State v. Bentley , 1 N.C. App. 365 ( 1968 )

161 S.E.2d 650 (1968) 1 N.C. App. 365

STATE of North Carolina
v.
Steven Douglas BENTLEY.

No. 68SC44.

Court of Appeals of North Carolina.

June 12, 1968.

T. W. Bruton, Atty. Gen., by Bernard A. Harrell, Asst. Atty. Gen., for the State.

Don Davis, Charlotte, for defendant appellant.

MORRIS, Judge.

Defendant assigns as error the court's ruling that his out-of-court statements to police officers at the police station were voluntarily made.

The record discloses that when the State attempted to introduce a standard police waiver form signed by the defendant acknowledging that he had been properly advised of his constitutional rights before interrogation, objection was made by defendant's counsel. Counsel then requested that the voluntariness of defendant's statements be determined on voir dire. The trial judge excused the jury and heard evidence bearing directly on the question of whether the defendant's statements to the police were voluntary. At the conclusion of this evidence he found the following facts: That defendant had been fully advised of his constitutional rights; that statements made to the police were freely and voluntarily made after having been warned of his rights to remain silent, the fact that any statement might be used against him, his right to counsel and that the State would appoint counsel if he could not afford one, and of his right to discontinue giving information at any point without presence of counsel.

The findings of fact by the trial court upon the voir dire as to the voluntariness of defendant's statements are conclusive on review if supported by competent evidence. State v. Childs, 269 N.C. 307, 152 S.E.2d 453. Whether such facts support the conclusions of the court as to voluntariness is a question of law reviewable on appeal. State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68. The trial court properly excused the jury and heard evidence on voir dire as to whether defendant's statements were voluntary, giving defendant opportunity to testify and offer evidence. We have carefully reviewed the testimony taken on voir dire and find that there was ample competent evidence to support the findings of fact made by the trial judge and we further find that these findings of fact support the conclusion of the court that defendant's statements were voluntarily made.

Defendant contends that the jury was permitted to view the waiver form and that this was prejudicial error. There is nothing in the record to indicate that the jury was handed this document. No objection or exception was made. This Court will not consider questions not properly presented by objection in the record and exceptions duly entered. This assignment of error is overruled.

Defendant's assignment of error no. 2 is taken to the action of the trial judge in allowing the State to recall Sergeant Lewis E. Robinson of the Mecklenburg County Police Department to give additional evidence after he had previously testified. Defendant contends that this action was so highly irregular and prejudicial to him as to require a new trial.

This Court stated in State v. Brown, 1 N.C.App. 145, 160 S.E.2d 508, that the trial judge has wide discretionary power with respect to the introduction of further evidence at the trial. In Brown, supra, the question involved the introduction of additional evidence after both the State and the defendant had concluded their arguments to the jury. There, we held the trial judge acted within the limits of his discretion in allowing the evidence to be introduced. We see no abuse of discretion in the instant case wherein the trial judge before arguments of counsel to the jury, permitted the recalling of the same witness.

Defendant's assignment of error no. 3 is taken to the argument of the solicitor to the jury when he said, "The defendant Bentley was out there robbing Mr. Mundy * * *."

"Arguments to a jury should be fair and based on the evidence or on that which may be properly inferred from the case. This is said in 88 C.J.S. Trial § 169, at 337-338: ``However, the liberty of argument must not degenerate into license, and the trial judge should not permit counsel in his argument to indulge in vulgarities; he should, therefore, refrain from abusive, vituperative, and opprobrious language, or from indulging in invectives, or from making any statements or reflections which have no place in argument but are only calculated to cause prejudice.'" State v. Miller, 271 N.C. 646, 157 S.E.2d 335.

We feel, however, that under the facts of this case the remark by the solicitor in his argument as above quoted was not so grossly unfair as to mislead and prejudice the jury. The general tenor of the trial reflects that this was merely a "slip of the tongue" and not such unfairness as to warrant a new trial.

Defendant assigns as error the failure of the court to appoint counsel to represent him at his preliminary hearing.

Parker, C. J., in an exhaustive opinion, held in the case of Gasque v. State, 271 N.C. 323, 156 S.E.2d 740, that a preliminary hearing is not prerequisite to the finding of an indictment in this State nor a critical stage of the proceeding, and a defendant may waive the hearing and consent to be bound over to the superior court to await grand jury action without forfeiting any defense or right available to him; therefore, the denial of defendant's request for counsel at the hearing does not deprive defendant of any constitutional right. We cannot see how the facts of this case come outside the rule set out in Gasque, supra. This assignment of error is overruled.

All other assignments of error have been carefully considered and are overruled. The evidence offered by the State is amply sufficient to support the verdict. In the trial below we find

No error.

CAMPBELL and BRITT, JJ., concur.