State v. Castor

• Decision Date: 15 May 1974
• Docket Number: No. 68,68
• Citation: 204 S.E.2d 848,285 N.C. 286
• Parties: STATE of North Carolina v. J. C. CASTOR.
• Court: North Carolina Supreme Court

Page 848

204 S.E.2d 848

285 N.C. 286

STATE of North Carolina v. J. C. CASTOR.

No. 68.

Supreme Court of North Carolina.

May 15, 1974.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Richard N. League, Raleigh, for the State.

Smith, Carrington, Patterson, Follin & Curtis by J. David James, Greensboro, for defendant-appellant.

BOBBITT, Chief Justice.

The court admitted, over defendant's objection and motion to strike, the following portion of the testimony of Barrier:

'Q. Did you at any time talk with the witness Elaine Crisco in the presence of the defendant, J. C. Castor?

'A. Yes, sir, I did. This was on July 8, 1971.

'Q. I ask you first what the witness Elaine Crisco said to and in the presence of J. C. Castor?

'A. Miss Crisco was asked several questions in the presence of J. C. Castor, the first one was 'Who went with you to Miss Walker's home,' and she replied that Phillip Scearcy and J. C. Castor went there with her. She was also asked who was in the house when she heard the shot fired, and she stated that J. C. Castor was. We asked her why they went to Miss Walker's house, and she stated for the purpose of robbing the old woman.

'Q. Were these questions asked and answered in the presence J. C. Castor?

'A. Yes, they were.

'Q. Did he make any denial?

'A. No, sir, he did not.'

Defendant assigns as error the admission of this testimony and the instruction in the court's charge with reference thereto, to wit:

'Evidence had (sic) been received which tends to show that a statement accusing the defendant of the crime charged in this case was made in his presence and the defendant neither denied or objected to the statement. This evidence should be considered by you with great caution (sic) before you may consider the defendant's silence on this as evidence of his guilt, you must find first that the defendant--that the statement was in fact made in the hearing of the defendant, second, that he understood it and that it contained an accusation against him and third, that all the circumstances including the content of the statement and the identity of the person making it in the other person's presence was sufficient to make a reply natural and proper and fourth, that the defendant had an opportunity to reply. Unless you find all these things to be present you must completely disregard this evidence. If you find all these things to be present you may consider the defendant's silence together with all other facts and circumstances in this case in determining the defendant's guilt or innocence.'

Ordinarily, whether the defendant's failure to deny an accusatory statement made in his presence may be considered an implied admission of the truth thereof is to be determined by legal principles established by decisions of this Court reviewed in State v. Temple, 240 N.C. 738, 83 S.E.2d 792 (1954), and in State v. Guffey, 26s N.C. 322, 134 S.E.2d 619 (1964). See 2 Stansbury's North Carolina Evidence, Brandis Rev., § 179.

'( A)n admission or confession, even where it may be implied by silence, must be voluntary. Any circumstance indicating coercion or lack of voluntariness renders the admission incompetent.' State v. Guffey, Supra, at 324, 134 S.E.2d at 621.

In State v. Dills, 208 N.C. 313, 180 S.E. 571 (1935), the appellants, when under arrest upon a charge of murder, were forced by officers to hear read affidavits of codefendants which accused them of complicity in the crime. The State contended the appellants' silence when confronted by these accusations constituted an implied admission that the accusations were true. Rejecting this contention, the court awarded a new trial for error in admitting this evidence. It was held that the circumstances disclosed coercion and lack of voluntariness. The following excerpt from the opinion of Justice Schenck is pertinent to the present case: '(I)f the accusations were true, the appellants had one of three courses to pursue, either admit their truth and thereby admit their own guilt, or deny them and thereby make false statements, or remain silent. We think in remaining silent the appellants acted within their legal rights, since no man should be forced to incriminate himself, or to make false statements to avoid so doing.' Id. at 315, 180 S.E. at 572.

In State v. Virgil, 263 N.C. 73, 138 S.E.2d 777 (1964), the defendant, under arrest for burglary, was taken by an officer to the hospital room of one Evans. The officer testified that the defendant failed to deny incriminating statements made by Evans in defendant's presence. Under these circumstances, it was held that defendant's silence did not constitute an implied admission of the truth of the incriminating statements, and that the officer's testimony as to Evans's statements (declarations) was incompetent and the admission thereof was prejudicial error.

In State v. Fuller, 270 N.C. 710, 155 S.E.2d 286 (1967), the court admitted over objection the testimony of an officer with reference to incriminating statements made by the defendant when in custody charged with murder. The testimony disclosed that the statements attributed to the defendant were made after officers confronted him with a State's witness who made accusatory statements in the defendant's presence. The court's findings after a Voir dire hearing included a finding that 'he (the defendant) was advised by the officers that anything he said or did not say in response to anything said by Margaret Campbell could be used for or against him.' This Court, in an opinion by Justice Pless, noted the holding in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966), that, prior to any questioning, a person in the custody of law enforcement officers must be warned Inter alia 'that he has a right to remain silent, that any statement he does make may be used as evidence against him . . ..' The defendant was awarded a new trial on the ground the admission of his incriminating statements after he had been advised 'that anything he said or Did not say in response to anything said by Margaret Campbell Could be used for or against him,' (our italics) violated defendant's constitutional privilege against self-incrimination under the Fifth Amendment to the Constitution of the United States, made applicable to the States by the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), and Article 1, Section 11 (now Section 23), of the Constitution of North Carolina.

Defendant was in custody, charged with the murder of Pearl Walker, when Elaine was brought into his presence and questioned concerning what she had previously related to Barrier in the absence of defendant. Defendant was not then represented by counsel and had not been advised of his constitutional rights. However, decision is not based on either of these circumstances. The crucial fact is that he exercised his constitutional right to remain silent.

The constitutional right against self-incrimination which defendant exercised by remaining silent when Elaine made accusatory statements when questioned by Barrier in defendant's presence is the same constitutional privilege against self-incrimination he exercised at trial when he did not testify after Elaine had testified to substantially the same effect. Adverse comments on a defendant's failure to testify at trial are impermissible under North Carolina law, Constitution of North Carolina, Article I, Section 23, N.C.G.S. § 8--54, and under the Fifth and Fourteenth Amendments to the Constitution of the United States, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). A fortiori, a defendant's failure to testify may not be considered an admission of the truth of testimony which tends to incriminate him. Similarly, under the circumstances disclosed by the evidence herein, defendant's silence in the rightful exercise of his privilege against self-incrimination may not be considered an admission of the truth of incriminating statements made in defendant's presence by a prospective State's witness in response to an officer's questions.

The Court of Appeals held that error in the admission of the challenged testimony and in the court's instruction with reference thereto was harmless beyond a reasonable doubt and therefore defendant was not 'sufficiently prejudiced' to warrant a new trial. This conclusion is based upon its application of the doctrine stated by Justice Huskins in State v. Taylor, 280 N.C. 273, 280, 185 S.E.2d 677, 682 (1972), as follows:

'Every violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of a particular case, not requiring the automatic reversal of a conviction, where the appellate court can declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).'

Although our conclusion differs from that of the Court of Appeals, nothing stated herein should be interpreted as a departure from the quoted statement.

The fact that, exclusive of the erroneously admitted evidence, there was plenary evidence to support the verdict is not determinative. The test is...