In State v. Vickers, 274 N.C. 311, 163 S.E.2d 481 (1968), the defendant entered a general objection when the State sought to introduce incriminating statements made by defendant to a law enforcement officer while in custody.Summary of this case from State v. Silva
Filed 9 October 1968
1. Criminal Law 74 — applicability of Miranda v. Arizona Miranda v. Arizona, 384 U.S. 436, is not applicable to a trial begun prior to 13 June 1966.
2. Criminal Law 75 — admissions while under arrest Admissions to police officers are not rendered incompetent solely because defendant was under arrest when they were made.
3. Criminal Law 75 — admissibility of extra-judicial confession An extra-judicial confession is admissible against a defendant only when it was, in fact, voluntarily and understandingly made.
4. Criminal Law 75, 76 — general objection to admission of confession A general objection is sufficient to challenge the admissibility of a confession.
5. Criminal Law 76 — objection to admission of confession — necessity for voir dire hearing as to voluntariness When the State offers an admission or confession in a criminal trial and the defendant interposes a general or specific objection, the trial judge must determine the voluntariness of the admission or confession by a preliminary inquiry in the absence of the jury, and his failure to do so constitutes prejudicial error requiring a new trial.
APPEAL by defendant from Johnson, J., 19 February 1965 Criminal Session of DURHAM.
Attorney General Bruton and Deputy Attorney General Bullock for the State.
H. M. Michaux, Jr., for defendant.
PARKER, J., dissenting.
Defendant was tried upon a bill of indictment charging him with the crime of armed robbery.
The State offered testimony of Murphy Jerome Durham, an employee of Tar Heel Cab Company, who testified in substance as follows: On 21 September 1964, at approximately 2:00 o'clock, defendant entered the cab operated by Durham, stating that he wanted to go to Carrboro. After several stops, including Carrboro, defendant told the witness that he would direct him to defendant's home. After they had driven some miles on Highway 54, defendant pulled a butcher knife from somewhere below the seat and held the point to Durham's right side and took some $15.00 in cash from him. Defendant then directed him to drive back to the old Chapel Hill Road. When they were near a service station, Durham stopped the cab and ran. Defendant took the cab and left. Durham called the Sheriff's office, and he later saw the cab in a ditch near the Veterans Administration Hospital in the City of Durham. Defendant was in custody of the Sheriff at that time. The witness further stated that defendant cut the wires to his cab microphone and that "At times defendant appeared to be in his right mind and at others he did not."
W. W. Ray, a police officer for the City of Durham, in pertinent part, testified: That he first saw defendant on Erwin Road in Durham and followed him until he saw the cab driven by defendant strike the automobile driven by Deputy Sheriff Hall. Defendant was taken in custody and placed in the rear of Sheriff Hall's car.
Sheriff L. Y. Hall testified that after defendant had been placed in custody, he took defendant to Durham County Jail. Thereafter, according to the record, the following occurred:
"Q. What, if anything, did he tell you the next day?
A. The same thing Mr. Watson just told that —
OBJECTION OVERRULED EXCEPTION NO. 2.
A. That he had been drinking beer all the weekend, that he went to the job Monday morning and his boss did not need him and two other fellows that was with him and he went — he had seven dollars and something and after 7:30 he started drinking beer and he had drank beer until he got into the cab that day, and that he bought six cans of beer and picked up a knife in a store and he remembered cutting the mike but he did not remember robbing Mr. Vickers, (sic) and he threw the knife away but he did not know where."
L. R. Watson, a Deputy Sheriff of Durham County, also testified over objection as to the statement made by defendant. His testimony concerning this statement was, in essence, the same as that of Sheriff Hall.
Defendant offered evidence tending to show that he had been in mental hospitals on several occasions and that prior to 21 September 1964 he "was at times sane and other times he appeared to be insane."
Defendant also offered the following exhibits into evidence: Exhibit No. 2, a photostatic copy obtained from the Clerk of Court's office of an "Affidavit to Procure Admission for Mental Illness or Inebracy," Exhibit No. 3, a "General Discharge of John Horton Vickers from the United States Navy dated August 23, 1957," Exhibit No. 5, a "Judgment and Order in case No. 9180." The record shows no certification or authentication of the offered exhibits. The court sustained the State's objections to each of these exhibits.
