STATE
v.
Dennis McDANIEL.
No. 657.
Supreme Court of North Carolina.
February 2, 1968.*879 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Geo. A. Goodwyn, for the State.
John A. Dwyer, Whiteville, for defendant appellant.
LAKE, Justice.
It was stipulated in the course of the trial below that Chester Leggett is dead and that the cause of his death was a stab wound in the chest. The defendant, himself, testified that in the course of a fight he intentionally stabbed Leggett with a knife, identifying the knife. The evidence of the State is that Leggett was found dying in the vicinity of that fight, approximately one hour after it occurred. The State also introduced evidence tending to show that the defendant was the aggressor in the fight and that he stabbed Leggett while the latter was backed up against a fence in an effort to retreat from the fight. There was no error in the denial of the defendant's motion for a directed verdict of not guilty on the charge of second degree murder. The defendant's testimony that he stabbed Leggett in self defense presented a question for the jury which did not accept his version of the occurrence.
It was error to permit Officer Heye, over objection by the defendant, to testify that the deceased told him the defendant had cut him. This was obviously hearsay. The defendant was not present when the statement was made. It does not qualify as a dying declaration for the reason that there is insufficient evidence to show that Leggett then had "full apprehension of his danger" of imminent and inevitable death. State v. Dunlap, 268 N.C. 301, 150 S.E.2d 436; State v. Brown, 263 N.C. 327, 139 S.E.2d 609; State v. Bright, 215 N.C. 537, 2 S.E.2d 541; Stansbury, North Carolina Evidence, 2d Ed., § 146. While such apprehension on the part of the deceased may be shown by circumstances, State v. Watkins, 159 N.C. 480, 75 S.E. 22; 26 Am.Jur., Homicide, § 421, it is not shown by mere proof that the deceased was actually at the point of death and in great agony, which is all that is shown upon this point in this record.
There was also error in allowing the State, over objection, to introduce in evidence statements made to Officer Heye by the defendant, and the knife, which was found by the officers as the result of such statements. The admission of the statements was error, not because the record shows affirmatively that they were incompetent under the Miranda Rule, but because the procedure required by our own rule for determining their competency was not followed. The admission of the knife was error both because of the Miranda Rule and because of our own rule.
In Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, the Supreme Court of the United States established the following rule which, being an interpretation by that Court of the Fifth and Fourteenth Amendments to the Constitution of the United States is binding upon us:
"To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify *880 the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." (Emphasis added.)
Obviously, the defendant was in custody, within the meaning of the Miranda decision, when, in response to a question by Officer Heye, he told Officer Heye where to find the knife which was introduced in evidence as the State's Exhibit No. 1. There is no suggestion whatever in the record that, prior to this interrogation and response, the defendant was warned of his constitutional rights. It follows that the knife itself and the testimony of the officers that they found it in the place designated by the defendant were not admissible in evidence against him when offered by the State. State v. Mitchell, 270 N.C. 753, 155 S.E.2d 96.
In due time, the defendant objected to testimony by Officer Heye concerning statements made by the defendant to him en route from the police station in Chadbourn to the jail in Whiteville. Without conducting any examination concerning the voluntary or involuntary nature of the statements, without sending the jury from the courtroom and without making any finding of fact upon which a conclusion as to the voluntary or involuntary nature of the statements could be based, the court overruled the objection and permitted the officer to testify that the defendant said that he had intentionally cut the deceased with a knife.
In State v. Gray, 268 N.C. 69, 150 S.E.2d 1, we said:
"When the State proposes to offer in evidence the defendant's confession or admission, and the defendant objects, the proper procedure is for the trial judge to excuse the jury and, in its absence, hear the evidence, both that of the State and that of the defendant, upon the question of the voluntariness of the statement. In the light of such evidence and of his observation of the demeanor of the witnesses, the judge must resolve the question of whether the defendant, if he made the statement, made it voluntarily and with understanding. [Citations omitted.] The trial judge should make findings of fact with reference to this question and incorporate those findings in the record."
We again stated this rule in State v. Ross, 269 N.C. 739, 153 S.E.2d 469. To the same effect is State v. Barnes, 264 N.C. 517, 142 S.E.2d 344, where a new trial was granted because the trial judge had not made findings of fact with reference to whether a confession introduced in evidence over the defendant's objection was voluntary.
