State v. Bell, No. 106

No. 106 | N.C. | Jun 10, 1971

HIGGINS, Justice.

The defendant’s assignments of error involve: (1) The refusal of the court to strike the reply of the State’s witness Cly-burn to defense counsel’s question on cross-examination as to the position of the deceased at the time the fatal shot was fired (Exceptions Nos. 1 and 2) ; (2) The court’s finding and conclusion that defendant’s admissions to the officer were freely, voluntarily and understandingly made (Exceptions Nos. 3, 4 and 5) ; (3) The refusal of the court to direct a verdict of not guilty at the close of the evidence (Exceptions Nos. 6 and 7).

Mary Clyburn, a witness for the State, testified she heard a shot from the defendant’s apartment above hers and thereafter she saw Clara Mae Morgan lying in the doorway to the apartment across the yard, approximately 100-150 feet away. The defendant testified the deceased was attempting to enter her apartment at the time the gun went off. Hence the question became material whether the deceased was across the yard by the post or whether she was attempting to enter the defendant’s upstairs apartment. Defense counsel sought to have the State’s witness say that the witness did not know whether the deceased crossed the yard before or after the shot was fired. In reply to the questions, the witness gave the answer heretofore quoted. The fresh pellet holes in the post which were not there before the shooting, was the answer the witness gave to a question which opened the door for that answer. The answer of the witness was in explanation of and giving her reason for refusing to say that she did not know whether the deceased crossed the yard before or after the shot.

“An observer may testify to common appearances, facts and conditions in language which is descriptive of facts observed so as to enable one not an eyewitness to form an accurate judgment in regard thereto.” State v. Goines, 273 N.C. 509" court="N.C." date_filed="1968-04-17" href="https://app.midpage.ai/document/state-v-goines-1333850?utm_source=webapp" opinion_id="1333850">273 N.C. 509, 160 S.E. 2d 469. The defendant’s Assignment of Error No. 1 based on Exceptions Nos. 1 and 2 is not sustained.

The evidence discloses that within thirty minutes after the investigating officer placed the wounded woman in the ambulance, the defendant and her husband appeared at police headquarters. Before they were permitted to discuss the shooting, proper and suitable warnings were given. The defendant made oral admissions the gun in her hands “went off.” She and her husband entered a private room. When they returned they delivered the written statement which her husband drafted and the defendant signed. When the defendant challenged the State’s right to introduce the admissions, the court conducted a thorough inquiry in the absence of the jury. The defendant elected not to offer evidence on the voir dire. The court concluded the admissions were freely, voluntarily and understandingly made and were admissible in evidence. In conducting the voir dire and in hearing evidence and making the findings, the court was extremely careful that all of the defendant’s rights were properly accorded her. The defendant and her husband voluntarily went to police headquarters for the purpose of stating the defendant’s side of the controversy. Her signed statement, written by her husband, was her voluntary account. Sometimes overlooked, is the following from Miranda v. Arizona:

“There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, 394 U.S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602" court="SCOTUS" date_filed="1966-06-13" href="https://app.midpage.ai/document/miranda-v-arizona-107252?utm_source=webapp" opinion_id="107252">86 S. Ct. 1602, 10 A.L.R. 3rd 974. See also State v. Barnes, 264 N.C. 517" court="N.C." date_filed="1965-06-02" href="https://app.midpage.ai/document/state-v-barnes-1374021?utm_source=webapp" opinion_id="1374021">264 N.C. 517, 142 S.E. 2d 344; State v. Gray, 268 N.C. 69" court="N.C." date_filed="1966-09-21" href="https://app.midpage.ai/document/state-v-gray-1254078?utm_source=webapp" opinion_id="1254078">268 N.C. 69, 150 S.E. 2d 1; State v. McRae, 276 N.C. 308" court="N.C." date_filed="1970-02-11" href="https://app.midpage.ai/document/state-v-mcrae-1342875?utm_source=webapp" opinion_id="1342875">276 N.C. 308, 172 S.E. 2d 37; State v. Atkinson, 278 N.C. 168" court="N.C." date_filed="1971-03-10" href="https://app.midpage.ai/document/state-v-atkinson-1284703?utm_source=webapp" opinion_id="1284703">278 N.C. 168, 179 S.E. 2d 410.

Defendant’s Assignments of Error Nos. 2 and 3 based on Exceptions Nos. 3, 4 and 5 are not sustained.

The evidence in the record was ample to go to the jury and sustain the verdict. State v. Cooper, 273 N.C. 51" court="N.C." date_filed="1968-02-28" href="https://app.midpage.ai/document/state-v-cooper-1393055?utm_source=webapp" opinion_id="1393055">273 N.C. 51, 159 S.E. 2d 305; State v. Cox, 153 N.C. 638, 69 S.E. 419. Assignment of Error No. 3 based on Exceptions Nos. 5 and 6 is not sustained.

In the trial, judgment and sentence, we find

No error.