State v. Poole , 44 N.C. App. 242 ( 1979 )

261 S.E.2d 10 (1979) 44 N.C. App. 242

STATE of North Carolina
v.
Gayle POOLE.

No. 7915SC555.

Court of Appeals of North Carolina.

December 18, 1979.

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

Paul H. Ridge, Graham, for defendant-appellant.

HILL, Judge.

The record on appeal is voluminous and contains numerous exceptions, but the most serious deals with the statement of the defendant to the officers on the night of her arrest.

Did the court err in overruling the objection of the defendant to improper and irrelevant evidence as to comments of the defendant not involved in her statement which was the subject of a Motion to Suppress, but which evidence was allowed to be injected into the hearing and which defendant contends was prejudicial? Defendant contends that the only reason she was asked by the officers if it bothered her as to what happened to Mitchell Payne was to excite prejudice or sympathy, and that she was entitled to a new trial. We do not agree. This evidence was not used by the trial judge in his findings of fact and conclusions of law as to the voluntariness of the confession given by the defendant. It was simply ignored.

Was the confession properly admitted into evidence? We hold that it was.

The burden of showing the voluntariness of the confession is on the State. State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970), rev'd on other grounds, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971), on remand, 279 N.C. 388, 183 S.E.2d 106 (1971). It is to be determined by a trial judge upon a voir dire in the absence of the jury. State v. Haskins, 278 N.C. 52, 178 S.E.2d 610 (1971).

The record reveals that defendant did not request that she be able to visit with her family or friends, and the record further shows that the officers conducting the interview did not ask whether or not defendant wished to communicate with her family or friends. Absent such request, we find no error. See State v. Curmon, 295 N.C. 453, 245 S.E.2d 503 (1978).

The defendant contends that Tommy White was an agent provocateur of the Alamance County Sheriff's Department. White urged the defendant to tell the truth and told her that the two of them would be together and everything would be all right. This is no promise of any advantage that would tend to render defendant's confession involuntary. See State v. Matthews, 231 N.C. 617, 58 S.E.2d 625 (1950), cert. denied 340 U.S. 838, 71 S. Ct. 24, 95 L. Ed. 615 (1950).

The defendant's youth and lack of high mentality, standing alone, and the somewhat lengthy period of interrogation do not necessarily render the statement involuntary. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), modified 428 U.S. 908, 96 S. Ct. 3215, 49 L. Ed. 2d 1213 (1976).

In this case defendant's rights were explained to her. She indicated an adequate understanding. The defendant was given the right to call in counsel—to be provided for her by the State. There was evidence that she could read and write and had progressed to the seventh grade and was a little more mature than the average sixteen year old. There is no evidence of physical abuse. She was given food and offered water and restroom facilities. The period of questioning was broken by the meal. Defendant contends she was tired and mentally and physically exhausted, but she appears to have told her story twice with little variance.

In determining whether a defendant's will was overborne in a particular case, the court must assess the totality of all of the surrounding circumstances. This was done before receipt of the confession into evidence. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). See also State v. Silver, infra.

We have examined the entire record and are of the opinion that there is evidence to substantiate the finding by the presiding judge that the confession was voluntarily and understandingly made. State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975).

The defendant objected to a reading of a typed transcript of the confession made on tape on the night of arrest. State's witness testified that he was present throughout the course of questioning and that the tape recording of the questioning had been reduced to transcription; that he had compared the copy of the transcript and the tape, and the same questions and answers appeared both places.

Defendant contended that a witness should not be permitted to read from a written transcript unless the transcript itself is admissible as an exhibit. State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978). The trial judge ruled previously that the defendant's confession was freely, knowingly, and voluntarily made and admissible in trial, and the defendant's counsel admits that the transcription, absent a few minor typographical errors, was the same statement given and taped by police officers, which had been ruled admissible.

The facts in this case are distinguishable from State v. Potter, supra, and State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967). In those cases the transcripts were based upon what the officers remembered hearing at the time of interrogation. The memory of man is subject to error. The transcriptions in this case are made from the original tape. We see no error because they are not signed.

Defendant further contends that the court erred by refusing to charge the jury on involuntary manslaughter or death by accident or misadventure. There was no evidence to support such instruction.

The State's evidence clearly supports the fact that the defendant and her boyfriend accomplice, Tommy White, placed the deceased in a creek in an unconscious state and that he died of drowning. Prior to placing the deceased in the water, the defendant had beaten the decedent maliciously on the head with a stick. The defendant and her boyfriend had robbed the deceased. Such evidence clearly shows that the death of the deceased was the result of unlawful acts amounting to felonies done intentionally with malice. Therefore, the trial court's refusal to charge the jury in involuntary manslaughter was completely proper.

Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the performance of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpable negligent manner, when fatal consequences were not improbable under all the facts existent at the time, or resulting from a culpably negligent omission to perform a legal duty. 6 Strong's N.C.Index 3d, Homicide, § 6.1, p. 537; State v. Massey, 271 N.C. 555, 157 S.E.2d 150 (1967).

Any defense that the death of Payne was the result of an accident or misadventure must be predicated upon the absence of an unlawful purpose on the part of the defendant and the absence of culpable negligence. State v. Faust, 254 N.C. 101, 118 S.E.2d 769, cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49 (1961).

Likewise, there is ample evidence in this case to sustain a charge to the jury upon the doctrines of acting in concert and aiding and abetting. When two or more persons aid and abet each other in the commission of a crime, all being present, each is a principal and equally guilty regardless of any conspiracy or previous confederation or design, and regardless of which is the actual perpetrator. State v. Terry, 278 N.C. 284, 179 S.E.2d 368 (1971); State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967). A defendant who enters into a common design for a criminal purpose is equally deemed by the law a party to every act done by others in the furtherance of such design. State v. Lovelace, 272 N.C. 496, 158 S.E.2d 624 (1967).

Admittedly, the trial judge must instruct a jury to a lesser included offense of the crime charged when there is evidence from which the jury could find that the defendant committed the lesser offense. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976). There was no evidence present in this case which would support a verdict of involuntary manslaughter or death by accident or misadventure.

The defendant contends that the trial court erred in refusing to dismiss the charges against the defendant at the conclusion of the evidence for the State, and in refusing the defendant's motion to set aside the jury verdict. We hold the evidence to be sufficient in both instances to sustain the trial judge's rulings. Further, the defendant's sentence was within the limits permitted by statute, and the trial judge did not err in rendering judgment and sentence set forth in the record.

In the trial of this case, we find

No Error.

VAUGHN and ERWIN, JJ., concur.