State v. Sinclair

259 S.E.2d 808 (1979)

43 N.C. App. 709

STATE of North Carolina v. Walter Lee SINCLAIR.

No. 7912SC525.

Court of Appeals of North Carolina.

November 20, 1979.

*809 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Edwin M. Speas, Jr. and Susan G. Kelly, Raleigh, for the State.

Arthur L. Lane by Paul B. Eaglin, Fayetteville, for defendant-appellant.

ARNOLD, Judge.

It is recognized as established law that "a felony conviction may not be based upon or sustained by a naked extrajudicial confession of guilt uncorroborated by any other evidence." State v. Jenerett, 281 N.C. 81, 85-86, 187 S.E.2d 735, 738 (1972). This principle appeared in North Carolina case law as early as 1797, where a defendant was indicted for horse-stealing. State v. Long, 2 N.C. 455 (per curiam). The only evidence in that case was that the horse had been missing, that two men had brought the horse and the defendant to the house of the owner, and that the defendant had confessed that he had taken the horse and had begged forgiveness. The court said:

Where A makes a confession, and relates circumstances which are proven to have actually existed as related in the confession, that may be evidence sufficient for a jury to proceed upon to convict the prisoner; but a naked confession, unattended with circumstances, is not sufficient. A confession, from the very nature of the thing is a very doubtful species of evidence, and to be received with great caution. It is hardly to be supposed that a man perfectly possessed of himself would make a confession to take away his own life. It must generally proceed from a promise or hope of favor, or from a dread of punishment, and in such situations the mind is agitated the man may be easily tempted to go further than the truth. Besides, the witness, respecting the confession, may have mistaken his meaning. How easy is it to understand the speaking differently from *810 what he meant; and the smallest mistake in this particular might prove fatal. As there are no confirmatory circumstances in the present case, it is better to acquit the prisoner.

Id. at 456. More recently, however, the court has stated that while "there must be evidence aliunde the confession of sufficient probative value to establish the fact that a crime of the character charged has been committed," the independent evidence need not also identify the defendant as the one who committed the crime, State v. Cope, 240 N.C. 244, 247, 81 S.E.2d 773, 776 (1954), and that language has been relied upon in almost every case on the point.

In the majority of the cases dealing with the rule the independent evidence has in fact shown some connection between the defendant and the crime. E. g. State v. Jenerett, supra (testimony of witnesses that defendant was the robber); State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969) (defendant seen running from the scene near time of crime); State v. Crawford, 260 N.C. 548, 133 S.E.2d 232 (1963) (evidence that deceased was seen with defendant shortly before she disappeared and that her body was found where he said he had placed it, injured as he had said); State v. Hauser, 257 N.C. 158, 125 S.E.2d 389 (1962) (stolen goods found in defendant's possession). And on occasion the court has found that there was insufficient independent evidence to sustain a conviction. In State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960), the court found the evidence insufficient, saying, "[t]here is no direct evidence to connect defendant with the commission of the crime. The evidence offered is circumstantial, conjectural, and speculative." Id. at 323, 116 S.E.2d 776. Likewise in State v. Cope, supra the court reversed the defendant's conviction, there because there was no independent evidence that the sexual offenses with which the defendant was charged had ever been committed.

Several decisions from this court have upheld convictions where there was no independent evidence connecting the defendant with the crime. E. g. State v. Thomas, 17 N.C.App. 152, 193 S.E.2d 297 (1972); State v. Thomas, 15 N.C.App. 289, 189 S.E.2d 765, cert. denied 281 N.C. 763, 191 S.E.2d 360 (1972); State v. Macon, 6 N.C.App. 245, 170 S.E.2d 144 (1969), aff'd 276 N.C. 466, 173 S.E.2d 286 (1970). And recently, in the case of State v. Green, 295 N.C. 244, 244 S.E.2d 369 (1978), our Supreme Court upheld the defendant's convictions on charges of rape and murder where the only evidence which could have connected the defendant to the crimes was that he had been employed in the area where the victim worked and that the morning after the crimes he had told two people that he had engaged in sexual intercourse the night before. In light of the Green decision, we find that there was sufficient corroborating evidence in the instant case to take the case to the jury, though Officer Merritt testified that he found nothing of Fulmore's in defendant's possession and that "[t]he only evidence I have which connects Sinclair to this breaking is his statement."

We find that defendant cannot prevail on his other assignments of error. He argues first that there was a fatal variance between the allegation in the indictment that the crimes were committed on 17 March and the proof at trial. However, as defendant recognizes, a variance which relates to the date of a larceny is not fatal unless time is of the essence or the statute of limitations is at issue. State v. Locklear, 33 N.C.App. 647, 236 S.E.2d 376, cert. denied 293 N.C. 363, 237 S.E.2d 851 (1977). Defendant argues that time was of the essence here because there were two break-ins on successive nights and the items defendant confessed to stealing were taken on the second night, while the indictment charged him with the theft on the first night. The record is not clear as to which night the enumerated items were taken, however. Fulmore first testified that in the first break-in the items taken included "some clothes and some food from the refrigerator. . . stereo equipment and mag wheels." He later testified that those items were missing when he returned after the second night. In view of the fact that *811 defendant has not relied upon an alibi for either of the nights in question, and that there was some evidence from which the jury could find that the items defendant confessed to stealing were taken in the first break-in, we find no fatal variance.

Defendant also argues that his confession should not have been admitted into evidence because of questions as to whether it was voluntarily and understandingly made. See State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975), death penalty vacated 428 U.S. 908, 96 S. Ct. 3215, 49 L. Ed. 2d 1213 (1976). It appears in defendant's brief, though not in the record, that defendant moved prior to trial to suppress the confession, and his motion was denied. Also according to defendant's brief, "[a] copy of the Order denying the Motion could not be found in the defendant's file maintained by the Clerk of Superior Court." No reference to the motion to suppress appears in the record. When the State offered defendant's statement into evidence, defendant objected and his objection was overruled.

Since the court's order denying the motion to suppress does not appear, we are not able to determine what facts, if any, were found by the trial court to support its decision that the confession was admissible. Furthermore defendant's counsel has not included in the record the substance of that order, so we have no basis for review. We do note, however, that sufficient evidence appears in the record to support a finding that the confession was both voluntarily and understandingly made. Officer Merritt testified that he had known the defendant for years, and that defendant did not appear frightened while in his presence. Merritt used a normal tone of voice, and questioned defendant for 20-30 minutes. He read defendant the rights form and explained it to him, and he also read the statement to defendant and explained what it said before defendant signed it. Upon these facts we do not find as a matter of law that this statement was involuntary or made without understanding. See State v. Thompson, supra. In defendant's trial we find

No error.

WEBB and WELLS, JJ., concur.