State v. Catrett

• Decision Date: 06 January 1970
• Docket Number: No. 52,52
• Citation: 171 S.E.2d 398,276 N.C. 86
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Roby E. CATRETT.

Page 398

171 S.E.2d 398

276 N.C. 86

STATE of North Carolina v. Roby E. CATRETT.

No. 52.

Supreme Court of North Carolina.

Jan. 6, 1970.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis and Trial Attorney Claude W. Harris, for the State.

O. B. Crowell, Jr., and Crowell & Crowell, Hendersonville, for defendant appellant.

BOBBITT, Chief Justice.

The constitutional question presented relates to the admission in evidence, over defendant's general objection, of the testimony of Boyce Carswell, a deputy sheriff of Polk County, North Carolina, as to incustody statements made to him by defendant.

During the presentation of the State's evidence, Carswell testified to the circumstances under which he arrested defendant but did not refer to any statements made by defendant on the occasion of the arrest or thereafter. After defendant had testified, Carswell was recalled. He then testified as to statements he attributed to defendant. These statements, made after he had arrested defendant and while defendant was in his custody, were in sharp conflict with defendant's testimony.

When objections were interposed to Carswell's rebuttal testimony, the presiding judge did not conduct a Voir dire hearing in the absence of the jury to determine whether statements attributed to defendant were made voluntarily and understandingly and after defendant had been advised of his constitutional rights.

The Court of Appeals reached these conclusions: (1) that Carswell's rebuttal testimony was admissible as bearing upon defendant's credibility as a witness; (2) that defendant's general objection was insufficient to require the court to instruct the jury as to the limited purpose for which this rebuttal testimony was admitted; and (3) that, In view of the limited purpose for which the rebuttal testimony was admitted, the court was not required to conduct a Voir dire hearing in the absence of the jury to determine whether the statements attributed to defendant were made voluntarily and understandingly and after defendant had been fully advised of his constitutional rights.

The admissibility of Carswell's rebuttal testimony must be considered in the context of the evidential facts narrated below.

The State offered evidence tending to show the following:

Eddie Lee Brown, of Landrum, S.C., owned a four-room summer cottage in Polk County, N.C., which was located on a public (Old Melrose) road about seventenths of a mile from Saluda, N.C. Upon arrival at his mountain cottage on Saturday, August 31, 1968, between 6:00 and 6:30 p.m., Brown observed: (1) Personal property (valued at $175.00) owned by him and consisting principally of articles of furniture, which had been removed from his cottage was piled in the yard a few feet from the cottage; (2) a man, carrying two frying pans, Brown's property, coming out of one of the windows; and (3) a red and white 1959 Chevrolet, the sole occupant being a man in the driver's seat, in the portion of his driveway adjoining the road. The man who emerged from Brown's cottage left the premises on foot and was last seen walking along the road towards Saluda. He was not apprehended on or near the Brown premises. When Brown and others with him were devoting their attention to the invader of the Brown cottage, the man in the 1959 Chevrolet drove away along the Old Melrose Road, first traveling towards Saluda, turning around upon reaching another driveway and then passing the Brown premises as he headed down the mountain.

Brown drove to Saluda and reported the breaking, entering and larceny to the police.

George Smith, a Saluda policeman, was the first officer to arrive in the vicinity of the Brown cottage. He saw the red and white 1959 Chevrolet. It was parked on the side of the Old Melrose Road 300-400 feet below (down the mountain) from the Brown cottage. Catrett was under the steering wheel. As Smith stood by the Chevrolet, Deputy Sheriff Boyce Carswell, accompanied by other officers, passed on their way up the mountain to the Brown cottage. After talking with Brown, Carswell and other officers came back to where Smith was standing and the Chevrolet was parked. Carswell testified: '(W)e got him (Catrett) out of the car and placed him under arrest and put him in my car' and went to the police station in Saluda. Thereafter, another deputy sheriff and Smith arrested Pace at his mother's home. After the arrest of Pace, both Pace and Catrett were taken in a police car to the Brown cottage. Brown then identified Pace as the man who came out of the window and Catrett as the man under the wheel of the 1959 Chevrolet while it stood in his driveway.

With reference to Catrett's condition when arrested, Carswell testified: 'He was drunk. * * * (H)e was about as drunk a man as you see out and still going. * * * He could walk but not too steady. * * * We assisted him up the steps at the Jail. I don't think we did getting in the car. * * * His speech was impaired.'

