State v. Davis
202 S.E.2d 770
N.C.
1974
Check Treatment
SHARP, Justice.

Appeal of Defendant Fish

Fish’s first assignment of error is based upon the admission of evidence of the following incidents:

Kim Zachary Wall testified that during the trial Fish waved a piece of paper at him in the courtroom on which was written, “Don’t worry; Jesus will save me.” Debra Nipper testified that *713 on the same morning Fish showed her a piece of paper which said, “Don’t worry, Jesus will save you.”

The record shows no objection to the questions which elicited the foregoing testimony and no motion to strike the answers. An objection to the admission of evidence must be made at the time it is offered. Objection to incompetent evidence should be interposed at the time the question intended to elicit it is asked, and a motion to strike an incompetent answer should be made when the answer is given. An objection not made in apt time is waived. Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529 (1968); State v. Hunt, 223 N.C. 173, 25 S.E. 2d 598 (1943). However, if we concede, as both the State and Fish contend, that the notes were irrelevant, Fish’s contention that they inevitably prejudiced him in the eyes of the. jury is not convincing. The obvious purpose of the notes was to comfort and reassure his friends. Such a motive was not reprehensible; nor was defendant’s first reference to religion and the deity contained in these notes.

In his first assignment defendant has not shown prejudicial error. State v. Woolard, 260 N.C. 133, 132 S.E. 2d 364 (1963).

Defendant’s second assignment of error is that the court erred in holding that his letter to the superior court judge “was a confession rather than a statement of how the defendant intended to plead.” Defendant’s contention seems to be that the letter was in the nature of a tendered plea of guilty which could be withdrawn at any time before accéptance; that his plea of riot guilty withdrew the tendered plea and thereby rendered the letter inadmissible in evidence. This contention is unténable.

In the letter defendant wrote these words: “Your Honor, I’m guilty of my charge of murder. . . . Judge, here is my confession in writing.” (Italics ours.) A plea of guilty is “a formal confession of guilt before the court in which defendant is arraigned.” 2 Strong’s N. C. Index 2d Criminal Law § 23 (1967). The letter was not such a plea. However, if genuine it qualified as the confession which defendant himself denominated it; See State v. Hamer, 240 N.C. 85, 81 S.E. 2d 193 (1954). If voluntarily and understandingly written it was admissible in evidence.

On voir dire defendant testified that he wrote the letter, “told Mr. Covert that the letter was a confession and to carry it to the judge.” He makes no contention that the letter was in *714 any manner coerced. However, at the trial he attempted to expunge the letter by saying, “I was having drawbacks from drugs. .. . . I was insane when I wrote the letter. ... I had a lot of other stuff on my mind. I was entangled.”

Defendant now contends that the failure of the judge, after conducting the voir dire, to make a specific finding that Fish wrote the letter “with understanding” rendered its admission error. The State contends that the evidence which defendant offered to establish a lack of understanding on 7 November 1972 was insufficient to raise the issue.

The mental capacity of a defendant is, of course, a circumstance to be considered in passing upon whether a confession was voluntarily and understandingly made. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966). After conducting the voir dire, as he was required to do by the objection to the admission of the letter, the judge should have made a finding on the only question defendant disputed. State v. Vickers, 274 N.C. 311, 163 S.E. 2d 481 (1968); State v. Barber, 268 N.C. 509, 151 S.E. 2d 51 (1966). Obviously, however, the ruling that the letter was admissible of necessity was based on the court’s conclusion that Fish wrote it voluntarily and with understanding. State v. Painter, 265 N.C. 277, 144 S.E. 2d 6 (1965); State v. Litteral, 227 N.C. 527, 43 S.E. 2d 84 (1947), Indeed, defendant’s own testimony on voir dire would make any other conclusion irrational. Fish remembered writing the letter, signing it “Reverend Mack Fish,” sealing it, and delivering it to Mr. Covert. He also remembered telling him that it was a confession and to carry it to the judge. The contents of the letter itself establish the understanding of its author.

Upon the voir dire to determine the admissibility of the statements which Fish made to the investigating officers on 11 September 1972, approximately two months before he wrote the letter on -7 November 1972, Fish and his sister, Mrs. Nichols, gave substantially the same testimony with reference to his mental condition which they gave on voir dire to determine the admissibility of the letter. In addition, Mrs. Leona Fish, defendant’s mother, testified that his behavior was not normal. At the conclusion of the voir dire to determine the admissibility of defendant’s oral confession, Judge Braswell specifically found (1) that there was no believable evidence that Fish lacked understanding of what he was doing at the time he made his *715 statement to the officers on September 11th; and (2) that he made these statements voluntarily and understanding^. These findings are supported by ample evidence and are binding upon this court.

