STATE of North Carolina
v.
Floyd Lindsey HUDSON.
No. 15.
Supreme Court of North Carolina.
April 12, 1972.*759 Clarence E. Horton, Jr., Concord (Davis, Koontz & Horton), Concord, Court Appointed Counsel for defendant appellant.
Robert Morgan, Atty. Gen., Robert G. Webb, Asst. Atty. Gen., for the State of North Carolina.
HUSKINS, Justice:
We first consider defendant's contention that the evidence is insufficient to carry the case to the jury on the charge of kidnapping.
G.S. § 14-39 does not define kidnapping and therefore the common-law definition of that crime is the law of this State. G.S. § 4-1. The common-law definition of kidnapping is "the unlawful taking and carrying away of a person by force and against his will." State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1964). The distance the victim is carried is not material. Any carrying away is sufficient. State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971). In the kidnapping of a person the law considers the use of fraud as synonymous with force, State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962), State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971); and threats and intimidation are equivalent to the actual use of force or violence. State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966).
Here, the State's evidence would permit the jury to find that defendant practiced both fraud and intimidation to overcome the will of his victim and secure control of her person. He gained entry to the home on the fraudulent representation that he wished to use the telephone. Once inside, his acts and words were calculated to frighten and intimidate. He instructed his retarded, helpless victim to turn out the porch light, not to scream, and to accompany him to his car. He led her out the door by the hand telling her he was taking her out for a five-minute drive. She testified she went with him because she was afraid. This suffices to show that the journey was undertaken without the victim's consent and against her will. The evidence presents a jury question. This assignment is overruled.
Defendant's remaining assignment of error is based on admission of Officer Smith's testimony in which the officer narrated defendant's inculpatory statements. Defendant contends his incriminating statement should not have been admitted because the record is silent as to defendant's waiver of his right to counsel and even the findings of fact on voir dire are insufficient to show waiver of counsel. The State says, however, that defendant did not object to the admission of this evidence and is attempting to take exception thereto for the first time on appeal.
An examination of the record reveals that Officer Smith's testimony concerning the defendant's in-custody statement was received without objection or exception noted. This assignment is therefore ineffectual and presents no question for appellate review. Rules 19(3) and 21, Rules of Practice in the Supreme Court, 254 N.C. 783. "The Rules of Practice (19 and 21) of both this Court and the Court of Appeals require any error asserted on appeal to be supported by an exception duly taken and shown in the record. Exceptions which appear for the first time in the purported assignments of error present no question for appellate review. State v. Greene, 278 N.C. 649, 180 S.E.2d 789. See State v. Merrick, 172 N.C. 870, 90 S.E. 257. Furthermore, each assignment must specifically state the alleged error so that the question sought to be presented is therein revealed. State v. Staten, 271 N.C. 600, 157 S.E.2d 225. An assignment based on the court's failure to charge should set out the defendant's contention as to what the court should have charged. State v. Wilson, 263 N.C. 533, 139 S.E.2d 736. Appellate *760 rules of practice are applicable to indigent defendants and their court-appointed counsel as they are to all others. State v. Price, 265 N.C. 703, 144 S.E.2d 865." State v. Jacobs, 278 N.C. 693, 180 S.E.2d 832 (1971).
The question of defendant's constitutional right to counsel during in-custody interrogation was not raised in the court below. Ordinarily appellate courts will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the trial court. State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955); State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968); State v. Cumber, 280 N.C. 127, 185 S.E.2d 141 (1971). This is in accord with decisions of the Supreme Court of the United States. Edelman v. California, 344 U.S. 357, 73 S. Ct. 293, 97 L. Ed. 387 (1952).
The rules of the Supreme Court are mandatory and will be enforced. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970).
The appeal itself is considered an exception to the judgment and presents for review any error appearing on the face of the record proper. State v. Ayscue, 240 N.C. 196, 81 S.E.2d 403 (1954); State v. Elliott, 269 N.C. 683, 153 S.E.2d 330 (1967). Unless error appears on the face of the record proper, the judgment will be sustained. State v. Williams, 268 N.C. 295, 150 S.E.2d 447 (1966); State v. Jackson, 279 N.C. 503, 183 S.E.2d 550 (1971). An examination of the record proper reveals no error. State v. Tinsley, 279 N.C. 482, 183 S.E.2d 669 (1971).
Consideration of the assignment on its merits, however, leads to the same result. Admission of defendant's inculpatory statement to Officer Smith was erroneous because there is neither evidence nor findings to show that defendant waived his right to counsel, either in writing as provided by G.S. § 7A-457 on which State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), is based, or orally as provided by Miranda on which State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), is based. Even so, the erroneous admission of the statement does not automatically require a new trial. Defendant's statement was not coerced as in Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958). The statement was not involuntary, induced by threat or promise or "by the slightest emotions of hope or fear" as in State v. Roberts, 12 N.C. 259 (1827). There is no suggestion that the police applied the stick or waved a carrot to produce the statement. It was voluntarily made. The court so found on voir dire, and all the evidence supports the finding.
The broad sweep of cases dealing with a defendant's inculpatory statements project two predominant concerns: (1) that the circumstances surrounding defendant's interrogation do not render his statement inherently unrealiable because involuntary; and (2) that over-zealous officers be deterred from the use of unconstitutional and illegal practices in obtaining a statement from the accused. 3 Wigmore, Evidence § 821 ff. (Chadbourn rev.1970). Neither of these concerns would be served by remanding this case since, measured by all traditional standards, defendant's statement was entirely voluntary and there is absolutely no evidence of overreaching on the part of the officers. Thus there is no factual basis for an automatic new trial.
We have consistently held that the admission of evidence which is technically incompetent will be treated as harmless unless it is made to appear that defendant was prejudiced thereby and that a different result likely would have ensued had the evidence been excluded. State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970); State v. Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971); State v. Bailey, 280 N.C. 264, 185 S.E.2d 683 (1972). Moreover, every violation of a *761 constitutional right is not prejudicial. "Some constitutional errors are deemed harmless in the setting of a particular case, not requiring the automatic reversal of a conviction, where the appellate court can declare a belief that it was harmless beyond a reasonable doubt. . . . Unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless. Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963)." State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972). "Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the [defendant's statement] on the minds of an average jury." Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).
Here, the statement made by this defendant placed him at the scene of the crime and in the company of the victim, but it did not prove his guilt. Taken alone, it would have not have sufficed to convict defendant of the crime of kidnapping. It is simply an admission of facts that, taken with others, tends to show guilt. 22A C.J. S. Criminal Law § 730 and following; Wigmore, supra, § 821.
Just as in Harrington, supra, the case against Hudson "was not woven from circumstantial evidence." Defendant's guilt is shown beyond a reasonable doubt by competent, untainted, direct as well as circumstantial evidence, including: (1) the victim's testimony, (2) the officer's testimony in corroboration, (3) the victim's glasses which were found in defendant's trailer home, (4) a torn sanitary belt and napkin found in a chair in defendant's trailer home, and (5) the victim's skirt and defendant's sweater found at the spot near the Rocky River Bridge where Clemmie Hacker, naked and beaten, was first sighted by Deputy Sheriff Eggers. In light of such overwhelming evidence of guilt, there is no reason to believe that yet another trial would produce a different result. "It is so overwhelming that unless we say that no violation of [Miranda] can constitute harmless error, we must leave this . . . conviction undisturbed." Harrington v. California, supra. Admission of the statement was therefore harmless. State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970); State v. Smith, 278 N.C. 476, 180 S.E.2d 7 (1971); State v. Fletcher and Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971).
For the reasons stated the verdict and judgment will not be disturbed.
No error.