State v. Haywood , 295 N.C. 709 ( 1978 )

249 S.E.2d 429 (1978) 295 N.C. 709

STATE of North Carolina
v.
Paul Austin HAYWOOD, John William Brown, James Lewis Watkins and Ronald Eugene Covington.

No. 83.

Supreme Court of North Carolina.

November 28, 1978.

Rufus L. Edmisten, Atty. Gen., and George J. Oliver, Asst. Atty. Gen., Raleigh, for the State.

E. C. Thompson, III, Warsaw, Atty., for John William Brown and Ronald Eugene Covington, defendants-appellants.

Russell J. Lanier, Jr., Kenansville, for Paul Austin Haywood and James Lewis Watkins, defendants-appellants.

SHARP, Chief Justice.

We examine first defendants' assignment of error No. 14, that the trial court erred in denying their respective motions for judgments as of nonsuit, made at the close of all the evidence. G.S. 15-173 (1975). We consider this assignment under the established rule that upon a motion to nonsuit the trial court must view the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn from it. State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968).

It is immediately apparent from an examination of the facts that the court properly overruled the motion as to defendants Watkins and Brown. Defendant Brown was the man whom Jackson identified in court as the one beating him in the face with the "long type weapon." Defendant Watkins was the man wearing the "yellow tank top," whom Mrs. Gaddy saw outside Jackson's grocery when she went there before taking her son to school. After delivering him she drove back by the store where she again saw Watkins as he walked away from Jackson lying in the door crying for help. Furthermore, Watkins owned the green and black 1970 Dodge Monaco with the D. C. license which several witnesses saw at the grocery before and after Jackson was shot. It was in this car that the four defendants were traveling when they were arrested less than an hour after the robbery and shooting, and in which Jackson's .38 pistol was found.

Defendants Haywood and Covington, however, contend that the evidence admitted at the trial fails to place either of them in the store or to show that they were acting in concert with Brown and Watkins. Haywood correctly asserts that his alleged confession to Lieutenant Goodwin, having been ruled incompetent ("because the constable blundered") "in no way incriminates him" legally. Haywood and Covington rely upon State v. Aycoth and Shadrick, 272 N.C. 48, 157 S.E.2d 655 (1967). As to them, they maintain that case is indistinguishable from this one. They argue, therefore, that their presence with Brown and Watkins immediately before and after the assault and robbery is insufficient to establish their complicity in these crimes.

The principle for which Aycoth is so often cited is firmly established law: "Mere presence at the scene of a crime does not make one guilty as a principal or as an aider and abettor or as an accessory before the fact. State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655." State v. Eakins, 292 N.C. 445, 450, 233 S.E.2d 387, 390 (1977). In Aycoth, the two defendants were jointly indicted and convicted for the armed robbery of Mrs. Keith Stevenson, who was in charge of Outen's Grocery. The State's evidence tended to show: The defendant Shadrick was a passenger in the defendant Aycoth's car when he stopped at Outen's and went into the store, leaving Shadrick in the car. The robbery occurred inside the store, where Aycoth remained no more than two or three minutes. There was no evidence that Shadrick ever moved from where he was sitting on the right side of the front seat of the car. Mrs. Stevenson testified she could see Shadrick, and he could have seen her through the plate glass window, but he never did look around. There was no evidence that Shadrick did observe what was taking place inside the store or that he had a weapon of any kind. After robbing Mrs. Stevenson, Aycoth concealed his pistol before he left the store and returned to the car. When the defendants were arrested several hours later there was no evidence that Shadrick shared in the hundred dollars which Aycoth took from Mrs. Stevenson beyond the fact that he had fifteen dollars and some change on him. Weapons were found under the seat of Aycoth's car, but there was no evidence that Shadrick knew they were there.

In reversing Shadrick's conviction this Court said: "Although there are circumstances which point the finger of suspicion towards Shadrick, we are constrained to hold that the evidence is insufficient to warrant a verdict that he is guilty of the alleged armed robbery as an aider and abettor of Aycoth." 272 N.C. at 51, 157 S.E.2d at 657-8. See also State v. Swaney, 277 N.C. 602, 612-13, 178 S.E.2d 399, 405-6 (1970), appeal dismissed, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428 (1971).