If defendant knew what he was saying on September 11th, the presumption is that he also knew on November 7th. At that time he had been in jail for two months, and the record contains no suggestion that he had had access to drugs there. Furthermore, the statement of September 11th which contains details omitted in the letter fully substantiated Fish’s admission therein that he was guilty of the murder with which he was chárged.

The trial judge’s inadvertent omission to make a finding that Fish wrote the letter voluntarily and with understanding was error. Even so, in the factual setting of this case, the omission was harmless error. As we said in State v. Frank, 284 N.C. 137, 145, 200 S.E. 2d 169 (1973), his failure to find the facts upon which his conclusion was based, as he should have done, was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824, 24 A.L.R. 3d 1065 (1967); State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677 (1972).

Defendant’s second assignment of error is overruled.

Defendant assigns as error the admission of his statements to the officers on September 11th, but he does not contend, that these were either involuntary or made without understanding. He contends that the memorandum from which Deputy Sheriff Munn read while testifying as to the statements constituted secondary evidence; that the tapes which recorded the conversation were the best evidence. Munn testified that the paper from which he read was “a verbatim transcript” of the statement which Fish made to him and the other officers in the presence of his codefendants. It was defendant’s oral confession which was offered and admitted in evidence, and it was permissible for Munn to read from a transcript which, according to his sworn testimony, recorded the exact words used by the accused in his presence.

A properly authenticated recording of an accused’s confession if voluntary and otherwise lawful is admissible in evidence. State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971); State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971); State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970). However, the fact that a re *716 cording has been made of an oral confession does not prevent one who heard the confession from testifying as to what was said. State v. Fox, supra. “[Ujnless the effort is to prove the contents of the recording as such, as distinguished from proof of the statement or conversation which was recorded, the best evidence rule . . . does not apply to require the introduction of the recording, S. v. Fox, supra.” Stansbury’s N. C. Evidence (Brandis Rev., 1973) § 32 n. 95. See also § 191 n. 24. We note that defendant made no request for the production of the tapes. Assignment of error No. 3 is overruled.

Defendant’s assignment No. 4 is: “The Court erred when it did not allow the mother of the defendant or a medical expert to answer questions pertaining to the defendant’s medical history. Exceptions Nos. 8, 9 (R p 77), 10 (R p 78), and 12 (R p 80).” Assignment No. 5 is: “The Court erred when it disallowed answer to question as leading questions propounded to an expert, which pertained to facts that led to the expert’s opinion-of the mental capacity of the defendant. Exceptions Nos. 11 (R p 79), 13, 14 (R p 80), and 15 (R p 81).”

Assignments Nos. 4 and 5 present no questions for this Court’s consideration. Rule 19(3) of the Rules of Practice in the Supreme Court require that an assignment to the exclusion or admission of evidence show specifically what question appellant intends to present. This means that the question to which the objection was sustained and the answer which the witness would have made had he been permitted to answer must be set out'in the assignment. State v. Gainey, 280 N.C. 366, 185 S.E. 2d 874 (1972); Grimes v. Credit Company, 271 N.C. 608, 157 S.E. 2d 213 (1967); In Re Will of Adams, 268 N.C. 565, 151 S.E. 2d 59 (1966). Where the court sustains an objection to evidence and the record fails to show what the evidence would have been, the exclusion of such evidence cannot be held prejudicial. State v. Mabry, 269 N.C. 293, 152 S.E. 2d 112 (1967); 3 Strong’s N. C. Index 2d Criminal Law § 169 (1967). Here, in each instance, the record fails to show the answer' sought to be elicited. We note, however, that evidence of the import suggested by several of the questions had been previously admitted without objection and that none of the rulings suggest prejudicial error.

-In his brief, Fish expressly abandons his assignments of error Nos. 6 and 7. Assignment of error No. 8 is: “The Court erred by giving an erroneous summation^ of the evidence. Ex *717 ception No. 19 (R p 88).” This assignment likewise fails to comply with Rule 19 (3) of the Rules of Practice in the Supreme Court, which requires that the portion of the charge which appellant contends to be erroneous shall be set forth in the assignment itself. State v. Robinson, 272 N.C. 271, 158 S.E. 2d 23 (1967); 3 Strong’s N. C. Index 2d Criminal Law § 163 (1967). Notwithstanding, we have read page 88 of the record and on it we find no error prejudicial to defendant.

