State v. Edwards

163 S.E.2d 767 (1968) 274 N.C. 431

STATE
v.
James Joseph EDWARDS.

No. 821.

Supreme Court of North Carolina.

October 30, 1968.

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

W. Harold Edwards, Chapel Hill, for Defendant.

BRANCH, Justice.

Defendant contends that the court erred in admitting his alleged confession without first conducting a voir dire examination.

In the case of State v. Gray, 268 N.C. 69, 150 S.E.2d 1, it is stated:

"When the State proposes to offer in evidence the defendant's confession or admission, and the defendant objects, the proper procedure is for the trial judge to excuse the jury and, in its absence, hear the evidence, both that of the State and that of the defendant, upon the question of the voluntariness of the statement. In the light of such evidence and of his observation of the demeanor of the witnesses, the judge must resolve the question of whether the defendant, if he made the statement, made it vountarily and with understanding. [Citations omitted.] The trial judge should make findings of fact with reference to this question and incorporate those findings in the record. Such findings of fact, so made by the trial judge, are conclusive if they are supported by competent evidence in the record."

Accord: State v. Barber, 268 N.C. 509, 151 S.E.2d 51; State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68; State v. Inman, 269 N.C. 287, 152 S.E.2d 192; State v. Ross, 269 N.C. 739, 153 S.E.2d 469; State v. Barber, 270 N.C. 222, 154 S.E.2d 104; State v. Fuller, 270 N.C. 710, 155 S.E.2d 286; State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Greenlee, 272 N.C. 651, 159 S.E.2d 22; State v. Pike, 273 N.C. 102, 159 S.E.2d 334; State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868.

A general objection is sufficient to challenge the admission of a proffered confession if timely made. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481.

From a cursory examination of the record in the instant case it would seem that objection was made to a preliminary question and therefore not properly made. However, we deem it necessary to examine it with more care in order to determine whether the objection was sufficient to require the trial judge to conduct a voir dire examination.

It is stated in Stansbury, North Carolina Evidence, § 27, at 51 (2d Ed. 1963): "An objection must be made in apt time, that is, as soon as the opponent has the opportunity to learn that the evidence is objectionable * * * Unless prompt objection is made, the opponent will be held to have waived it." (Emphasis ours)

In 6 Jones' Commentaries on Evidence, § 2518, at 4980 (2d Ed. 1926), we find the following:

"If a ground of objection is known and apparent, the objection should be immediate; * * * The practice of permitting a question to be answered without objection, and, if perchance the answer is unfavorable, then to object to both question and answer, is not proper or fair practice. It permits a party to speculate on the chances of a favorable answer before committing itself against the question."

A preliminary question to a witness is not usually open to objection, 2 Conrad, Modern Trial Evidence, § 1223, at 370; Kersey v. State, 73 Fla. 832, 74 So. 983, and ordinarily objection must be interposed when evidence is offered and received. State v. Hunt, 223 N.C. 173, 25 S.E.2d 598. In instant case the questions posed by the solicitor related to whether statements were made to the officers by defendant, and were immediately followed by defendant's objections. These objections were thereupon overruled. The affirmative answer to the question was expanded by the witness so as to volunteer the content of defendant's alleged confession. No other question was interposed to which defendant could object before the affirmative answer and volunteered testimony as to confession were given. The questions, objections, and answers all related to defendant's alleged confession. It is apparent to us that defendant's objection was directed to the damaging effect of an involuntary confession, rather than to the preliminary question of whether he had made statements to the officers. The objection was not late so as to allow defendant to choose between the favorable and unfavorable answer. The objection was immediately made when it became apparent that a confession was about to be offered, and was in time to have alerted the court to forthcoming proffer of confession by the State.

While we recognize and reaffirm the general rule that unless an objection is made at the proper time it is waived, State v. Bryant, 235 N.C. 420, 70 S.E.2d 186; State v. Hunt, supra, in our judgment it would be too strict and narrow a construction of the rule to hold that particular facts of this case show that objection was not properly and timely made.

Thus, upon defendant's objection the trial court should have excused the jury and in its absence heard the evidence of both the State and defendant and resolved the question of the voluntariness of the statement. The court should have then made findings of fact on this question and incorporated them into the record. State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Gray, supra.

Since there must be a new trial, we do not deem it necessary to consider defendant's other assignments of error.

New Trial.