State v. Pagano ( 1978 )

242 S.E.2d 825 (1978)

STATE of North Carolina
v.
James William PAGANO.

No. 34.

Supreme Court of North Carolina.

April 17, 1978.

Rufus L. Edmisten, Atty. Gen., by David S. Crump, Special Deputy Atty. Gen., and Tiare Smiley Farris, Associate Atty., Raleigh, for the State.

William C. Hussman, Jr., Wilmington, for defendant.

LAKE, Justice.

The defendant assigns as error that in its review of the evidence in the charge to the jury, the trial court said the defendant's mother testified "that she didn't think he knew the difference between right and wrong, although she said he did know it was wrong to rape a woman." The record shows that this witness was asked, "Are you saying he didn't know it was wrong to rape?" The answer of the witness was: "No, I am not saying that. He has been told over the years that it was wrong to do these things and he would ask me why."

There is no indication in the record that this inaccuracy in the recapitulation of the testimony of this witness was called to the attention of the court before the jury retired so as to afford the court an opportunity to make a correction. In State v. Virgil, 276 N.C. 217, 230, 172 S.E.2d 28, 36 (1970), this Court, speaking through Justice Huskins, said, "[I]t is the general rule that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires so as to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal." To the same effect, see: State v. Dietz, 289 N.C. 488, 500, 223 S.E.2d 357 (1976); State v. Hunt, 289 N.C. 403, 409, 222 S.E.2d 234, death sentence vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960), cert. den., 365 U.S. 830, 81 S. Ct. 717, 5 L. Ed. 2d 707 (1961); State v. Holder, 252 N.C. 121, 113 S.E.2d 15 (1960); State v. Saunders, 245 N.C. 338, 95 S.E.2d 876 (1957). This assignment of error is, therefore, overruled.

The defendant next contends that the trial court failed to make a finding with respect to whether the defendant voluntarily and knowingly waived his right to counsel before making a statement to the investigating officers, which statement was admitted in evidence. On the contrary, the record shows that the court, after conducting a voir dire examination of the officer in question, made the following findings of fact: "That Mr. Brown [the officer] fully advised the defendant of his rights to have counsel present at any questioning, and his right to remain silent, and his right to have the State provide an attorney for him if he could not afford one himself. * * * [T]hat Mr. Brown furnished the defendant James William Pagano a form for a written waiver of his rights and Mr. Pagano signed this form, waiving his rights to remain silent, waiving his right to have a lawyer present during any questioning, and a few moments later during the interview * * Mr. Pagano changed his mind, indicating that he did want an attorney, at which point Mr. Brown stopped questioning him and an attorney was appointed for Mr. Pagano. * * * [T]he defendant freely, voluntarily and understandingly waives his right to remain silent during that period and to have an attorney during that period."

These findings are supported by the uncontradicted evidence of the officer on the voir dire and are, therefore, conclusive. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966), cert. den., 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967). The defendant's contention that the fact that he soon changed his mind and requested counsel shows that the waiver was not freely and voluntarily given is without substance.

Furthermore, the statement so made by the defendant to the investigating officer was not per se incriminating. In it he said that he was in South Carolina at the time of the alleged offense and when he went to the home of the victim four nights thereafter, at which time he was arrested by a waiting police officer, he went there at the request of some man he did not know, but who resembled the defendant in appearance, and who paid him $20.00 to go to the victim's house and see if she was at home, the defendant riding to the vicinity of the victim's house in a taxicab. The investigating officer was unable to find a cab driver or anyone else who could corroborate this story. The State's evidence was that he went to the victim's home on the second occasion as a result of a telephone conversation with her, initiated by him, in which the victim, at the suggestion of the investigating police officer, encouraged him to come to her home where the officer was waiting. The defendant's statement, so admitted, could only have prejudiced the defendant through its inherent implausibility. We perceive no error in its admission into evidence which would justify the granting of a new trial. This assignment of error is, therefore, overruled.

The defendant's final, and principal, contention is that the established test of insanity as a defense to a criminal charge under the law of this State, known as the M'Naghten Rule, is unconstitutional in that it is a violation of the due process clause of the Fourteenth Amendment to the United States Constitution and that this Court should adopt the test proposed in the so-called "Model Penal Code" of the American Law Institute. Thus, he contends that the above quoted instruction of the trial court to the jury as to the test of insanity was error.

As recently as State v. Jones, 293 N.C. 413, 425, 238 S.E.2d 482, 490 (1977), we have reaffirmed our adherence to the M'Naghten Rule as the test of insanity as a defense to a criminal charge. We there said:

"It is thoroughly established in the law of this State, by numerous decisions of this Court, that the test of insanity as a defense to a criminal charge is whether the accused, at the time of the alleged act, was laboring under such a defect of reason, from disease or deficiency of the mind, as to be incapable of knowing the nature and quality of the act, or, if he does know this, was, by reason of such defect of reason, incapable of distinguishing between right and wrong in relation to such act. State v. Cooper, 286 N.C. 549, 569, 213 S.E.2d 305 (1975); State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516 (1973); State v. Johnson, 256 N.C. 449, 452, 124 S.E.2d 126 (1962); State v. Swink, 229 N.C. 123, 47 S.E.2d 852 (1948)."

We continue to adhere to the views expressed in those cases concerning this matter.

The trial judge properly placed upon the defendant the burden of proof on the question of his insanity. As Justice Ervin, speaking for this Court, said in State v. Swink, supra, "Since soundness of mind is the natural and normal condition of men, everyone is presumed to be sane until the contrary is made to appear." In Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), the Supreme Court of the United States held a New York statute "burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law" does not violate the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. We find no error in the above quoted charge of the trial judge with reference to the defense of insanity or in any other portion of his instructions to the jury concerning this matter.

In his brief the defendant asserts that the law of this State, as above stated, is defective, for the reason that it makes the test of insanity to rest upon a single symptom or manifestation of mental illness and ignores other symptoms of such illness, citing Sobeloff, "Insanity and the Criminal Law: From M'Naghten to Durham, and Beyond," 41 A.B.A.J. 793, 795 (1955). His argument and the authority cited in support thereof rest upon a misconception of the question to be determined in the trial court. The issue, there to be determined, is not whether the defendant has a mental disease or defect, but whether he has the kind or degree of mental defect which State policy recognizes as giving him immunity to punishment for an act, for which act others are commanded by the law of the State to be punished. This assignment of error is overruled.

NO ERROR.