State v. Vickers, 739

• Decision Date: 09 October 1968
• Docket Number: No. 739,739
• Citation: 163 S.E.2d 481,274 N.C. 311
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John Horton VICKERS.

Page 481

163 S.E.2d 481

274 N.C. 311

STATE of North Carolina v. John Horton VICKERS.

No. 739.

Supreme Court of North Carolina.

Oct. 9, 1968.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. James Bullock for the State.

H. M. Michaux, Jr., Durham, for defendant.

BRANCH, Justice.

Defendant's statements made to police officers while in custody were inculpatory since they placed him at the scene of the crime and placed in his possession the weapon described by the State's chief witness as having been used in the perpetration of the robbery. Upon the defendant's objection to the introduction of the statements, the trial judge simply overruled the objection and did not hold a voir dire hearing to determine the voluntariness of defendant's statements.

The case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d, 974, is not applicable to the instant case since trial of this case had begun prior to 13 June 1966. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d, 882. Further, the otherwise silent record as to the surrounding circumstances under which defendant made the admissions reveal only that defendant made the admissions or confession while he was in custody and being questioned by police officers. The admissions to police officers, if any, would not be rendered incompetent solely because defendant was under arrest when they were made. State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Thompson, 224 N.C. 661, 32 S.E.2d 24.

The rule that an extra-judicial confession is admissible against a defendant when, and only when, it was, in fact, voluntarily and understandingly made has long been recognized and approved in this jurisdiction. State v. Roberts, 12 N.C. 259; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Moore, 210 N.C. 686, 188 S.E. 421.

We must first consider whether defendant's general objection sufficiently challenged the admissibility of the confession so as to require a preliminary inquiry to determine its admissibility.

In the case of State v. Rogers, supra, we find the following statement:

'When the admissibility of a confession is challenged On the ground that it was induced by improper means, the trial court is required to determine the question of fact whether it was or was not voluntary before he permits it to go to the jury.' (Emphasis ours)

The italicized portion of the statement above quoted might be interpreted to require a specific objection stating the particular grounds for objection.

We also find in 29 Am.Jur.2d, Evidence § 583, p. 640, the following:

'While there is some authority to the effect that it is the duty of the trial court, in the absence of objection by the defendant, to conduct an inquiry into the admissibility of a confession, it is more generally held that a defendant in a criminal case who objects to the introduction in evidence of a confession by him, on the ground that it was involuntary, should make a timely offer of evidence showing the incompetency of the confession, or should request that a preliminary investigation of the matter be made, which offer or request should be made before the court rules on the evidence offered. Where no proper and timely objection to the voluntariness of a confession is made, or no request is made for an examination as to its voluntariness, no preliminary examination or hearing is required with respect to such question, and the defendant cannot, upon an appeal, raise the issue that the court erred in failing to conduct such a preliminary examination.'

The Louisiana Court held in State v. Perry, 51 La.Ann. 1074, 25 So. 944, that the objection was properly overruled where the defendant objected to inculpatory statements alleged to have been made by him, on the ground that proper foundation had not been laid when he declined to state wherein the defect lay upon inquiry by the court.

A rule that interposition of a general objection is not sufficient to challenge admission of a confession was adopted by the Mississippi Court in Jackson v. State, 163 Miss. 235, 140 So. 683. However, Alabama (Bradford v. State, 104 Ala. 68, 16 So. 107) and Florida (Bates v. State, 78 Fla. 672, 84 So. 373) adopt the view that a specific objection is not necessary if the objection is so stated as to call the trial court's attention to the matter.

We do not think the rule quoted above from American Jurisprudence nor the rule adopted by the Mississippi and Louisiana Courts, and possibly alluded to in State v. Rogers, supra, is sustained by the better reasoning or the weight of authority in this jurisdiction.

This Court, speaking through Higgins, J., in State v. Barnes, 264 N.C. 517, 142 S.E.2d 344, said: 'When a confession is offered in evidence and Challenged by objection, the court, in the absence of the jury, should determine whether the confession was free and voluntary.' (Emphasis ours) This language has been approved in the cases of State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Ross, 269 N.C. 739, 153 S.E.2d 469; State v. Bishop, 272 N.C. 283, 158 S.E.2d 511.

