State v. Carey

• Decision Date: 07 October 1975
• Docket Number: No. 82,82
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Albert Lewis CAREY, Jr.

Page 387

218 S.E.2d 387

288 N.C. 254

STATE of North Carolina v. Albert Lewis CAREY, Jr.

No. 82.

Supreme Court of North Carolina.

Oct. 7, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. John R. B. Matthis, Raleigh, for the State.

John H. Hasty, Charlotte, for defendant appellant.

COPELAND, Justice:

Defendant first assigns error to the action of the trial court in ruling that the State's witness, B. J. Sloan, was an expert in the field of firearms identification, and in permitting the witness to testify that based on his examination of the four lead pellets removed from the body of James D. Sloop, Sr., he concluded that they were No. 6 buckshot. Defendant argues that since the witness was tendered as an expert in the field of 'firearms identification,' he was not qualified to testify in the field of ballistics. This assignment is without merit.

The qualification of an expert is ordinarily addressed to the sound discretion of the trial court and '(t)he court's findings that a witness is qualified as an expert will not be disturbed on appeal if there is evidence to show that, through study or experience, or both, he has acquired such skill that he is better qualified than the jury to form an opinion on the particular subject as to which he testifies.' See generally 1 Stansbury, N.C. Evidence § 133 (Brandis Rev.1973); 2 Strong, N.C. Index 2d, Criminal Law § 51 (1967). The evidence in the instant case clearly indicates that the witness Sloan, through both study and experience, had acquired the requisite skill to give his opinion as to the size of the lead pellets taken from the decedent's body. In State v. Jenerett, 281 N.C. 80, 90, 187 S.E.2d 735, 741 (1972), the defendant contended that the trial court erred in allowing a police officer, over the defendant's objection, to give an opinion as to the caliber of the bullet taken from the body of the deceased. In rejecting this contention, this Court, in an opinion by Justice Moore, stated:

'While the trial court did not expressly find the witness to be an expert in ballistics, the court did allow him to give his opinion as to the caliber of the bullet. By admitting the testimony as to the caliber of the bullet, the court presumably found him to be an expert. There was ample evidence to support such finding. (Citations omitted.)'

Even assuming, Arguendo, that the admission of this testimony was error, it was clearly harmless since the witness Sloan testified on cross-examination that he had not compared any of the shot contained in the box of shotgun shells seized at defendant's residence with the shot taken from the decedent's body. This assignment is therefore overruled.

Defendant next assigns as error the overruling of his objection to the admission into evidence of his alleged statement given to Officer Holmberg and overheard by Officer Whiteside. The evidence indicated that Officer Starnes was in a position where he may have heard the statement, but he did not testify. Defendant also contends that the trial court committed prejudicial error by allowing the State to elicit on direct examination of Officer Holmberg the fact that he was assigned to the polygraph unit. Defendant has grouped these two arguments together. We will do likewise.

When Officer Holmberg initially took the stand he testified that he had been employed by the Charlotte Police Department for twenty-three years and that he was presently assigned to the polygraph unit. At this point, defendant's counsel asked the court to excuse the jury and thereafter told the court that the solicitor had been requested at the pretrial conference not to bring out any evidence 'concerning the polygraph examination.' The court stated it was irrelevant and overruled defendant's objection and denied his motion to strike.

Defendant relies on State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961), where this Court, in an opinion by Chief Justice Winborne, held that the Results of a polygraph test are not admissible to establish the guilt or the innocence of one accused of a crime. The Court went on to state that: 'Moreover, the parties should not be permitted to introduce lie detector results into evidence by indirection. (Citations omitted.)' Id. at 709, 120 S.E.2d at 172. Defendant's reliance on Foye is misplaced. In State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (171), this Court, in an opinion by Justice Lake, held that, under the circumstances there presented, there was no prejudicial error from testimony that the defendant had agreed to take and took a polygraph test, since '(t)here was no evidence, before the jury, as to the nature of the test, the questions propounded, the answers given, or the result of the test.' Id. at 524, 184 S.E.2d at 288. In the instant case, as in Williams, the jury never heard any testimony as to the results of a polygraph test. In fact, defendant was not administered a complete polygraph examination and there were no results for the jurors to hear. This portion of the assignment is therefore overruled.

