State v. Thomas

239 S.E.2d 281 (1977) 34 N.C. App. 534

STATE of North Carolina
v.
Robert Erskine THOMAS.

No. 7726SC552.

Court of Appeals of North Carolina.

December 7, 1977. Certiorari Denied March 7, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas H. Davis, Jr., Raleigh, for the State.

Hicks & Harris by Tate K. Sterrett, Charlotte, for defendant.

Certiorari Denied by Supreme Court March 7, 1978.

MARTIN, Judge.

In the record on appeal defendant lists 27 assignments of error. Of these he brings forward 25, correlating them within 11 contentions. Upon review of the record and briefs, we have concluded that the assignments grouped under contentions 3, 4, 5, 6, 7 and 8 are without merit. We now consider seriatim contentions 1, 2, 9, 10 and 11.

In his first contention, defendant argues that the trial court erred in admitting hearsay statements into evidence during the voir dire hearing and in basing its order in part on such incompetent evidence. Specifically, defendant asserts that the findings of fact relative to the matter of to whom the suspicious 1966 Chevelle automobile was registered and to the out of court statements of Vickie Parker and Robbie Johnson, and the conclusion of law thereon, were based on incompetent testimony.

It is a well established rule that in a hearing before the judge on a preliminary motion, the ordinary rules as to the competency of evidence applied in a trial before a jury are to some extent relaxed, for the reason that the judge with knowledge of the law is able to eliminate from the testimony he hears that which is immaterial and incompetent, and consider only that which tends properly to prove the facts to be found. Cameron v. Cameron, 232 N.C. 686, 61 S.E.2d 913 (1950). However, our Supreme Court has also emphasized that a judge's findings of fact will be reversed where it affirmatively appears they are based in whole or in part upon incompetent evidence. State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976). Guided by these rules, we find in the instant case that defendant's testimony that he owned the automobile in question and did in fact call Robbie Johnson on 7 October 1976 in the early morning was competent and sufficient evidence, unaided by the hearsay relative thereto, to sustain the subject findings of fact and conclusion of law. Defendant's contention No. 1 is overruled.

Defendant next contends that the trial court's extensive questioning of witnesses at the voir dire was error in that it went beyond the purpose of obtaining clarification and understanding of the testimony and in effect, assumed the role of the prosecution. We find no merit in this contention.

We recognize the general rule regarding the questioning of witnesses in the presence of the jury that while a trial judge is permitted to question witnesses for the purpose of clarifying and understanding their testimony, he may not engage in frequent interruptions or prolonged questioning. State v. Steele, 23 N.C.App. 524, 209 S.E.2d 322 (1974). This rule is grounded on the belief that such persistence on the part of the trial judge conveys to the jury the "impression of judicial leaning" and thus, violates the duty of absolute impartiality imposed upon a trial judge by G.S. 1-180. State v. Steele, supra. However, in the instant case, the trial judge's questioning, concededly extensive, occurred in the absence of the jury. While this Court has neither the purpose nor the intent to encourage such practices among trial judges, we are of the opinion, and defendant has presented no persuasive authority to the contrary, that a trial judge's extensive participation in a voir dire hearing produces no judicial error provided the questions propounded are pertinent and necessary to the inquiry at hand. We are supported in this view by State v. Segarra, 26 N.C.App. 399, 216 S.E.2d 399 (1975), a decision in which this Court underscored the distinction between the questioning of witnesses at a voir dire hearing and such questioning at a jury trial in holding that:

"Since the very purpose of [a voir dire] hearing is to enable the judge to determine [the question at hand] . . ., we think the trial judge is and should be at liberty to make such inquiries as he deems necessary to enable him to make a fair and independent determination of the question." State v. Segarra, 26 N.C. App. at 401, 216 S.E.2d at 402.