In the trial of defendant Fish we find no error.

Appeal of Davis and Honeycutt

Davis and Honeycutt each assign as error the court’s refusal to allow their motions for nonsuit. The State’s evidence as to Davis, excluding the extrajudicial statements of his codefendants ánd all evidence which the court instructed the jury not to consider against him, tends to show the following facts:

About 1:30 p.m. on 29 August 1972 law enforcement officers found Mr. Bunn’s dead body across the threshold of his store, a two-inch hole in his chest. A trail of blood led from a counter in the store to the body. (This evidence was also competent as to Honeycutt.)

About 11:00 a.m. on 29 August 1972 Davis was the passenger in a burgundy Dodge automobile which Fish backed up to the door of Mr. Bunn’s store. Davis got out, followed by Fish, who was waving a sawed-off shotgun. Fish forced Bunn, who had been standing in the yard, into his store. All three of them went into the store. Thereafter Ricky Pope, who was observing these proceedings, heard a shot. In about a minute Fish and Davis came out of the store and sped away in the burgundy Dodge. Later that afternoon the officers found the Dodge on the path into the wooded area from which Ricky had seen a white truck emerge as he left the vicinity of Bunn’s store.

About 2:00 p.m. that afternoon Davis, Fish, and Honey-cutt were together at Fish’s residence in Raleigh, On 9 September 1972 Wake County officers returned. Fish and Davis to Raleigh from a Texas town about 90 miles from the Mexican border. .Two days later, after being fully warned, of his constitutional rights, Davis told the officers that on.August 29th he and two other friends, after, talking for a while, “went to Clayton and got a car.” Then they went to Mr. Bunn’s store, and while. he..and his friend were there Bunn was shot and killed. Thereafter they “got rid of the car. and went on and left.”

*718 After making the above statement Davis told the officers that if they would permit him, Fish, and Honeycutt to talk “they would get a complete statement straightened out.” The officers permitted the defendants to confer privately and thereafter Davis made the statement which has been heretofore set out in full in the preliminary narrative of the evidence. In his second statement Davis said that he, Fish, and Honeycutt went to Clayton and got the car in which he and Fish drove to Bunn’s store; that he stood outside, and “Mr. Bunn went in first and Mack followed in behind”; that he heard a gun go off and saw Bunn fall; that they then left, ditched the car in the woods, rode back to Raleigh with Wallace Honeycutt, and then they left.

The State’s evidence against Honeycutt, excluding the evidence which the court instructed the jury not to consider against him, tends to show:

On 27 August 1972, the Sunday before Mr. Bunn was killed, Honeycutt was at Fish’s home. There Debra Garland Nipper heard Fish and Honeycutt “talking about a service station or something.” Honeycutt told Fish that the man who ran the store always had money but he kept a gun in a cigar box; that he was an old man, not too smart, and it shouldn’t be hard to rob him. About 2:00.p.m. on Tuesday, 29 August 1972, about one hour after Mr. Bunn was killed, Honeycutt was at Fish’s residence with him and Davis.

On 11 September 1972 Fish, Davis, and Honeycutt, who were in the Wake County jail, after being fully advised of their constitutional rights, were permitted to confer privately. After being alone for 15-20 minutes they knocked on the door of their conference room and the officers went in. Thereupon Davis and Fish made the statements which have heretofore been set out in full in the preliminary summation of the evidence. After Davis and Fish had concluded their statements, Officer Munn asked Honeycutt if the statements by Fish and Davis were true and he said that they were.

In his statement with reference to Honeycutt, Davis said that on August 29th about 12:30 p.m. Honeycutt and Fish picked him up at a friend’s home; that they then went to Clayton and got the car in which he and Fish went to Bunn’s store; that after Mr. Bunn was shot they “ditched the car in the woods and rode back to Raleigh with Wallace Honeycutt. . . .”

*719 Fish’s statement contains the following reference to Honey-cutt: (After leaving Bunn’s store Fish drove the automobile down a dirt path on the other side of the bridge.) “I turned down there and the best I remember — like Wallace [Honeycutt] he was pretty drunk and I told him, I said, ‘Man I can drive a lot better than you anyway’ so I got in the car — made him get in the truck or something. Anyway I ended up driving. ... I don’t think we stopped any place else to get any beer or anything; but anyway I ended up home and then I pulled out some dope and I rolled up some joints and we all smoked some dope and Wallace, he passed out on the bed. . . .”