In the instant case, however, the evidence is not as sparse as it was in Aycoth; it does more than point the finger of suspicion toward Haywood and Covington. Competent evidence sustains findings (1) that these two defendants were present, either in or sufficiently close to Jackson's grocery, to aid the perpetrators in the commission of the robbery should their assistance become necessary and (2) that their intent to do so was communicated to the actual perpetrators. "The communication or intent to aid, if needed, does not have to be shown by express words of the defendant but may be inferred from his actions and from his relation to the actual perpetrators." State v. Sanders, 288 N.C. 285, 291, 218 S.E.2d 352, 357 (1975), cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102 (1976). "[W]hen the bystander is a friend of the perpetrator and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as an encouragement, and in contemplation of law this is aiding and abetting." State v. Holland, 234 N.C. 354, 358, 67 S.E.2d 272, 275 (1951). See State v. Rankin, 284 N.C. 219, 223, 200 S.E.2d 182, 185 (1973) and cases cited therein.

It is a fair inference from the State's evidence that the four men and one woman who occupied the green Dodge on 7 September 1976 were "friends" who had left Washington, D. C. together on a joint venture to the south. Washington was the residence of Watkins, the owner of the car, and his wife, Linda. All occupants had clothes in the trunk of the car, and they arrived together at the Red & White before Jackson opened the store.

According to all the testimony at least three of the defendants—perhaps four— went into the store. Jackson testified that while two were beating on him he heard a third person running down the aisle. Mr. Gautier, who heard the shooting and Mr. Jackson's cries for help, testified that he saw two or three people come out of the store and run to the Dodge. "When it would not crank," they jumped out and ran back around the building. The driver, however, stayed with the car, got it started, drove around the back and got the others. He then drove toward Highway 701. Mrs. Gaddy also saw Watkins drive around behind the store and pick up "three more." As the car stopped for the light at Highway 701, James Johnson could see only the driver. The other four occupants were obviously all crouched in the seat or floorboard.

When Patrolman Mason spotted a two-toned Dodge with a D.C. license on Highway 701 he could see only a man and a woman in the front seat. After he had stopped the car and had seen a knee move in the back, he discovered Haywood, Brown, and Covington lying down in the seat—an unusual posture of choice for innocent persons unaware of any reason why officers of the law would be interested in them. When the occupants of the back seat had been removed, Mason observed in plain view on the floorboard four deadly weapons: a hoe handle, two Harrington-Richardson pistols (Exhibit 2-a, of .32 caliber; Exhibit 2-b, of .22 caliber), and a .38 caliber pistol, later identified as the pistol which had been taken from Mr. Jackson. The .32 caliber pistol had been used in the robbery, for a bullet fired from it was found in the aisle. Indubitably, all the occupants of the Watkins vehicle knew of the presence of the two Harrington-Richardson pistols and the hoe handle and that they were to be used in the robbery of the Red & White grocery.

We conclude that this evidence is sufficient to support a finding that the four defendants were "friends" acting in concert, that each was aiding and abetting the others in the robbery, and that all were principals in the crimes charged. We hold, therefore, that the motion for nonsuit was properly overruled.

We next consider assignment of error No. 5 in which defendants Watkins, Brown and Covington challenge the trial judge's ruling excluding an alleged declaration against penal interest made by their codefendant Haywood.

On cross-examination defendants Watkins, Brown, and Covington sought to elicit from Lieutenant Goodwin the oral statements, and the contents of a written statement, which defendant Haywood had given the police with reference to his involvement in the robbery and shooting of Jackson. The trial judge sustained defendant Haywood's objection to this evidence, and that ruling is the basis of assignment of error No. 5.

Haywood's statement was that he had traveled from Washington, D. C. to Clinton with the other defendants; that, after arriving there, they stopped at Jackson's Red & White and he went in to rob the store; that Jackson put up such a fight he shot him and ran out.