The State in rebuttal offered testimony of Dr. Walter Sykes, a qualified expert in the field of psychiatry. Dr. Sykes testified: "That he had examined the defendant and that the examination and evaluation covered a period of 62 days. That in his opinion the defendant was competent to stand trial and to understand the charges against him. That the defendant was a psychopathic personality but was not insane."
The jury returned a verdict of guilty as charged. From judgment imposed, defendant appealed. The appeal was withdrawn at the April 1965 Criminal Session of Durham. On 30 April 1968 this Court allowed defendant's petition for certiorari to the end that he might perfect his appeal.
Defendant's statements made to police officers while in custody were inculpatory since they placed him at the scene of the crime and placed in his possession the weapon described by the State's chief witness as having been used in the perpetration of the robbery. Upon the defendant's objection to the introduction of the statements, the trial judge simply overruled the objection and did not hold a voir dire hearing to determine the voluntariness of defendant's statements.
[1, 2] The case of Miranda v. Arizona, 384 U.S. 436, is not applicable to the instant case since trial of this case had begun prior to 13 June 1968. Johnson v. New Jersey, 384 U.S. 719. Further, the otherwise silent record as to the surrounding circumstances under which defendant made the admissions reveal only that defendant made the admissions or confession while he was in custody and being questioned by police officers. The admissions to police officers, if any, would not be rendered incompetent solely because defendant was under arrest when they were made. State v. Litteral, 227 N.C. 527 43 S.E.2d 84; State v. Thompson, 224 N.C. 661, 32 S.E.2d 24.
The rule that an extra-judicial confession is admissible against a defendant when, and only when, it was, in fact, voluntarily and understandingly made has long been recognized and approved in this jurisdiction. State v. Roberts, 12 N.C. 259; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572; State v. Moore, 210 N.C. 686, 188 S.E. 421.
We must first consider whether defendant's general objection sufficiently challenged the admissibility of the confession so as to require a preliminary inquiry to determine its admissibility.
In the case of State v. Rogers, supra, we find the following statement:
"When the admissibility of a confession is challenged on the ground that it was induced by improper means, the trial court is required to determine the question of fact whether it was or was not voluntary before he permits it to go to the jury." (Emphasis ours)
The italicized portion of the statement above quoted might be interpreted to require a specific objection stating the particular grounds for objection.
We also find in 29 Am. Jur.2d, Evidence 583, p. 640, the following
"While there is some authority to the effect that it is the duty of the trial court, in the absence of objection 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 an appeal, raise the issue that the court erred in failing to conduct such a preliminary examination."
The Louisiana Court held in state v. Perry, 51 La. Ann. 1074 25 So. 944, that the objection was properly overruled where the defendant objected to inculpatory statements alleged to have been made by him, on the ground that proper foundation had not been laid when he declined to state wherein the defect lay upon inquiry by the court.
A rule that interposition of a general objection is not sufficient to challenge admission of a confession was adopted by the Mississippi Court in Jackson v. State, 163 Miss. 235, 140 So. 683. However, Alabama (Bradford v. State, 104 Ala. 68t 16 So. 107) and Florida (Bates v. State, 78 Fla. 672, 84 So. 373) adopt the view that a specific objection is not necessary if the objection is so stated as to call the trial court's attention to the matter.
We do not think the rule quoted above from American Jurisprudence nor the rule adopted by the Mississippi and Louisiana Courts, and possibly alluded to in State v. Rogers, supra, is sustained by the better reasoning or the weight of authority in this jurisdiction.
This Court, speaking through Higgins, J., in State v. Barnes, 264 N.C. 517, 142 S.E.2d 344, said: "When a confession is offered in evidence and challenged by objection, the court, in the absence of the jury, should determine whether the confession was free and voluntary." (Emphasis ours) This language has been approved in the cases of State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Ross, 269 N.C. 739, 153 S.E.2d 469; State v. Bishop, 272 N.C. 283, 158 S.E.2d 511.
