State v. Goins

HEDRICK, Judge.

The defendant first assigns as error the trial court’s denial of his motion for judgment as of nonsuit. In our opinion the evidence viewed in the light favorable to the State was sufficient to submit the case to the jury.

The defendant also assigns as error the admission of Officer Robinson’s testimony recalling the defendant’s incriminating answers to questions asked subsequent to his arrest. On direct examination the District Attorney asked Officer Robinson what the defendant said to him “regarding what intoxicating beverages . . . he had consumed.” Over the defendant’s objection Officer Robinson was permitted to answer as follows:

When I was questioning him, I asked him what he had been drinking and he said beer. I asked how many and he advised me four or five.

He said that he consumed them at his brother’s house. He started drinking about 12:00 Midnight and he didn’t know what time that he stopped.

It is now familiar law that an admission of a defendant in a criminal trial is admissible in evidence against him only if it is accompanied by a finding by the trial court that it was made voluntarily and under standingly. 2 Stansbury’s N.C. Evidence, § 183 (Brandis Rev. 1973). Such a finding necessarily comprehends a finding that the defendant was given his Miranda warnings before responding to in-custody interrogation. State v. Miley, 291 N.C. 431, 230 S.E. 2d 537 (1976); State v. Thompson, 19 N.C. App. 693, 200 S.E. 2d 208 (1973). This rule has been held expressly applicable to defendants charged with driving under the influence of intoxicants. State v. Sykes, 285 N.C. 202, 203 S.E. 2d 849 (1974). The proper procedure for determining the admissibility of a defendant’s admissions is to conduct a voir dire hearing in the absence of the jury at which the State must carry the burden of showing that the admissions were made voluntarily and understanding^. State v. Pollock, 22 N.C. App. 214, 206 S.E. 2d 382 (1974); State v. Thompson, supra; 2 Stansbury, supra, § 187. At the conclusion of the hearing if the trial judge overrules the defendant’s objection, he must make findings of fact to resolve any conflicts in the evidence. State v. Silver, 286 N.C. 709, 213 S.E. 2d 247 (1975).

The record in the present case reveals that no hearing was conducted upon the defendant’s objection and no foundation was established by the State prior to the introduction of the defendant’s incriminating statements. We are unable to say that the trial court’s error in the admission of the statements was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967).

The defendant has brought forward other assignments of error which we need not discuss at this time since they are not likely to arise upon a new trial.

New trial.

Judges Parker and Mitchell concur.