State v. Romero, 286 S.E.2d 903

State v. Romero

286 S.E.2d 903

N.C. Ct. App.

1982

Check Treatment

MORRIS, Chief Judge.

Dеfendant challenged the admissibility of all three incriminating statements made by him. The trial court conducted voir dire hearings to determine their admissibility and allowed them into evidence. Defendant urges us on appeal to require that the state prove beyond a reasonable doubt that an inculpatory statement made by a defendant and introduced as evidence was given freely and voluntarily. His argument is made without authority from this state, however. Indeed, to accede to defendant’s request would result in the imposition of a significant procedural innоvation on our trial judges’ treatment of confessions and other incriminatory statements.

The well-settled rule in North Carolina is, simply, that “(a) trial judges’ finding that an accused freely and voluntarily madе an inculpatory statement will not be disturbed on appeal when the finding is supported by competent evidence even when there is conflicting evidence.” State v. Harris, 290 N.C. 681, 693, 228 S.E. 2d 437, 444 (1976); State v. White, 298 N.C. 431, 259 S.E. 2d 281 (1979). It appears, bаsed upon the record, that the testimony supporting the voluntariness of defendant’s various statements was carefully weighed by the trial judge. After the evidence is admitted, the circumstances under which statements attributed to a defendant were made may be elicited on cross-examination in the presence of the jury. Then “it is for the jury to determine whether the statements rеferred to in the testimony of the *52 witness were in fact made by the defendant and the weight, if any, to be given such statements. . . State v. Walker, 266 N.C. 269, 273, 145 S.E. 2d 833, 836 (1966). We hold that the evidence presented at the voir dire hearings fully supрorts the court’s rulings that the statements in question were freely and voluntarily made, that defendant’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍rights were adequately protected, and that the imposition of the standard of proof аdvanced by defendant, though utilized in some states, is not required by North Carolina law.

Defendant next assigns error to the trial judge’s admission of the three statements into evidence on the ground that the first of those statements resulted from a custodial interrogation of the defendant during which defendant’s attorney was not present. He contends specifically that his due process rights wеre violated because Officer Edmondson interrogated him regarding the charges lodged in Greene County outside the presence of the attorney representing him on related brеaking and entering charges in Johnston County, and because he was questioned before he had the opportunity, in general, to consult with counsel. Because his confession to Officеr Edmondson was wrongfully obtained, says defendant, his subsequent statements should also be suppressed, pursuant to the presumption enunciated in State v. Fox, 274 N.C. 277, 163 S.E. 2d 492 (1968), that where a confession is obtained under circumstances that render it involuntary, subsequent confessions are also presumed to be involuntary.

We agree with defendant that his right to counsel had attached, since the proceеdings against him had begun at the time of the interrogation, but we think State v. Smith, 294 N.C. 365, 241 S.E. 2d 674 (1978), is dispositive. There the Supreme Court held that “in determining the admissibility of a confession by a suspect in custody, the crucial question is whether the statement was freely and understandingly made after he had been fully advised of his constitutional rights and had specifically waived his right to remain silent and to have counsel present.” Id. at 376, 241 S.E. 2d at 681. State v. Smith, based on strikingly similar facts to those in the case before us, clearly sets out this state’s law regarding waiver of right to counsel ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍when a defendant is represented by a counsel in a procеeding unrelated to the charges under investigation. The record here, just as in Smith, offers no indication that defendant’s counsel in the Johnston County matter *53 also represented defendant in this сase. Even had that attorney entered the Greene County proceeding on defendant’s behalf— which he apparently had not — defendant would have retained his right to waive counsel. Significantly, the trial judge found that defendant waived his right to counsel before making the statement to Edmondson, and that the statement was “freely, knowingly and understandingly made without threats or promisеs having been made to him.”

At this point, it need only be said that the rule “that a defendant in custody who is represented by counsel may not waive his constitutional rights in counsel’s absence, is not the law in this State.” Id. at 375, 241 S.E. 2d at 680. The position taken in defendant’s second argument finds authoritative basis only in the laws of a few jurisdictions which have followed People v. Arthur, 22 N.Y. 2d 325, 292 N.Y.S. 2d 663, 239 N.E. 2d 537 (1968). Defendant’s argument that interrogations conducted in thе absence of counsel violate Disciplinary Rule 7-104 of the North Carolina Code of Professional responsibility is unpersuasive. This Code section proscribes ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍only certain cоnduct by members of the legal profession during the course of representation and does not prevent persons in custody from making inculpatory statements upon waiver of the right to counsel.

