STATE of North Carolina
v.
Willie B. WILLIAMS.
No. 41.
Supreme Court of North Carolina.
June 12, 1970.*506 Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.
Downing, Downing & David, by Harold D. Downing, Fayetteville, for defendant-appellant.
MOORE, Justice.
Despite the fact that defendant did not want to appeal, his attorney filed a brief posing four questions for decision.
Defendant contends first that the trial court erred when it admitted defendant's confession and other evidence obtained as a result thereof without first inquiring into its voluntariness. Defendant did not object to this testimony, so the real question is: should the trial court in the absence of an objection inquire sua sponte into the voluntariness of an alleged confession offered by the State? We think not. The general rule is stated in 29 Am.Jur.2d Evidence § 583 as follows:
"While there is some authority to the effect that it is the duty of the trial court, in the absence of objections by the defendant, to conduct an inquiry into the admissibility of a confession, it is more generally held that a defendant in a criminal case who objects to the introduction in evidence of a confession by him, on the ground that it was involuntary, should make a timely offer of evidence showing the incompetency of the confession, or should request that a preliminary investigation of the matter be made, which offer or request should be made before the court rules on the evidence offered. Where no proper and timely objection to the voluntariness of a confession is made, or no request is made for an examination as to its voluntariness, no preliminary examination or hearing is required with respect to such question, and the defendant cannot, upon *507 an appeal, raise the issue that the court erred in failing to conduct such a preliminary examination." (Emphasis ours.)
In State v. Vickers, 274 N.C. 311, 163 S.E.2d 481, Branch, J., carefully reviewed the authorities concerning the admission of confessions, reaffirming the long-established rule in North Carolina that admissions or confessions to the police officer would not be rendered incompetent solely because defendant was under arrest when they were made, and that an extrajudicial confession is admissible against a defendant when and only when it was voluntarily and understandingly made. In Vickers the Court held that a general objection to testimony concerning an alleged confession was sufficient to require a voir dire to determine its voluntariness, saying:
"For a long period of time North Carolina has remained squarely within the rule that a confession is presumed to be voluntary until the contrary appears (State v. Mays, 225 N.C. 486, 35 S.E.2d 494; State v. Rogers, supra [233 N.C. 390, 64 S.E.2d 572]; State v. Stubbs, supra [266 N.C. 274, 145 S.E.2d 896]), and that when a confession is offered into evidence the burden is on defendant to show the contrary. State v. Hamer, supra [240 N.C. 85, 81 S.E.2d 193]; State v. Biggs, 224 N.C. 23, 29 S.E.2d 121; State v. Stubbs, supra [266 N.C. 274, 145 S.E.2d 896]. However, it becomes evident from the authorities herein cited that when an alleged confession is challenged by objection the necessity for a voir dire hearing in the absence of the jury is no longer controlled by these principles.
"See 3 Wigmore, 3d Ed., § 860, 1964 Pocket Supplement, for full note and cites as to modern trend in other jurisdictions.
"We hold that hereafter when the State offers a confession in a criminal trial and the defendant objects, the trial judge shall determine the voluntariness of the admissions or confession by a preliminary inquiry in the absence of the jury." (Emphasis ours.)
It is no longer the rule that a confession is presumed to be voluntary and the burden is on a defendant to show the contrary. The burden of showing the voluntariness of a confession is now upon the State. State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171; State v. Vickers, supra.
In both Vickers and Thorpe objections were made to the introduction of the testimony concerning the alleged confessions. This Court has generally held that there is no necessity for a voir dire when there is no objection to the proffered testimony. State v. Stubbs, 266 N.C. 274, 145 S.E.2d 896; State v. Camp, 266 N.C. 626, 146 S.E.2d 643. Due to "peculiar" circumstances, this rule was relaxed to some extent in State v. Pearce, 266 N.C. 234, 237, 145 S.E.2d 918, 921. There, speaking for the Court, Higgins, J., said:
"By reason of the Superior Court's failure for two months to appoint counsel as it was its duty to do promptly, the prisoner was deprived of the protection from the pressure of questioning which an alert attorney could have vouchsafed him. In the absence of such protection at a time when he was under a charge which could cost his life, the officers continued their questioning which obviously was for the sole purpose of extracting damaging admissions. The defendant was in the county jail under Superior Court indictment. Nevertheless, the admission testified to by Mr. Morris was obtained in the interrogation room of the detective bureau where perhaps the surroundings were even less reassuring than his cell in the county jail. We hold the admissions to the officer finally obtained from him in this setting were so lacking in voluntary character as to make them inadmissible as evidence against him. True, the record fails to show objection to the officer's testimony. However, the court, of its own motion, should have excluded the statement as *508 involuntary. Under the peculiar circumstances here disclosed, we hold the court's failure so to do was prejudicial error."
