State v. Huntley , 284 N.C. 148 ( 1973 )

200 S.E.2d 21 (1973) 284 N.C. 148

STATE of North Carolina
v.
Harold HUNTLEY.

No. 48.

Supreme Court of North Carolina.

November 14, 1973.

Joe P. McCollum, Jr., Monroe, for defendant appellant.

Atty. Gen. Robert Morgan and Associate Atty. George W. Boylan, Raleigh, for the State.

BOBBITT, Chief Justice.

In Assignment of Error No. 1 defendant asserts that the court committed error "by allowing the State to cross examine the defendant concerning the alleged confession." There is no basis for or merit in this contention. Defendant's objection was sustained when the cross-examiner asked defendant if he had not told Helms that he (defendant) had gotten out of a car driven by his cousin.

After sustaining defendant's objection, the court conducted the voir dire examination referred to in our preliminary statement. Based upon evidence offered in the absence of the jury and upon his factual findings, the trial judge stated that "the Court will allow the statement to be admitted into evidence, at such time as it may be offered." Exception No. 1, on which Assignment of Error No. 1 purports to be based, is to the court's denial of a motion by defendant "to strike all the proceedings in the Voir Dire Hearing."

In Assignment of Error No. 2 defendant asserts that the court committed error "by allowing the confession of the defendant to be admitted into evidence." He contends that the court's order at the conclusion of the voir dire hearing did not contain an explicit finding that the defendant was given each of the warnings in respect of his constitutional rights required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966), and therefore it [the so-called confession] was not admissible even for impeachment purposes. There is no merit in this contention.

We need not consider whether the evidence on voir dire and the court's factual findings were sufficient to render defendant's written account of his association with Mrs. Swaney admissible as substantive evidence. Suffice to say, it was offered and admitted only as it might tend to impeach the testimony of defendant. We note that the written statement (State's Exhibit C) referred to in the assignment of error as a confession, although it identifies defendant as being the man involved with Mrs. Swaney during the early morning hours of October 7, recounts what occurred between them in a manner tending to exculpate defendant.

In State v. Catrett, 276 N.C. 86, 97, 171 S.E.2d 398, 405 (1970), this Court, based on our interpretation of the exclusionary rule adopted in Miranda, held "that in-custody statements attributed to a defendant, when offered by the State and objected to by the defendant, are inadmissible for any purpose unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence, makes factual findings that such statements were voluntarily and understandingly made by the defendant after he had been fully advised as to his constitutional rights." In the later case of Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), the Supreme Court of the United States did not so interpret the Miranda exclusionary rule. In Harris the Court held that an accused's prior inconsistent statements, which were not coerced or involuntary in fact but were made without counsel and without waiver of rights, although inadmissible to establish the prosecution's case in chief could properly be used to impeach the accused's testimony. The rule enunciated in Harris was adopted by this Court in State v. Bryant, 280 N.C. 551, 555, 187 S.E.2d 111, 113 (1972), cert. den. 409 U.S. 995, 93 S. Ct. 328, 34 L. Ed. 2d 259 (1972). Hence, Bryant superseded Catrett as the law in this jurisdiction.

Assignments of Error Nos. 3, 4, 5 and 6 relate to the court's charge. None discloses prejudicial error.

In Assignment of Error No. 3, defendant asserts that the court committed error "by not correctly defining the term ``Reasonable Doubt.'" The assignment does not point out any error in the portion of the charge to which it refers. Defendant contends the court's definition "was not explicit enough" and suggests that a more elaborate instruction should have been given.

In Assignment of Error No. 4, defendant asserts that the court committed error "by failure to correctly instruct the jury concerning the admission of the confession for impeachment purposes." He does not point out any error in the portion of the charge to which he refers, to wit: "Now, the Court allowed the State to introduce the statement, which was made earlier to the police, solely for the purpose of impeaching his testimony, if you find that it does. That goes to the credibility of the witness. That is a matter for you to determine." On appeal, defendant suggests that a more elaborate instruction should have been given. [As indicated above, a similar instruction was given the jury when State's Exhibit C was offered and admitted into evidence.] Defendant contends that the court "did not instruct the jury properly in that they were not told that the earlier statement was not made under oath and they were not to consider it as evidence in this trial." There is no merit in this contention. The question was not whether the jury should accept the prior unsworn statement made shortly after defendant's arrest or the sworn testimony of defendant at trial. It was for the jury to determine to what extent, if any, defendant's testimony at trial was discredited by his prior unsworn statement.

In Assignment of Error No. 5 defendant asserts that the court committed error "by commenting on the evidence of the defendant." The exception on which this assignment is based refers to a portion of the charge in which the court correctly reviewed portions of State's Exhibit C as well as defendant's testimony at trial. Full instructions were given to the effect that it was for the jury to determine what weight should be given to defendant's testimony at trial.

In Assignment of Error No. 6, defendant asserts that the court committed error "by failing to instruct the jury on voluntary intoxication." In view of his complete denial of having molested Mrs. Swaney in any way, it is understandable that this assignment contains no suggestion as to what instruction defendant contends should have been given with reference to voluntary intoxication. Suffice to say, "[a]n assignment based on 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, 534, 139 S.E.2d 736, 737 (1965).

Defendant having failed to show prejudicial error, the verdict and judgment are not disturbed.

No error.