State v. Carter , 268 N.C. 648 ( 1966 )

151 S.E.2d 602 (1966) 268 N.C. 648

STATE
v.
Ozie CARTER.
STATE
v.
Richard William TOYER.

Nos. 579, 580.

Supreme Court of North Carolina.

December 14, 1966.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Millard R. Rich, Jr., for the State in Case No. 579.

Albert A. Corbett, Smithfield, for defendant appellant, Carter.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. James F. Bullock for the State in Case No. 580.

Spence & Mast, Smithfield, for defendant appellant, Toyer.

LAKE, Justice.

Prior to his testimony with reference to the statement made to him by each defendant, the witness Emerson testified concerning his interrogation procedure and the warnings given by him to that defendant concerning his rights. As to each defendant, he testified that he first identified himself as a special agent with the State Bureau of Investigation, and then told the defendant that he did not have to answer any question or make any statement whatsoever, that anything he did say could be used against him in a court, that he was entitled to a lawyer at any time he so desired and had the right to have an attorney of his own choice present before he answered any question. There is nothing in the record of either appeal to suggest any force, threat, intimidation, promise or hope of reward inducing any of these statements. No defendant testified concerning his interrogation by Emerson or any other officer.

There is, therefore, nothing in the record on either appeal to suggest that any of these statements was incompetent evidence, per se. State v. Gray, 268 N.C. 69, 150 S.E.2d 1. This trial having occurred prior to the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, the statements by Mr. Emerson to the respective defendants, concerning their constitutional rights, complied with the applicable interpretation by the Supreme Court of the United States of the Fourteenth Amendment to the Constitution of the United States.

There was, however, error in conducting the preliminary inquiry, concerning the statement by Carter, in the presence of the jury, and there was also error in the court's announcement, in the presence of the jury of its findings with reference to the statements of the several defendants. The defendants having objected to evidence concerning the alleged confessions, and having requested the court to make inquiry in the absence of the jury concerning the admissibility of these statements, the court should have sent the jury out and, in its absence, inquired into the circumstances under which the statements were given, so as to determine whether or not they were voluntary. Upon such inquiry, the court should have made its findings of fact, concerning the admissibility of the proposed testimony relating to the alleged confessions, in the absence of the jury. State v. Barber, N.C., 151 S.E.2d 51; State v. Gray, supra; State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344.

The finding by the court, in the presence of the jury, that a statement, said to have been made by the defendant, was made voluntarily is the expression of an opinion by the court that the statement was made. See State v. Walker, supra. Whether the statement was or was not made is a question for the jury. State v. Gray, supra. The expression by the court in the presence of the jury of an opinion concerning a fact to be found by the jury is forbidden by G.S. § 1-180.

The learned trial judge, having slipped inadvertently into this error in announcing, in the presence of the jury, his finding that the statements by the four defendants were voluntary, sought to correct the error, and to remove its prejudicial effect, by instructing the jury that the statement had been made by him inadvertently and that they were not to consider it. This Court has said, however, many times that once the trial judge has given, in the presence of the jury, the slightest intimation, directly or indirectly, of his opinion concerning a fact to be found by the jury or concerning the credibility of testimony given by a witness, such error can not be corrected by instructing the jury not to consider the expression by the court. State v. Canipe, 240 N.C. 60, 81 S.E.2d 173; State v. Bryant, 189 N.C. 112, 126 S.E. 107; Morris v. Kramer Bros. Co., 182 N.C. 87, 108 S.E. 381; State v. Cook, 162 N.C. 586, 77 S.E. 759; State v. Dick, 60 N.C. 440. As Ervin, J., speaking for the Court, said in State v. Canipe, supra:

"The judge occupies an exalted station, and jurors entertain a profound respect for his opinion. [Citation.] As a consequence, the judge prejudices a party or his cause in the minds of the trial jurors whenever he violates the statute by expressing an adverse opinion on the facts. When this occurs, it is virtually impossible for the judge to remove the prejudicial impression from the minds of the trial jurors by anything which he may afterwards say to them by way of atonement or explanation."

This is especially true where, as here, the presiding judge is one who is well known throughout the State, and so presumably to the jurors, as a result of a long career of distinguished service upon the Bench.

This inadvertent expression of the opinion that the witness for the State had correctly recounted statements made to him by the defendants was prejudicial to both of the appellants, and each of them must, on this account, be granted a new trial.

During his testimony, Mr. Emerson referred to notes of his conversations with the defendants for the purpose of refreshing his recollection. Counsel for Toyer, in the course of his cross examination of this witness, requested permission to examine these notes. Upon objection by the State, the court refused him permission to examine them. This was error as to the defendant Toyer. Stansbury, North Carolina Evidence, § 32.

There was no error in the consolidation of the four cases for trial. State v. Bryant, 250 N.C. 113, 108 S.E.2d 128. However, for the reasons above mentioned, each of these appellants is entitled to a new trial.

As to the Defendant Carter, Case No. 579, New Trial.

As to the Defendant Toyer, Case No. 580, New Trial.