State v. Montgomery

• Decision Date: 07 December 1976
• Docket Number: No. 5,5
• Citation: 229 S.E.2d 904,291 N.C. 235
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Nelson Caldwell MONTGOMERY.

Page 904

229 S.E.2d 904

291 N.C. 235

STATE of North Carolina v. Nelson Caldwell MONTGOMERY.

No. 5.

Supreme Court of North Carolina.

Dec. 7, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. William H. Boone and Sp. Deputy Atty. Gen. Myron C. Banks, Raleigh, for the State.

James E. Ferguson, II, Charlotte, for defendant-appellant.

BRANCH, Justice.

Defendant contends that he was denied his constitutional right of due process by the investigative methods of the police officers who allegedly coerced State's witnesses to give perjured testimony against him. Defendant relies upon a line of cases represented by Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. In Mooney, the petitioner sought relief under the Federal habeas corpus act alleging that his due process rights were violated because the State knowingly used perjured testimony against him and deliberately suppressed evidence which would have refuted the testimony against him. The United States Supreme Court denied the petition because the petitioner had not exhausted the remedies afforded to him by the State courts. However, defendant relies on this language from Mooney:

. . . It (due process) is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.

Defendant also cites in support of this contention: Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690; Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214; Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932; Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; United States v. Swope, 5 Cir., 232 F.2d 853. The majority of the cases cited by defendant are cases in which relief was sought under the Federal habeas corpus act upon allegations that the State knowingly used perjured testimony And suppressed this knowledge. In considering this assignment of error, it must be borne in mind that we are considering the admissibility of testimony obtained by the alleged coercion of a witness rather than a Confession by an accused obtained by police coercion.

In People v. Portelli, 15 N.Y.2d 235, 257 N.Y.S.2d 931, 205 N.E.2d 857, a witness gave incriminating testimony against defendant and on cross-examination disclosed that he was taken to a police station by police officers where he denied any knowledge of the crime. He disclosed his knowledge of the crime only after he was severely beaten and tortured. Defendant contended that this testimony should have been stricken because of the coercive tactics of the police officers in obtaining the witness' statement. Rejecting this contention, the New York Court of Appeals stated:

. . . (T)he testimony of a witness who, although previously forced to make a pretrial statement, asserts that his testimony at the trial is truthful is for the consideration and appraisal of the jury. (See 3 Wigmore, Evidence (3d ed., 1940), § 815, pp. 230--231.) The requirements of law are met if the fact of such earlier coercion or other official lawlessness is disclosed to the jurors so that they may pass upon the witness' veracity and credibility and determine whether the testimony given in open court is truthful and worthy of consideration.

In People v. Bradford, 10 Mich.App. 696, 160 N.W.2d 373, the Michigan Court of Appeals considered a similar question. There a witness, Payne, implicated defendant as his accomplice in the shooting of two police officers. He also testified as to physical harm inflicted upon him during police interrogations. The court, overruling defendant's contention that Payne's testimony was untrustworthy as a matter of law, stated:

. . . Witness Payne's testimony was certainly to be considered and weighed with no small amount of suspicion. Yet for the trial judge to exclude it as untrustworthy as a matter of law would result in an invasion of the jury's exclusive and unquestioned province as the trier of fact.

In People v. Treichel (1924), 229 Mich. 303, 200 N.W. 950, the fact situation and question raised were very similar to that herein. There the implicating accomplice was slapped into a confession by a sheriff. The Michigan Supreme Court by Mr. Justice Wiest stated on p. 309, 200 N.W. on p. 952:

'Defendants may not urge the exclusion of the testimony of Howard Long on the ground he was led to confess by trickery, deceit, brutality or promises. He was not on trial. Methods and means employed to get him to confess went to the jury along with his testimony, and it was for the jury to say, under the circumstances, what weight, if any, they would give to what he said in court.'

The jury in the instant case was made aware of the circumstances surrounding and leading to witness Payne's implication of defendant. . . .

