State v. Jones

178 S.E.2d 820 (1971)

STATE of North Carolina v. Harold W. JONES, alias Curtis Proulx.

No. 54.

Supreme Court of North Carolina.

February 10, 1971.

*823 Atty. Gen. Robert Morgan, Asst. Attys. Gen. Robert G. Webb and Claude W. Harris, for the State.

William S. Geimer, Asst. Public Defender, 12th Judicial District, for defendant.

BRANCH, Justice:

Defendant contends that the trial judge erred in admitting into evidence statements allegedly made by defendant to Detective Richard E. Washburn.

The test of admissibility of a confession is whether the statements made by the defendant were in fact voluntary and understandingly made. State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572. In the case of State v. Fox, 277 N.C. 1, 175 S.E.2d 561, Sharp, Justice, succinctly stated the procedure and rules concerning custodial confessions, as follows:

"* * * When the State offers a confession in a criminal trial and defendant objects, the competency of the confession must be determined by the trial judge in a preliminary inquiry in the absence of the jury. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481. The trial judge hears the evidence, observes the demeanor of the witnesses, and resolves the question. State v. Barber, 268 N.C. 509, 151 S.E.2d 51. His findings as to the voluntariness of the confession, and any other facts which determine whether it meets the requirements for admissibility, are conclusive if they are supported by competent evidence in the record. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Keith, 266 N.C. 263, 145 S.E.2d 841."

Here, the trial judge properly excused the jury and in the jury's absence heard evidence from the State and defendant upon the question of the voluntariness of defendant's confession. The court made full findings of fact, which were incorporated into the record. The record contains substantial competent evidence supporting the trial court's findings, and the findings support the conclusion, "That such statements as were made by the defendant to Mr. Washburn were made voluntarily and freely * * *."

We are aware of the holding in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, that if an individual in custody indicates in any manner, during the interrogation, that he wishes to remain silent, the interrogation must cease. This rule is not applicable to the facts of this case. True, upon being arrested defendant stated that "he would rather not talk about it right now." The record does not show that the officers attempted further questioning at that time. The statement made by defendant when he was arrested did not bar further questions, because defendant, after having been fully advised of his constitutional rights, not only freely consented to but invited the police officer to resume talks with him. See State v. Bishop, 272 N.C. 283, 158 S.E.2d 511.

The court correctly overruled defendant's objection and admitted statements made by defendant to Detective Washburn into evidence.

Defendant contends that the trial judge committed prejudicial error by refusing to suppress that portion of defendant's statements containing evidence of uncharged misconduct. The uncharged misconduct referred to is indicated by the statement made by defendant to Detective Washburn that at the time of defendant's arrest he was absent without leave from his military unit without proper authority. Such action is a *824 violation of the Uniform Code of Military Justice, 10 U.S.C.A. § 886.

It is the general rule that on a prosecution for a particular crime, evidence in chief which shows that defendant has committed other distinct, independent offenses is not admissible. State v. Myers, 240 N.C. 462, 82 S.E.2d 213; State v. McClain, 240 N.C. 171, 81 S.E.2d 364. This rule is subject to many exceptions. State v. McClain, supra, and State v. Harris, 223 N.C. 697, 28 S.E.2d 232.

In Stansbury, North Carolina Evidence, 2d Ed. § 91, p. 209, we find the following:

"* * * It is submitted, however, that the rule is in fact a simple one which, when accurately stated, is subject to no exceptions: Evidence 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."

In instant case defendant was charged in the bill of indictments as "Curtis Proulx, alias Harold Jones." The evidence under attack is relevant to show to the jury the reasons for the use of the alias and to correctly identify defendant by name. It is clear that the evidence was not offered to show the character of defendant or his disposition to commit an offense of the nature of the one charged. Defendant made no request for limiting instructions on this point. Further, we are unable to perceive prejudicial error in the admission of testimony showing commission of an act which might result in the limited punishment which can be imposed by a summary court martial, or by "company punishment," when other conduct admitted in the same statement tends to show defendant's participation in two distinct felonies. Prejudicial error is further negated by defendant's own statement on cross-examination that he was AWOL at the time of his arrest. State v. Williams, 275 N.C. 77, 165 S.E.2d 481.

The trial judge did not commit error in admitting this portion of defendant's statement.

No error.