Nothing else appearing, these errors in the admission of evidence would require a new trial. However, the defendant elected to testify in his own behalf and his testimony was such as to cure the errors above noted by rendering them harmless. The evidence of the State so erroneously admitted was for the sole purpose of proving that the defendant intentionally cut or stabbed the deceased with the knife introduced in evidence. The defendant, himself, testified that he did intentionally stab *881 the deceased, that he did so with that knife, which he subsequently placed on the table in the residence of Joe Collins, and that he later told Officer Heye where to find the knife.
In State v. Adams, 245 N.C. 344, 95 S.E.2d 902, Denny, J., later C. J., speaking for the Court, said:
"Exceptions by the defendant to evidence of a State's witness will not be sustained where the defendant or his witness testifies, without objection, to substantially the same facts. State v. Matheson, 225 N.C. 109, 33 S.E.2d 590.
"Likewise, the admission of evidence as to facts which the defendant admitted in his own testimony, cannot be held prejudicial. State v. Merritt, 231 N.C. 59, 55 S.E.2d 804."
The rule so stated is well established in this and other jurisdictions. State v. Dunlap, supra; State v. Conner, 244 N.C. 109, 92 S.E.2d 668; State v. Minton, 234 N.C. 716, 68 S.E.2d 844, 31 A.L.R. 2d 682; State v. Hudson, 218 N.C. 219, 10 S.E.2d 730; State v. Bright, supra; State v. Cade, 215 N.C. 393, 2 S.E.2d 7; Strong, N.C. Index 2d, Criminal Law, § 169; 5 Am.Jur.2d, Appeal and Error, § 806; 5A C.J.S. Appeal and Error §§ 1731 and 1732.
The admission of the testimony of Officer Heye as to the statement by the deceased, identifying the defendant as the person who had cut him, the admission of the testimony of Officer Heye concerning the admissions by the defendant and the defendant's directions as to where the knife was to be found, and the admission of the knife, itself, in evidence do not, therefore, entitle the defendant to a new trial under the rule heretofore established by the decisions of this Court.
We are not inadvertent to the Court's footnote 33 to the opinion in the Miranda case, supra. That footnote is to the effect that when a conviction is based in part upon a confessison, admitted in evidence over the defendant's objection and inadmissible because obtained by police officers in violation of the Miranda rule, the conviction and resulting judgment are not saved by the fact that the record contains other evidence which is competent and ample, without consideration of the confession, to support the conviction. Obviously, a confession does not cease to be prejudicial and its improper admission does not fall into the category of harmless error merely because it is not the only evidence of guilt. For example, the presence in the record of testimony of an alleged eye-witness, or of evidence of other circumstances, from which guilt could be inferred, would usually be less convincing than the defendant's own confession, and so would not convert the improper admission of such confession into harmless error. The defendant's own direct testimony upon the witness stand, in response to questions put to him by his own counsel, is a different matter. When he takes the witness stand and testifies to the same facts as those contained in the State's evidence to which he objects, it is his own testimony, not the extra-judicial statement improperly allowed in evidence, which establishes those facts and the extra-judicial statement becomes inconsequential. Having now testified to the same facts under oath, he cannot be heard to say he has been prejudiced by the erroneous admission of evidence to the identical effect.
Nor have we overlooked Fahy v. State of Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171. There the Court reversed a conviction on the charge of injuring a public building by painting a swastika upon a synagogue. The ground of reversal was that a paint brush obtained by an unconstitutional search and seizure was admitted in evidence over objection. The Supreme Court of Errors and Appeals of Connecticut sustained the conviction and resulting judgment on the ground that the admission of the brush into evidence, while error, was harmless error. The United States Supreme Court reversed for the reason that, in its view, the inadmissible *882 evidence was, in fact, prejudicial, Justices Harlan, Clark, Stewart and White dissenting. The Chief Justice, speaking for the majority of the Court, said:
"On the facts of this case, it is not now necessary for us to decide whether the erroneous admission of evidence obtained by an illegal search and seizure can ever be subject to the normal rules of `harmless error' under the federal standard of what constitutes harmless error. Compare Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726. We find that the erroneous admission of this unconstitutionally obtained evidence at this petitioner's trial was prejudicial; therefore, the error was not harmless and the conviction must be reversed. * * * Obviously, the tangible evidence of the paint and brush was itself incriminating. * * * It can be inferred from this [a quoted finding by the trial judge] that the admission of the illegally seized evidence made Lindwall's [a police officer] testimony far more damaging than it would otherwise have been."
