State v. Sings

• Decision Date: 03 January 1978
• Docket Number: No. 7726SC553,7726SC553
• Citation: 240 S.E.2d 471,35 N.C.App. 1
• Parties: STATE of North Carolina v. George Phillip SINGS (alias Phillip George Sings).
• Court: North Carolina Court of Appeals

Page 471

240 S.E.2d 471

35 N.C.App. 1

STATE of North Carolina v. George Phillip SINGS (alias Phillip George Sings).

No. 7726SC553.

Court of Appeals of North Carolina.

Jan. 3, 1978.

Walker & Walker by Frank H. Walker, Charlotte, for defendant.

BROCK, Chief Judge.

Defendant first assigns error to Judge Barbee's refusal to permit defendant's father to testify in defendant's behalf at the voir dire hearing. The record reveals that Judge Barbee, upon motion of defendant, had ordered the sequestration of all the witnesses at the voir dire proceeding and had instructed them not to discuss the case at all. Defendant's father was summoned by telephone by one of his children (not a witness) who was present in the courtroom and who informed him as to certain testimony which had been given in the proceeding. Judge Barbee excluded the witness' testimony due to violation of the sequestration order.

Defendant argues that the court either had no discretion or abused its discretion in excluding the testimony of defendant's father. We disagree. An order to sequester witnesses is issued in the sound discretion of the trial judge. State v. Cook, 280 N.C. 642, 187 S.E.2d 104 (1972); Lee v. Thornton, 174 N.C. 288, 93 S.E. 788 (1917). The purpose of the sequestration order is to protect against colluded testimony; if the order is disobeyed, the court can exclude the witness from testifying. Lee v. Thornton, supra.

Furthermore, defendant has failed to show that he suffered any prejudice from Judge Barbee's action. The record shows that the witness told the court before being dismissed from the stand that he was present when defendant took a drink of vodka while being questioned by police officers at his (defendant's) house. This was merely cumulative of testimony previously given by defendant. No showing was made of any other material testimony that the witness would have given had he been allowed to testify. See, State v. Hodge, 142 N.C. 676, 55 S.E. 791 (1906). On the basis of the record before us, we cannot say that Judge Barbee abused his discretion in refusing to allow defendant's father to testify at the voir dire hearing. Defendant's first assignment of error is overruled.

Defendant next assigns error to the admission of his confession into evidence. He contends that his statement was not voluntary and thus inadmissible for four reasons: (1) it was triggered by the fruits of an illegal search and by threats to involve defendant's family in the case; (2) it was obtained while defendant was in a weakened condition due to lack of food and sleep and as a result of a consumption of alcohol; (3) it was obtained as a result of defendant's detention in violation of G.S. 15A-501 and 15A-511; and (4) it was obtained by interrogation after defendant had stated that he did not wish to give a statement. We have thoroughly examined the record as to all these contentions and find them to be without merit.

At the conclusion of the voir dire hearing, the presiding judge made findings of fact and conclusions of law and denied defendant's motion to suppress the statement. These findings of fact are conclusive and binding on appeal if supported by competent evidence. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), judgment imposing death penalty vacated, 428 U.S. 908, 96 S.Ct. 3215, 49 L.Ed.2d 1213 (1976).

Judge Barbee found extensive facts regarding the events leading up to defendant's confession. He also found facts to the effect that the police officers told defendant that members of his family had helped them recover the stolen property from defendant's residence; that defendant was informed of his constitutional rights mandated by Miranda (for at least the third time) immediately prior to giving his statement to police, that defendant signed a waiver of rights form and made incriminating statements which were reduced to writing by one of the police officers; that defendant's statements were read back to him, and he read the written statement, made some changes, and signed it. The court further found as facts that defendant was in good physical and mental condition at the time he gave the statement; that the statement he gave was sensible; that he understood his constitutional rights and indicated that he did not wish to have a lawyer present; that the statement was not made by defendant pursuant to any "blackmail" or threats to bring charges against members of his family; that the statement was not the result of any alleged illegal search or seizure of defendant's premises; and that defendant was not under the influence of any intoxicating liquor at the time he made the statement. On the basis of the findings of fact, Judge Barbee concluded, inter alia,

"VI. That the defendant was in full understanding of his constitutional rights to remain silent and his rights to counsel, and all other rights;

VII. That the defendant purposely, freely, knowingly, understandingly, voluntarily and intelligently waived each of these rights and thereupon made a statement to the officers above mentioned;".

Defendant contends that his confession was induced by the use of property recovered during an alleged illegal search of his residence. Judge Barbee declined to rule on the legality of the search, concluding instead that defendant was not induced by any illegal search or the fruits thereof. Assuming for the sake of discussion that the warrantless search conducted by police without defendant's knowledge and while he was in custody was indeed illegal, the fact that defendant was shown items recovered during the search just prior to making incriminating statements does not, ipso facto, render the statements involuntary. In State v. McCloud, 276 N.C. 518, 173 S.E.2d 753 (1970), it was held that "voluntariness remains the test of admissibility of a confession, and the use of the illegally seized property is only one circumstance surrounding the in-custody statement to be considered in determining whether the statement is voluntary and admissible." 276 N.C. at 529, 173 S.E.2d at 761. Other...