State v. Aaron

225 S.E.2d 117 (1976) 29 N.C. App. 582

STATE of North Carolina
v.
Kenneth T. AARON.

No. 765SC122.

Court of Appeals of North Carolina.

June 2, 1976.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Patricia H. Wagner, Raleigh, for the State.

Harold P. Laing, Wilmington, for defendant-appellant.

ARNOLD, Judge.

There is no basis for defendant's contention that the trial court committed prejudicial error in not conducting a voir dire examination to determine the validity of the search of his automobile. The record clearly establishes that defendant freely and intelligently and without coercion consented to the search. See State v. Dooley, 20 N.C.App. 85, 200 S.E.2d 818 (1973). A search warrant is not necessary to validate a search of an automobile where the owner and operator consents to the search. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971); State v. Lindquist, 14 N.C.App. 361, 188 S.E.2d 686 (1972).

Defendant next contends that his confession was improperly admitted into evidence because his arrest was illegal. We disagree. "The rule in North Carolina is that a confession following an illegal arrest is not ipso facto involuntary and inadmissible, but the circumstances surrounding such an arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible." State v. McCloud, 276 N.C. 518, 526, 173 S.E.2d 753, 759 (1970). In the instant case the trial judge properly conducted a voir dire examination outside the presence of the jury to determine whether defendant's confession was voluntary and admissible. Upon the evidence presented during the voir dire hearing, the trial judge concluded that the defendant's statement was made freely and voluntarily after he was advised of his constitutional rights, and after he expressly waived his right to an attorney. The evidence presented during the voir dire, and the trial judge's findings of fact fully support his conclusion that defendant's statement was admissible.

Officer Henderson testified that the stolen goods were recovered as a result of information volunteered by the wives of defendant and Jones. Defendant contends this testimony violated G.S. 8-57 and was inadmissible as hearsay.

G.S. 8-57 provides that a husband or wife is incompetent as a witness against the other in a criminal proceeding.' However, G.S. 8-57 was not intended, and it does not, prohibit a husband or wife from making voluntary statements to police officers during the investigatory stage of a criminal proceeding. Moreover, the officer's testimony was not hearsay since it was not admitted to prove the truth of the matter asserted. See State v. Brooks, 15 N.C.App. 367, 190 S.E.2d 338 (1972).

Defendant also contends that the admission of various other statements was hearsay and inadmissible. Examples of defendant's contentions are statements by Officer Todd that he received a call that the B. F. Goodrich store had been broken into, and that Officer Henderson told him [Todd] that Sylvester Green wanted to talk to Jones alone. This testimony was not hearsay inasmuch as it was not admitted to prove the truth of the matter asserted. "[W]henever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay. If offered for any other purpose, it is not hearsay." Stansbury's N.C.Evidence, Brandis Revision, § 138, Hearsay Defined, and the Hearsay Rule Stated, pp. 459-460.

We have reviewed defendant's remaining assignments of error and hold that he received a fair trial without prejudicial error.

No error.

PARKER and HEDRICK, JJ., concur.