All admitted evidence, competent and incompetent, is for consideration in passing upon the motions for nonsuit. State v. Stallings, 267 N.C. 405, 148 S.E. 2d 252 (1966). However, considering the preceding evidence, unaugmented by the statements of codefendants and in the light most favorable to the State, State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967), the State’s evidence is sufficient to establish the following facts:

Fish, Davis, and Honeycutt conspired to rob Mr. Bunn at his store. For that purpose the three went to Clayton, where they stole a burgundy Dodge. While Honeycutt waited for them in a truck at a parking place in a wooded area nearby, Fish and Davis drove the stolen Dodge to Bunn’s store. In the attempt to rob him Fish shot and killed Bunn. Immediately thereafter he and Davis drove the Dodge to the area where Honeycutt awaited them. There they abandoned the Dodge and returned in Honey-cutt’s truck to Fish’s home in Raleigh, where Honeycutt passed out after smoking some dope. Later in the afternoon Davis and Fish left Raleigh and eleven days later were apprehended in Hondo, Texas.

We hold the foregoing facts sufficient to sustain the jury’s verdict that Davis and Honeycutt were guilty of the felony-murder with which each was charged.

We next consider the court’s refusal to grant the motions of Davis and Honeycutt for trials separate and apart from each of their codefendants.

Prior to the decision in Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968), whether defendants indicted.for the same crime would be tried jointly or separately was a matter resting in the sound discretion of the trial judge. *720 State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966). In the absence of a showing that a joint trial had deprived the objecting defendant of a fair trial, the court’s exercise of its discretion would not be disturbed upon appeal. When the extrajudicial confession of one defendant which implicated another against whom it was inadmissible, was offered in evidence, the trial judge admitted it with an instruction that the confession was evidence only against the confessor and must not be considered against the codefendant. State v. Lynch, 266 N.C. 584, 146 S.E. 2d 677 (1966).

In Bruton, the Supreme Court held that, in a joint trial, the admission of a confession which implicated a codefendant violated his Sixth Amendment.right of confrontation when the confessor did not take the stand so that he could be cross-examined. In consequence of Bruton, in State v. Fox, 274 N.C. 277, 163 S.E. 2d 492 (1968), we hold “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 hot possible, the State must choose between relinquishing the confession or' trying the defendants separately. The foregoing pronouncement presupposes -(l)'that the confession is inadmissible as to the codefendant (see State v. Bryant, supra [250 N.C. 113, 108 S.E. 2d 128], and (2) that the declarant will not take the stand. If the declarant can be cross-examined a codefendant has been accorded his fight to confrontation.” Id. at 291, 163 S.E. 2d at 502. See State v. Kerley, 246 N.C. 157, 97 S.E. 2d 876 (1957)

Since none of the three defendants in this ease testified, both Davis’ and Honeycutt’s first assignment of error presents the question whether, in the joint trial, the .admission of incriminating statements by a codefendant constituted prejudicial error against the objecting defendant. Under the rule we laid down in Fox and subsequent cases Davis and Honeycutt will each be entitled to a new trial unless the statements were-' competent against the nondeclarant or,, if incompetent, their admission was harmless beyond a reasonable doubt. In . State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969), and State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969), new trials were awarded. For cases holding that the trial court’s infraction of the Fox rule was harmless beyond a reasonable doubt, see State v. Jones, 280 N.C. 322, 185 S.E. 2d 858 (1972); State v. Fletcher *721 and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405 (1971); State v. Swaney, 277 N.C. 602, 178 S.E. 2d 899 (1970); State v. Brinson, 277 N.C. 286, 177 S.E. 2d 398 (1970).

The jury was instructed not to consider against Davis the following evidence which was admitted over his objection:

(a) Debra Garland Nipper’s statement that on August 27th she heard Fish and Honeycutt talking about a filling station and that Honeycutt told Fish the man who ran the store always had a lot of money; that he had a gun, but he kept- it in a cigar box; that he was an old man, not too- smart, and it should not be hard to rob him. (b) Nipper’s statement that on August 29th Fish told Wall “he had had to do a man a job”; “that the man pulled a gun on him and it was either his life or the other man’s.” (c) Wall’s statement that Fish told him on August 29th that “They had went and the man had pulled a gun on them and it was either one of them getting shot,” and that he had to shoot him. (d) The gun, State’s Exhibit No. 1. (e) Fish’s letter of November 7th to the judge.