The district attorney, conscious of the fact that the officers had obtained Haywood's confession without having warned him of his constitutional right to remain silent, did not offer his incriminating statement in evidence. The State thus avoided a confrontation with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and the cases having been consolidated, perhaps a confrontation with Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). See G.S. 15A-927(c)(1) (1973); State v. Heard and Jones, 285 N.C. 167, 203 S.E.2d 826 (1974); State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502 (1948). Here we note that when the district attorney moved to consolidate the cases for trial each defendant announced that he had no objection to the consolidation. The judge allowed the motion and thereafter no one moved for a severance at any time during the trial. G.S. 15A-927(c)(2)b.

Defendants Watkins, Brown, and Covington concede that Haywood's confession was inadmissible against him because he had not received the full Miranda warning. They assert, however, that Haywood's statement was "made voluntarily"; that "there [is] nothing to indicate his statement was not true"; that it tended to exonerate them; and that, even though its admission would have incriminated Haywood, fair play required the judge to allow the jury to hear it. Thus, they contend that they are entitled to a new trial because the statement was excluded. For the reasons hereafter stated these contentions cannot be sustained.

It is true that Haywood's sparse statement does not specifically implicate any other defendant in the armed robbery and shooting, but neither does it purport to exonerate them from complicity in those crimes. The statement does not negate the State's evidence tending to show that at the time of the robbery all the defendants were engaged in a joint enterprise, aiding and abetting each other. On the contrary, Haywood's statement is entirely consistent with the State's theory of the prosecution. Indeed, when it is considered in conjunction with the evidence relating to the weapons found in Watkins' car, the eyewitness testimony that Watkins and Brown were in the store at the time of the robbery, and the circumstances attendant upon the defendants' arrest, it appears that the likely impact of Haywood's statements, had they been admitted, would have been to bolster the State's case against all the defendants. Its exclusion, therefore, was not prejudicial. Furthermore, the trial court's ruling was clearly in accord with the decisions of this Court holding inadmissible declarations against penal interest.

For more than a century this Court, presumably fearful that a different rule would open "a door to a flood of perjured witnesses falsely testifying to confessions that were never made",^[1] has adhered to the rule that the defendant in a criminal case may not introduce in evidence a third person's extrajudicial confession that he committed the crime for which the defendant is being tried.^[2] Notwithstanding, we deem it appropriate to reevaluate these decisions in the light of developing trends in the law.

The first discussion of this rule appears in our reports in State v. May, 15 N.C. 328 (1833). In May, the defendant, Daniel May, was indicted for the larceny of a slave named Harry, who he had allegedly sold in South Carolina. At his trial the defendant attempted to prove (1) that warrants had also been issued against William May and Hardy May for the theft of the slave; (2) that when the warrants were issued William May immediately fled the State and had not returned; and (3) that William had confessed he alone had stolen the slave. The trial court excluded the proffered evidence and the defendant was convicted. Upon appeal the Supreme Court affirmed the conviction, each of its three members voting to affirm and expressing his concurring views in a separate opinion.

The consensus was that the whole of the excluded evidence was inadmissible. Chief Justice Ruffin rejected the confession as "mere hearsay . . . the words of a stranger to the parties, and not spoken on oath . . . too uncertain, and too easily fabricated falsely for the purpose of deceiving, to be relied on or acted on in a Court." Id. at 332-33. Justice Daniel opined that the "hearsay declarations of William May that he committed the crime were not on oath, nor was there any opportunity of a cross-examination. The evidence, therefore, according to the plainest principles of law, was properly rejected." Id. at 334. Justice Gaston wrote: "The criminal act imputed to the prisoner might as readily be committed by many as by one. The question of William May's guilt or innocence was not necessarily connected with that of the guilt or innocence of Daniel. Both might be guilty, or both might be innocent, and a common guilty or a common innocence was as presumable as the guilt of one only. . . . The thing to be proved must not only be relevant, but the testimony offered must be such as the law sanctions. The issuing of a State's warrant against William and the prisoner, in which William is first named, of itself is no evidence, and, unless necessary to explain or contradict something properly in evidence, ought not to have been received. . . . I am of the opinion the whole of the testimony offered in order to show the taking by William was illegal." Id. at 339.

