State v. Locklear

MORRIS, Judge.

In his first assignment of error defendant maintains the trial court erred in allowing one of the arresting officers to testify over objection as to statements made by the defendant, in denying the defendant’s subsequent motion to strike' that portion of the officer’s testimony, in instructing the jury to remember statements made by the defendant to arresting officers, and finally in failing to grant a new trial. Defendant maintains the greater weight of the evidence fails to show he made a statement that he “meant to get both of them” to the arresting officers. In support of his contention defendant points to testimony of two witnesses present at the arrest scene that, they did not hear him make any such statement and to statements allegedly made to the trial court by Deputy Sheriff Brown, one of the arresting officers, who was not available to testify on voir dire during the trial. At the close of all of the evidence and before argument to the jury the trial judge made the following statement to the assistant solicitor:

“The thing is, Mr. Grannis, if Deputy Sheriff Brown had testified on voir dire, which he didn’t, I would have excluded the statement. I would have found the facts to be other than I did and I would have excluded the statement that Locklear allegedly made, T meant to kill them both;’ because the greater weight of the evidence is just to the contrary. I don’t think I made any error in my ruling on voir dire but I have worried about it. I simply say for the record, on the merits of same, I am simply telling you I would have found the facts to be otherwise now. I want in the record right now, what I think, so if it goes up the court will know exactly how I felt.
It is not in evidence, but I do not think, from what you have told me and from what Mr. Brown told me, arid what *741Mr. and Mrs. Thomas testified to, that goes without saying, that what Officer Kitchen says, he may be correct, but my findings would have been different and I would have excluded it.” (Emphasis supplied.)

Although the trial judge’s remarks indicate there was some question in his mind as to the credibility of the arresting officer who did testify, we find it significant that it was not sufficient to cause him to reverse his earlier ruling permitting the officer to testify that the defendant made such a statement. Moreover, the judge’s uneasiness apparently was based largely upon statements made by Deputy Sheriff Brown well after the judge ruled on the admissibility of the defendant’s statements. Since these statements are not in the record, they, of course, are not before us for consideration on appeal. All that exists here is conflicting testimony between one of the arresting officers and two of the defense witnesses as to whether defendant actually made such á statement. Determination with respect to the credibility of the witnesses in that regard is, of course, for the jury. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966). The court’s findings of fact with respect to the voluntariness of the statement is supported by competent evidence and is binding on appeal. State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971).

Defendant next assigns' error to the admissibility of statements signed by him waiving his rights and admitting that he committed the offenses charged. Defendant premises his argument in part on the fact that he could not read the statements before signing them because he did not have his glasses. He notes that law enforcement officers made no inquiry as to his educational level or whether he could read and asked him to sign the waiver before he received medical attention for a cut on his hand. Defendant also maintains officers did not fully advise, and apprise him of, his rights during interrogation and he did not understand his constitutional rights or the seriousness of the charges against him.

On voir dire officers testified defendant was verbally advised of his constitutional rights, that defendant was given a written copy of his rights and asked to read them which he did, and that defendant signed the statement in their presence. Officers further testified that defendant “did not exhibit any indication that he did not understand what was going on”; that “[h]e did not indicate any difficulty in reading or [that he] could not read.” To the questions asked of him he responded in*742telligently and would “clarify things” when questioned further. A review of the above testimony shows that “[t]he finding of the trial court upon voir dire that the statements made by the defendant to the officers were freely, voluntarily and understandingly made is supported by competent evidence and must be sustained. (Citations omitted.)” State v. Howard, 21 N.C. App. 75, 77, 203 S.E. 2d 393 (1974). This assignment of error is overruled.

In his third assignment of error defendant contends the trial court erred in allowing Detective Levee to testify over objection that he asked defendant “did you do something. like that?” and defendant responded “Yes, and if I got the chance, I would do it again.” Our review of the record leads,.us to conclude that this testimony was properly admitted into evidence. We also find it significant that testimony of similar ' import made to Officer Kitchen was admitted into evidence after an extensive voir dire. Consequently, even assuming arguendo, that the trial court erred in admitting this testimony, it was harmless error and did not prejudice defendant in any way. State v. Knight, 282 N.C. 220, 192 S.E. 2d 283 (1972). .

Defendant next asserts that the trial court should not have allowed the State to challenge a juror for cause on the basis of her' statement that she would find it difficult to find the defendant guilty of first-degree murder knowing the death penalty would be imposed. Although the death penalty was not imposed in this case, defendant maintains the jury was selected only after persons who had general misgivings about the death penalty were excluded, thereby depriving him of a juror who. was not initially preconditioned in favor of the death penalty. Defendant cites. the United States Supreme Court case of Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770 (1968), in support .of his argument. We find defendant’s contention without merit. This same argument was advanced to and rejected by the United States Supreme Court in Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed. 2d 797, 88 S.Ct. 1788 (1968). There the,. Coui:t stated:

In Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed. 2d 776, 88 S.Ct. 1770, we have held that a death sentence cannot constitutionally be executed if'imposed by a jury from which have been excluded for cause those who, without more,:are opposed to capital punishment or have conscienti*743ous scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant’s guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed. 2d 491, 88 S.Ct. 1444; Turner v. Louisiana, 379 U.S. 466, 471-473, 13 L.Ed. 2d 424, 428, 429, 85 S.Ct. 546; Irvin v. Dowd, 366 U.S. 717, 722-723, 6 L.Ed. 2d 751, 755, 756, 81 S.Ct. 1639. We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily ‘prosecution prone,’ and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon. Accordingly, we decline to reverse the judgment of conviction upon this basis.” (Emphasis supplied.) Bumper v. North Carolina, supra, at p. 545.

Defendant’s fourth assignment of error is overruled.

Defendant’s final assignment of error relates to the denial of his motion to strike certain testimony elicited from the defendant by the Assistant District Attorney concerning his “convictions” in 1945 for breaking and entering and attempted rape. On redirect examination of the defendant if was pointed out by defense counsel that defendant actually plead nolo contendere to these charges. Defendant argues that by refusing to allow the motion to strike his prior testimony that he was “convicted” of these crimes, and by the court’s failure to give instructions to the jury distinguishing between a conviction and a plea of nolo contendere, the trial judge committed error to his prejudice. We disagree. We note that defense counsel interposed no objection nor did he move to strike at the time the testimony as to defendant’s “conviction” was elicited. His objection comes too late, even if he had shown that the result would have been different had the evidence been excluded. In our opinion defendant received a fair trial free from prejudicial error.

No error.

Judges Parker and Hedrick concur.