State v. McKethan

152 S.E.2d 341 (1967) 269 N.C. 81

STATE
v.
David McKETHAN.

No. 679.

Supreme Court of North Carolina.

January 2, 1967.

T. W. Bruton, Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., for the State.

Bobby G. Deaver, Fayetteville, for defendant appellant.

HIGGINS, Justice.

The appellant's assignments of error on the appeal present three questions of law: (1) Did the court commit error by denying the motion for a change of venue? (2) Did the court commit error by denying defendant's motions for a new trial for that (a) Police Officer Studer stated the photograph by which the prosecuting witness identified the defendant was taken from the group section designated, "Rape"; and (b) Deputy Sheriff Snipes, in answer to a question by defense attorney, said, "Yes, sir, I have had David for other sex offenses?" (3) Did the court commit error by admitting the incriminating statement given to Officer Snipes by the defendant after his arrest?

The defendant's motion for a change of venue on the ground of unfavorable publicity was addressed to the sound discretion of the court. The court made inquiry and concluded no reason was made to appear why a fair jury could not be selected from Cumberland County. Careful instructions were given the jury not to read or hear accounts of the trial. A motion for a change of venue or for a special venire from another county, upon the ground of unfavorable publicity, is addressed to the sound discretion of the trial court. State v. Scales, 242 N.C. 400, 87 S.E.2d 916; State v. Godwin, 216 N.C. 49, 3 S.E.2d 347; State v. Lea, 203 N.C. 13, 164 S.E. 737.

A challenge to the poll (to each prospective juror) may be peremptory within the limits allowed by law, or for cause without limit if cause is shown. The record fails to disclose that the defendant had exhausted his peremptory challenges, or that any juror was accepted to which he had legal objection upon any ground. State v. Rorie, 258 N.C. 162, 128 S.E.2d 229; State v. Corl, 250 N.C. 258, 108 S.E.2d 615. A defendant on trial has the right to reject any juror for cause or within the limits of his peremptory challenges before the panel is completed. State v. Walls, 211 N.C. 487, 191 S.E. 232; appeal dismissed, 302 U.S. 635, 58 S. Ct. 18, 82 L. Ed. 494.

The defendant has assigned as error the court's refusal to withdraw a juror and order a mistrial because of two occurrences during the presentation of the State's case. After Miss Fendall had identified the photograph of the defendant from the police files, the solicitor asked the officer what designation in the police files the photograph came from. There was neither objection to the question nor to the source of the photographs. The officer answered, "Rape." Counsel then objected and the court sustained the objection. Defense counsel did not object until after the question had been asked and the answer was in. He did not move to strike. The solicitor's question was improper. The court sustained the objection as soon as the court had opportunity, and without waiting for a motion. Ordinarily failure to object in apt time to incompetent testimony will be regarded as waiver of objection and its admission is not assignable as error unless the evidence is forbidden by statute. State v. Warren, 236 N.C. 358, 72 S.E.2d 763 (citing many cases). If the testimony is incompetent, objection thereto should have been interposed to the question at the time it was asked as well as to the answer when given. Objection not taken in apt time is waived. State v. Hunt, 223 N.C. 173, 25 S.E.2d 598; State v. Merrick, 172 N.C. 870, 90 S.E. 257. The court had no opportunity to rule on the motion to strike because no such motion was made.

As a second ground for a mistrial, defendant cites the defense counsel's question and Officer Studer's answer as here given: Question: Did you know David McKethan prior * * * to this incident? The officer answered, "Yes, sir. I have had David for other sex offenses." Defense counsel moved to strike and that the jury be instructed to disregard the statement. The court excused the jury and in its absence made inquiry of the officer as to what he meant by the statement. The officer said he had made an investigation of the complaint against the defendant but that the parents of the child and the father of the defendant settled the dispute without any criminal charge against the defendant. The court offered to permit defense counsel to have the witness give the foregoing explanation. Counsel elected not to offer the explanation; whereupon the judge recalled the jury and gave the charge heretofore quoted.

The final assignment of error involves the admissibility of the confession signed, sworn to, and admitted in evidence over the defendant's objection. When the statement was offered and challenged, the court excused the jury and in its absence followed the procedure approved in this state, heard evidence, both for the defendant and for the State, involving the circumstances under which the statement was made. State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Keith, 266 N.C. 263, 145 S.E.2d 841; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344.

The defendant testified on the voir dire (and later before the jury) that he spent the entire night of September 14-15 in the home of his aunt. According to his testimony he was not involved in any attack on Miss Fendall; that he was not advised of any constitutional rights. He further testified the officers took his clothes and continued the interrogation while he put on other clothes which the officers furnished him. He signed a one-page paper which provided for a lie detector test and a head examination; that he can read and has a tenth grade education.

The officers testified they found the defendant in bed at the home of his aunt early on the morning of September 15. The bottoms of his trousers and his shoes were wet. He was taken to the interrogation room, fully advised of all his rights to remain silent, to refuse to answer questions; that if he made a statement it might be used against him in court; that he was entitled to call a lawyer, or if he was unable to employ one the court would provide one for him; that his father and mother would be called if he wanted to see them. They required him to change his clothes in order that those he wore might be sent to the technical laboratory for examination of what appeared to be splotches or bloodstains. However, the tests made at the laboratory were negative. The officers testified the defendant admitted he had intercourse with the prosecuting witness in the front seat of the automobile after he had the fight with her companion who had fled, and that she did not consent. He admitted that when he returned to the automobile after chasing Hanson into the woods that the girl asked him if he was going to drive off some place and kill her.

The signed statement, among other admissions, contained the following: "I, David McKethan, have read this statement which begins on page one and ends on page 3. * * * The statement was made by me freely, without hope or benefit of reward, without threat of punishment and without coercion, undue influence or inducement." Pages one and two contained his initials, which he denied. The bottom of page 3 contained his signature, which he admitted.

The objection to the foregoing statement is based on grounds different from that usually assigned. While the defendant states that he was interrogated in the absence of counsel and members of his family, and while his clothing was being removed and changed, yet he contends and has testified both at the voir dire and at the trial that he never made any incriminating admissions at any time. He admitted he signed page 3, but it provided for a lie detector test and head examination, and nothing more; so that according to his contention and testimony, both on the preliminary investigation and on the trial, he never made any incriminating admissions, and, therefore, he does not rely on coercion or undue influence, but upon the theory that the officers substituted a different paper for the one he actually signed. In his testimony he does not say or contend he was put in fear, or the failure to have an attorney, or any other reason caused him to make any incriminating statements. He has contended he spent the entire night at the home of his aunt and did not go to Pope Park, and knew nothing about any assault on Miss Fendall. Three officers testified David told the story as it was recorded in the paper which he signed.

On the basis of the evidence of which the foregoing is its material substance, Judge Carr, on the voir dire, found the statement was freely, voluntarily, and understandably made, and, hence, admissible in evidence. The evidence supports the finding.

The case was tried on February 7, 1966. Judge Carr's decision on the admissibility of the statement is sustained by our decisions. State v. Walker, supra; State v. Keith, supra; State v. Barnes, supra; State v. Elam, 263 N.C. 273, 139 S.E.2d 601. Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and other cases are not in conflict with this decision as we understand them. The rule stated in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, decided June 13, 1966, is not applicable to this case which was tried four months earlier. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882.

Other matters discussed in defendant's brief, while not overlooked, are not of sufficient moment to require discussion. After full review, we conclude the defendant has had a fair trial, before a careful, painstaking, and impartial judge. The record discloses

No error.