In State v. English, 201 N.C. 295, 159 S.E. 318 (1931), Justice Brogden, speaking for the Court, stated the determinative question to be, "Is the voluntary confession of a third party, made to officer of the law, that he killed the deceased, detailing the circumstances, competent evidence in behalf of the defendant charged with the murder?" Justice Brogden noting that the "numerical weight of authority excludes such testimony"^[3] and that "the May case [supra] is the original legal patriarch of an increasing line of legal descendants in this state," answered the question No for the Court. However, in doing so, he said: "The writer of this opinion speaking for himself, strings along with the minority, but it was the duty of the trial judge to apply the law as written, and the exceptions of the defendant are not sustained." Id. at 299, 300, 159 S.E. at 320.

The last in the "line of the legal descendants" of the May case is State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977). In that case a third party, while in the State's prison, confessed that he had committed the crimes for which the two defendants were charged. A week later he gave the police a second statement which contradicted his first statement and implicated two other men. Further investigation revealed that neither of the confessions could be supported by known facts. The facts in Madden demonstrate the reasonableness of the courts' fear that the unrestricted admission of such confessions as a declaration against interest would open a spillway to a flood of perjured testimony.

When a defendant seeks to introduce a third person's extrajudicial confession as substantive evidence that he and not the defendant committed the crime, it is offered as a declaration against interest. The rules governing the admission of declarations against interest in this State are succinctly stated in 1 Stansbury's N.C. Evidence § 147 (Brandis rev. 1973) as follows: "(1) The declarant must be dead or, for some other reason, unavailable as a witness. (2) The fact stated must have been against the declarant's interest when made, and he must have been conscious that it was so. (3) The declarant must have had competent knowledge of the fact declared. (4) There must have been no probable motive for the declarant to falsify. (5) The interest must be a pecuniary or proprietary (as distinguished from a penal one), and it is on this ground that the defendant in a criminal case is not permitted to show the confession of another person."

The "orthodox rule" restricting the admissibility of declaration against interest to declarations against pecuniary or proprietary interest has been much criticized.^[4] The arguments in favor of admitting declarations against penal interest are (1) that a person's desire to avoid criminal liability is as strong as his desire to protect his economic interests and his declarations against penal interest are as trustworthy as those concerning his pocketbook, for "no other statement is so much against interest as a confession of murder"; (2) that since a conviction of crime ordinarily results in an economic loss, the traditional concept of a pecuniary interest could logically include one's penal interest; and (3) that it is a "barbarous doctrine" which would permit manifest injustice by not allowing an innocent accused to vindicate himself by introducing evidence of a third person's confession that he was the true culprit.^[5]

The United States Supreme Court addressed the admissibility of declarations against penal interest in Chambers v. Mississippi, 410 U.S. 284, 300, 93 S. Ct. 1038, 1047, 35 L. Ed. 2d 297, 311 (1973). Mr. Justice Powell, writing the majority opinion, described the exclusion of the declaration against penal interest while admitting declarations against pecuniary interests, as a "materialistic limitation."

In Chambers, the defendant was tried for the murder of a policeman who had been shot with a .22 caliber pistol. The State's evidence excluded the theory that more than one person participated in the shooting of the officer. At the trial "Chambers called one McDonald as a witness, laid a predicate for the introduction of his sworn out-of-court confession [which McDonald had given Chambers' attorney], had it admitted into evidence and read it to the jury." Upon cross-examination the State elicited from McDonald the fact that he had repudiated his confession. McDonald further testified, as he had done at his preliminary hearing, that he did not shoot the officer and that he had confessed only because an acquaintance, "Reverend Stokes," had promised him he would not go to jail and would share in the proceeds of a lawsuit which Chambers would bring against the town. McDonald denied the shooting and asserted that he was not at the scene but in a cafe down the street when the officer was shot.

