State v. Evans

243 S.E.2d 812, 36 N.C. App. 166, 1978 N.C. App. LEXIS 2442
CourtCourt of Appeals of North Carolina
DecidedMay 2, 1978
DocketNo. 774SC970
StatusPublished

This text of 243 S.E.2d 812 (State v. Evans) 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. Evans, 243 S.E.2d 812, 36 N.C. App. 166, 1978 N.C. App. LEXIS 2442 (N.C. Ct. App. 1978).

Opinion

HEDRICK, Judge.

The defendant in his first three assignments of error contends that the trial court erred in its admission of the defendant’s in-custody statement in which he admitted his participation in the robbery. The defendant argues essentially that the judge’s finding at the conclusion of the voir dire that the defendant “knowingly, voluntarily and understandingly . . . waived his right to remain silent” was not supported by the evidence and was not sufficiently specific to resolve conflicts in the evidence.

The State’s evidence on voir dire consisted of the testimony of Levi Simmons of the Jacksonville Police Department, the arresting officer. Officer Simmons testified that he arrested the defendant at approximately 6:15 p.m. on 28 December 1976, that he fully advised the defendant of his rights at that time, and that [169]*169the defendant responded that he understood his rights. Officer Simmons further testified that upon their arrival at the police station at approximately 7:45 p.m., he again advised the defendant of his rights and that the defendant signed a waiver of rights “acknowledging that he read the statement of his rights; that he understood what his rights were; that he was willing to make a statement and answer questions; that he did not want a lawyer at that time; that he understood what he was doing; that no promise or threat was made to him and no pressure or coercion had been used against him.” Officer Simmons then read the defendant’s written statement confessing to the robbery of the marines.

In support of his contentions the defendant argues that his own testimony at voir dire controverted the State’s evidence and rendered the statement inadmissible, or at least necessitated specific findings to resolve conflicts. The defendant first refers to his testimony that when he inquired of Officer Simmons as to the purpose of the statement, the police officer responded that “it would be put in my police file.” We do not agree with the defendant that the simple reply of Officer Simmons would “plainly indicate that the Defendant was under the impression that his statement would remain in his police file and no one but the officer would see it.” To the contrary, uncontroverted evidence reflects that the defendant was fully advised of his “right to remain silent and that anything he said could and would be used against him in court.” Accordingly, we find no conflict in the evidence on this point.

The defendant also directs us to his testimony that while Officer Simmons was absent from the interrogation room Officer Hudson, another police officer, told the defendant that “if I didn’t cooperate he would see to it that I got thirty years.” The State failed to offer any evidence to challenge this portion of the defendant’s testimony. However, the record reflects that the defendant was fully advised of his right to remain silent at least twice and signed a written waiver of that right which added that “no promise or threat was made to him and no pressure or coercion had been used against him.” Thus, assuming the accuracy of the defendant’s bare assertion that Officer Hudson threatened him, we find ample evidence to support the trial judge’s finding that “the defendant knowingly, voluntarily and understandingly . . . waived his right to remain silent.”

[170]*170The defendant’s contention that the conflict in the evidence created by his testimony of Officer Hudson’s threats required a specific finding by the trial judge is also without merit. At the conclusion of a voir dire hearing to determine the admissibility of an in-custody confession, the trial judge must make findings of fact sufficiently specific to resolve any material conflicts in the evidence. State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977). In State v. Haskins, 278 N.C. 52, 178 S.E. 2d 610 (1971), a defendant argued that testimony on voir dire that he was under the influence of drugs when he made the challenged confession created a conflict in the evidence which the trial judge was required to resolve by a specific finding. Justice Branch, speaking for our Supreme Court, reasoned that the judge’s finding that the defendant “ ‘knowingly, intelligently and understandingly waived any constitutional rights . . .’ implicitly carries the finding that his understanding and intelligence were not so adversely affected as to make him unconscious of the meaning of his words.” 278 N.C. at 62, 178 S.E. 2d at 615. On the basis of Haskins we hold that the judge’s finding in the present case that “the defendant . . . voluntarily . . . waived his right to remain silent” adequately conveyed a finding that the defendant acted on his own volition, free from any coercion on the part of Officer Hudson.

In his seventh assignment of error, the defendant contends that the trial court erred in failing to instruct the jury upon the withdrawal of identification evidence which was found inadmissible. When one of the victims of the robbery identified the defendant as the perpetrator of the crime, the defendant objected. After a voir dire hearing, the trial judge sustained the defendant’s objection and ruled the testimony inadmissible. The defendant then requested an instruction withdrawing the evidence, and the trial judge directed the defendant to renew his objection at a later time when he would rule on it. The defendant failed to renew his objection thereafter, and the requested instruction was never rendered. It is unclear why the trial judge postponed his ruling on the defendant's requested instruction. However, we think that it was within his discretion to do so, Miller v. Greenwood, 218 N.C. 146, 10 S.E. 2d 708 (1940); and when the defendant subsequently failed to comply with the judge’s direction, he waived any right to an instruction which he might have asserted.

The defendant next contends that the trial judge improperly intimated an opinion in violation of G.S. 1-180 in his “repeated [171]*171questioning” of witnesses and in sustaining his own objections. G.S. 1-180 has been interpreted by our courts on numerous occasions to require a trial judge to evince a courtroom demeanor of absolute impartiality. State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974). In the performance of his many functions including his interaction with the lawyers and witnesses he must avoid the appearance of favoring one party over another. State v. Greene, supra.

The record reflects that at several points during the trial the judge intervened in the examination of witnesses and propounded his own questions. It is established that a trial judge has the right and duty to control the examination of witnesses and to ask questions tending to clarify the witness’ testimony for the jury. State v. Tinsley, 283 N.C. 564, 196 S.E. 2d 746 (1973). In doing so, the judge must refrain from impeaching or discrediting a witness or demonstrating any hostility toward the witness. 1 Stansbury’s N.C. Evidence § 37 (Brandis Rev. 1973). The defendant refers to several exchanges between the judge and witnesses. We have examined each of these exchanges and are unable to detect an indirect expression of opinion by the judge. While the judge made no attempt to conceal his impatience at times, it was indiscriminately directed at State witnesses as well as defense witnesses. On each occasion the questions asked tended to clarify the witness’ testimony and were not aimed at discrediting or impeaching the witness.

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Related

State v. Greene
206 S.E.2d 229 (Supreme Court of North Carolina, 1974)
State v. Siler
234 S.E.2d 733 (Supreme Court of North Carolina, 1977)
State v. Tinsley
196 S.E.2d 746 (Supreme Court of North Carolina, 1973)
State v. Staley
232 S.E.2d 680 (Supreme Court of North Carolina, 1977)
State v. Lambe
61 S.E.2d 608 (Supreme Court of North Carolina, 1950)
State v. Haskins
178 S.E.2d 610 (Supreme Court of North Carolina, 1971)
State v. Lemmond
182 S.E.2d 636 (Court of Appeals of North Carolina, 1971)
Huff v. Thornton
213 S.E.2d 198 (Supreme Court of North Carolina, 1975)
Miller v. . Greenwood
10 S.E.2d 708 (Supreme Court of North Carolina, 1940)
State v. Stroud
177 S.E.2d 912 (Court of Appeals of North Carolina, 1970)

Cite This Page — Counsel Stack

Bluebook (online)
243 S.E.2d 812, 36 N.C. App. 166, 1978 N.C. App. LEXIS 2442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-evans-ncctapp-1978.