State v. Pressley , 266 N.C. 663 ( 1966 )

147 S.E.2d 33 (1966) 266 N.C. 663

STATE
v.
Lawrence PRESSLEY.

No. 9.

Supreme Court of North Carolina.

March 9, 1966.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Hamlin, Ramsey & Monday, Brevard, for defendant appellant.

SHARP, Justice.

The preceding factual statement reveals evidence plenary to overrule defendant's motion of nonsuit. His other assignments of error are either unsupported by exceptions in the record or otherwise fail to comply with the rules of this Court. Defendant says in his brief that after the court had held his confession to be admissible in evidence, he deemed any further objection to it futile. Nevertheless, his first assignment of error is that the judge erred in admitting his alleged confession.

Where the voluntariness of a confession is challenged this Court has not been inclined to dispose of the question on procedural grounds. State v. Anderson, 208 N.C. 771, 182 S.E. 643. The general rule is that "The admissibility of a confession is to be determined by the facts appearing in evidence when it is received or rejected, and not by the facts appearing in evidence at a later stage of the trial. State v. Richardson, 216 N.C. 304, 4 S.E.2d 852; State v. Alston, supra (215 N.C. 713, 3 S.E.2d 11)." State v. Rogers, 233 N.C. 390, 396, 64 S.E.2d 572, 576-577, 28 A.L.R.2d 1104. Therefore, if a defendant has evidence tending to show that his confession was involuntary, it behooves him to produce it upon the voir dire. State v. Alston, supra. To the rule as stated in State v. Rogers, supra, there is an exception: When, after the alleged confession has been received in evidence, its involuntariness becomes apparent from the testimony of a State's witness, it should be stricken upon motion. State v. Anderson, supra. In State v. Thompson, 224 N.C. 661, 664, 32 S.E.2d 24, 26, Denny, J. (later C. J.), said: "The defendants objected to the admission of the confessions, but declined the offer of the trial judge to have their voluntariness determined in the absence of the jury. The objection to the admission of these confessions comes too late unless their involuntariness appears from the State's evidence." Similar statements appear in State v. Richardson, supra, and in State v. Alston, supra, cases not coming within the exception.

We do not think, however, that the evidence would bring this case within the exception to the rule enunciated in State v. Anderson, supra, even if defendant had moved to strike the confession at the conclusion of Owen's testimony. So far as the record discloses, the Transylvania officers had not suspected defendant of participation in the larceny charged until after they received the call from Sheriff Burke. Defendant makes no contention that his statement to Sheriff Burke, made before the North Carolina officers arrived, was involuntary or that the Georgia officer offered him any inducement to confess a crime committed outside his jurisdiction. The evidence engenders the logical deduction that defendant had fully implicated himself in the V. F. W. Club larceny by his statements to Deputy Sheriffs Owen and Sitton, in Sheriff's Burke's presence, before Owen told defendant he could make it easier on himself by telling them where the slot machines were. The confession, therefore, was not in consequence of this suggestion of leniency; the suggestion itself shows that the officers already had the confession. The purpose of the promise of leniency was to retrieve property which defendant had previously admitted stealing. A promise of leniency renders a confession involuntary only if the confession is so connected with the inducement as to be the consequence of it. 23 C.J.S. Criminal Law § 825 (1961); 20 Am.Jur., Evidence § 497 (1939).

Defendant made the proposition that he would take the officers to the "goods" if he were permitted to drive his car back. The officers kept their part of the bargain; the defendant was either unable or unwilling to keep his. The record does not disclose whether it was in North Carolina or in Georgia that Owen told defendant it would be easier on him if they "got the stuff back." Neither the State nor defendant saw fit to clarify the time and place at which the statement was made, but— whether it was made in Georgia or in North Carolina—, the officers wrung nothing whatever from defendant by this "inducement." Had defendant led them to the slot machines after Owen made this representation to him, he might have argued with more logic that the machines were thereby rendered inadmissible in evidence. Since, however, they were not found, it does not appear that Owen's unauthorized offer of leniency could have prejudiced defendant in any way.

The record discloses no oppression of defendant and no violation of his constitutional rights. He was represented by counsel of his own choosing and convicted after a fair trial.

No error.

MOORE, J., not sitting.