Potter Stewart

“ The post-conviction court made no finding specifically evaluating the prejudicial effect of Cain's plea of guilt and the trial judge's subsequent failure to give cautionary instructions to the jury. In any event, we cannot escape the responsibility of making our own examination of the record. ”

“ All they indicate, as the Court frankly points out, is that care must be exercised to avoid 'undue prejudice.' In this regard the trial court fully protected petitioner all during the presentation of the case and gave a full, fair, and intelligent charge to which do objection is even now being made by petitioner. It is intimated by the Court that North Carolina law required a charge that Cain's plea not be considered as any evidence bearing on petitioner's guilt. ”

“ The petitioner and two others were brought to trial before a jury in the Superior Court of Cumberland County, North Carolina, upon an indictment jointly charging them with robbery. When their case was called one of the defendants, David Cain, was represented by a lawyer of his own selection. The petitioner and the other defendant did not have counsel. Before pleading to the indictment, the petitioner, who was eighteen years old, asked the presiding judge to appoint a lawyer to help him with his defense, stating that he was without funds to employ counsel and was incapable of defending himself. ”

“ Instead, on the advice of his counsel Cain entered a plea of guilt in the presence of the jury midway through the trial. The potential prejudice of such an occurrence is obvious and has long been recognized by the courts of North Carolina. State v. Hunter, 94 N.C. 829, 835; State v. Bryant, 236 N.C. 745, 747, 73 S.E.2d 791, 792; State v. Kerley, 246 N.C. 157, 97 S.E.2d 876. Yet it was precisely at this moment of great potential prejudice that the petitioner and his codefendant were left entirely to their own devices, for it was then that Cain's lawyer withdrew from the case. ”

“ In the Hunter case the Supreme Court of North Carolina pointed out that while not infrequently a defendant on trial with another is allowed to enter a plea of guilt should exercise care 'to see that such should exercise care cto see that such practice works no undue prejudice to another party on trial.' 94 N.C., at page 835. Later cases have been somewhat more explicit. In the Bryant case curative instructions to the jury given immediately after a codefendant's guilty plea were held sufficient to avoid error prejudicial to the remaining defendant. ”

“ State v. Hackney, 240 N.C. 230, 81 S.E.2d 778; State v. Cruse, 238 N.C. 53, 76 S.E.2d 320.
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