State v. Inman , 39 N.C. App. 366 ( 1979 )

WEBB, Judge.

The defendant’s assignments of error pertain to the denial of his motions, the jury charge, and the admission of certain evidence.

As to the defendant’s motion that Robert Preston Parrish be examined by a physician and psychiatrist before he testified, we believe we are bound by State v. Looney, 294 N.C. 1, 240 S.E. 2d 612 (1978). A similar motion was denied by the superior court in that case and the Supreme Court affirmed, saying that such a change in criminal procedure should be brought about by the Legislature and not the courts. As to the motion that the defendant be provided with a private investigator, this question has been before the Supreme Court of North Carolina in several cases. State v. Gray, 292 N.C. 270, 233 S.E. 2d 905 (1977); State v. Tatum, 291 N.C. 73, 229 S.E. 2d 562 (1976) and State v. Montgomery, 291 N.C. 91, 229 S.E. 2d 572 (1976). The rule in this state is that an investigator may be appointed by the superior court to aid an indigent defendant, but such appointment should be made with caution and only upon a clear showing that specific evidence is reasonably available and necessary for a proper defense. Mere hope or suspicision that such evidence is available will not suffice. In this case the defendant in his motion for an independent investigator alleged as follows:

“That certain aspects of this case, upon investigation may prove invaluable to this defendant in his defense and the location of certain witnesses may also be necessary for the proper defense of this case; . . . .”

At the hearing on this motion, it was revealed in the statements of counsel that there were two witnesses in particular that the defendant wanted. One was a third suspect in the robbery whom the police had interrogated. This man had absconded before the trial and the police were searching for him. The defendant’s attorney also stated that a person had approached the defendant In-man and told him that he knew of the plan for the robbery before the robbery occurred and he knew an effort would be made to implicate the defendant in the robbery. The person who told Mr. Inman this had refused to come to court and “indicated to him, if subpoenaed, he would deny or disclaim any knowledge of these facts.”

We hold that the defendant did not make a clear showing that specific evidence was reasonably available for a proper defense so that an independent investigator could be appointed. As to the witness for whom the police were searching, we cannot see how he would be reasonably available to a private investigator if the police could not find him. As to the witness who had talked to defendant, he was subject to subpoena. We cannot see how a private investigator could have helped to get him to court or to testify.

The defendant’s motion that Judge Long recuse himself was made on the ground that he had presided over a trial in 1973 at which the defendant was convicted of breaking or entering and a sentence of from four to eight years was imposed. Judge Long had no recollection of the previous trial. We hold he did not abuse his discretion by refusing to recuse himself.

The defendant has also assigned error in regard to the charge. He contends first that the court did not recapitulate the testimony of his only witness as to the defendant’s alibi. The defendant offered one witness, Larry Pruitt, who testified he knew defendant and Robert Parrish as well as some others. The main thrust of Mr. Pruitt’s testimony was that someone was trying to falsely inculpate defendant in the robbery. We can find no testimony from Mr. Pruitt that defendant was somewhere else at the time of the crime. There was no testimony of Mr. Pruitt as to alibi which the court could recapitulate. The defendant also contends the court did not put equal stress on the contentions of the State and defendant. The defendant did not object at the trial to the court’s statement of the contentions. Any objection to the court’s statement of defendant’s contentions is deemed waived by his failure to object. State v. Gaines, 283 N.C. 33, 194 S.E. 2d 839 (1973). We have read the court’s charge nevertheless and it appears to us the court fairly stated the defendant’s contentions and properly applied the law as to alibi.

The defendant’s last assignment of error deals with the testimony of Allen G. Travis, a detective in the City of Greensboro Police Department. It is difficult to deal with this assignment of error. There is no objection to it in the narrative of Mr. Parrish’s testimony as it appears in the record. The record contains a statement from the judge that during the testimony of Robert Parrish, the defendant’s counsel approached the bench and objected to the testimony of Travis “that Robert Parrish had corrected his statement after it had been written as it may have related to who told him the money was at the Johnson residence.” This, objection was overruled. We hold the testimony of Mr. Travis as to what Robert Parrish told him was properly admitted as evidence in corroboration of the testimony of Robert Parrish. 1 Stansbury, N.C. Evidence (Brandis Rev. 1973), § 51, p. 146.

No error.

Judges Clark and Mitchell concur.