Thereafter the trial judge (1) denied Chambers' motion that he be allowed to cross-examine McDonald as a hostile witness and (2) sustained the State's objection when Chambers attempted to introduce the declarations McDonald had made to three of his friends that he was the man who had shot the policeman. On appeal the Supreme Court held that Chambers had been denied due process by the trial judge's refusal (1) to permit him to cross-examine McDonald in order to test his recollection, to probe into the details of his alibi, or to "sift" his conscience so that the jury might decide for itself whether McDonald's testimony was worthy of belief; and (2) to allow in evidence the extrajudicial declarations which McDonald had made to three of his close friends that he was the man who had shot the officer.

Justice Powell emphasized the fact that the rejected hearsay statements bore persuasive assurances of trustworthiness and thus were well within the basic rationale of the exception for declarations against interest: "First, each of McDonald's confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case—McDonald's sworn confession, the testimony of an eyewitness to the shooting, and proof of his prior ownership of a .22 caliber revolver and subsequent purchase of a new weapon. The sheer number of independent confessions provided additional corroboration for each. Third, whatever may be the parameters of the penal interest rationale, each confession is in a very real sense self-incriminatory and unquestionably against interest."

The Supreme Court concluded that the result of the trial judge's exclusion of McDonald's declarations against his interest ("critical evidence"), coupled with his refusal to permit Chambers to cross-examine McDonald, was a denial of due process which entitled Chambers to a trial de novo. However, the Supreme Court carefully hedged the impact of its decision by the following statement: "In reaching this judgment, we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.^[6] Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial." Id. at 303, 93 S. Ct. 1049, 35 L. Ed. 2d 313.

Obviously the factual situation in Chambers v. Mississippi, is not comparable to that of the instant case, in which no constitutional issues are raised. However, any reconsideration of the admissibility of declarations against penal interest must take Chambers v. Mississippi into account. As limited by the facts, a number of courts have accepted "the Chambers rule" into their evidentiary common law.^[7]

Chambers aside, the recent trend among the states has clearly been to admit declarations against penal interest although there is a lack of uniformity with reference to the conditions under which such declarations are admitted.^[8] As stated in a thoroughgoing note, Declarations Against Penal Interest: Standards of Admissibility Under an Emerging Majority Rule, 56 Boston U.L. Rev. 148 (1976). "[t]he rule excluding declarations against penal interest has gradually eroded, and the number of states holding such declarations admissible has increased dramatically in recent years." Id. at 149. "The legislatures of seven states have adopted rules of evidence that permit the introduction into evidence of declarations against penal interest.^[9] . . . The courts of 14 states have held declarations against penal interest admissible without legislative authorization.^[10] . . . In addition the courts of [two states] have indicated a willingness to adopt the rule if presented with an appropriate case."^[11]

Furthermore Section 804(b)(3) of the Federal Rules of Evidence (28 U.S.C.A. Appendix, Rules of Evidence, effective 1 July 1975) provides that if the declarant is unavailable as a witness "[a] statement [is admissible] which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." If the declarant "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement," Rule 804(a)(1) declares him unavailable as a witness.

In the explanatory comment on Rule 804(b)(3) in S. Saltzburg and K. Redden, Federal Rules of Evidence Manual (2d ed. 1977), the editors emphasize the rule's requirement that if the criminal defendant offers evidence of a declaration against interest to exculpate himself, corroborating circumstances must clearly indicate the trustworthiness of the statements. This requirement, they say, "is apparently an attempt to respond to the problem of one criminal with very little to lose trying to exculpate another," and they note that the cases interpreting this rule indicate "more than minimal corroboration is required." Id. at 602-603. See United States v. Bagley, 537 F.2d 162, 34 A.L.R.Fed. 403 (5th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 816, 50 L. Ed. 2d 794 (1977); Annot., 34 A.L.R.Fed. 412 (1976).

