No. 7718SC207 | N.C. Ct. App. | Jul 20, 1977
By. assignments of error duly brought forth defendant makes twenty-three arguments in this appeal. Assignments of error nos. 2, 3, 5-12 all pertain to rulings on the evidence, and in no instance was there prejudicial error. Assignments of error nos. 13-16, 19-22 pertain to the court’s instructions which we also find to be correct. In assignment of error no. 1 the defendant objects to the court’s refusal to grant his motion for discovery of certain evidence, to wit: internal police reports and memoranda pertaining to the case, statements by witnesses other than the defendant and the criminal records of witnesses other than the defendant. This evidence is not made discoverable by the Criminal Procedure Act. G.S. 15A-903. Therefore, discovery of this material is not compelled under the Act. G.S. 15A-904(a). Moreover, defendant failed to lodge a written request for discovery with the district attorney prior to filing his discovery motion with the court. Thus he failed to follow the mandatory procedure of G.S. 15A-902 (a). Finally, we have considered the defendant’s argument that the U. S. Supreme Court decisions of Giles v. Maryland, 386 U.S. 66" court="SCOTUS" date_filed="1967-02-20" href="https://app.midpage.ai/document/giles-v-maryland-107361?utm_source=webapp" opinion_id="107361">386 U.S. 66, 87 S.Ct. 793, 17 L.Ed. 2d 737 (1967), and Brady v. Maryland, 373 U.S. 83" court="SCOTUS" date_filed="1963-05-13" href="https://app.midpage.ai/document/brady-v-maryland-106598?utm_source=webapp" opinion_id="106598">373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963), require reversal of his conviction for failure to grant his discovery motion. Because nothing in the record shows that the State suppressed material evidence, Giles and Brady are inapposite. They do not require a new trial. State v. Branch, 288 N.C. 514" court="N.C." date_filed="1975-12-17" href="https://app.midpage.ai/document/state-v-branch-1301490?utm_source=webapp" opinion_id="1301490">288 N.C. 514, 220 S.E. 2d 495 (1975); State v. Gaines, 283 N.C. 33" court="N.C." date_filed="1973-03-14" href="https://app.midpage.ai/document/state-v-gaines-1332728?utm_source=webapp" opinion_id="1332728">283 N.C. 33, 194 S.E. 2d 839 (1973).
Defendant also made timely motions for a nonsuit and judgment n.o.v. Plenary evidence supports his conviction. Therefore, these motions were properly denied, and assignments of error nos. 4 and 23 have no merit.
We disagree with defendant’s argument that the trial judge expressed an opinion and violated G.S. 1-180 in the following portion of his instructions to the jury:
*688 “Also, there is evidence which tends to show that the defendant confessed that he committed the crime charged. If you find that the defendant made the confession then you consider all of the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it.”
The jury was not instructed that defendant had confessed to the crime charged, first degree murder. They were instructed that there was some evidence tending to show such a confession, and, in fact, there was some evidence tending to show a confession. ' Defendant’s statement, for example, to Tammy Wilson, “The son of a bitch thought I wouldn’t shoot him,” was some evidence. There is no reason, however, to think that the jury attached any importance to the words “confessed that he committed the crime charged” since they only found defendant guilty of the lesser offense of second degree murder.
In his final assignment of error defendant argues that the court erred in instructing the jury about the purposes for which it could consider his recorded statement to the police. Because the defendant did not expressly waive his right to counsel prior to the questioning, his recorded statement was admissible only for the purpose of impeaching his testimony at the trial. Harris v. New York, 401 U.S. 222" court="SCOTUS" date_filed="1971-02-24" href="https://app.midpage.ai/document/harris-v-new-york-108272?utm_source=webapp" opinion_id="108272">401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971); State v. Huntley, 284 N.C. 148" court="N.C." date_filed="1973-11-14" href="https://app.midpage.ai/document/state-v-huntley-1212758?utm_source=webapp" opinion_id="1212758">284 N.C. 148, 200 S.E. 2d 21 (1973); State v. Bryant, 280 N.C. 551" court="N.C." date_filed="1972-03-15" href="https://app.midpage.ai/document/state-v-bryant-1343450?utm_source=webapp" opinion_id="1343450">280 N.C. 551, 187 S.E. 2d 111 (1972).
Nowhere in the judge’s charge to the jury did he instruct the jurors that they could only consider the defendant’s recorded statement for the purpose of judging the credibility of his testimony during the trial. In fact the portion of the charge quoted above alludes to the statement and appears to treat it as substantive evidence.
We have carefully reviewed all of the evidence in the record, and we conclude that even though the court erred in failing to limit the use of defendant’s recorded statement to the purpose of impeachment, it was harmless error. Defendant’s recorded statement was generally consistent with his in-court testimony, and it was almost entirely exculpatory. Only once in the recorded statement did defendant say anything which might indicate that he shot Ronald Lee Norman deliberately,
“ . . . And I said, ‘Ronnie, there ain’t no need in all this. . . . ’ I said, T can kill you right now.’ He said, ‘Well go ahead.’ . . . . ”
The effect of this statement, which is more of a statement of capacity than a threat, is entirely overshadowed by the testimony of Tammy Wilson (“That son of a bitch thought I wouldn’t shoot him.”), Craig Amele Thomas (‘I’ll God damn well shoot him if I want to.”) and the circumstantial evidence of the shooting. We are certain beyond a reasonable doubt that the possible consideration by the jury of the defendant’s recorded statement as substantive evidence did not contribute to his conviction of second degree murder. Because the use of the recorded statement was harmless beyond a. reasonable doubt, there was no prejudicial error in defendant’s trial. Chambers v. Maroney, 399 U.S. 42" court="SCOTUS" date_filed="1970-10-12" href="https://app.midpage.ai/document/chambers-v-maroney-108184?utm_source=webapp" opinion_id="108184">399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705 (1967).
No error.