Defendant’s contention that he should be granted a new trial because the prosecutor attempted to use his prior convictions as substantive evidence of his guilt is not compelling. He contends that the cross-examination of defendant regarding whether Phillip Carraway had pled guilty in the same case in Johnston County in which defendant was convicted of two separate charges of breaking and entering was an attempt to imply that defendant was with Carraway during the Shackleford breakin in Greene County. The state responds that the question was part of an inquiry into the relationship between defendant and Carraway and was, therefore, properly allowed by the trial judge. We agree. The general rule is that when a defendant in a criminal action testifies in his own behalf, the prosecutor may, for the purpose of impeachment and attacking his credibility as a witness, cross-examine him as to previous criminal convictions. State v. Goodson, 273 N.C. 128, 159 S.E. 2d 310 (1968). Defendant, however, points to the further cross-examination during which defendant was asked if Phillip Carraway was one of the persons who pled in the Johnstоn *54 County proceedings. His contention that evidence of prior convictions is admissible only to impeach a defendant’s credibility as a witness reflects a misunderstanding of the law. It is a well-settled rule that

. . . [e]vidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime.

1 Stansbury’s N.C. Evidence § 91 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(Brandis rev. 1973), quoted in State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405 (1971). Evidence of the prior crime was admissible to show the relationship between defendant and Carraway. That relationship is pertinent in light of the significant role plаyed by Carraway in the conversation leading to defendant’s statement of 27 January 1981, made in the presence of Carraway and Deputy Story. It is also reasonable to assume that the prosecutor may have thought Carraway would be called to testify, since the trial judge directed that Carraway remain in the Greene County jail in the event he was subpoenaed as a witness.

Defendant argues that he is entitled to a new trial because he was cross-examined regarding the price of drugs and source of the money he used to buy them. However, “[t]he existence of a motive which prompts one to do a particular act, may be considered as ‘a circumstance tending to make it more probable that the person in question did the act, hence evidence of motive is always admissible when the doing of the act is in dispute,’ Stansbury, N.C. Evidence, Sec. 83.” State v. Church, 231 N.C. 39, 42, 55 S.E. 2d 792, 795 (1949). Evidence of attempts to borrow money prior to thе commission of an offense was held competent as a motive, showing defendant’s need of money, in State v. Cain, 175 N.C. 825, 95 S.E. 930 (1918), and State v. Ham, 224 N.C. 128, 29 S.E. 2d 449 (1944). Defendant’s attempts to distinguish these cases from the facts sub judice are unconvincing. Moreover, the prosecutor’s inquiry had bearing on the veracity of defendant’s claims that he used drugs extensively, that he was under the influence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of drugs at the time he spoke to Deputy Pasсasio, and that he was suffering from the effects of drug withdrawal when he talked to Officer Edmondson.

*55 Finally, defendant urges that he is entitled to a new trial because he was prejudiced by reference to his arrest for other crimes. He calls attention to statements made from the stand by Deputies Pascasio and Story. Deputy Pascasio, when asked by the state how he came to have a conversation with defendant, replied, “I arrested Mr. Romero for the second degree burglary of a house in Pitt County, North Carolina.” When asked where he had seen dеfendant on 27 January 1981, Deputy Story said: “I first saw him at the Pitt County Jail in Greenville.” To both questions objections were made in a timely fashion. The trial judge sustained both objections and twice instructed the jury not to consider the testimony elicited. Though the testimony concerning defendant’s prior arrests may have tended to impeach his character and credibility before defendant put his character in issue, the judge’s cautionary instructions were curative of any prejudice. Furthermore, defendant’s evidence, including his own testimony, conveyed the same information he now alleges to be prejudicial error.

In defendant’s trial and the judgment rendered, we find

No error.

Judges Hedrick and Martin (Robert M.) concur.