The Georgia Supreme Court considered the question of the exclusion of coerced testimony in the case of Rawlins v. State, 124 Ga. 31, 52 S.E. 1. The court, in part, stated:

. . . Evidence that the officers first obtained information as to his participation in the crime by placing him (the witness) under the influence of fear, and that at the time of the trial he still labored under this fear, would be admissible to go to the jury along with his testimony, in order that they might determine upon the weight to be given it; but neither the improper methods used in obtaining the confession nor the apprehension under which the witness labored during the trial would render him an incompetent witness. . . .

Accord: Long v. United States, 124 U.S. App.D.C. 14, 360 F.2d 829; Adler v. State, 248 Ind. 193, 225 N.E.2d 171.

It is self evident that a denial of due process occurs when the State contrives a conviction by the knowing use of perjured testimony. However, when a witness testifies as to facts earlier obtained by coercive police action and all of the circumstances surrounding the alleged coercive acts are before the jury, the requirements of due process are met. It is then for the jury to determine the weight, if any, to be given to the testimony. United States v. West, D.C., 170 F.Supp. 200; 3 Wigmore, Evidence § 815 (Chadbourne rev. 1970); Annot., 3 L.Ed.2d 1991, Due Process-Perjured Testimony.

We apply the above-stated principles of law to the rulings of the trial judge concerning the admission of the testimony of Johnny Ray Shuford, Melvin Dula, Henry Thomas, Jr., and Ted Richards.

The testimony of the witness Johnny Ray Shuford tended to show that he saw defendant at the home of Melvin Dula at about 12:30 p.m. on the morning after the LeCharolais Steak House had been robbed. Jerry Cromwell, Billy Little and Nelson Montgomery were present. Nelson Montgomery had a stack of money with a rubber band tied around it. He also had a charge card and a piece of paper with LeCharolais Steak House written on it. The witness testified that he heard Nelson Montgomery say that he 'had to shoot that bitch.' On cross-examination the witness made many contradictory statements about the circumstances under which defendant's statement was made and was very vague as to the time and place. However, he did not change his testimony as to the material facts. The only evidence of police coercion was his testimony that he was questioned several times and on one occasion was told that he could get ten years if he lied.

Melvin Dula testified to substantially the same facts, including the fact that one of the police officers told him that he could get up to ten years if he did not tell the truth.

The strongest evidence against defendant came from the witness Ted Richards. He testified that he recognized the man carrying the pistol during the robbery of the LeCharolais Steak House on 24 October 1973 as a schoolmate and neighbor, Nelson Montgomery. Again the only evidence of police coercion was that police officers questioned Richards on several occasions and once told him that he could get up to ten years if he lied. He stated that he was not scared by this statement. Officer McGuire denied making such statement to any of the witnesses. Richards' testimony was also filled with contradictory and inconsistent statements. Nevertheless, he never changed his trial testimony as to the material facts.

The evidence in this case reveals a tenacious investigation by the police officers but shows little evidence of coercive action against the witnesses, Dula, Shufford and Richards. Even had there been strong evidence of coercion, this record does not disclose that defendant's conviction resulted from the use of known perjured testimony. A full disclosure of the alleged coercive police action was before the jury. Under vigorous and searching cross-examination each witness steadfastly asserted the truth of the material facts.

Under these circumstances, we hold that the evidence was admissible. Evidence of any police coercion or of contradictory statements and withholding of information on the part of the witnesses goes to their credibility. This, of course, is a jury question.

We digress in order to make it eminently clear that we do not approve of any police tactics which include beatings and torture. However, our system of jurisprudence provides safeguards against such acts without affecting the admissibility of allegedly coerced testimony.

Finally, we consider the admission of the testimony of the State's witness Henry Thomas. When it became apparent that Thomas was hostile to the State, the District Attorney requested that he be allowed to examine the witness in the absence of the jury. The jury was excused and the witness testified that on 30 September 1975, he...