State v. Boykin

• Decision Date: 04 December 1979
• Docket Number: No. 62,62
• Citation: 298 N.C. 687,259 S.E.2d 883
• Parties: STATE of North Carolina v. Robert Grady BOYKIN.
• Court: North Carolina Supreme Court

Page 883

259 S.E.2d 883

298 N.C. 687

STATE of North Carolina v. Robert Grady BOYKIN.

No. 62.

Supreme Court of North Carolina.

Dec. 4, 1979.

Thomas W. Henson, Rocky Mount, for defendant.

CARLTON, Justice.

The record discloses that the trial of this criminal action began on Wednesday, 3 January 1979, and lasted through Saturday, 20 January 1979. The record presented by this appeal is 367 pages in length and does not include the judge's charge to the jury or argument of counsel. Defendant has grouped 216 exceptions into 49 assignments of error. In his 92 page brief, defendant brings forward 38 assignments of error under 14 "questions presented." The remaining assignments of error are deemed abandoned, North Carolina Rules of Appellate Procedure, Rule 28. We find no merit in any of defendant's assignments of error and affirm the trial court.

Defendant first assigns as error the admission into evidence of the in-custody statement and written confession he gave to Deputy Reams at the Nash County Sheriff's Office. Defendant relies on our decision in State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967). There, this Court held that where the evidence established that a confession signed by the defendant was not read to or by him, admission of the confession constituted prejudicial error. The written statement in Walker, as here, was summarized by the officer and was not a verbatim recitation of defendant's account. Walker, however, is distinguishable from the case at bar. Here, the evidence clearly establishes that Deputy Reams handed the statement to the defendant who read it after Reams had prepared it. At the time, Reams also asked the defendant to initial anything incorrect in the written account so that it could be changed. Defendant circled one part which he indicated was incorrect but then indicated that the incorrect portion was minor and of no consequence. After reading the statement, defendant initialed it. Clearly, defendant adopted the statement as his own.

Furthermore, the only reason the statement was not a verbatim account was because defendant would not allow Deputy Reams to write while defendant spoke.

We think the facts here are more closely akin to those disclosed in State v. Braxton, 294 N.C. 446, 242 S.E.2d 769 (1978). There, on facts similar to those before us here, this Court stated:

The written statement, which Officer Lovette testified he compiled from notes made by him of Burden's oral statements, was shown to Burden and, according to the testimony of the officers, signed by Burden. Under these circumstances, it is immaterial that the written statement was not, word for word, identical with the oral statement.

Id. at 461, 242 S.E.2d at 778.

We hold again that it is not required by law for the statement or confession of an accused to be in his own handwriting or that the person taking the statement be required to repeat the exact words of the defendant. The summary statement of an accused reduced to writing by another person, where it was freely and voluntarily made, and where it was read to or by the accused and signed or otherwise admitted by him as correct shall be admissible against him. See generally, 23 C.J.S. Criminal Law § 833a at 236 (1961 & Cum.Supp.1979).

Defendant also contends that even assuming we find no error in the preparation of the statement, it is apparent from the record that Deputy Reams' trial testimony was perjurious and presented in bad faith by the State. The record discloses that Deputy Reams had stated at the preliminary hearing that defendant's statement was in his own words, yet Reams conceded at trial that the statement was actually a summary of what defendant told him. In raising this assertion, defendant relies primarily on the decision of the United States Supreme Court in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). There, the Court held that where, in a murder prosecution, an important witness for the state falsely testified that he had received no promise of consideration in return for his testimony, though in fact the assistant state's attorney had promised such consideration and did nothing to correct the false testimony of the witness, defendant was denied due process of law in violation of the fourteenth amendment to the United States Constitution. The Court cited the well-established rule that a conviction obtained through use of false evidence, known to be such by representatives of the state, must fall under the fourteenth amendment. The Court also noted that this principle does not cease to apply merely because the false testimony goes only to the credibility of the witness. The Court stated:

The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend.

Id. at 269, 79 S.Ct. at 1177, 3 L.Ed.2d at 1221.

The principles recited in Napue are laudable and firmly established. Obviously, this Court would not condone the practice of allowing the State to introduce at trial testimony which the State knew to be false. This would be true even though the State did not solicit the false evidence but allowed it to go uncorrected when it appeared. Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957) (per curiam). Clearly, however, the holding in Napue does not embrace the facts disclosed by the record before us. There, it was abundantly clear that the state permitted testimony knowing it to be false. Here, however, the State has simply presented a witness whose testimony is inconsistent in non-substantive respects with that given at the preliminary hearing. For example, the witness testified at the preliminary hearing that one of the decedents "jumped" the defendant, while at trial he testified that the decedent "lunged" at defendant. The various inaccuracies and inconsistencies by the witness are clearly not of the nature or severity as to indicate bad faith on the part of the State.

Defendant's first assignment of error is overruled.

Defendant next contends that the trial court committed error in restricting his right to cross-examine Deputy Driver. The record reveals that at the conclusion of the defendant's evidence, the State recalled Driver to rebut testimony of the defendant. Driver had previously testified for the State and was extensively cross-examined and recross-examined at that time by defense counsel. On rebuttal, the court limited defendant to cross-examination only on the evidence presented in rebuttal testimony and not on Driver's earlier testimony. Defendant asserts this limitation was a violation of his constitutional right to confront the witnesses against him.

We are sensitive to the long-standing guarantee of the right to cross-examine one's adversarial witnesses. This right to confront is guaranteed by the sixth amendment to the United States Constitution, which is made applicable to the states by the fourteenth amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and by Article 1, Section 23 of the North Carolina Constitution. The constitutional right to confront affirms the common law rule that in criminal trials by jury the witness must be present and subject to cross-examination under oath. State v. Perry, 210 N.C. 796, 188 S.E. 639 (1936).

However, it is also well established that the United States Supreme Court will not encroach upon the power of the states to make their own rules of evidence in their own courts so long as they serve a legitimate state purpose not prohibited by the provisions of the United States Constitution. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, Reh. denied, 386 U.S. 969, 87 S.Ct. 1015, 18 L.Ed.2d 125 (1967); State v. Bumper, 275 N.C. 670, 170 S.E.2d 457 (1969). The rule in North Carolina which allows the trial judge to exercise his discretion in limiting cross-examination for the purpose of impeachment when it becomes repetitious or argumentative does not violate any provision of the United States Constitution. State v. Bumper, supra.

It is obvious from the record that the defendant was permitted to cross- and recross-examine this witness prior to the witness' rebuttal testimony. It is also obvious defendant reserved the right to recall this witness and did not do so. Thus, defendant had More than ample opportunity to confront his witness. Any further cross-examination on rebuttal about Driver's original testimony promised to be repetitious or argumentative. We find no abuse of the trial court's discretion to insure an orderly trial. Defendant's right to confront was amply protected. This assignment of error is overruled.

In his third assignment of error defendant contends that the trial court committed prejudicial error in allowing Deputy Driver to testify about statements defendant made to him.

On direct examination, the witness Driver was allowed to testify that he received a telephone call from the defendant in which defendant told him about shooting the decedents and in which he gave Driver the decedents' location. Driver later testified as to other statements made to him by defendant. Defendant here argues that the witness was improperly allowed to testify to these statements because the court failed to make a finding of voluntariness as required by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We disagree. Our rule was stated in State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970) as follows:

The defendant misinterprets the necessity for the voir dire examination to determine the voluntariness of his admissions . . . . As a general rule, voluntary admissions of guilt are admissible in evidence in a trial. To render them inadmissible, incriminating statements must be made under some sort of pressure. Here we quote from the Supreme...