State v. Makerson

277 S.E.2d 869 (1981)

STATE of North Carolina v. Renee MAKERSON.

No. 8029SC1005.

Court of Appeals of North Carolina.

May 19, 1981.

*871 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. William R. Shenton, Raleigh, for the State.

Robert G. Summey, Forest City, for the defendant appellant.

BECTON, Judge.

Defendant makes four assignments of error, but only brings forward two on appeal. First, defendant assigns as error the trial judge's refusal to admit into evidence testimony presumably showing Robert Thomas' guilt, rather than the defendant's guilt. At trial, defendant's attorney attempted to elicit testimony of ill will existing between the deceased and Robert Thomas. On direct examination of defendant's mother, Margaret Makerson, the following transpired:

Q. Do you know anything else about any problems that Robert Thomas might have had [with Jobie Miller]... MR. LEONARD: Objection. THE COURT: Sustained.

The witness' answer to this question was never placed in the record for review on appeal.

As pointed out in a recent decision of this court, "[t]he law of this State with respect to the admissibility of evidence tending to show the guilt of one other than the accused has been described by our Supreme Court as being `rather unsettled.' State v. Gaines, 283 N.C. 33, 41, 194 S.E.2d 839, 845 (1973)." State v. Britt, 42 N.C.App. 637, 641, 257 S.E.2d 468, 470-71 (1979). For many years, the North Carolina Courts, as a general rule, prohibited a defendant from introducing evidence of another's guilt except in very specialized situations. See generally State v. White, 68 N.C. 158 (1873); State v. Baxter, 82 N.C. 602 (1880) (evidence must not only implicate another, but also must be completely inconsistent with the guilt of the defendant). This rule has consistently come under harsh criticism, and "the rule has been gradually whittled away so that it may fairly be said that today there is no special rule on the subject." 1 Stansbury § 93 at 302 (Brandis rev. 1973); see also Wigmore on Evidence, §§ 139-142 (3d ed. 1940).

The rule of admissibility of evidence that someone other than the defendant committed the crime hinges on relevancy. Considering all the facts and circumstances of the case, "the admissibility of such evidence [of another's guilt] should depend upon its relevancy in the case in which it is offered whether it logically tends to prove or disprove some material fact at issue in the particular case." State v. Britt, 42 N.C.App. at 641, 257 S.E.2d at 471. See also State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Couch, 35 N.C.App. 202, 241 S.E.2d 105 (1978); 1 Stansbury, supra, at § 93. In order to admit evidence of another person's guilt of the crime charged against the defendant, there must be some proof that the person is connected with the crime or proof of some sequence of facts or circumstances tending to implicate someone other than the accused. 1 Wharton's Criminal Evidence § 163 (13th ed. 1974).

Frequently, defendants have attempted to show that another person had either the motive or the opportunity to commit the offense charged as a means of creating doubt in the jurors' minds concerning the defendant's guilt. North Carolina case law is replete, however, with decisions holding that mere evidence that one other than the defendant had a motive or the opportunity to commit the crime is not enough to make the evidence admissible. The theory of the courts has been that this *872 evidence alone is too remote to be relevant. See State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977); State v. Shinn, 238 N.C. 535, 78 S.E.2d 388 (1953); State v. Smith, 211 N.C. 93, 189 S.E. 175 (193). The courts also have been clear that "[e]vidence which can have no effect except to cast suspicion upon another or to raise a mere conjectural inference that the crime may have been committed by another, ... is not admissible." 238 N.C. at 537, 78 S.E.2d at 389; State v. Jones, 32 N.C.App. 408, 413, 232 S.E.2d 475, 478, cert. denied, 292 N.C. 643, 235 S.E.2d 63 (1977).

In the case at bar, no evidence had been introduced which linked Robert Thomas with the murder in any way. Counsel asked the question of defendant's mother in hopes of presenting evidence that Robert Thomas had a motive to commit the murder. However, absent any other evidence that Thomas might have committed the crime, the existence or nonexistence of his motive is inadmissible. 1 Wharton's Criminal Evidence, supra, at § 163. In this case, such an inquiry was too speculative and remote to permit it into evidence. The trial judge was therefore correct in sustaining the objection.

The defendant next argues that the trial judge erred in not permitting her to present evidence that she was willing to take a polygraph test and did in fact take a voice stress test. The results of the polygraph test and voice stress tests are not considered by the courts in this State to be reliable, and as such are generally not admissible. State v. Jackson, 287 N.C. 470, 215 S.E.2d 123 (1975) (polygraph test); State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975) (polygraph test); State v. Milano, 297 N.C. 485, 256 S.E.2d 154 (1979) (stress evaluation tests). The results may be admitted if both the district attorney and the defendant agree to their admissibility by way of stipulation. State v. Jackson, supra; State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961). Since the results of the polygraph test and the stress test would not be admissible in this case, the facts that the defendant took a stress test and was willing to take a polygraph are simply not competent evidence and were therefore properly excluded by the trial judge.

Defendant cites a few cases in which this court and the Supreme Court have found that not every reference to a polygraph test results in prejudicial error. State v. Kirkman, 293 N.C. 447, 238 S.E.2d 456 (1977); State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976); State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (1971); State v. Heath, 25 N.C.App. 71, 212 S.E.2d 400 (1975). These cases, however, do not suggest that polygraph tests and stress tests are, in any way, reliable. We subscribe to a strict enforcement of the general principle that all references to these tests should be kept from the hearing of the jury. If the results of the tests are not competent evidence, then references to the tests are not relevant and should be held inadmissible, as was done in this case. For the foregoing reasons, we find

No Error.

VAUGHN and WELLS, JJ., concur.