State v. Richardson

297 S.E.2d 921, 59 N.C. App. 558, 1982 N.C. App. LEXIS 3181
CourtCourt of Appeals of North Carolina
DecidedDecember 7, 1982
Docket8214SC227
StatusPublished
Cited by2 cases

This text of 297 S.E.2d 921 (State v. Richardson) 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. Richardson, 297 S.E.2d 921, 59 N.C. App. 558, 1982 N.C. App. LEXIS 3181 (N.C. Ct. App. 1982).

Opinions

HILL, Judge.

This matter includes three cases consolidated for trial involving incidents that occurred 12 April 1981 at the Little River in Durham County, North Carolina. In the early afternoon of 12 [560]*560April 1981, defendant, State’s witness Guy Qsbahr and their wives went to the Little River for an outing. They chose a site some distance upriver from a group of male sunbathers, some of whom were nude.

In the first case consolidated for trial, defendant was charged with assault with a deadly weapon, inflicting serious injury in violation of G.S. 14-32. The State’s evidence tends to show that defendant quarreled with Jerry Michael Penny, apparently over whether the sunbathers should clothe themselves. In the course of the discussion, defendant struck Penny with a stick. Defendant denied having provoked the altercation.

In the second case consolidated for trial, defendant was charged with robbery with a dangerous weapon in violation of G.S. 14-87(a). The State’s evidence shows that shortly after his argument with Penny, defendant threatened with a stick and struck Mark Demarias whom defendant believed to be associated with the party of sunbathers, as Demarias was leaving the area. In self-defense, Demarias threw his duffel bag at defendant. Because of defendant’s continued threats, however, Demarias was unable to retrieve his bag or the seventeen dollars it contained.

In the final case consolidated for trial, defendant was charged with second degree murder in violation of G.S. 14-17. In a purportedly unprovoked assault, defendant struck Ronald An-tonevitch about the head with a stick. Antonevitch, who was with the group of sunbathers, apparently did not retaliate. He was treated at Durham County General Hospital where he also was questioned by two deputy sheriffs. He died three days later of an intracranial hematoma.

The jury found defendant guilty as charged. Defendant assigns as error the trial court’s: (1) modification of defendant’s subpoena duces tecum, (2) denial of defendant’s motion for change of venue, (3) refusal to excuse a juror for cause, (4) arraignment of defendant, (5) failure to instruct the jury correctly, (6) denial of defendant’s motion to dismiss the armed robbery charge, and (7) admission of hearsay evidence. We find no error.

On 22 May 1981, defendant filed a motion for a change of venue from Durham County to Vance County. He later issued subpoenas duces tecum directing the News and Station Managers of [561]*561Raleigh station WRAL-TV and Greensboro station WFMY to produce copies of all videotaped news reports and written transcripts concerning “the alleged assault and killing of Ronald Antonevitch on the Little River on 12 April 1981 and ... of [the] Public Protest involving homosexual rights since 12 April 1981 . . . .” In response to the State’s motion to quash, the court entered an order modifying the subpoenas to require that only written transcripts be produced and to permit delivery of the transcripts without personal appearances by station officials.

Defendant contends this modification constituted a denial of his Sixth and Fourteenth Amendment right of compulsory process to obtain pertinent testimony and evidence. He argues that persons named in the subpoenas could have testified to matters beyond the scope of the subpoenaed material and that written transcripts only dimly reflect the effect of the telecasts. We find defendant’s contentions are without merit.

A subpoena duces tecum compels production of documents, papers or chattels. Vaughan v. Broadfoot, 267 N.C. 691, 149 S.E. 2d 37 (1966); Brandis on North Carolina Evidence (Rev. Ed. 2d) § 17; G.S. 1A-1, Rule 45(c); G.S. 15A-802. The person named in the subpoena duces tecum merely authenticates the records produced. Vaughan v. Broadfoot, id. Had defendant wished to obtain additional testimony from station officials, he should have sought issuance of subpoenas ad testificandum in the time between the 24 July 1981 entry of the modification order and the 25 August 1981 hearing on defendant’s motion for change of venue. The court properly modified the subpoenas.

Defendant further contends that denial of his motion for a change of venue pursuant to G.S. 15A-957 violated his constitutional right to due process and was an abuse of judicial discretion. We disagree.

In support of his motion, defendant introduced affidavits of news directors from Raleigh station WRAL-TV and Greensboro station WFMY-TV. He introduced seventeen pertinent newscripts altogether from WRAL-TV, WFMY-TV and WPTF-Raleigh, an affidavit concerning circulation of the Raleigh News and Observer, and videotapes of news broadcasts from WTVD-Durham and WPTF-Raleigh. Defendant offered evidence of a public demonstration that described the crime as one motivated by anti-homosex[562]*562ual bias. In addition to evidence of newspaper editorials excoriating violent crime and letters to the editor, defendant introduced results of a survey indicating that 87 percent of the people polled had formed opinions about the crime.

This Court set forth the test of defendant’s motion in State v. McDougald, 38 N.C. App. 244, 248, 248 S.E. 2d 72, 77-78, disc. rev. denied, 296 N.C. 413, 251 S.E. 2d 472 (1979):

The burden of proof in a hearing on a motion for change of venue is upon the defendant. In order to prevail the defendant must show that there is a reasonable likelihood that the prejudicial publicity complained of will prevent a fair trial. The determination of whether the defendant has met this burden rests within the sound discretion of the trial court. Absent a showing of abuse of discretion, its ruling will not be overturned on appeal. (Citations omitted.)

Nowhere does defendant contend the publicity generated by the crime was inflammatory. Without allegations and proof that the news articles were inflammatory, the trial judge acted within his discretion in denying a change of venue. State v. Matthews, 295 N.C. 265, 245 S.E. 2d 727 (1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1046, 59 L.Ed. 2d 90 (1979). Having examined the pertinent television transcripts and newspaper clippings, we find that none contain incitive statements. As did the Supreme Court in State v. Matthews, “[w]e specifically reject as devoid of merit defendant’s argument that news coverage which accurately reports the circumstances of the case . . . can be so ‘innately conducive to the inciting of local prejudices’ as to require a change of venue.” Id., at 279, 245 S.E. 2d at 736.

The passage of time cools the blood and permits reason to rule. This, together with the jury selection process, tends to create a climate in which fair trials may be conducted. Although public outrage and misunderstanding arose just after commission of the crime, we find the trial court considered these circumstances and acted within its discretion in denying the motion for change of venue. The assignment is overruled.

Defendant next contends the trial court erred in refusing to excuse a juror whom he challenged for cause. In the alternative, defendant contends the trial court erred in refusing to grant him a seventh peremptory challenge. These contentions are meritless.

[563]*563When the trial court denied his challenge of a juror for cause, defendant failed to exercise his remaining peremptory challenge. He accepted the juror instead.

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Related

State v. Harris
340 S.E.2d 383 (Supreme Court of North Carolina, 1986)
State v. Richardson
297 S.E.2d 921 (Court of Appeals of North Carolina, 1982)

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Bluebook (online)
297 S.E.2d 921, 59 N.C. App. 558, 1982 N.C. App. LEXIS 3181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richardson-ncctapp-1982.