State v. Campbell

VAUGHN, Judge.

On appeal the defendant contends that his arrest by Deputy Capps was unlawful because it was not made in compliance with the provisions of G.S. § 15-41(2) (then in effect) and that as a result of this illegal arrest his confession, which was given shortly thereafter, should be inadmissible because it was tainted *655by the illegal arrest. We do not pass on whether the question was properly raised at trial but will dispose of it on the merits.

G.S. § 15-41(2) in pertinent part provided: “A peace officer may without a warrant arrest a person . . . [w] hen the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.” An officer need not show that a felony has actually been committed. It is only necessary for the officer to have reasonable ground to believe that such an offense has been committed. State v. Shore, 285 N.C. 328, 204 S.E. 2d 682 (1974). A warrantless arrest is based upon probable cause if the facts and circumstances known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is a felon. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed. 2d 62 (1967); State v. Shore, supra. We hold that the evidence supports the conclusion that the officer had reasonable grounds to believe that the defendant had been involved in the commission of a felony based on information given to the officer by Madenna, who, to the officer’s knowledge, had been arrested and charged with various breakings and enterings.

Although we have no difficulty in concluding that the arrest was lawful, even an unlawful arrest does not, standing alone, make a subsequent confession unlawful. The question is whether, under all the circumstances, the confession is voluntary. The judge, in this case, conducted a voir dire hearing on the voluntariness of the defendant’s confession and his findings were that the confession was intelligently, knowingly and voluntarily made by the defendant after he had been fully advised of his constitutional rights and had waived those rights. The judge found further that the defendant was not under the influence of drugs or alcohol and was physically and mentally competent. It was further found that Officer Capps made no offer of hope, reward, or inducement nor did he employ threats, suggested violence or show of violence to persuade or induce the defendant to make a statement. Moreover on voir dire the only reason suggested by defendant for making the confession was that he had been led to believe that if he admitted his role in the crimes his girl friend would be released. Even if the judge had believed that testimony it would not compel a finding that the confession was involuntary. Where the trial court finds upon voir dire from conflicting evidence that the confession was *656voluntarily and freely made after defendant had been advised of his rights, the findings, if supported by evidence, are binding on appeal. State v. Clyburn, 273 N.C. 284, 159 S.E. 2d 868 (1968).

The defendant further assigns as error that the trial court commented on the truthfulness of a witness for the State by striking the defense counsel’s question and the witness’s answer to the question on cross-examination. The exchange in question is the following:

“Q. So if Alexander Miller were to say it was six weeks later, he’d be lying, wouldn’t he?
A. Yes, sir.
The Court: Well, members of the jury, do not consider that statement; I’m not going to let anybody call a witness or anyone else a liar in my court. It’s for the jury to determine the credibility of a witness.”

The limits of legitimate cross-examination are largely within the discretion of the trial judge, and his ruling thereon will not be held error in absence of showing that the verdict was improperly influenced thereby. State v. McPherson, 276 N.C. 482, 172 S.E. 2d 50 (1970). The trial court was correct in striking the question and answer and in instructing the jury to disregard the exchange because the question and answer were highly improper.

The defendant next contends that the trial judge erred when he encouraged the defendant to make a statement he had indicated earlier that he wanted to make. When the trial court, after a voir dire examination of the defendant to determine the competency of the defendant’s explanation of his prior testimony, allowed the defendant to make such an explanation in the presence of the jury, the court committed no error. That the judge reminded the defendant of what he had said he wanted to explain did not constitute error.

We have examined the 12th assignment of error wherein defendant brings forward an exception to the judge’s instruction on the effect of a variance between the date of the offense as alleged in the indictment and as shown by some of the testimony. When that instruction is considered in the light of all of the evidence at trial, we conclude that it could not have affected the verdict of the jury.

*657We have also considered the assignments of error not discussed in this opinion. We conclude that defendant had a fair trial that was free of error so prejudicial as to require a new trial.

No error.

Judges Morris and Clark concur.