Here, defendant's general objection made it clear that he challenged the admission of the confession because of its involuntary character. This Court has always jealously protected defendants' rights as to admissions and confessions, and it will not in this instance allow such rights to be impaired by a rule which requires a specific objection when a general objection clearly calls the matter to the trial court's attention so as to challenge the involuntary nature of the confession or admission. We hold that defendant's general objection was sufficient to challenge the admission of the proffered confession.
Since we hold that defendant's objection was sufficient to challenge the voluntariness of the alleged confession, it becomes necessary that we examine recent decisions concerning admission of confessions when challenged by defendant.
In the case of State v. Painter, 265 N.C. 277, 144 S.E.2d 6, defendant was charged with forgery and issuing a forged instrument. The evidence in part revealed that defendant asked to talk with an F.B.I. agent. He was taken to a conference room and there was told of his right to representation by an attorney, right to remain silent, and that anything he said might be used against him. He thereupon made a statement which was offered into evidence. When the statement was offered, defendant's counsel objected on the ground that the alleged confession was procured under coercion and under such circumstances that his constitutional rights were violated. Defendant made no request for voir dire hearing, nor did he request that he be allowed to offer testimony as to the voluntariness of his confession. The judge made no finding of fact concerning the competency of the confession, but merely overruled defendant's objection. The Court cited State v. Litteral, supra, and quoted from it the following:
"While it is the better practice for a judge on a voir dire respecting an alleged confession to make his finding as to the voluntariness thereof and enter it in the record, a failure so to do is not fatal. Voluntariness is the test of admissibility, and this is for the judge to decide. His ruling that the evidence was competent of necessity was bottomed on the conclusion that the confession was voluntary."
The Court further stated that "Such a `conclusion the confession was voluntary' is supported by all the evidence in the case, and there is nothing in this record upon which a contrary conclusion could be based."
The case of State v. Litteral differs from Painter in that the defendant Litteral signed a statement in the nature of a confession which was admitted into evidence against him without objection, and when a written statement was offered against the defendant Bell, the court, of its own motion, had the jury retire and conducted a voir dire hearing. Painter differs from instant case in that there is plenary evidence of circumstances attendant to the confession in Painter while the record in instant case is virtually silent concerning circumstances surrounding the admissions or confession.
In the case of State v. Stubbs, 266 N.C. 274, 145 S.E.2d 896, the defendant contended that the trial court committed error in allowing witnesses to testify to statements made by the defendant in the absence of showing that such statements were voluntarily made. The statements made by the defendant were admitted without objection at the trial. This Court, holding that there was no merit in this contention, stated: "As a general rule a confession is presumed to be voluntary, and the burden is on the accused to show to the contrary. State v. Hamer, 240 N.C. 85, 81 S.E.2d 193; State v. Grass, 223 N.C. 31, 25 S.E.2d 193; State v. Richardson, 216 N.C. 304, 4 S.E.2d 852." The Court then quoted from 20 Am. Jur., Evidence, 536, p. 456, as follows: "`In a majority of the jurisdictions a confession is presumed to be, or is regarded as prima facie, voluntary and, hence, if not objected to by the defendant, should be admitted in evidence by the court, unless there is something in the confession which indicates its inadmissibility.' . . ." This case is factually distinguishable from the instant case in that in Stubbs the evidence as to the confession was admitted without objection.
While the case of State v. Painter, supra, holds that upon objection failure to conduct a voir dire hearing in the absence of the jury as to the voluntariness of the defendant's confession is not fatal error, it recognizes that the holding of such hearing is the better practice. Further, a long line of recent cases in this jurisdiction state that the better practice requires the trial judge, upon objection, to excuse the jury and in the absence of the jury hear the evidence of both the State and the defendant upon the question of whether defendant, if he made an admission or confession, voluntarily and understandingly made the admission or confession. State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22; State v. Bishop, supra; State v. Ross, supra; State v. Barber, 268 N.C. 509, 151 S.E.2d 51; State v. Gray, supra; State v. Barnes, supra; State v. Outing, 255 N.C. 468, 121 S.E.2d 847; State v. Davis, 253 N.C. 86, 116 S.E.2d 365.