The instant case can be clearly distinguished from Pearce. The error there was the continuation of the interrogation over a period of two months while the defendant was in custody on a capital charge without benefit of counsel. Here the defendant made his statement to the officer the day after the crime was committed after having been fully advised by the officer of his constitutional rights; namely, he had a right to be silent; anything he said could be used against him in court; he had a right to talk to the lawyer for advice before he was asked any questions and to have him with him during the questioning; if he could not afford a lawyer, one would be appointed for him before he was questioned if he so wished; and if he decided to answer questions without a lawyer being present, he had the right to stop answering questions at any time. He stated he understood his rights, and then made his statement to the officer. There is nothing in this record to indicate that the confession was anything less than voluntary, and we hold that in the absence of such indication no voir dire is necessary unless there is an objection to the testimony concerning the alleged confession. State v. Painter, 265 N.C. 277, 144 S.E.2d 6.
In United States v. Inman, 352 F.2d 954 (4th Cir.1965), the Circuit Court of Appeals for the Fourth Circuit seemed to take the opposite view when it said:
"* * * On proffer of the confession, even though there be no objection, the court should let the jury withdraw, and then take evidence upon the confession and its factual setting. On this voir dire the defendant may testify without prejudice to his privilege not to take the stand before the jury, but he may be examined or cross-examined only with regard to the origin and character of the confession, not upon his innocence or guilt. The court will thereupon independently determine whether the confession is admissible."
However, the same Court in Morris v. Boles, 386 F.2d 395 (4th Cir. 1967), cert. den. 390 U.S. 1043, 88 S. Ct. 1640, 20 L. Ed. 2d 304 (1968), later acknowledged that what was said in Inman did not prescribe a rule of constitutional application to prosecutions in state courts within the Circuit, but was based on the court's supervisory power over district courts within the Circuit. In a more recent opinion written by Judge Burger (now Chief Justice) the Court of Appeals for the District of Columbia chose specifically not to follow the Inman decision. In Woody v. United States, 126 U.S.App.D.C. 353, 379 F.2d 130 (1967), cert. den. 389 U.S. 961, 88 S. Ct. 342, 19 L. Ed. 2d 371 (1967), Judge Burger said:
"There is dictum in United States v. Inman that the trial judge should sua sponte order a hearing on the voluntariness of a confession and, if he finds it voluntary, instruct the jury with respect to their role in deciding on the use of the confession. Even assuming we were disposed to follow the dictum in Inman, which we elect not to do, it should be noted that it has no application to a situation such as existed here. Not only did appellant fail to make objection to use of the statements, but he also denied making them.
* * * * * *
"We do not rest solely on the futility of remand. Appellant never contested the voluntariness of the statements and never asked for a hearing on voluntariness; we see no basis for a remand to afford him an opportunity to make a claim he has heretofore eschewed."
Woody has been approved in State v. Oliva, 183 Neb. 620, 163 N.W.2d 112 (1968), cert. den. 395 U.S. 925, 89 S. Ct. 1780, 23 L. Ed. 2d 242 (1969), and in State v. Armstrong, 103 Ariz. 280, 440 P.2d 307 (1968). *509 We think this is the correct rule, and this assignment of error is overruled.
Defendant next assigns as error the admission of testimony by Deputy Sheriff King concerning the comparison of tire tracks found at the scene of the crime with the tires on the car which the defendant admitted he was driving. A plaster cast was made of the tire marks at the scene and compared with the tires on the 1967 Chevrolet which defendant was using. The car was equipped with four tires bearing the trademark of "Pure Pride." The witness, without objection, said the tread on the plaster cast was compared with the tires and found to be the same. This was simply a statement of fact derived from observation of facts presented to him and we think it is competent. State v. Moore, 276 N.C. 142, 171 S.E.2d 453; State v. Leak, 156 N.C. 643, 72 S.E. 567. Stansbury, N.C. Evidence § 129 (2d ed.1963).
Next defendant contends the court erred in allowing the testimony to the effect that the defendant was on "work release" the day the alleged crime was committed. The defendant himself made that statement to the officer, and the officer, without objection, simply repeated what defendant told him. The term "work release" does not relate to any specific crime or the degree or nature of any crime. While it is undoubtedly the rule of law that evidence of a distinct substantive offense is inadmissible to prove another independent crime, this rule is subject to well-established exceptions where the two crimes are disconnected and not related to each other. Proof of the commission of other like offenses to show a chain of circumstantial evidence with respect to the matter on trial or to show the identity of the person charged is competent. State v. Christopher, 258 N.C. 249, 128 S.E.2d 667; State v. Summerlin, 232 N.C. 333, 60 S.E.2d 322; State v. Dail, 191 N.C. 231, 131 S.E. 573; State v. Simons, 178 N.C. 679, 100 S.E. 239; State v. Weaver, 104 N.C. 758, 10 S.E. 486. The testimony that defendant was on "work release" was competent as proof of the identity of defendant and as a fact in the chain of events leading up to the commission of the alleged crime.