It is noteworthy that Brown's testimony included the following: As he approached his cottage, traveling up the mountain towards Saluda, Brown's attention was attracted by a red and white 1959 Chevrolet which was parked in 'a space where the dirt had been cleaned back settin with the back toward the bank where it could go either way * * * to the right or to the left.' The Chevrolet was parked approximately three-fourths of a mile from the Brown cottage. When Brown was almost to it, the driver (Catrett) of the Chevrolet 'just pulled out in the road in front of us and went about 15 feet and stopped.' He was headed towards the Brown cottage, 'toward Saluda.' Catrett stopped on a narrow bridge, right in the center of it, requiring Brown to stop. As to what happened when Catrett was stopped on the bridge, Brown testified: 'He opens the door, the driver's door and did something like this, I couldn't tell whether he vomited or what, but he did something and I'd say in a minute, closed the door back and then drove off very slowly.' Brown waited from two to five minutes before going on because the road was so narrow 'you couldn't pass anybody' between there and Brown's cottage. When Brown reached his cottage, the Chevrolet was in his driveway beside the Old Melrose Road and Catrett was under the wheel.

Catrett testified, in substance, as follows: He and Pace (brothers-in-law) were then living in East Flat Rock, Henderson County, Pace's mother lived in Saluda. On Saturday morning, August 31, 1968, in Hendersonville, N.C., they purchased a pint of vodka at the ABC store and bought a carton of beer from 'a package store.' They went to Polk County, traveling in Pace's red and white 1959 Chevrolet, to make inquiry concerning the rental of a house but were unable to locate the party referred to in the advertisement. Since the car was 'skipping,' they drove into Saluda. There, at 'Saluda Texaco,' they got an oil change, a new oil filter and an adjustment of the 'plugs.' When this work was completed, they drove to the home of Pace's mother. Pace went into his mother's home. He (Catrett) would not go in because he had been drinking. Instead, he drove Pace's car back to town (Saluda), parked the car and fell asleep. When he woke up, he thought some air would do him good. He testified: 'I didn't feel like I was intoxicated, I just felt woozy, which I knew I had been drinking enough to be intoxicated, so I drove down there and drove up this small road (Old Melrose Road) and parked.' When asked whether he went to sleep down there, Catrett testified: 'I dozed, in a drunken stupor, I guess I was.' He testified he did not know where the Brown cottage was. He testified: 'I could have been to his cottage or near it or on the road to it and me not even know it.' He denied having any connection with any breaking and entering or larceny at the Brown cottage. He testified he did not see Pace from the time he left the home of Pace's mother until after both had been arrested.

With reference to Carswell's testimony in rebuttal, directly involved in the question presented by this appeal, the record shows the following:

'Q. Mr. Carswell, did you have a conversation with Mr. Catrett here about his presence on the Old Melrose Road on the 31st day of August, 1968?

'A. Yes, sir.

'Q. What did he tell you, if anything, about who had been with him on the afternoon of the 31st day of August, 1968, on the Old Melrose Road?'

'MR. CROWELL: Objection.

'THE COURT: Sustained as to Pace. Do not consider this evidence as to Pace, Members of the Jury, but only as to Catrett.

'A. Well, he stated to me that he let Ray Pace out of the car above Mr. Brown's cabin and he was suppose(d) to pick him up in 30 or 40 minutes and he also said he didn't know what--

'MR. CROWELL: Objection.

'A.--Samuel Ray Pace was planning to do.'

Carswell testified further that Catrett was under arrest and in custody when the statements attributed to him were made; that before questioning Catrett he advised him of his constitutional rights by reading from a card each of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974; and that these warnings were read to Catrett at the Atkins Service Station when he was on his way to get a warrant for Catrett. This portion of the cross-examination of Carswell is noted: 'Q. That was after you had already talked to him down here on the road? A. Yes, sir. Q. That was after you had already asked him about what he was doing and who was with him? A. I don't think we asked him who was with him at that time. Q. Was this after you had already asked him about what he was doing down there? A. I don't remember.'

If Carswell's testimony as to defendant's in-custody statements had been offered during the presentation of the State's case, the admission thereof, over defendant's objection, would have been erroneous unless the presiding judge, after a Voir dire hearing in the absence of the jury, had made factual findings on...