State v. Walker, 674

• Decision Date: 20 January 1967
• Docket Number: No. 674,674
• Citation: 152 S.E.2d 133,269 N.C. 135
• Court: North Carolina Supreme Court
• Parties: STATE, v. Herbert B. WALKER.

Page 133

152 S.E.2d 133

269 N.C. 135

STATE, v. Herbert B. WALKER.

No. 674.

Supreme Court of North Carolina.

Jan. 20, 1967.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard and Staff Atty. Ralph A. White, Jr., Raleigh, for the State.

Smith, Moore, Smith, Schell & Hunter and James G. Exum, Jr., Greensboro, for defendant appellant.

BOBBITT, Justice.

There was evidence tending to show: Soon after 5:00 p.m. on Tuesday, March 30, 1965, Roberts, Moore and Lawson entered the place of business of Charles Fine and his wife, Jean Fine, at 332 South Elm Street, Greensboro, N.C. The overt acts constituting the robbery charged in the bill of indictment were committed by Roberts and Moore. After the robbery, Roberts, Moore and Lawson, pursued by Mr. Fine and Officer Brewer, fled through an alley to a parking lot. Moore and Lawson ran to and got in a car, parked on McGee Street, occupied solely by Walker. Moore then jumped out and ran. Walker and Lawson were in the car when Officer Brewer arrived and arrested them. Later, elsewhere, Roberts and Moore were arrested. Walker was tried and convicted upon the theory that he aided and abetted Roberts, Moore and Lawson in the commission of said robbery.

Defendant excepted to and assigns as error the denial of his motion for judgment as of nonsuit at the conclusion of all the evidence. This assignment is without merit. 'Contradictions and discrepancies, even in the State's evidence, are for the jury to resolve, and do not warrant nonsuit.' 1 Strong, N.C. Index, Criminal Law § 99. The evidence, when considered in the light of the legal principles stated in our opinion on former appeal, was sufficient to require submission to the jury.

Defendant assigns as error the admission, over his objection, of testimony of Sergeant Melton, of the Detective Division of the Greensboro Police Department, as to statements made by defendant when questioned by him the night of March 30th. It is noted that this appeal is from a trial conducted prior to the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. In the absence of the jury, the court heard evidence relevant to the admissibility of this testimony, the State offering testimony of Sergeant Melton and of Captain Jackson (of said Detective Division), and defendant offering his own testimony and the testimony of Roberts and Lawson. After consideration of this conflicting evidence, the court found as facts that defendant had been fully informed as to his constitutional rights and that any statements made by him were made voluntarily. We pass, without decision or discussion, assignments of error with reference to the asserted insufficiency of the evidence to support said findings.

Decision on this appeal is based on the ground Sergeant Melton was permitted, over defendant's objection, to read to the jury a two-page typed statement bearing defendant's signature and produced and signed under circumstances narrated below. The statement is quoted in full in the record before us.

A preliminary hearing for Walker was held March 31, 1965, during the morning session of the Greensboro Municipal-County Court.

The State's evidence tends to show: Walker, awaiting preliminary hearing, was confined in the lockup room just outside the courtroom. Sergeant Melton produced the two-page typed statement, told Walker he would like to get his signature on it and passed the statement and the pen into the room where Walker was confined. Walker was in said lockup room when he signed the statement with said pen. Sergeant Melton testified that 'Walker had an opportunity to read' the statement; that Walker stated 'that he didn't want to read it, that he knew what was in it'; and that Walker 'signed it with his (Melton's) pen.' He also testified that the case 'had already been called in the Municipal-County Court for hearing when (he) confronted (Walker) with the typewritten statement which he signed.' The final paragraph includes the following: 'I have heard this statement read to me * * *.' Actually, the statement was never read to defendant. Sergeant Melton testified: 'The fact is that the defendant Walker never read it. He refused to read it. He just signed it.' Note: Walker testified (on Voir dire) he had no opportunity to read the statement; that it was presented to him, after his case had been called, just as he was being taken from the lockup room to the courtroom; that he put it against the wall and signed it when he 'was standing up at the door getting ready to go into the courtroom'; and that he signed it because he had been given assurances it would be to his interest to cooperate with the officers.

Before the statement was read in evidence, Sergeant Melton answered affirmatively the court's question as to whether the typed statement set forth 'exactly what Walker had told (him) happened.'

The night of March 30th Walker was first questioned by Sergeant Melton. Melton (on Voir dire) testified: 'He (defendant) kept making the statement that he didn't know anything about the robbery at Fine's Loan Company. He denied any knowledge of any robbery at Fine's Loan Company. After questioning Walker about thirty to forty minutes, I carried him to Captain Jackson's office where he was placed with Mr. Lawson and Mr. Roberts. Officers had been questioning Lawson and Roberts separately during this time. Statements had been taken from both Roberts and Lawson. Both Roberts and Lawson had said that Walker did not know the robbery was going to be committed at Fine's. The statements of Lawson and Roberts tended to absolve Walker from any knowledge or implication from the robbery at Fine's.' Again: 'Walker and Lawson had told us that they had planned to rob a jewelry store but had called it off. Roberts, the one who pulled the gun on Mr. Fine, had told us that this was something he had decided to do on the spur of the moment and Lawson agreed with Roberts' characterization of this action.' Captain Jackson (on Voir dire) testified: 'He (defendant) had told us that he had not known anything about the robbery. That is what Officer Melton told me he said. In my office he told all of us that he did not know anything about it. He maintained this story throughout the evening of March 30, 1965.' About nine o'clock the morning of March 31st, Detective Belvin and Sergeant Melton 'got Walker from his cell and questioned him again'; but there is No testimony as to what Walker said at that time.

The witnesses for defendant at trial testified a plan to rob a jewelry store had been abandoned; that there was no plan to rob any person or place of business when they left defendant shortly before the robbery at Fine's Loan Company; that their original purpose when they went into Fine's Loan Company was to see if Moore could pawn a ring and watch; and that the robbery was triggered, without prior plan, by Roberts's impulsive and unforeseen actions.

In contrast to the statements made by Walker, Roberts and Lawson on the night of March 30th, and also in contrast to the testimony of Roberts, Lawson and Moore at the trial, the typed statement purports to be a complete confession of guilt by Walker. While there are other incriminating portions, the following excerpt is sufficient to show such contrast: 'Then Herbert states the conversation started about robbing or breaking in a place because they needed the money. This was around twelve noon. They drove around in the uptown area, looking for a place. They picked out this jewelry store on South Elm Street. They circled the block three or four times, looking for a place to park, and at the same time, casing the jewelry store. Herbert was driving at this time. He parked the car near the corner of McGee and South Greene Street, headed west. The plan was that Charles Roberts, James Lee Lawson, and Henry Lee Moore were to go to the...