The final question posed by the brief filed in behalf of defendant is: "Were the solicitor's remarks in his argument to the jury so prejudicial as to constitute reversible error?" We think not. The solicitor reviewed the evidence and argued with great zeal that in view of the brutality of defendant's conduct in connection with the killing of Mary Diane Johnson Smith that the punishment therefor should be death and that the jury should find the defendant guilty of murder in the first degree without any recommendation that punishment should be life imprisonment. Prior to 1961 such argument would have been prejudicial error. State v. Pugh, 250 N.C. 278, 108 S.E.2d 649. The General Assembly changed this rule by the enactment of G.S. § 15-176.1 in 1961, which must now be construed with G.S. § 14-17. G.S. § 14-17 reads in pertinent part: "A murder * * * which shall be committed in perpetration or attempt to perpetrate any arson, rape, robbery, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death: Provided, if at the time of rendering its verdict in open court, the jury shall so recommend, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury." G.S. 15-176.1 provides: "In the trial of capital cases, the solicitor or other counsel appearing for the State may argue to the jury that a sentence of death should be imposed and that the jury should not recommend life imprisonment."
In this jurisdiction wide latitude is given to counsel in the argument of contested cases. Moreover, what constitutes an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge. State v. Bowen, 230 N.C. 710, 55 S.E.2d 466; State v. Christopher, supra. *510 However, it is the duty of the judge to interfere when the remarks of counsel are not warranted by the evidence and are calculated to mislead or prejudice the jury, the argument and conduct of counsel being largely in the control and discretion of the presiding judge. State v. Correll, 229 N.C. 640, 50 S.E.2d 717. Ordinarily, exceptions to improper remarks of counsel during argument must be taken before verdict. State v. Hawley, 229 N.C. 167, 48 S.E.2d 35; State v. Tyson, 133 N.C. 692, 45 S.E. 838. Such exceptions, like those to the admission of incompetent evidence, must be made in apt time or else be lost. This general rule has been modified in recent years so that it does not apply to death cases where the argument of counsel is so prejudicial to defendant that in this Court's opinion it is doubted that the prejudicial effect of such argument could have been removed from the jurors' minds by any instruction the trial judge might have given. State v. Miller, 271 N.C. 646, 157 S.E.2d 335; State v. Dockery, 238 N.C. 222, 77 S.E.2d 664.
In the instant case, no objections were made to the solicitor's remarks, but after a careful review we hold that in view of the evidence in this case and the provisions of G.S. § 15-176.1 the argument made by the solicitor was permissible. State v. Christopher, supra. This assignment of error is overruled.
This case has caused this Court grave concern because of defendant's refusal to accept assistance of counsel or to authorize an appeal so this Court might review his trial for possible errors. This strange and puzzling behavior of defendant under circumstances involving his life or death has caused us to meticulously review the entire record.
The able trial judge, consonant with the highest tradition of our judiciary, fully advised defendant of his rights and painstakingly sought to protect those rights throughout every step and phase of the trial.
In the trial we find no error of law which would justify us in granting defendant a new trial or in vacating or modifying the judgment.
No Error.
BOBBITT, Chief Justice, and SHARP, Justice, dissenting as to death sentence.
We vote to vacate the judgment imposing the death sentence. In our opinion, the verdict of guilty of murder in the first degree should be upheld and the cause remanded for pronouncement of a judgment imposing a sentence of life imprisonment.
The crime was committed on October 7, 1968, when our statutes relating to capital punishment for murder in the first degree were G.S. § 14-17 and G.S. § 15-162.1. It was and is our opinion that, until the repeal of G.S. § 15-162.1 on March 25, 1969, the decisions of the Supreme Court of the United States in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138, (1968), and in Pope v. United States, 392 U.S. 651, 88 S. Ct. 2145, 20 L. Ed. 2d 1317, (1968), rendered invalid the death penalty provisions of G.S. § 14-17. The reasons underlying our opinion have been stated fully in the dissenting opinions in State v. Spence, 274 N.C. 536, 164 S.E.2d 593, and in State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241, and in State v. Hill, 276 N.C. 1, 170 S.E.2d 858 (1969). See also our dissenting opinion in State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886, and in State v. Sanders, N.C., 174 S.E.2d 487. Repetition is unnecessary.
G.S. 15-162.1 was repealed by Chapter 117, Session Laws of 1969. The 1969 Act, if construed to provide greater punishment for murder in the first degree than the punishment provided therefor when the crime was committed, would, in that respect, be unconstitutional as ex post facto. 16 Am.Jur.2d Constitutional Law § 396. In our view, if the death penalty provisions of G.S. § 14-17 were invalid on October *511 7, 1968, when the crime was committed, they were invalid as to this defendant in April, 1969, when he was tried, convicted and sentenced.