Most courts, in admitting declarations against penal interest, have recognized that their unrestricted admission "would be an open invitation to perjury of a kind that would be most difficult to ascertain.^[12] Thus, with few exceptions,^[13] they have circumscribed the admission of such declarations with specific safeguards calculated to protect the interest of the State while affording the defendant "essential justice and common fairness." In general, more proof is required than the mere fact that another person has confessed to the same crime for which the defendant stands charged, and— as with other exceptions to the hearsay exclusionary rule—"the trial judge [on voir dire] must apply a threshold test" to determine "in his sound discretion" whether the declaration "bears the indicia of trustworthiness."^[14]

Courts have selected various evidentiary criteria for determining the trustworthiness of an unavailable declarant's statement against penal interest. (See Note, 56 Boston L.Rev., supra at 158-180, where the cases are collected and analyzed.) There is general agreement, however, that to be competent evidence the declaration must be an admission of an unlawful act which is inherently inconsistent with the guilt of the accused. It must have had the potential of actually jeopardizing the personal liberty of the declarant at the time it was made, and the declarant must have understood the damaging potential of his statement. The statement must have been voluntary and there must have been no probable motive for the declarant to falsify. Further, it must be shown that the declarant was in a position to have committed the crime to which he purportedly confessed.^[15]

In addition to the foregoing requirements a significant number of courts impose a corroboration requirement as a prerequisite to admissibility.^[16] For example, the Minnesota Supreme Court said in State v. Higginbotham that declarations against penal interest must be "proved trustworthy by independent corroborating evidence that bespeaks reliability." In State v. Gardner the requirement was "corroborating facts and circumstances surrounding the making of the declaration [which] clearly indicate that it has a high probability of trustworthiness." The rule in Idaho, as stated in State v. Larsen, is that an extrajudicial confession of a third party is admissible "only when there is other substantial evidence which tends to show clearly that the declarant is, in fact, the person guilty of the crime for which the accused is on trial."

In every case the precise application of the standards of reliability must be left to the discretion of the trial judge who, on voir dire, will weigh all the evidence and thereafter admit the declaration only if he determines there is a reasonable possibility that the declarant did indeed commit the crime. It was pointed out in Pitts v. State, 307 So. 2d 473 (Fla.App.), cert. dismissed, 423 U.S. 918, 96 S. Ct. 302, 46 L. Ed. 2d 273 (1975), that "it would be imperative that broad discretion be afforded the trial judge in determining the reliability of the declaration and the declarant by consideration of such factors as spontaneity, relationship between the accused and the declarant, existence of corroborative evidence, whether or not the declaration had been subsequently repudiated and whether or not the declaration was in fact against the penal interests of the declarant. As an example, an ``admission' by one who had already admitted or been convicted of other similar crimes could hardly be said to be against his penal interests." Id. 484-485. (Nor would a declarant's out-of-court confession be against penal interest if he had been either convicted or acquitted of the crime.)

As earlier noted, this Court has not heretofore considered the admissibility of declarations against penal interest in light of the modern trend and the respectable arguments for their admission under appropriate safeguards. Having done so, we now conclude that it is in the best interests of the administration of justice that declarations against penal interest be admitted under the following conditions.^[17]

(1) The declarant must be dead; beyond the jurisdiction of the court and the reach of its process; suffering from infirmities of body or mind which preclude his appearance as a witness either by personal presence or by deposition; or exempt by ruling of the court from testifying on the ground of self-incrimination. As a further condition of admissibility, in an appropriate case, the party offering the declaration must show that he has made a good-faith effort to secure the attendance of the declarant.

(2) The declaration must be an admission that the declarant committed the crime for which defendant is on trial, and the admission must be inconsistent with the guilt of the defendant.

(3) The declaration must have had the potential of actually jeopardizing the personal liberty of the declarant at the time it was made and he must have understood the damaging potential of his statement.

(4) The declarant must have been in a position to have committed the crime to which he purportedly confessed.

(5) The declaration must have been voluntary.

