187 S.E.2d 111 (N.C. 1972), 89, State v. Bryant

Docket Nº:89.
Citation:187 S.E.2d 111, 280 N.C. 551
Party Name:STATE of North Carolina v. Willie Horace BRYANT.
Case Date:March 15, 1972
Court:Supreme Court of North Carolina

Page 111

187 S.E.2d 111 (N.C. 1972)

280 N.C. 551

STATE of North Carolina


Willie Horace BRYANT.

No. 89.

Supreme Court of North Carolina.

March 15, 1972

Page 112

James E. Ezzell, Jr., Rocky Mount, and Thomas W. Henson, for defendant appellant.

HIGGINS, Justice.

The State's evidence discloses ample support for every essential element of the capital

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offense charged in the indictment. The defendant as a witness for himself corroborates all essential elements of the offense except the use of force. Although he claimed the prosecuting witness consented, even so, he admitted when he approached her automobile he had an open knife in his pocket, '. . . (B)ecause I didn't know what I was liable to run into when I got in the car.' The evidence required its submission to the jury on the capital felony charged. State v. Shutt, 279 N.C. 689, 185 S.E.2d 206; State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Carter, 265 N.C. 626, 144 S.E.2d 826; State v. Bruton, 264 N.C. 488, 142 S.E.2d 169; State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Stephens, 244 N.C. 380, 93 S.E.2d 431.

The defendant stressfully contends he is entitled to a new trial upon the ground the court committed error in permitting Officers Strickland and Merritt, over his objection, to testify with respect to his in-custody admissions that he had choked the prosecuting witness and had placed a knife in her side prior to the acts of intercourse. While there was evidence he had been given the required warnings, it was admitted he had not waived his right to counsel, had not been given a voir dire hearing, and the court had not found facts showing his statements and admissions were voluntary.

In support of his demand for a new trial the defendant cites State v. Catrett, 276 N.C. 86, 171 S.E.2d 398; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; and State v. Lynch, 279 N.C. 1, 181 S.E.2d 561.

[280 N.C. 555] In particular the defendant relies on the following from Catrett: '. . . (I) ncustody statements attributed to a defendant, when offered by the State and objected to by the defendant, are inadmissible For any purpose unless, after a voir dire hearing in the absence of the jury, the court, based upon sufficient evidence, makes factual findings that such statements were voluntarily and understandingly made by the defendant after he had been fully advised as to his constitutional rights. . . . (T)estimony . . . absent a voir dire hearing and factual determinations as indicated above, was not admissible either as substantive evidence or for impeachment purposes.'

Catrett was decided on June 6, 1970, and was based on our interpretation of the exclusionary rule in Miranda. Some other appellate courts made this same interpretation. However, on February 24, 1971, the Supreme Court of the United States decided Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, reviewing the Miranda exclusionary rule. In Harris the Court held 'that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements' which were made during in-custody interrogation, without counsel, and without waiver of rights.

In our case the use of the defendant's in-custody admissions to impeach and contradict his testimony before the jury was proper and his objections thereto are not sustained. The defendant's admissions were not offered to make out the prosecution's case. They were offered to tear down the defendant's defense. State v. Lynch, supra, did not involve admissions offered for the purpose of impeaching the defendant's testimony before the jury.

The decision in Harris warranted the use of the impeaching testimony. In view of the importance we attach to the Harris decision and its current unavailability to some of our trial courts, we quote extensively from it:

'Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court's holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody

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prior to having or effectively waiving counsel. [280 N.C. 556] It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.

* * * (T)here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility. Walder v. United States, 347 U.S. 62, at 65, 74 S.Ct. 356, 98 L.Ed. 503, at 507.

Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truthtesting devices of the adversary process. Had inconsistent statements been made by the accused to some...

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