The procedure approved in this line of decisions places North Carolina in the category of the Wigmore or "orthodox" rule, which has been approved by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368. In essence, the holding in Jockson v. Denno is that in determining the voluntariness of a confession as between court and jury the only procedure meeting the due process requirement is one in which the judge, or a jury convened for that sole purpose, determines the voluntariness of the confession upon a consideration of all the pertinent evidence before it is submitted to the jury deciding the defendant's innocence or guilt.
The North Carolina cases represented by State v. Barnes, supra, and State v. Gray, supra, approved the procedure required in Jackson v. Denno long before its decision. These North Carolina cases which approve and adopt procedure requiring a preliminary inquiry in the absence of the jury as to the admissibility of a defendant's admissions or confession are well buttressed by logic and decision.
Ervin, J., speaking for the Court in the case of State v. Hamer supra, stated:
"We accept as valid the definition of Dean Wigmore, the great master of the law of evidence, that `a confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it.' Wigmore on Evidence (3rd Ed., 1940) Section 821."
The condemning and conclusive weight of admissions or confessions makes it necessary that the courts carefully guard a defendant's rights when admissions or a confession are offered into evidence.
In the case of State v. Barber, supra, Bobbitt, J., speaking for the Court, clearly stated legal principles pertinent to decision of instant case, as:
"1. `When the State offers a confession in a criminal trial and the defendant objects on the ground it was not voluntary, the question thus raised is determined by the judge in a preliminary inquiry in the absence of the jury . . . The trial judge hears the evidence, observes the demeanor of the witnesses and resolves the question.' State v. Outing, 255 N.C. 468, 472, 121 S.E.2d 847, 849; cert. den., 369 U.S. 807, 7 L.Ed.2d 555, 82 S.Ct. 652. Accord: S. v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Gray, 268 N.C. 69, 150 S.E.2d 1.
"2. `In the establishment of a factual background by which to determine whether a confession meets the test of admissibility, the trial court must make the findings of fact. . . . of course, the conclusions of law to be drawn from the facts found are not binding on the reviewing courts.' S. v. Barnes, supra, opinion by Higgins, J. This legal principle underlies the decision in S. v. Conyers, 267 N.C. 618, 148 S.E.2d 569.
"3. These findings of fact are made only for one purpose, namely, to show the basis for the judge's decision as to the admissibility of the proffered testimony. They are not for consideration by the jury. They should not be made or referred to in the jury's presence. S. v. Walker, 266 N.C. 269, 145 S.E.2d 833.
"4. `If the judge determines the proffered testimony is admissible, the jury is recalled, the objection to the admission of the testimony is overruled, and the testimony is received in evidence for consideration by the jury. If admitted in evidence, it is for the jury to determine whether the statements referred to in the testimony of the witness were in fact made by the defendant and the weight, if any, to be given such statements if made. Hence, evidence as to the circumstances under which the statements attributed to defendant were made may be offered or elicited on cross-examination in the presence of the jury. Admissibility is for determination by the judge unassisted by the jury. Credibility and weight are for determination by the jury unassisted by the judge.' S. v. Walker, supra."
For more than one hundred years this Court has recognized that "it is the duty of the judge to decide the facts upon which depends the admissibility of testimony; he cannot put upon others the decision of a matter, whether of law or of fact, which he himself is bound to make." State v. Andrew, 61 N.C. 205. The requirement now recognized in North Carolina that there should be a preliminary investigation in the absence of the jury to determine the voluntariness of confessions is demanded because of the conclusive nature of a confession. A trial jury's deliberations should not be infected by forcing a defendant to fight out his objection as to admissibility of an alleged confession in the presence of the jury. Even though the trial court might, after a hearing in the presence of the jury, rule out the confession as being involuntary and instruct the jury not to consider it in determining the innocence or guilt of a defendant, yet it must, in most cases, be prejudicial against the defendant.
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; State v. Stubbs, supra), and that when a confession is offered into evidence the burden is on defendant to show the contrary. State v. Hamer, supra; State v. Biggs, 224 N.C. 23, 29 S.E.2d 121; State v. Stubbs, supra. 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.
We do not deem it necessary to consider defendant's other assignments of error.
There must be a new trial consistent with the holdings herein.