State v. Alston , 295 N.C. 629 ( 1978 )

247 S.E.2d 898 (1978) 295 N.C. 629

STATE of North Carolina
v.
Carl Hubert ALSTON, Jr.

No. 21.

Supreme Court of North Carolina.

October 17, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas H. Davis, Jr., Raleigh, for the State.

Asst. Public Defender D. Lamar Dowda, Greensboro, for defendant.

COPELAND, Justice.

After reviewing the defendant's many assignments of error both to this Court and to the Court of Appeals, we have concluded that there was no error in the trial below.

Defendant first contends that the court erred in failing to find facts after conducting a voir dire examination at trial.

Officer Joyner took the stand and testified that he was at Moses Cone Hospital on the night of 16 January 1977 and saw the defendant enter the emergency room with a woman who was bleeding from her face. After he was asked what the defendant said, but before the officer answered, the defendant objected. The jury was excused, and a voir dire hearing was held.

On Voir dire the policeman testified that the defendant stated he stabbed the man who had cut his wife. On direct examination Joyner said that he had not asked the defendant any questions, but on cross-examination the officer stated that he first asked the defendant "what happened" when he entered the emergency room. The defendant contends that this discrepancy requires findings of fact by the judge before the defendant's statement could be properly admitted into evidence.

In State v. Riddick, 291 N.C. 399, 408-09, 230 S.E.2d 506, 512-13 (1976), Justice Huskins, speaking for this Court, aptly stated the law on this point:

"The general rule is that the trial judge, at the close of the voir dire hearing, should make findings of fact to show the bases of his ruling. If there is a material conflict in the evidence on voir dire he must do so in order to resolve the conflict.. . . If there is a conflict in the evidence which is immaterial and has no effect on the admissibility of the confession, it is not error to admit the confession without findings because the purpose of specific findings of fact is to show, for the benefit of the appellate court on review, the factual bases of the trial court's determination of admissibility. . . . [I]t is always the better practice to make findings." (Citations omitted.) (Emphasis supplied.)

This case falls into the last category. Even if we assume that Officer Joyner did ask the defendant "what happened" when he came into the emergency room, this fact does not affect the admissibility of defendant's statement.

It is clear that incriminating statements made in response to general on-the-scene police questioning are admissible. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975); State v. Meadows, 272 N.C. 327, 158 S.E.2d 638 (1968). Miranda warnings need not be given:

"Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . . General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding." Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, 725 (1966).

As the situation in this case falls within the category of permissible general questions by officers of the law, this assignment of error is overruled.

At the conclusion of the voir dire hearing, the trial judge stated that none of defendant's statements could be admitted "except what he said when he first walked in the door." Defendant complains that the judge then admitted his statement to the desk clerk that "a man that would do something like that deserved killing and he was going back out there." It is well settled that incriminating statements made to persons unconnected with law enforcement are admissible as long as they were made freely and voluntarily. State v. Spence, 271 N.C. 23, 155 S.E.2d 802 (1967), remanded, 392 U.S. 649, 88 S.Ct. 2290, 20 L.Ed.2d 1350 (1967), rev'd on other grounds, 274 N.C. 536, 164 S.E.2d 593 (1968). As the evidence showed that defendant made this declaration to the hospital worker on his own initiative, this argument is without merit.

The Court of Appeals found that no findings of fact were required by the trial judge because no voir dire hearing was necessary in this case. We base our opinion, however, on the reasons set out above.

Defendant's second assignment of error to this Court concerns the trial judge's denial of his motions for nonsuit at the close of the State's evidence and at the close of all the evidence.

It is well settled that in order to rule on motions for judgment of nonsuit, the evidence for the State is to be taken as true, and every reasonable inference favorable to the State is to be drawn therefrom. State v. Rankin, 284 N.C. 219, 200 S.E.2d 182 (1973); State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972).

If taken as true, the evidence in this case showed that on 16 January 1977, the defendant and the deceased got into a fight, at which time defendant's wife was apparently cut. The defendant chased the deceased out toward East Market Street where a witness stated she saw a stabbing take place. Another witness saw the deceased lying in East Market Street. Officer Joyner saw the defendant come into Moses Cone Hospital later that night with his wife who was bleeding from a cut on her face. The defendant stated that a man had cut his wife and he had stabbed him and left him out there.

Taken as a whole with the benefit of all reasonable inferences, this evidence is clearly sufficient to go to the jury. Consequently, the motions for nonsuit were properly denied.

The defendant next argues that the trial judge erred in his instruction to the jury on circumstantial evidence. The portion of the charge complained of is 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." (Emphasis added.)

Evidently the defendant contends that the error lies in the judge's failure to include the magic words, "that circumstantial evidence must point unerringly to defendant's guilt and exclude every other reasonable hypothesis." State v. Beach, 283 N.C. 261, 272, 196 S.E.2d 214, 222, (1973), quoted in State v. Hood, 294 N.C. 30, 44, 239 S.E.2d 802, 810 (1978). It is clear, however, that there is no set formula that a charge on circumstantial evidence must follow. State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971); State v. Lowther, 265 N.C. 315, 144 S.E.2d 64 (1965).

The defendant relies on State v. Lowther, id. at 316, 144 S.E.2d at 66, in which the instruction stated merely that "the circumstances and conditions relied upon must be such as are not only consistent with guilt, but must be inconsistent with innocence." We held this charge to be prejudicial error.

Although the charge complained of in this case and the one in Lowther are similar, this instruction went the required step further. The jury was informed that not only must the circumstantial evidence presented at trial be consistent with guilt and inconsistent with innocence, but they were told that it must be consistent with the defendant's guilt beyond a reasonable doubt and inconsistent with the defendant's innocence beyond a reasonable doubt. We find this charge to be substantially identical in meaning to the instruction that the evidence must point unerringly to the defendant's guilt, excluding all other reasonable hypotheses. This assignment of error is overruled.

In his seventh assignment of error to the Court of Appeals, defendant excepts to certain portions of the judge's instructions to the jury. Specifically, the defendant argues that the definitions below were prejudicially deficient in that they did not require that the killings be intentional:

"Second degree murder is the unlawful killing of a human being with malice.

Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation."

In State v. Mercer, 275 N.C. 108, 120, 165 S.E.2d 328, 337 (1969), this Court stated:

"The record shows the court defined murder in the second degree as the unlawful and intentional killing of a human being with malice. Although not assigned as error, it seems appropriate to point out again that ``(a) specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter.' (Citation omitted.) An unlawful killing with malice is murder in the second degree." (Emphasis supplied.)

We have also defined manslaughter as being "the unlawful killing of a human being without malice and without premeditation or deliberation." State v. Benge, 272 N.C. 261, 263, 158 S.E.2d 70, 72 (1967).

Thus, had the able trial judge defined either crime in terms of intentional killings, as the defendant contends he must, the charge would have been incorrect. The defendant evidently is confusing the definitions of these crimes with the permissible inference of malice from proof of an intentional killing with a deadly weapon. This argument is without merit.

The defendant requested that we consider all the other assignments of error submitted to the Court of Appeals that are incorporated into defendant's appeal to this Court. Although defendant failed to discuss them further in either his brief or his argument before this Court, we have fully considered all the other assignments and find them without merit.

For the reasons stated above, the decision of the Court of Appeals is

AFFIRMED.

BRITT, J., did not participate in this decision.