State v. Davis

• Decision Date: 06 April 1976
• Docket Number: No. 8,8
• Citation: 289 N.C. 500,223 S.E.2d 296
• Parties: STATE of North Carolina v. Edward Collins DAVIS.
• Court: North Carolina Supreme Court

Page 296

223 S.E.2d 296

289 N.C. 500

STATE of North Carolina v. Edward Collins DAVIS.

No. 8.

Supreme Court of North Carolina.

April 6, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Lester V. Chalmers, Jr., Raleigh, for the State.

Robert L. Harrell, Asst. Public Defender, Asheville, for defendant-appellant.

BRANCH, Justice.

Defendant contends that the trial judge committed prejudicial error by refusing to permit the State's witness, Sgt. Cook, to testify concerning a statement made by defendant.

By agreement of the parties, the court conducted a Voir dire hearing concerning two statements made by defendant. One statement was made on 6 October 1974 and the other on 7 October 1974. The only witness offered on Voir dire was Sgt. Cook.

Defendant does not challenge the Admissibility of either of the confessions and properly so since there was ample evidence offered on the Voir dire hearing to support Judge Snepp's finding 'that the statements were made freely, intelligently, and voluntarily after the defendant had been fully advised of his rights under the law and had knowingly and intelligently waived those rights.' The trial judge's findings and conclusions of law in turn supported his ruling that both confessions were admissible into evidence. State v. Wright, 274 N.C. 84, 161 S.E.2d 581, Cert. denied, 396 U.S. 934, 90 S.Ct. 275, 24 L.Ed.2d 232; State v. Barber, 278 N.C. 268, 179 S.E.2d 404.

After the trial court's ruling the jury returned to the courtroom and the district attorney did not examine Sgt. Cook before the jury but tendered the witness for cross-examination. Thereupon, defendant's counsel sought to elicit from the witness Cook the context of the confession allegedly made by defendant on 7 October 1974. The trial judge sustained the State's objection.

In order to keep our consideration of this assignment of error in proper perspective, we here note that the State subsequently offered the testimony of S.B.I. Agent Maxey who related the statements made by defendant to Sgt. Rhew and the witness on 6 October 1974. The statement as related by the witness Maxey was to the effect that defendant told the officers that he was in the breathalyzer room with two highway patrolmen when the door opened and an older man stepped inside the room and shot Trooper Canipe and then shot the second patrolman. Thereafter defendant grabbed his property and the pistol belonging to Trooper Canipe and fled. On cross-examination the witness stated: 'I was not present when Mr. Davis made a statement the next day . . . I don't know whether there was a second interview or not.'

The statement allegedly made by defendant on 7 October in substance was that after he was brought into the breathalyzer room the arresting officer filled out a form and told him to sign it and he told the officer to sign it himself. Thereupon the arresting officer pulled his gun and told defendant to sign or he would blow his heart out. A struggle ensued between the defendant and the officer during which the gun fired twice hitting the arresting officer. Defendant stated that he did not know how the other officer was hit. He thereafter took his belongings and the officer's gun and fled.

It is well settled that if the State offers a part of a confession, the accused may require the whole confession to be admitted into evidence. State v. Marsh, 234 N.C. 101, 66 S.E.2d 684; State v. Edwards, 211 N.C. 555, 191 S.E. 1; 2 Stansbury's N.C. Evidence § 187 (Brandis Rev. 1973). However, we are here faced with two separate conflicting statements made on different occasions.

In the case of State v. Taylor, 280 N.C. 273, 185 S.E.2d 677, this Court considered a question similar to the one here under consideration. There, the Court, speaking through Justice Huskins, stated:

Defen(dant's) counsel proposed to ask a State's witness on cross-examination if defendant, when told by the witness that he was under arrest for rape, did not immediately deny his guilt. In the absence of the jury the witness stated that the defendant did deny it. The court sustained objection to the question and excluded the answer. This is the basis for defendant's sixth assignment of error.

Defendant did not take the witness stand and offered no evidence whatever. The proposed cross-examination was therefore not competent to corroborate the defendant or, for that matter, any other witness. It was properly excluded as a self-serving declaration. . . .