In addition to the foregoing evidence Davis assigns as error the admission of Fish’s statement, made September 11th, and of Honeycutt’s statement that the statements of Fish and Davis were correct. These statements were admitted generally.

Honeycutt also objected to. statements (b) and (c) and the gun (d)., set out above in the enumeration of Davis’ objections, and the jury was instructed not to consider this evidence (admitted only as to Fish) against Honeycutt. In addition Honeycutt objected to the statements which Fish and Davis made on September 11th. His objections were overruled and these statements were admitted without restriction.

Under the rule enunciated in Bruton and Fox the court’s attempt to restrict the application of any of the foregoing evidence to a specified defendant was a futile gesture. The admission of statements (a), (b), (c), the letter (e) and the statements which Fish and Honeycutt made to the officers on September 11th, which the court admitted generally, denied. Davis his constitutional right of confrontation and cross-examination guaranteed by the Sixth and Fourteenth Amendments. State v. Brinson, supra. See also Stansbury’s N. C. Evidence (Brandis Rev. 1973) § 179. The admission in evidence of items (b), (c) and (e) deprived Honeycutt of the same *722 right. The admission of the. gun (d), which Ricky Pope identified as the gun he saw Fish take into Bunn’s store, was not error as to either. Nor was the admission of the statements of Fish and Davis error as to Honeycutt, who adopted them when he told the officers that they were true.

It is our view, however, that competent evidence against both Davis and Honeycutt so positively establishes their guilty participation in Bunn’s murder that the incompetent evidence, even in its totality, was harmless beyond a reasonable doubt. The test of harmless error is “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” State v. Brinson, supra at 295, 177 S.E. 2d at 404.

Competent evidence as to Honeycutt establishes that he was the author of the plan to rob Mr. Bunn. Competent evidence as to both Davis and Honeycutt establishes that the three defendants went together to Clayton where they “got” the car in which Davis and Fish drove to Bunn’s store; that Honeycutt waited in a truck at the wooded parking area about a mile from the store while Fish and Davis went there to rob Bunn; that Fish, by means of a shotgun, forced Bunn into his store and Davis followed; that while those two were in the store Bunn was shot and killed and they fled in the Dodge; that a few minutes later a truck came out of the entrance to the wooded parking area, where later that afternoon officers found the Dodge in which Fish and Davis went to Bunn’s store; that about 1:30 p.m. the officers found Bunn’s dead body lying across the threshold to his store, a two-inch hole in his chest; that in less than an hour after Davis and Fish left Bunn’s store in the Dodge they and Honeycutt were at Fish’s home in Raleigh.

To the foregoing basic facts the details contained in confessions of codefendants and the statements which Fish made to Nipper and Wall add nothing of significance. Without them we have no doubt that the verdicts would have been the same. See State v. Jones, supra; State v. Brinson, supra.

Davis’ assignment of error which challenges the validity of the two statements which he made to the officers on September 11th, and Honeycutt’s assignment of error challenging the admissibility of his statement to the officers that the Davis and Fish statements of September 11th were true, aré without merit. Before admitting the challenged statements the court conducted *723 a voir dire on which he heard the witnesses for the State and the testimony of Davis and Honeycutt. Thereafter, upon supporting evidence, he found that the three statements were made freely, understandingly, and voluntarily. These findings are conclusive on appeal. State v. Roseman, 279 N.C. 573, 184 S.E. 2d 289 (1971).

After considering defendants’ other assignments of error we deem it unnecessary to discuss them. None discloses prejudicial error.

In concluding this labored opinion we are constrained to note that it points up the hazards which lie in wait for the State when it moves to consolidate such cases as these for trial. After the judge allowed the solicitor’s motion to consolidate, both seem to have proceeded under the law as it existed in the era before Bruton and Fox. Both ignored the Fox pronouncement that in a consolidated trial all portions of an extrajudicial confession or incriminating statement by one defendant which implicate a codefendant are inadmissible unless (1) special circumstances render the statement also admissible against the codefendants, or (2) the defendant making the statement takes the stand so that he may be cross-examined. State v. Fox, 274 N.C. 277, 163 S.E. 2d 492, 502 (1968).

In the trial, as to each of the three defendants, we find no prejudical error.

No error.