent a physical examination and a series of tests conducted by Dr. Agnes Milan. As a result of the physical examination and various tests conducted, Dr. Milan diagnosed Emmett as having a heart murmur and an enlarged heart. Dr. Milan advised Emmett’s mother, Jane Katherine Hawkins, of Emmett’s heart diseases.

On 28 December 1976, Emmett became a patient at the F. L. Beam Rest Home of Fallston, North Carolina. The rest home was owned and operated by defendant, who at times assigned various patients to do chores around the rest home. On several occasions defendant assaulted patients who disobeyed him or violated the policies of the rest home. On 15 August 1981, after Emmett had returned from a trip into the town of Fallston, defendant charged into Emmett’s room and yelled, “What in the hell have you been doing? I told you to go out this morning and help dig a grave.” When Emmett responded, “I’m not digging no (sic) more graves. My mother said I was a boarder here and I wasn’t supposed to work,” defendant commenced beating Emmett by slapping him and striking him in the chest. Emmett died as a result of heart failure caused by the stress defendant’s assault placed upon his diseased heart. Prior to this assault upon Emmett, defendant had been advised of Emmett’s heart diseases.

Defendant offered evidence which tended to show the following. Dr. Richard Maybin, a general practitioner of medicine, testified that he has examined patients of F. L. Beam Rest Home. [184]*184Emmett was a patient of his from 1977 through February 1981, and the only diagnosis Dr. Maybin made of Emmett is that he suffered from mental retardation. Dr. Maybin further testified that he was never aware that Emmett suffered from any heart disease. Defendant testified that in addition to owning and operating the F. L. Beam Rest Home, he was also in the grave digging business, but that he never assigned Emmett to dig a grave and that he never struck Emmett or knew that Emmett suffered from any heart disease. Defendant further testified that Donna Avery is the only rest home patient he ever struck.

Additional facts shall be set forth in the opinion as necessary for the discussion of the issues.

At the outset, we note that defendant’s assignments of error IV, VIII, XI, XII, XIII, XIV, XVI, XVIII, XIX, XX and XXI are abandoned in that appellant fails to discuss or cite authority in his brief concerning these assignments of error. Rule 28(b)(5) of the Rules of Appellate Procedure.

By his first assignment of error defendant contends that failure to provide him with a probable cause hearing constituted a denial of his constitutional right to due process and violated the provisions of G.S. 15A-606(a). G.S. 15A-606(a) provides in pertinent part that “The judge must schedule a probable cause hearing unless the defendant waives in writing his right to such hearing.”

The identical issues raised by defendant’s first assignment were addressed in State v. Lester, 294 N.C. 220, 240 S.E. 2d 391 (1978). The Lester Court held (1) that neither the Constitution of the United States nor the Constitution of North Carolina requires a probable cause hearing as a necessary step in the prosecution of a defendant and (2) that G.S. 15A-606(a) requires a probable cause hearing only in those situations in which no indictment has been returned by a grand jury. Id. at 223-224, 240 S.E. 2d at 396 (emphasis added). In the case sub judice, the grand jury returned an indictment against defendant, thereby negating the requirement of a probable cause hearing under G.S. 15A-606(a). Accordingly, this assignment of error is without merit.

Defendant contends the trial court erred in the denial of his motion to quash the bill of indictment and the court’s granting of [185]*185the State’s motion to quash subpoenas issued by defendant for the grand jury foreman and a witness who appeared before the grand jury. We disagree.

Defendant argues that the indictment was invalid because the sole witness who appeared before and was examined by the grand jury was Wayne Pegram, an SBI agent, and that all Agent Pegram knew about the case was hearsay. Defendant does not contend that Agent Pegram was not a competent witness to appear before the grand jury, but simply that his testimony was hearsay, a fact defendant proposed to establish through the grand jury foreman and Agent Pegram for whom defendant issued subpoenas.

It is well established that an indictment will not be quashed on the ground that testimony before the grand jury given by a qualified witness may have been hearsay and incompetent. State v. Cade, 268 N.C. 438, 150 S.E. 2d 756 (1966); State v. Hartsell, 272 N.C. 710, 158 S.E. 2d 785 (1968). Further, a defendant is not entitled to examine members of the grand jury and witnesses appearing before the grand jury to support his contention that the finding of a true bill was based solely on incompetent evidence. State v. Walker, 251 N.C. 465, 477-478, 112 S.E. 2d 61, 70, cert. denied, 364 U.S. 832, 81 S.Ct. 45, 5 L.Ed. 2d 58 (1959). This assignment is overruled.

Defendant contends the trial court erred in the denial of defendant’s pretrial motions to require the State to produce statements of witnesses for the State and to disclose exculpatory statements.

On 17 January 1983, defendant filed a pretrial motion for discovery pursuant to G.S. 15A-903 in which he sought among other things “(1) Any and all statements made by any witness to any agent of the State of North Carolina during its investigation. . . .” On 7 April 1983, defendant filed a second pretrial motion for discovery of:

“all information and evidence in the possession of the State or prosecution that may be materially favorable to the accused. . . ., to wit:
(a) Copies of any and all statements allegedly made by the defendant, whether oral, written, taped, recorded or in [186]*186whatever form that the prosecution intends to introduce into evidence or to rely upon in the trial of said case.
(b) The names and addresses of all persons interviewed and a copy of the statement allegedly made by such person and whether such statement is oral, written, taped, recorded or otherwise reduced to writing by summary or otherwise.
(c) The total and complete list of all persons interviewed in the entire investigation and the name of the person or persons conducting such interview, together with a copy and correct account of the interview. If more than one interview has been made as to any person, then a copy and result of each interview should be produced.
(d) Any and all tape or electronic recordings, written statements or summaries made thereof by any office or employee with reference to all persons interviewed, whether they are to be called as witnesses for the state or not, and any other attorney with whom the state may have privy of investigative reports or interviews in any form fully stated within this motion whether they are to be called as witnesses for the state or not.

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Related

State v. Spruill
360 S.E.2d 667 (Supreme Court of North Carolina, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
319 S.E.2d 616, 70 N.C. App. 181, 1984 N.C. App. LEXIS 3661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beam-ncctapp-1984.