State v. Bryant

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

Page 111

187 S.E.2d 111

280 N.C. 551

STATE of North Carolina v. Willie Horace BRYANT.

No. 89.

Supreme Court of North Carolina.

March 15, 1972.

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 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.

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 prior to having or effectively waiving counsel. 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 third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.

The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements.'

The defendant has objected to the court's failure to submit to the jury the lesser included offense of assault with intent to commit rape. This objection cannot be sustained. All the evidence, including the defendant's testimony, disclosed completed acts of intercourse. The factual dispute was whether the acts were voluntary or as a result of defendant's use of force. Even consent if induced by fear, fright, or coercion, is equivalent to physical force. State v. Primes, supra; State v. Carter, supra. The court should not submit an issue in the absence of some evidence which tended to support it. The rule is stated in State v. McNeil, 277 N.C. 162, 176 S.E.2d 732. 'The court (trial) charged the jury to return a verdict: (1) guilty of rape; (2) guilty of rape with a recommendation that punishment be imprisonment for life in the State's prison; or (3) not guilty. Failure to find the defendant guilty of (1) or (2) required a verdict of not guilty. The defendant was not prejudiced by the charge which required the jury to acquit of all included lesser offenses. There was no evidence of the lesser included offenses, and the court was correct in refusing to permit the jury to consider them. (Citing authorities).'

State v. Carnes, 279 N.C. 549, 184 S.E.2d 235, states the rule: 'The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor.'

State v. Murry, 277 N.C. 197, 176 S.E.2d 738, states the rule: 'The necessity of instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. (Citing authorities).'

State v. Green, 246, N.C. 717, 100 S.E.2d 52, is not in point. The indictment charged 'the felony and crime of rape upon a 16-year-old female child by a male person over 18 years of age.' Upon arraignment the solicitor announced: 'The State will not ask for a verdict of guilty of the capital crime carrying the death penalty, but will ask for a verdict of guilty of rape, with the recommendation of life imprisonment or guilty of attempt to commit rape, as the facts and law may justify.'

In the case of State v. Smith, 201 N.C. 494, 160 S.E. 577, the defendant was indicted for first degree burglary and rape. The court said: 'According to her (prosecutrix) testimony, which contains a full recital of the crime, the prisoner was guilty of rape; according to his own evidence he was guilty of no offense. There is no aspect of the case that would justify a verdict merely of a simple assault or an assault with intent, and refusal to instruct the jury in reference to the lesser offense did not constitute reversible error. State v. White, 138 N.C. 704, 51 S.E. 44; State v. Kendall, 143 N.C. 659, 57 S.E. 340.'

In State v. Lance, 166 N.C. 411, 81 S.E. 1092, the defendant was tried for rape. 'It has been repeatedly held that the judge upon a proper state of facts can tell the jury that if they believe the evidence they can find the prisoner guilty of murder or nothing. It would have been no error to have so charged on this occasion.' (Rape instead of murder.) In State v. Williams, 185 N.C. 685, 116 S.E. 736, the Court labored long and hard to get around State v. Lance, supra, to hold assault should have been submitted. In Williams the Court stated the evidence of the prosecutrix at great length, emphasizing its inconsistencies to her discredit, and concluded: 'Her conduct was not by any means, that of an outraged woman, and certainly not of a chaste...