STATE of North Carolina
v.
Howard Jack STACK.
No. 7126SC448.
Court of Appeals of North Carolina.
August 4, 1971.*634 Atty. Gen. Robert Morgan, by Deputy Atty. Gen. Ralph Moody and Asst. Atty. Gen., Jacob L. Safron, for the State.
Arthur Goodman, Jr., Levine, Goodman, Murchison & Wheeler, Charlotte, for defendant-appellant.
BROCK, Judge.
Defendant assigns as error the admission of evidence of his confession, on the ground that it was involuntarily given. His contention is that, since his prior statement as to a different crime had been involuntarily given, and he had continuously been in custody since that time, the present confession is tainted.
It is true, of course, that "* * where an accused has made an involuntary confession, any subsequent confession is presumed to proceed from the same vitiating influence, with the burden on the state to prove the contrary". 2 Strong, N.C. Index 2d, Criminal Law, § 76, p. 582. Assuming, without deciding, that a confession to a separate, unrelated crime, which, standing alone, would undeniably have been voluntary, is a "subsequent confession" within the contemplation of the foregoing rule, we hold that the state has carried the burden of proving that defendant's confession to robbery did not flow from the "same vitiating influence" which rendered the prior statement inadmissible. The prior statement was not induced by any promise or hope of reward or any threat. The defendant was in no way abused, tortured, or intimidated. He was not told that, unless he confessed, he would be delivered to a mob, as was true in State v. Hamer, 240 N.C. 85, 81 S.E.2d 193, relied upon by defendant, and in which the Court held that, nevertheless, the second statement was rendered voluntary by reason of defendant having been advised of his rights. In short, the sole "vitiating influence" relied upon by this defendant, whose acquaintance with the processes of criminal law is not inconsiderable, is that he was not advised of his rights to counsel and against self-incrimination prior to giving his first statement. Under such circumstances, the effect of that omission was adequately removed by the warning which he received prior to making the confession to the robbery. The case of State v. Fox, 274 N.C. 277, 163 S.E.2d 492, cited by defendant, is obviously distinguishable. This assignment of error is overruled.
Defendant assigns as error that the court erred in refusing to allow him to *635 "explore on cross-examination the full course of the police officers' conduct" between his arrest and his confession. This assignment of error is subject to being overruled for that "no reason or argument is stated or authority cited" in its support. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. However, the record reveals that the action of the Court to which defendant excepted was not the denial of any cross-examination, but was the exclusion from evidence of an order of another judge, ruling defendant's first statement inadmissible in a prior trial. The record also shows that the error, if error there be, was cured shortly thereafter, when Judge McLean allowed the order into evidence, as Defendant's Exhibit No. 1. In any event, the order did not serve to strengthen defendant's contention that his robbery confession was inadmissible. This assignment of error is overruled.
Defendant assigns as error the Court's refusal to allow him to testify as to false confessions which he had made in the past, and contends that evidence that he was a "chronic confessor" would impeach his confession to the crime charged. Assuming, arguendo, that the exclusion of such evidence was error, we cannot determine whether it was prejudicial, since counsel made no attempt to have the answer to his question entered on the record. Dotson v. Allied Chemical Corp., 10 N.C.App. 123, 178 S.E.2d 27. An exception to the exclusion of such evidence will not be considered on appeal. Brixey v. Cameron, 9 N.C.App. 339, 176 S.E.2d 7. This assignment of error is overruled.
Defendant assigns as error the Court's refusal to allow him to testify as to whether he had any identifying marks on his arms, the prosecuting witness having testified that "I don't remember any identifying marks about him". This assignment of error is subject to the same infirmity as the preceding one and, for the same reason, is overruled.
Defendant assigns as error the Court's instruction to the jury to disregard the defendant's testimony that a Negro had murdered his father, and contends that such testimony would tend to cast doubt upon the State's evidence that he had committed the robbery in the company of a Negro. In Pearce v. Barham, 267 N.C. 707, 149 S.E.2d 22, the Court said: "The law recognizes that evidence, when of slight value, may be excluded because the sum total of its effect is likely to be harmful. Stansbury states the rule: `Even relevant evidence may, however, be subject to exclusion where its probative force is comparatively weak and the likelihood of its playing upon the passions and prejudices of the jury is great.' N.C. Evidence, 2d Ed., § 80, p. 175." This assignment of error is overruled.
Finally, defendant assigns as error the denial of his motion, made after the close of all evidence, and three days prior to the substitution of privately-employed counsel, to re-open the case and recall the prosecuting witness. It is within the discretion of the trial judge to allow or deny a motion to re-open the case. In the absence of abuse of discretion, such a ruling will not be disturbed on appeal. Upon this record, we cannot say that such abuse has been shown.
No error.
VAUGHN and GRAHAM, JJ., concur.