State v. Justice

165 S.E.2d 47 (1969)

3 N.C. App. 363

STATE of North Carolina v. Tommy JUSTICE and Cleveland Banks.

No. 687SC418.

Court of Appeals of North Carolina.

January 15, 1969.

*49 Atty. Gen. T. W. Bruton, Asst. Atty. Gen. William W. Melvin, and Staff Atty. T. Buie Costen, Raleigh, for the State.

Fields, Cooper & Henderson, by Leon Henderson, Jr., Rocky Mount, for defendant appellant, Tommy Justice.

W. O. Rosser, Whitakers, for defendant appellant, Cleveland Banks.

FRANK M. PARKER, Judge.

The judgments here appealed from were entered on 15 May 1968. The record on appeal was docketed in this Court on 20 September 1968. Rule 5 of the Rules of Practice of this Court provides that if the record on appeal is not docketed within ninety days after the date of the judgment appealed from, the case may be dismissed; provided the trial tribunal may, for good cause, extend the time not exceeding sixty days. As to the defendant Tommy Justice, the trial judge did extend the time for docketing the case on appeal in this Court to 130 days from the date of the judgment. Therefore, as to the appellant Tommy Justice, the record on appeal was docketed in this Court in apt time. However, as to the appellant Cleveland Banks, no order was entered extending the time for docketing the case on appeal, and the appeal as to the appellant Cleveland Banks should be and is dismissed. Smith v. Starnes, 1 N.C. App. 192, 160 S.E.2d 547. Williams v. Williams, 1 N.C.App. 446, 161 S.E.2d 757.

On the appeal of the defendant Justice, appellant assigns as error the court's action in allowing the police officers to testify that Justice had confessed to *50 them that he had discussed and planned the robbery with the other defendants and had acted as lookout man for the two who had actually carried out the robbery. The testimony of the officers as to this confession was admitted only after the trial judge had conducted extensive voir dire examinations in the course of which the solicitor and counsel for defendants were given full opportunity to develop all of the circumstances under which Justice's confession had been made. The appellant Justice himself testified during one of the voir dire examinations and admitted that at the time he had been interrogated by the officers he had been told about some "rights" and that he had signed a paper which the officer had read to him concerning his rights. Both officers testified in detail that prior to any interrogation all defendants, including the appellant Justice, had been given the warnings as required by Miranda. Appellant's brief admits that the officers had complied with the requirements of Miranda and also concedes that no threats or violence or promise or inducement had been made to get appellant to confess. Appellant's contention is that his confession was nevertheless involuntary since it was elicited under circumstances which made it extremely difficult for the defendant not to have made some incriminating statement, pointing to the fact that, as shown by the uncontradicted evidence taken on the voir dire examinations, the officers, with all five of the accused persons present, first interrogated the two men who had already separately confessed to them and who later pleaded guilty, and only after eliciting statements from these two which incriminated the appealing defendant did they start to interrogate him. Appellant Justice contends these circumstances subjected him to such a "psychological bombardment" as to render any statement he may have made to the officers involuntary and therefore inadmissible.

A confession is considered voluntary in law only if in fact it was voluntarily made. State v. Keith, 266 N.C. 263, 145 S.E.2d 841. Whether a confession is voluntary or involuntary must be determined from the particular circumstances of each case. In this case the trial court properly conducted voir dire examinations in the absence of the jury. On the basis of competent evidence, including defendant appellant's own testimony concerning the circumstances under which he had been interrogated by the officers, the court found as a fact that appellant's confession had been voluntarily given. This finding is conclusive on the appellate courts. State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344. While it is well established that a confession may be unlawfully coerced without the use of any physical force, that there may be "torture of the mind as well as of the body," and that a confession so induced is inadmissible, State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620, the evidence in the present case was not such as to compel a finding that appellant's confession was given under such circumstances as to have deprived him of free exercise of his own volition.

Appellant denied, both in the voir dire examination and in his testimony before the jury, that he had ever confessed to the officers that he had played any part in the robbery, though he admitted having been in the car with the others and that without knowledge of any robbery he had drunk some of the wine and received some of the money. However, whether the appellant did or did not make the statement attributed to him is a question of fact to be determined by the jury from the evidence admitted in its presence. State v. Gray, supra. There was here no error in the court's admission of evidence of defendant appellant's own confession to the jury and the assignment of error based on that ground is without merit.

Appellant Justice also assigns as error the court's allowing introduction in evidence over his objection of the extrajudicial *51 confessions of his codefendants, all of which incriminated him. The problem presented by this assignment of error was dealt with by the North Carolina Supreme Court recently in the case of State v. Fox, 274 N.C. 277, 163 S.E.2d 492, in which Justice Sharp, speaking for the Court and after analyzing the impact on our practice of the decisions in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476, and Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923, said (274 N.C. p. 291, 163 S.E.2d p. 502):

"The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see State v. Bryant, supra), and (2) that the declarant will not take the stand. If the declarant can be crossexamined, a codefendant has been accorded his right to confrontation."

In the case presently before us the extrajudicial confessions of Justice's codefendants were all made in his presence and, according to the testimony of the officers, were acquiesced in by his confession. This was the situation presented in State v. Bryant, 250 N.C. 113, 108 S.E.2d 128, cited by Justice Sharp. Further, the codefendant Bell did take the stand and thus as far as evidence of his confession is concerned the appellant Justice cannot complain, since he was thereby accorded his right to confrontation. However, the codefendant Banks did not take the stand, and therefore introduction into evidence of testimony as to that portion of Banks' extrajudicial confession which incriminated Justice was error as to appellant Justice, since he was thereby denied his Sixth Amendment right to be confronted by the witness against him. For this error the appellant Justice must be awarded a new trial.

While, as above stated, the appeal of the defendant Banks must be dismissed for failure to have the record docketed as far as his appeal is concerned within the time prescribed by the rules of this Court, it should be noted that as to him there was no error in allowing introduction in evidence of testimony of the confessions of his codefendants, Justice and Bell, since both of these codefendants did take the stand and his confrontation rights were thereby protected. Furthermore, the evidence concerning the confessions of Dancy and Richardson was admitted only after the defendants had themselves brought out portions of these confessions in their crossexamination of the officers. Having opened this door in order to obtain the benefit of that part of the confessions of Dancy and Richardson which they felt might be helpful to them, defendants do not have a right to complain that the State was thereafter permitted to put in evidence the complete statements made by Dancy and Richardson.

The appeal of the defendant, Cleveland Banks, is

Dismissed.

On the appeal of the defendant Tommy Justice, there must be a

New trial.

BROCK and BRITT, JJ., concur.