State v. Alston

242 S.E.2d 523, 35 N.C. App. 691, 1978 N.C. App. LEXIS 3063
CourtCourt of Appeals of North Carolina
DecidedApril 4, 1978
Docket7718SC884
StatusPublished
Cited by5 cases

This text of 242 S.E.2d 523 (State v. Alston) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Alston, 242 S.E.2d 523, 35 N.C. App. 691, 1978 N.C. App. LEXIS 3063 (N.C. Ct. App. 1978).

Opinions

HEDRICK, Judge.

In his first assignment of error the defendant contends that the trial court erred in “failing to find facts upon which to base its conclusions after conducting three voir dire examinations.” The first voir dire hearing to which the defendant refers was conducted upon the defendant’s objection to the admission of testimony recounting the incriminating statements made by defendant as he entered the hospital with his wife.

It is a firmly established rule that when the defendant objects to the introduction of an in-custody confession, “the trial judge must conduct a voir dire hearing to determine whether the confession was voluntarily made and whether the requirements of the Miranda decision have been met.” State v. Biggs, 289 N.C. 522, 529-30, 223 S.E. 2d 371, 376 (1976). At the conclusion of the hearing the trial judge must make specific findings of fact if there are any material conflicts in the evidence. State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977).

[694]*694The first statement by the defendant to which Officer Joyner testified was made when the defendant brought his wife to the emergency room. Officer Joyner who happened to be at the hospital for another matter observed the defendant walk in and heard him state “that a man had cut his wife and that he had stabbed him and stabbed him and left him out there.” A few minutes later as Officer Joyner was talking on the telephone he overheard the defendant state to the desk clerk “that a man that would do something like that deserved killing, and he was going back out there.” The record clearly and affirmatively demonstrates that the defendant was not in the custody of the police officer when he made the incriminating statements. Thus, the cases cited by the defendant and relied upon in his brief are not controlling in the present case.

In State v. Perry, 276 N.C. 339, 172 S.E. 2d 541 (1970), the defendant argued that the trial court erred in failing to conduct a voir dire hearing upon his objections to the admission of statements made to a fellow inmate. Justice Higgins, speaking for the Supreme Court, rejected the defendant’s argument as follows:

The defendant misinterprets the necessity for the voir dire examination to determine the voluntariness of his admissions to his jailmate Pierce. As a general rule, voluntary admissions of guilt are admissible in evidence in a trial. To render them inadmissible, incriminating statements must be made under some sort of pressure.

State v. Perry, supra at 345, 172 S.E. 2d at 546. In the present case, as in Perry, the defendant volunteered the incriminating statements free from any threat or compulsion. Thus, the trial judge was not required to conduct a voir dire hearing. And when, in his discretion, he sent the jury from the room and held a hearing to determine the admissibility of the statements, he was not then required to support his determination with specific findings of fact.

The second and third voir dire hearings were held to determine the admissibility of State Exhibits consisting of photographs of the deceased and the interior of the automobile which the defendant drove to the hospital and a knife found in the automobile. Following the hearings the photographs were admitted by the trial court for illustrative purposes, but the knife was [695]*695excluded. The defendant apparently argues that because of some “confusion” surrounding the admission of the photographs the trial court was required to make specific findings of fact at the conclusion of the hearings. We are unaware of any rule requiring the trial judge to make findings of fact upon the admission of illustrative evidence and we see no reason to impose such a burden. This assignment of error is overruled.

By his second assignment of error the defendant contends that the trial court erred in failing to grant defendant’s motions for judgment as of nonsuit at the close of the State’s evidence. While there is no direct evidence identifying the defendant as the person who killed the deceased, there is evidence that there was an altercation between the defendant and the deceased after which the defendant pursued the deceased from the Carlotta Club parking lot; that a trail of blood led from the parking lot to the site of the killing; that a man was stabbing another man on Market Street near the Carlotta Club; and that the defendant admitted to stabbing a man who had cut his wife. Viewed in the light most favorable to the State, State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971), this evidence is sufficient to require submission of the case to the jury and to support the verdict.

In his third assignment of error the defendant contends that the trial court erred in its instructions to the jury regarding the defendant’s right “not to offer evidence.” At the close of the State’s evidence the trial judge directed the jury to go to lunch explaining that “[t]he defendant has elected not to put on any evidence which is the privilege of the defendant, of course.” Thereafter in his charge, the trial judge fully instructed the jury with respect to the defendant’s failure to testify or offer evidence. The defendant, without citing any authority, argues that the prior statement by the trial judge with respect to the defendant’s right not to testify was inadequate to explain the law and was not cured by the subsequent full instruction. The trial judge’s instruction satisfies the standards of G.S. 8-54, conforms to instructions approved by our Supreme Court, State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976), and was almost identical to that suggested by the defendant. Any prejudice resulting from the trial judge’s prior statement was cured by his instruction. This assignment of error is overruled.

[696]*696By his fourth assignment of error the defendant contends that the trial court erred in its instruction to the jury relative to its consideration of circumstantial evidence. The trial judge charged in pertinent part as follows:

Circumstantial evidence is recognized and accepted proof in a court of law. However, before you may rely upon the evidence to find the defendant guilty, you must be satisfied beyond a reasonable doubt that not only is the circumstantial evidence relied upon by the State consistent with the defendant being guilty but that it is inconsistent with his being innocent.

In the absence of special request by the defendant the trial judge is not required to instruct on circumstantial evidence. State v. Davis, 25 N.C. App. 181, 212 S.E. 2d 516 (1975). The record in this case does not show that any such request was tendered by the defendant.

In any event, it has been held that no set form of words is necessary to explain to the jury the intensity of proof required for conviction on the basis of circumstantial evidence. State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572 (1971). We think the instruction in the present case, measured by standards formulated by the Supreme Court, is adequate to convey the substance of the law that in order to justify conviction all circumstances proved must be “consistent with the hypothesis of guilt and inconsistent with every other reasonable hypothesis.” State v. Westbrook, supra at 42, 181 S.E. 2d at 586. We are aware that the instruction found deficient in State v. Lowther, 265 N.C. 315, 144 S.E. 2d 64 (1965), is similar to that challenged in the present case.

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State v. Alston
242 S.E.2d 523 (Court of Appeals of North Carolina, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
242 S.E.2d 523, 35 N.C. App. 691, 1978 N.C. App. LEXIS 3063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-alston-ncctapp-1978.