State v. Coleman, 264

• Decision Date: 24 May 1967
• Docket Number: No. 264,264
• Citation: State v. Coleman, 154 S.E.2d 485, 270 N.C. 357 (N.C. 1967)
• Court: North Carolina Supreme Court
• Parties: STATE, v. Ronald Maxie COLEMAN.

Page 485

154 S.E.2d 485

270 N.C. 357

STATE, v.Ronald Maxie COLEMAN.

No. 264.

Supreme Court of North Carolina.

May 24, 1967.

Atty. Gen., T. W. Bruton and Staff Atty. Wilson B. Partin, Jr., for the state.

Plumides & Plumides, by John G. Plumides, Richard L. Kennedy and Jerry W. Whitley, Charlotte, for defendantappellant.

Moore & Van Allen, by John T. Allred, Charlotte, for Southern Bell Tel. & Tel. Co., amicus curiae.

PARKER, Chief Justice.

The State's evidence in summary tends to show the following facts: Prior to 5 December 1965 there had been in Charlotte a number of telephone calls from a man or men in response to legitimate ads in the daily papers when it was apparent that a woman would answer.Typical of these ads were an ad, 'girl to share an apartment with a girl,' or 'some woman had a room for rent,' or 'wearing apparel or something of that nature.'The police department of the city of Charlotte, in order to catch the man or men who made such calls, had the Charlotte Observer on Sunday, 5 December 1965, to run the following ad: 'EMBA MINK JACKET CAPE STOLE, slightly used.Will sell at a sacrifice.Nice gift.334--3237.'Mrs. Frances S. Sutton, an employee of the Charlotte Observer and the Charlotte News, composed this ad and had it placed in the Charlotte Observer.TelephoneNo. 334--3237 was installed in an office of the police department in the city of Charlotte.

Prior to 5 December 1965 Southern Bell Telephone and Telegraph Company had installed a diode device in a particular section of its telephone exchange in the city of Charlotte serving telephone No. 334-- 3237.The basic function of a diode on a telephone line is simply to prevent a disconnection when the originating or calling party hangs up.It does not identify the parties to a conversation or record the actual conversation; it merely enables the calling line to be identified.In essence, it denies the caller a get-away.The nature and operation of the diode was described at the trial by the State's witness T. G. Latham, a Southern Bell employee for the past thirteen years.He testified: 'A diode device that we used gives joint or dual control of the call.In other words, what I mean to say there, may I give an example?When a person makes a call, he dials all of his numbers into the central office.When he dials each digit, each digit is handled by a separate piece of equipment.It in turn goes through the central office in a step by step fashion to each piece of equipment and then goes to the terminated equipment or the receiver's line.This is all done automatically and then it rings the receiver's line and they will talk and have a conversation or transmission.All right, the calling party has control over the connection.If we use this diode device, then it gives dual control; not only the calling party can hold the connection but the receiving party can also hold the connection if they leave their receiver off the hook.This is what happened in this case.The receiver left their phone off the hook, called us and requested that we make a trace on this call.* * * Without the diode, only the calling party has control.In other words when they hang up the connection is dropped.As long as the calling party has their receiver off the hook, then they have control but when they hang up the connection is dropped.* * * I supervised the installing of this device on this line.I didn't do the installation.I checked it out to see that it was functioning.I did that myself.* * * As to whether I am an expert, it doesn't take much of an expert to install them so I guess I'm an expert.I consider myself an expert on doing this.I am convinced beyond a shadow of a doubt that every time I placed it, it was perfect.No mishaps.It is a very reliable instrument.'Mr. Latham also testified: 'I received the telephone call from the police station at 9:22 A.M.It took me until 9:27 AM to make the trace--five minutes.I reported the results of my tracing to Sgt. Ross.'

Mrs. Mary S. Thompson is an employee of the police department of the city of Charlotte, and was so employed on 5 December 1965.She was assigned by the police to answer three telephones that had been installed in the police department of the city of Charlotte.The number of one of these telephones was 334--3237.About 9:21 a.m. on 5 December 1965, the bell on telephone 334--3237 rang and she answered.The person calling her over the telephone asked her if she was the lady that had the ad in the paper about the mink cape for sale, and then he used to her over the telephone such lewd, vulgar, and indecent language that we will not soil the pages of our Reports with such filth.It is manifest that it is such language as is prohibited by G.S. § 14--196.1.(Anyone who is interested in reading the language this person used to Mrs. Thompson can find it set out on pages 14, 15, and 16 of the record.)What the person said to her lasted from two and one-half to three minutes, and then this person hung up.She kept the receiver up and held it in her hand until she received a dial tone about 10:49 a.m.She recognized the voice of the person talking to her over the telephone as that of a male person.She did not have a mink cape stole for sale.

