State v. Pike

159 S.E.2d 334 (1968)

273 N.C. 102

STATE of North Carolina v. James Robert PIKE.

No. 658.

Supreme Court of North Carolina.

February 28, 1968.

*336 Atty. Gen. T. W. Bruton, Deputy Atty. Gen. H. Lewis, and Staff Atty. Donald M. Jacobs, Raleigh, for the State.

Harold I. Spainhour, High Point, for defendant.

BRANCH, Justice.

Defendant assigns as error the trial court's action in refusing to allow defendant to testify on voir dire hearing held on his motion to suppress evidence.

One of the most strictly defined principles in our system of jurisprudence is that which separates the functions of the court from those of the jury. State v. Fogleman, 204 N.C. 401, 168 S.E. 536. It is the duty of the court to pass on the competency and admissibility of evidence. This includes the duty to pass upon the validity of a search warrant and the competency of evidence procured thereunder, when they are properly made the subject of inquiry. The jury has no duty in determining the competency or admissibility of evidence, and the jury may not invade the province of the court in this respect. State v. Harper, 235 N.C. 62, 69 S.E.2d 161. When the court determines the competency of evidence in the absence of the jury, it thereby insures that its functions and those of the jury remain separate and unaffected.

In the case of State v. Myers, 266 N.C. 581, 146 S.E.2d 674, a motion was made to suppress evidence obtained by a search warrant on the ground of insufficiency of the warrant. The Court, finding the warrant illegal, inter alia, made this pertinent statement:

"In this case, as a matter of procedure, we see no reason why the trial court, in its discretion and on defendant's motion to suppress the evidence, could not conduct a preliminary inquiry relating to the legality of the search in the same *337 manner as the court does in determining the voluntariness of a confession."

In passing upon whether confessions of defendants in criminal cases are voluntary and admissible in evidence, this Court has approved the following rule:

"When the State proposes to offer in evidence the defendant's confession or admission, and the defendant objects, the proper procedure is for the trial judge to excuse the jury and, in its absence, hear the evidence, both that of the State and that of the defendant, upon the question of the voluntariness of the statement. In the light of such evidence and of his observation of the demeanor of the witnesses, the judge must resolve the question of whether the defendant, if he made the statement, made it voluntarily and with understanding. State v. Barnes, supra [264 N.C. 517, 142 S.E.2d 344]; State v. Outing, supra [255 N.C. 468, 121 S.E.2d 847]; State v. Rogers, supra [233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104]. The trial judge should make findings of fact with reference to this question and incorporate those findings in the record. Such findings of fact, so made by the trial judge, are conclusive if they are supported by competent evidence in the record. No reviewing court may properly set aside or modify those findings if so supported by competent evidence in the record. State v. Barnes, supra; State v. Chamberlain, supra [263 N.C. 406, 139 S.E.2d 620]; State v. Outing, supra; State v. Rogers, supra." (Emphasis ours.) State v. Gray, 268 N.C. 69, 150 S.E.2d 1.

We see no reason why the procedure on motion to suppress evidence because of illegal search and seizure should not be the same as the inquiry by the court into the voluntariness of a confession.

In the case of State v. Smith, 213 N.C. 299, 195 S.E. 819, the Court considered the competency of an alleged confession and there stated:

"The defendant contends here that he had the right to testify and offer witnesses in the absence of the jury in rerebuttal, concerning the circumstances under which the alleged confession was procured from him. This is true if he asserts or requests the right at the time. * * *"

Headnote No. 5 from the case of State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396, accurately states the pertinent holding of the case, as follows:

"It is error for the court upon the challenge of the competency of a confession to refuse to hear evidence on the voir dire that defendant was of low mentality, had great imagination, and would believe anything told him, it being the duty of the court to hear and weigh such evidence in determining whether the confession was in fact understandingly and voluntarily made."

Justice Ervin, speaking for the Court in State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104, stated:

"* * * When the admissibility of a confession is challenged on the ground that it was induced by improper means, the trial judge is required to determine the question of fact whether it was or was not voluntary before he permits it to go to the jury. State v. Litteral, 227 N.C. 527, 43 S.E.2d 84; State v. Andrew, 61 N.C. 205. In making this preliminary inquiry, the judge should afford both the prosecution and the defense a reasonable opportunity to present evidence in the absence of the jury showing the circumstances under which the confession was made. State v. Gibson, 216 N.C. 535, 5 S.E.2d 717; State v. Alston, 215 N.C. 713, 3 S.E.2d 11; State v. Smith, 213 N.C. 299, 195 S.E. 819; State v. Blake, 198 N.C. 547, 152 *338 S.E. 632; State v. Whitener, 191 N.C. 659, 132 S.E. 603. * * *"

In the instant case, upon motion to suppress the evidence the trial judge conducted an inquiry in the absence of the jury. The court heard a State's witness, but refused to hear defendant.

It is basic to due process that a defendant in a criminal action be allowed to offer testimony. When the trial judge heard the State's witness on voir dire, he should have given defendant an opportunity to offer evidence to present his version of the search and seizure or to contradict, amplify, or explain the testimony offered by the State.

We hold that the trial court committed error in refusing to allow defendant to offer evidence during the voir dire.

We do not decide as to the competency of the evidence which defendant moved to suppress.

The trial court correctly overruled defendant's motion for nonsuit. Defendant contends that the motion should have been granted since the State's case depends largely on the evidence which he contends resulted from the illegal search. This argument is not tenable since the admissibility of the evidence must yet be determined according to the procedure herein set out.

Further, had the evidence been incompetent, he would not have been entitled to a dismissal, since the State might have been able to offer sufficient competent evidence at the next trial. State v. Hall, 264 N.C. 559, 142 S.E.2d 177; State v. Stallings, 267 N.C. 405, 148 S.E.2d 252.

We do not deem it necessary to consider further assignments of error.

Defendant is entitled to a

New trial.

HUSKINS, J., took no part in the consideration or decision of this case.