(6) There must have been no probable motive for the declarant to falsify at the time he made the incriminating statement.

(7) The facts and circumstances surrounding the commission of the crime and the making of the declaration must corroborate the declaration and indicate the probability of trustworthiness.

The admissibility of a declaration against penal interest will be determined by the trial judge upon a voir dire out of the presence of the jury.

Assignments of error numbered 7 through 14 relate to the charge. Defendants contend, inter alia, that the trial judge, by "innuendo and language pushed the jury to a verdict against all four defendants"; that "the Court never realistically gave the jury the opportunity to convict less than all of the defendants and acquit one or more of the defendants"; and that he erred in failing to submit to the jury the issues of defendants' guilt of the lesser included offenses of common-law robbery and accessory after the fact to the robbery and assault. We find no merit in these contentions and no prejudicial error in the charge.

First, there is no suggestion in the charge that the judge intimated to the jury that it should find any or all of the defendants guilty. On the contrary, in a separate mandate relating to each charge and each defendant individually the judge "declared and explained the law arising on the evidence" as required by G.S. 1-180 (1966). The jury were instructed that the State must prove beyond a reasonable doubt the guilt of the named defendant or acquit "that defendant." The jury could not have understood from the court's charge that if they found one defendant guilty they would have to find all four guilty. See State v. Tomblin, 276 N.C. 273, 171 S.E.2d 901 (1970).

As to the charge of common-law robbery and accessory after the fact, the rule is that the necessity for instructing the jury as to an included crime of lesser degree than that charged arises only when there is evidence from which the jury could find that the included crime of lesser degree had been committed. State v. Griffin, 280 N.C. 142, 185 S.E.2d 149 (1971); State v. Carnes, 279 N.C. 549, 184 S.E.2d 235 (1971). That rule is applicable to this case, the record in which contains no evidence of common-law robbery. All the evidence tends to show that the robbery at Jackson's Red & White Grocery was a robbery with firearms. Likewise the uncontradicted evidence of the State (which is all the evidence) tends to show that the defendants, four of the five occupants of the Watkins automobile who had traveled together during the preceding night from Washington, D. C., to Clinton, had conspired to rob the grocery and that those who did not go into the store were outside, standing by to assist those who had entered. (The defendants' brief tells us that the female occupant, Mrs. Watkins, removed herself from this case by a plea of common-law robbery.)

Defendants' remaining assignments of error, Nos. 1, 2, 3, 4, and 6, relate to the trial judge's rulings upon objections to evidence which was either competent or so inconsequential that any discussion would be good-for-nothing. These assignments are overruled.

In the trial we find

No Error.

BRITT, J., took no part in the consideration or decision of this case.

NOTES

[1] C. McCormick, Evidence § 255, 549-50 (1954).

[2] 1 Stansbury, N.C.Evidence § 247 at 495 and cases cited in n.57 (Brandis rev. 1973). See Annot., 35 A.L.R. 441 (1925); Annot., 48 A.L.R. 348 (1927).

[3] See Annot., Admissibility, as against interest, of declarations of commission of criminal act, 162 A.L.R. 446 (1946). See also Annot., Extrajudicial declaration of commission of criminal act as admissible in evidence where declarant is a witness or available to testify, 167 A.L.R. 394 (1947). 29 Am.Jur.2d Evidence § 620 (1967); 39 Fordham L.Rev. 136, 138 (1970); 56 Boston U.L.Rev. 148, 151 (1977); 22A C.J.S. Criminal Law § 749 (1961).