Mr. Justice Harlan, speaking for the minority of four justices, said:
"This [his discussion of the state court's reasoning] brings me to the question which the Court does not reach: Was it constitutionally permissible for Connecticut to apply its harmless-error rule to save this conviction from the otherwise vitiating effect of the admission of the unconstitutionally seized evidence? I see no reason why not."
In the majority opinion it is noted that, after the admission of the paint brush and a confession (this being before the Miranda decision) into evidence, the defendants took the stand, as witnesses in their own behalf, and "admitted their acts," and tried unsuccessfully to establish that the nature of these acts was not within the prohibition of the state statute under which they were charged. The majority noted this as further indication of the prejudicial nature of the improperly admitted paint brush. However, the majority opinion also states that under the Connecticut practice the defendants "were not allowed to pursue the illegal search and seizure inquiry at the trial" and "[t]hus petitioner was unable to claim at trial that the illegally seized evidence induced his admissions and confession." This distinguishes that case from the one now before us. The law of North Carolina, as declared in innumerable decisions of this Court, afforded this defendant the right to stand upon his objection to the admission of the knife and his statements to Officer Heye. He was not compelled to testify as he did. Indeed, he does not contend upon this appeal that he was brought to his decision so to do by the admission of this evidence. Apart therefrom, he may have concluded the other evidence offered by the State, as summarized in our statement of facts, made it advisable for him to testify as he did. We are not required to speculate as to this and, in the absence even of a contention by the defendant to that effect in his brief and oral argument before us, to assume that he took the stand and testified that he stabbed the deceased with this knife under the compulsion of the evidence improperly admitted. His testimony was designed to win an acquittal on the ground of self defense.
In the absence of any decision by the Supreme Court of the United States to the effect that erroneous admission of an unconstitutionally obtained statement by a defendant, and of a weapon found as the result of such statement, may not be cured by the defendant's subsequently testifying in his own behalf to the same facts and identifying in his testimony the State's exhibit as the weapon used by him, we adhere to our well established rule that such testimony by the defendant makes the trial court's error a harmless one.
On direct examination the defendant testified, in response to questions by his counsel, that he had been arrested and convicted for public drunkenness five or *883 six times and that he recalled being given a suspended sentence on the charge of assault with a deadly weapon, these being the only offenses of which he had been convicted in his 66 years. A defendant charged with a criminal offense may offer evidence of his own good character as substantive evidence tending to show that he did not commit the offense with which he is charged. State v. Guss, 254 N.C. 349, 118 S.E.2d 906; State v. Reddick, 222 N.C. 520, 23 S.E.2d 909. Thus, the defendant was entitled to show, as he did, that in his 66 years he had been convicted only of the offenses named by him in the hope that the jury would infer therefrom that a person with such character as would be indicated from such record would not commit the offense with which he is now charged.
It is equally well settled that ordinarily the State may not introduce evidence of prior like offenses, this not being competent evidence to show the defendant's guilt of the offense now charged. State v. Gammons, 258 N.C. 522, 128 S.E.2d 860; Stansbury, North Carolina Evidence, 2d Ed., § 91. However, when the defendant takes the stand as a witness in his own behalf, he is subject to impeachment just as is any other witness. For that purpose, the solicitor may cross examine him with reference to other offenses for which he has been convicted. State v. Troutman, 249 N.C. 395, 106 S.E.2d 569; State v. Howie, 213 N.C. 782, 197 S.E. 611; Strong, N.C. Index 2d, Criminal Law, §§ 84 and 85. This is especially true where, as here, the defendant has testified on direct examination as to his past criminal record as substantive evidence of his innocence and has referred to the identical offense, to which the solicitor's cross examination is directed, as evidence from which the jury should infer his innocence of the present charge. The defendant, having sought thus to have the jury infer from his past record that he is not a man who would commit an offense such as charged in the present indictment, the solicitor is entitled to cross examine him concerning the record so put in evidence by the defendant. Under the circumstances of this case, there was no error in permitting the solicitor, on cross examination, to ask the defendant as to the nature of the weapon used by him (a knife) in the former offense of assault with a deadly weapon, to which the defendant himself had testified.
We have carefully examined the defendant's other assignments of error and find nothing therein which would merit a new trial of this action.
No error.
BOBBITT and SHARP, JJ., concur in result.