State v. Thompson

200 S.E.2d 208 (1973)

19 N.C. App. 693

STATE of North Carolina v. Jerry F. THOMPSON.

No. 7315SC628.

Court of Appeals of North Carolina.

November 14, 1973.

*210 Atty. Gen., Robert Morgan by Asst. Atty. Gen., Myron C. Banks, Raleigh, for the State.

J. Russell Kirby and John E. Clark, Wilson, for defendant-appellant.

BALEY, Judge.

The key point in the trial below was the identity of the driver of the truck. The court permitted the arresting officer, over objection, to testify that defendant admitted that he was the driver of the truck. At the time of the purported admission the defendant was in custody and being questioned by the officer.

An admission made by a criminal defendant while in custody, in response to questioning by law enforcement officers, may not be used in evidence by the State unless the State shows, in a voir dire hearing, that the defendant received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that the admission was made voluntarily. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481; State v. Mitchell, 270 N.C. 753, 155 S.E.2d 96; State v. Ross, 269 N.C. 739, 153 S.E.2d 469. Here there was no voir dire hearing, and no finding that defendant's admission was voluntary. The contention of the State that the testimony of the officer was for the purpose of impeachment is not persuasive. The defendant did not testify. His alleged admission, not otherwise competent, is not made so simply because it would tend to impeach the testimony of another witness. It was error to admit a confession of defendant *211 through the back door without complying with the proper legal safeguards required under Miranda and without making a finding after voir dire hearing that such confession was voluntary. See 2 Stansbury, N.C. Evidence (Brandis rev.), § 186, at 82-83.

The defendant also assigns as error the action of the trial court in allowing the State to reopen its case and present additional testimony after completion of the charge to the jury while denying to the defendant the opportunity to offer testimony in rebuttal.

The court has discretion to reopen a case for additional evidence even after the jury has retired and begun its deliberations. State v. Shutt, 279 N.C. 689, 185 S.E.2d 206, cert. denied, 406 U.S. 928, 92 S. Ct. 1805, 32 L. Ed. 2d 130; State v. Noblett, 47 N.C. 418; Parish v. Fite, 6 N. C. 258. Certainly it is proper to reopen the case at the conclusion of the court's charge before the jury has retired. But if the State is permitted to reopen its case, fairness requires that the defendant be afforded an opportunity for rebuttal. State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Harding, 263 N.C. 799, 140 S.E.2d 244; see State v. Perry, 231 N.C. 467, 57 S.E.2d 774. The defendant can, as in this case, be severely handicapped if the jury is allowed to hear only the State's evidence on an important aspect of the case.

Here the court's refusal to allow defendant a chance for rebuttal cannot be considered harmless error. At least one juror felt that the construction of the interior of the front seat of the truck was a matter of critical importance. The ease with which defendant could change seats and assume the position of driver may have been crucial to this juror who was concerned enough to inquire openly. It is impossible to tell what Stancil might have said if he had been allowed to testify, but it might well have been significant enough to affect the outcome of the trial. See State v. Rainey, 236 N.C. 738, 74 S.E.2d 39.

For errors in the court below in the admission and exclusion of material evidence, defendant is entitled to a new trial.

New trial.

PARKER and HEDRICK, JJ., concur.