It is also defendant's contention that any alleged statement given by defendant to Officer Holmberg should be inadmissible because (i) the statement was not freely and voluntarily given; and (ii) the statement was induced by misrepresentations concerning the ultimate use of the polygraph examination. Defendant brought forward a similar objection to the introduction of this statement on the prior appeal. See 285 N.C. 509, 206 S.E.2d 222 (1974). In that case, this Court, after carefully reviewing all the evidence presented on Voir dire, as well as the Court's findings of fact and conclusions of law, found no error in the ruling permitting the police officers to testify as to the statement made to them by defendant. Id. at 516--17, 206 S.E.2d at 227. The evidence at the second trial on this subject is substantially the same as that produced at the first.

In his brief, defendant concedes that the prior appeal constitutes the 'law of the case' as to this issue but specifically asks that we reconsider the question in the light of State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975). In Pruitt, this Court, in an opinion by Justice Branch, held that the defendant's confession was not properly admissible in evidence since it was obtained 'by the influence of hope or fear implanted in defendant's mind by the acts and statements of the police officers during defendant's custodial interrogation.' Id. at 455, 212 S.E.2d at 100. The Pruitt decision was not grounded on the failure of the police to comply with the procedural safeguards enunciated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966), but on the fact that the confession was not 'voluntarily and understandingly made.' Id., 286 N.C. at 454, 212 S.E.2d at 100. This has been the ultimate test as to the admissibility of confessions in this State since State v. Roberts, 12 N.C. 259 (1827).

Defendant contends that both Pruitt and Roberts render his confession inadmissible. In support of this contention, defendant asserts that he was misinformed as to the severity of the punishment for the charges against him (i.e., imprisonment as opposed to death); that he was told that the polygraph examination would be for his own benefit and for the benefit of the Charlotte Police Department; and that nothing elicited during the polygraph examination would be used in evidence against him.

Under the facts disclosed in this record, we find no merit in defendant's contentions. Defendant does not contend that he made the alleged statement to Officer Holmberg because the police were using the threat of a polygraph examination as a tool to force incriminatory admissions from him. Furthermore, defendant does not assert that he made the statement based on any improper inducement generating a hope that by doing so he might obtain relief from the criminal charges to which the confession related. See State v. Pruitt supra, 286 N.C. at 458, 212 S.E.2d at 102--103. See also, State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). On the contrary, defendant affirmatively testified on direct examination that he did not made Any incriminatory statement of any nature of Officer Holmberg or to any other officer on 11 July 1973, or at any other time. Under these facts, we cannot say that the statement and admission obtained from defendant were made under the influence of fear or hope, or both, growing out of language or acts of those who held him in custody. The admissibility of this evidence was for the trial judge. Based on the evidenced produced on Voir dire, the trial judge found facts and made conclusions of law to the effect that defendant freely and voluntarily made the statement and admission as the State contended. There was ample evidence to support the trial judge's findings, and those findings in turn support the trial judge's conclusions that defendant freely, understandingly, voluntarily, and intelligently made a statement and admission to Officer Holmberg on 11 July 1973, without undue influence, coercion or duress, and without any promise, threat, reward, or hope of reward; that he had been fully advised of his constitutional rights and understood those rights; and that after being advised on these rights, he knowingly and intelligently waived his right to the presence of counsel at the time he made the inculpatory statement and admission. See State v. Thompson, supra, 287 N.C. at 318, 214 S.E.2d at 755. See also State v. Young, 287 N.C. 377, 214 S.E.2d 763 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Pruitt, supra; State v. Thompson, 285 N.C. 181, 203 S.E.2d 781, Cert. denied, 419 U.S. 867, 95 S.Ct. 123, 42 L.Ed.2d 104 (1974). Thus, we adhere to our former opinion holding this evidence admissible. This assignment is overruled.

Defendant next contends that the trial court committed prejudicial error in allowing the State to introduce into evidence...