By his next contention, defendant challenges the trial court's conclusion of law that, after talking with defendant on the morning of 8 October 1976, Detective Crowell had probable cause to obtain a warrant for defendant's arrest on charges of breaking and entering. Defendant argues that the information in Crowell's possession— the investigating officer's report and the initial conversation with defendant—was insufficient to support a conclusion that probable cause existed and therefore, the arrest was illegal; in consequence, he contends, the subject confession made by defendant was the product of an unlawful detention and hence, inadmissible. Specifically, defendant points to inaccuracies in the investigating officers' report relative to the accounts given by two of the eye witnesses—Dennie Price and Karen Futchell— and contends that probable cause cannot be based upon information proven to be unreliable. See State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970).

Upon careful review of the relevant portions of the record, we find that even without the information provided by Price and Futchell, Detective Crowell had information before him sufficiently strong to establish probable cause. Probable cause has been defined by our Supreme Court to be "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty." State v. Shore, 285 N.C. 328, 204 S.E.2d 682, 687 (1974); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971). In the case at bar, the information gathered by the investigation— excluding the accounts of Price and Futchell—established that defendant knew the Haskins; that he admitted being in the area of the Haskin's residence at the time of the break-in; that he had called Robbie Johnson and asked if the police were looking for him; and that an automobile registered to defendant was seen "suspiciously" circling the area of the break-in. These facts and circumstances would warrant a prudent man in believing that defendant committed the breaking and entering. State v. Shore, supra. Accordingly, this contention is overruled.

Defendant further contends that the trial court erred in denying the motion to suppress his confession for the reason that such confession was induced by a suggestion of hope from Detective Crowell. This contention is without merit.

The ultimate test of the admissibility of a confession is whether the statement made by the accused was in fact voluntarily and understandingly made. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975); State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968). When the circumstances reveal that the challenged confession was induced by conduct and language of an investigating officer amounting to suggestions of hope or fear, such confession is involuntary in law and incompetent as evidence. State v. Pruitt, supra; State v. Roberts, 12 N.C. 259 (1827); State v. Raines, 30 N.C.App. 176, 226 S.E.2d 546 (1976). The decision of the trial court on this matter is reviewable upon appeal. State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968).

In the instant case, the subject confession was made during Detective Crowell's second conversation with defendant—a conversation initiated by defendant. Defendant indicated that he wanted a "deal" and Crowell responded that he was unable to offer defendant any kind of deal. At this point, defendant said, "[w]hat if I tell you about what happened down there last night in Matthews?" Crowell then inquired as to defendant's willingness to testify in court to which defendant replied affirmatively. Only after this exchange did Crowell indicate to defendant that generally "the Court will give some consideration to people if they testify or turn State's evidence, but there is no way I can tell you what a judge is going to give you." On these facts, we are unable to find that defendant's confession was induced by any suggestion of hope or fear arising out of Crowell's statements. While we recognize the apparent similarity of these facts to cases reaching a contrary result, see State v. Pruitt, supra (cases cited therein), we are persuaded in this case, by the extent of defendant's initiative and eagerness to come forward, that defendant was not induced to confess, but rather sought from the outset to wield his confession as a bargaining tool. In this pursuit defendant was unsuccessful, eliciting only an innocuous acknowledgement from Crowell that courts generally gave some consideration to those who testified.

Defendant finally contends that, assuming his confession was admissible, its admissibility should have been restricted to the breaking and entering charge and thus, the trial court erred in admitting the confession on the burglary charge. Defendant argues that he did not make a voluntary, knowing and intelligent waiver of his constitutional rights as to the burglary charge as he was never informed of a potential burglary charge against him. We find no merit in this novel contention. The fact that a statement contains evidence inculpating a defendant in an offense of which he was unaware, in no way invalidates a prior, voluntary waiver of the privilege against self-incrimination.

We conclude that defendant's confession was voluntarily and understandingly made without suggestion of hope or fear. The trial court's denial of defendant's motion to suppress is affirmed.

Accordingly, the judgment appealed from is affirmed.

BROCK, C. J., and CLARK, J., concur.