[4] See Holmes, J., dissenting in Donnelly v. United States, 228 U.S. 243, 277-78, 33 S. Ct. 449, 461, 57 L. Ed. 820, 834 (1913); People v. Spriggs, 60 Cal. 2d 868, 36 Cal. Rptr. 841, 389 P.2d 377 (1964); People v. Edwards, 396 Mich. 551, 242 N.W.2d 739 (1976); People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16, 43 A.L.R. 3d 1407 (1970); Howard v. Jessup, 519 P.2d 913 (Okl.1973); Hines v. Commonwealth of Virginia, 136 Va. 728, 117 S.E. 843, 35 A.L.R. 431 (1923); 1 Stansbury, N.C. Evidence, § 147 at 495; C. McCormick, Evidence § 255 (1954); 5 Wigmore on Evidence § 1477, p. 360 (Chadbourn rev. 1940); L. Powers, The North Carolina Hearsay Rule and the Uniform Rules of Evidence, 34 N.C.L.Rev. 171, 197-198 (1956).

[5] In People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488 (1952), the defendant's conviction was based solely upon his repudiated confession, which did not conform in material respects to the known facts. After noting the danger of perjury inherent in out-of-court confessions, the Supreme Court awarded a new trial because, inter alia, the trial judge had excluded a third person's declaration that he had committed the crime. The Court said, "The rule is sound and should not be departed from except in cases where it is obvious that justice demands a departure. But it would be absurd, and shocking to all sense of justice, to indiscriminately apply such a rule to prevent one accused of a crime from showing that another person was the real culprit merely because that other person was deceased, insane or outside the jurisdiction of the court." Id. at 178, 108 N.E.2d at 492.

[6] For comments on this statement see Pitts v. State, 307 So. 2d 473 (Fla.App.1975); Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974).

[7] In State v. Gardner, 13 Wash.App. 194, 198-199, 534 P.2d 140, 142 (1975), the "Chambers Rule" is stated as follows:

"The minimal evidentiary criteria which must be met before any declaration can be considered as rising to constitutional stature are these: (1) the declarant's testimony is otherwise unavailable; (2) the declaration is an admission of an unlawful act; (3) the declaration is inherently inconsistent with the guilt of the accused; and (4) there are such corroborating facts and circumstances surrounding the making of the declaration as to clearly indicate that it has a high probability of trustworthiness."

[8] Note, 39 Fordham L.Rev. 136, 139 (1970). See State v. Larsen, 91 Idaho 42, 47, 415 P.2d 685, 691-692 (1966), for a succinct discussion of the trial and informative array of the cases.

[9] 56 Boston L.Rev. 148, 149, n. 5 (1976) (California, Kansas, Nevada, New Mexico, Wisconsin, New Jersey, Utah).

[10] Id., Arizona, Hawaii, Idaho, Illinois, Maryland, Minnesota, Missouri, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Virginia.

[11] Id., Maine and Washington.

[12] See e. g., State v. Gervais, 317 A.2d 796 (Me.1974); People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488 (1952); State v. Larsen, 91 Idaho 42, 415 P.2d 685 (1966).

[13] People v. Spriggs, 60 Cal. 2d 868, 36 Cal. Rptr. 841, 389 P.2d 377 (1964); Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318 (1950); Hines v. Commonwealth, 136 Va. 728, 117 S.E. 843, 35 A.L.R. 431 (1923); Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (1945) (civil case); People v. Edwards, 396 Mich. 551, 242 N.W.2d 739 (1976).

[14] State v. Higginbotham, 298 Minn. 2, 4-5, 212 N.W.2d 881, 883 (1973); Brady v. State, 226 Md. 422, 174 A.2d 167 (1961), affirmed, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); See State v. Gervais, 317 A.2d 796, 803 (Me. 1974); See also Pitts v. State, 307 So. 2d 473 (Fla.App.), cert. dismissed, 423 U.S. 918, 96 S. Ct. 302, 46 L. Ed. 2d 273 (1975).

[15] See, e. g., Cameron v. State, 153 Tex. Crim. 29, 31, 217 S.W.2d 23, 24 (1949); State v. Gardner, 13 Wash.App. 194, 198-199, 534 P.2d 140, 142 (1975); Mason v. United States, 257 F.2d 359 (10th Cir. 1958); Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769 (Tenn.1975).

[16] See 56 Boston L.Rev. at 172-177.

[17] For a similar review and action see Breeden v. Independent Fire Ins. Co., 530 S.W.2d 769 (Tenn.1975).