Here, defendant's general objection made it clear that he challenged the admission of the confession because of its involuntary character. This Court has always jealously protected defendants' rights as to admissions and confessions, and it will not in this instance allow such rights to be impaired by a rule which requires a specific objection when a general objection clearly calls the matter to the trial court's attention so as to challenge the involuntary nature of the confession or admission. We hold that defendant's general objection was sufficient to challenge the admission of the proffered confession.

Since we hold that defendant's objection was sufficient to challenge the voluntariness of the alleged confession, it becomes necessary that we examine recent decisions concerning admission of confessions when challenged by defendant.

In the case of State v. Painter, 265 N.C. 277, 144 S.E.2d 6, defendant was charged with forgery and issuing a forged instrument. The evidence in part revealed that defendant asked to talk with an F.B.I. agent. He was taken to a conference room and there was told of his right to representation by an attorney, right to remain silent, and that anything he said might be used against him. He thereupon made a statement which was offered into evidence. When the statement was offered, defendant's counsel objected on the ground that the alleged confession was procured under coercion and under such circumstances that his constitutional rights were violated. Defendant made no request for voir dire hearing, nor did he request that he be allowed to offer testimony as to the voluntariness of his confession. The judge made no finding of fact concerning the competency of the confession, but merely overruled defendant's objection. The Court cited State v. Litteral, supra, and quoted from it the following:

'While it is the better practice for a judge on a voir dire respecting an alleged confession to make his finding as to the voluntariness thereof and enter it in the record, a failure so to do is not fatal. Voluntariness is the test of admissibility, and this is for the judge to decide. His ruling that the evidence was competent of necessity was bottomed on the conclusion that the confession was voluntary.'

The Court further stated that 'Such a 'conclusion the confession was voluntary' is supported by all the evidence in the case, and there is nothing in this record upon which a contrary conclusion could be based.'

The case of State v. Litteral differs from Painter in that the defendant Litteral signed a statement in the nature of a confession which was admitted into evidence against him Without objection, and when a written statement was offered against the defendant Bell, the court, of its own motion, had the jury retire and conducted a voir dire hearing. Painter differs from instant case in that there is plenary evidence of circumstances attendant to the confession in Painter while the record in instant case is virtually silent concerning circumstances surrounding the admissions or confession.

In the case of State v. Stubbs, 266 N.C. 274, 145 S.E.2d 896, the defendant contended that the trial court committed error in allowing witnesses to testify to statements made by the defendant in the absence of showing that such statements were voluntarily made. The statements made by the defendant were admitted without objection at the trial. This Court, holding that there was no merit in this contention, stated: 'As a general rule a confession is presumed to be voluntary, and the burden is one the accused to show to be contrary. State v. Hamer, 240 N.C. 85, 81 S.E.2d 193; State v. Grass, 223 N.C. 31, 25 S.E.2d 193; State v. Richardson, 216 N.C. 304, 4 S.E.2d 852.' The Court then quoted from 20 Am.Jur., Evidence, § 536, p. 456, as follows: "In a majority of the jurisdictions a confession is presumed to be, or is regarded as prima facie, voluntary and, hence, if not objected to by the defendant, should be admitted in evidence by the court, unless there is something in the confession which indicates its inadmissibility.' * * * ' This case is factually distinguishable from the instant case in that in Stubbs the evidence as to the confession was admitted without objection.

While the case of State v. Painter, supra, holds that upon objection failure to conduct a voir dire hearing in the absence of the jury as to the voluntariness of the defendant's confession is not fatal error, it recognizes that the holding of such hearing is the better practice. Further, a long line of recent cases in this jurisdiction state that the better practice requires the trial judge, upon objection, to excuse the jury and in the absence of the jury hear the evidence of both the State and the defendant upon the question of whether defendant, if he made an admission or confession, voluntarily and...