Headnote No. 1 in the case of State v. Davis, 246 N.C. 73, 97 S.E.2d 444, correctly and concisely states the pertinent holding of that case. We quote:

Where the State introduces testimony of statements made by defendant on a particular date, but introduces no evidence in regard to statements made by him on a subsequent date, defendant is not entitled to elicit from the State's witness testimony as to self-serving declarations made by defendant on the later date, the State not having 'opened the door' to such testimony.

Defendant argues that the State 'opened the door' when Sgt. Cook testified on Voir dire and when S.B.I. Agent Maxey testified concerning the 6 October 1974 statement. We do not agree. Defense counsel had full opportunity to examine S.B.I. Agent Maxey concerning the 6 October statement. It is noted, however, that this witness testified that he knew nothing about the 7 October statement. The State elected not to examine Sgt. Cook before the jury and the trial judge correctly refused to allow defense counsel to elicit this self-serving evidence on cross-examination at a time when the State had offered no evidence relating to it and defendant had not testified or offered evidence. This assignment of error is overruled.

Defendant assigns as error the ruling of the trial judge granting the State's motion to consolidate the two charges for trial.

The general rule in this jurisdiction is that the trial judge may consolidate for trial two or more indictments in which the defendant is charged with crimes of the same class and the crimes are so connected in time or place that evidence at the trial of one indictment will be competent at the trial of the other. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652.

The usual objection to consolidation grows out of circumstances where one or more of several defendants takes the position that he or they will be prejudiced if forced to trial with the other defendants; however, we have also considered circumstances in which a single defendant objected to being tried upon several charges at the same time. We rejected such a contention in State v. Jarrette, supra, and in so ruling the Court, speaking through Justice Lake, stated:

Over the objection of the defendant, the State's motion to consolidate for trial the four charges (murder, rape, kidnapping and armed robbery) was granted and the defendant's motion for severance was denied. In these rulings there was no error.

G.S. § 15--152 provides:

'When there are several charges against any person for the same act or transaction or for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses, which may be properly joined, instead of several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court will order them to be consolidated * * *.'

The uncontradicted evidence is that the entire series of events comprising the four crimes with which the defendant is charged began at about 3:30 p.m., Eastern Standard Time, on 11 February 1973 and was concluded when it was just dark enough to require lights on automobiles. On that date, this would be approximately two and one-half hours. Obviously, the four offenses constituted a continuing criminal episode. See: State v. Frazier, 280 N.C. 181, 185 S.E.2d 652; State v. Turner, 268 N.C. 225, 150 S.E.2d 406; State v. White, 256 N.C. 244, 123 S.E.2d 483; State v. Chapman, 221 N.C. 157, 19 S.E.2d 250. They were so related in time and circumstance as to permit the admission in evidence of each in the trial of the others. State v. Morrow, 262 N.C. 592, 138 S.E.2d 245; State v. McClain, 240 N.C. 171, 81 S.E.2d 364; State v. Harris, 223 N.C. 697, 28 S.E.2d 232; Stansbury, North Carolina Evidence (Brandis Revision), § 91. Under these circumstances, the consolidation of the cases for trial was within the sound discretion of the trial judge. State v. Yoes and State v. Hale, 271 N.C. 616, 157 S.E.2d 386.

We note parenthetically that G.S. § 15--152 was repealed by Session Laws 1973, c. 1268, s. 26, however, this legislative change became effective July 1, 1975, subsequent to the trial of this case.

It is true that in ruling upon a motion for consolidation of charges, the trial judge should consider whether the accused can fairly be tried upon more than one charge at the same trial. If such consolidation hinders or deprives the accused of his ability to present his defense, the cases should not be consolidated. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208; Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23. Nevertheless it is well established that the motion to consolidate is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a showing of abuse of discretion. State v. Jarrette, supra; State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; Dunaway v. United States, supra.

Defendant argues that he was prejudiced by the consolidation because without the consolidation of charges he would have had the election of testifying in one case without being forced to testify in the other.

In instant case, the charged crimes were obviously continuing criminal acts which permit the admission in evidence of each in the trial of the other. We...