LOCATION:Superior Court of Bibb County
DOCKET NO.: 466
DECIDED BY: Warren Court (1958-1962)
CITATION: 363 US 697 (1960)
ARGUED: May 16, 1960
DECIDED: Jun 20, 1960
Audio Transcription for Oral Argument – May 16, 1960 (Part 2) in Hudson v. North Carolina
Mr. Moody, you may continue.
May it please the Court.
I — I think that I will discuss this — so far as I know, the — the view point of State of North Carolina has about the case, and it’s more, it seems to me, in valuation of the record anyway, I — conceding that Betts against Brady is still the law.
And so, unless the Court — whoever member of the Court has wishes to ask me a question about the record or anything, I think I’ll say anything follows.
Thank you, sir.
Mr. Moody stated that there were no instances in the record of admission of incompetent testimony against petitioner in this trial.
At page 29 of the record, 28 and 29, the prosecuting witness there is the one of the deputy sheriffs and he’s being examined by a solicitor.
He’s about to quote a statement made by one of the defendants.
The Court cautioned him on page 28, cautions the jury not to — not to consider any testimony given as against any defendant other than David Cain, the one who is supposed to made the statement quoted.
Then, over about — it follows a series of questions and answers.
And on page 29, it finally gets around to the damaging part.
Question, “Did he name them?”
Meaning the defendant David Cain.
“Well, you did later on?”
Question, “Who were the other three boys in the car?”
Answer, “It was Larry Hudson, Ray Stalling and Rubin Grimsley, which is a juvenile which is now turned over to the juvenile authorities.”
There was no objection taken at that point and no limiting instruction at that point that the testimony should not be considered as against petitioner, Larry Hudson.
And true it was.
It did appear, it does appear over on the preceding page but that’s a long waste of way in the jury.
I think if counsel had been present, there would certainly had been a — another instruction made to limit it.
Now, over on the preceding page, we find that the Mr. McGeachy Cain’s lawyer was actually still representing the petitioner and the other codefendant, wasn’t he?
He said, “I object in behalf of the other boys to any statements by David Cain.”
He did there — he did make that objection at that point.
And there — there are instances in here where it says objection by defendants, it isn’t clear who made the objection whether it was one of the defendants in person or was the attorney.
Such as on the middle of page 29.
On the next statement whereas he begin to quote another statement —
Mr. Grimsley’s statement.
What about the procedural point?
Could a state ground of the (Inaudible)
I don’t believe that — that you can — the — I know the State argues that in this case, and they — they cite State against Cruse as a support for that.
Now, that was a right to counsel case which came up on a post-conviction hearing.
And the — the Court — in the North Carolina Supreme Court in the Cruse case stated that you cannot use a post-conviction procedure as substitute for an appeal.
They damage general principle.
But then, it went into consideration of the merits of the case and it discussed in detail the fact that there was no request made for appointment of counsel at the trial that the case was one which fell within the line of — of cases cited by this Court, the Betts and Brady.
It was a long discussion on the merits of the complaint made.
So, as I see it, the North Carolina Court, in the Cruse case very definitely decided that in a post-conviction hearing, the — an allegation of denial of right to counsel could be heard and determined on the merits.
Now, there are one or two other questions that were raised.
It — I did not have the North Carolina law before me at the time.
I would like to read one — one statute in particular.
This is the post-conviction procedure.
And the — the statute says if the petitioners without counsel and alleges in the petition that he is without means of any natures sufficient to procure a counsel, he shall state whether or not he wishes counsel to be appointed to represent him.
If appointment of counsel is so requested, the Court shall appoint counsel if satisfied that petitioner has no means sufficient to procure counsel.
The Court shall fix the compensation to be paid such counsel which when so determine shall be paid by the county in which the conviction occurred.
What is that statute?
That is 15-2 —
Hugo L. Black:
Section 15-219 of the general statutes of North Carolina.
Charles E. Whittaker:
That is not limited then to a constitutional question, isn’t it?
The — the statute — the — the hearing provided by — in this — in this section is supposed to be on constitutional questions only.
Charles E. Whittaker:
Only, is it?
And there was one other statute that was discussed dealing with a procedure on arraignment and appointment of counsel in a — now, the — the North Carolina statute provide for appointment of counsel in capital cases as a matter of right and when the — if — provide as follows, “If the judge is satisfied that the accused is unable to employ counsel, he shall appoint counsel to represent the accuse as soon as maybe practicable.
He may appoint counsel anytime regardless of whether notified by the clerk and before preliminary examination.
In any capital case where the appointment of counsel is delayed until the term of court which the accused is arraigned on motion of counsel for the accused, the case shall be continued until the next ensuing term of criminal court.
What’s that statute, please tell me?
The library didn’t have the general statutes for me.
I had to look it up in session laws.
I don’t know exactly what this is.
They just brought me this volume just while I was talking.
I do not know the cite here, but the citation in this — in the session laws is 1949 Session Laws Chapter 112.
If there are any other questions, I could answer them if I had to do so.
Mr. Joslin, on behalf of the Court, I want to thank you for undertaking this assignment to represent this indigent defendant.
We’re always comforted when lawyers are willing to undertake a public service of that kind, and we appreciate it very much.
And Mr. Moody, we appreciate of course your very frank and — and very earnest method in which you represent your State on this case.
Thank you, sir.