T. G. Latham was on duty on the morning of 5 December 1965 for Southern Bell Telephone and Telegraph Company.About 9:30 a.m. he received a call from the police department of the city of Charlotte to trace a call to telephone No. 334--3237.In response to that call, he went to a telephone building at 208N. Caldwell Street in the city of Charlotte to the receiving equipment for telephone calls to 334--3237 by means of the diode device, and checked that call back on automatic devices to determine where the call originated.He testified: 'We traced this call back to the originating line equipment and after we found the originating line equipment which was 85 and 152, we went to our service record cards and pulled the card on 85 and 152 and found that the number 334--6987 was on this 85 and 152 and it was registered, the phone was registered to a Reverend Maxie Coleman.It was a private line, with no extensions in the house.* * * This phone is located at 1705 North Allen Street in the City of Charlotte.'

Robert W. Fleming is employed as the Business Office Manager by Southern Bell Telephone and Telegraph Company in Charlotte, and as such he has control over the telephone listings for the city of Charlotte.TelephoneNo. 334--6987 in Charlotte is listed in the name of the Reverend Maxie Coleman, and his address is 1705 North Allen Street, Charlotte.It is a private line, with no extensions.

After the telephone call had been traced, police officers of the city of Charlotte went to 1705 North Allen Street in the city of Charlotte.Upon arrival they saw the defendant walking towards a 1957 blue and white Pontiac parked at the curbing in front of the house, get in it, and leave.The officers followed him for about two and one-half blocks, got his license number and had it identified through the police station.They lost him in traffic.They went back to 1705 North Allen Street to observe the house.Later on, the defendant driving the 1957 Pontiac parked again in front of 1705 North Allen Street.Defendant then left this house and went to his car and got in on the driver's side.The officers drove up, identified themselves to the defendant, and asked who lived at 1705 North Allen Street.He stated that he did.After Officers Bruce S. Treadaway and Marshall Haywood went into the house with defendant, Officer Ross arrived with an arrest warrant and told defendant that he was under arrest and advised him as to his rights to counsel, that he did not have to make a statement unless he so desired, and that if he said anything it could be used against him.Officer Treadaway testified that 'at that time I picked up the telephone and had conversation with Mrs. Mary Thompson without dialing the phone.I picked up the receiver.I hung the phone back up.Officer Ross picked it back up off the cradle.He had a conversation with someone.He didn't dial the phone.'Pertaining to the same matter, Sergeant C. W. Ross testified in substance, except when quoted, as follows: He took the phone from Officer Treadaway and talked to the party on the other end of the line.'I recognized the voice.In my opinion, it was Mrs. Mary Thompson on the other end of the line.'The officers took defendant to police headquarters.Defendant stated that his mother and father left about 9:00 or 9:05 a.m. to go to church, and that he was alone in the house from that time until the time the officers first drove up.

During a conversation at police headquarters, Mrs. Mary S. Thompson listened to the defendant talk.Mrs. Thompson testified in substance that she heard the defendant talk at the police station and the voice of the defendant was the voice of the man who had used lewd, vulgar, and indecent language to her over the telephone that morning.On recross-examination of Mrs. Thompson by Mr. Plumides, the record shows this:

'Q.That's the only other time you ever heard his voice, other than on the telephone, wasn't it?

'A.When he made the statement, 'No, lady, I've never talked to you before,' the way he used 'lady' in his words, 'are you the 'lady' with the cape for sale?'

'That was not altogether the basis of my opinion.That was part of it.I didn't talk to him more than twenty to thirty seconds; that was enough to convince me.I was not helped in my opinion by the fact that he had already been brought to the Police Station by the police officers.He was the only one they had in custody at that time, but that didn't help influence my opinion.'

Defendant offered no evidence.

Defendant assigns as error the following:

'EXCEPTIONNO. 5.(R p 11)Defense counsel attempted to establish on cross examination that a certain advertisement was put in The Charlotte Observer with the...