{ "id": 8519417, "name": "STATE OF NORTH CAROLINA v. CHARLES ELVIE ROMERO", "name_abbreviation": "State v. Romero", "decision_date": "1982-02-16", "docket_number": "No. 818SC632", "first_page": "48", "last_page": "55", "citations": [ { "type": "official", "cite": "56 N.C. App. 48" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "29 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596113 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0128-01" ] }, { "cite": "95 S.E. 930", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1918, "opinion_index": 0 }, { "cite": "175 N.C. 825", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662978 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/nc/175/0825-01" ] }, { "cite": "55 S.E. 2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "231 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628021 ], "year": 1949, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0039-01" ] }, { "cite": "181 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565770 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0085-01" ] }, { "cite": "159 S.E. 2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574745 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0128-01" ] }, { "cite": "239 N.E. 2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "292 N.Y.S. 2d 663", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1968, "opinion_index": 0 }, { "cite": "22 N.Y. 2d 325", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 2284851 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ny-2d/22/0325-01" ] }, { "cite": "241 S.E. 2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "681" }, { "page": "680" } ], "opinion_index": 0 }, { "cite": "294 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573193 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0365-01" ] }, { "cite": "163 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559994 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0277-01" ] }, { "cite": "145 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "836" } ], "opinion_index": 0 }, { "cite": "266 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560200 ], "year": 1966, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0269-01" ] }, { "cite": "259 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "year": 1979, "opinion_index": 0 }, { "cite": "228 S.E. 2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "290 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564438 ], "year": 1976, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0681-01" ] } ], "analysis": { "cardinality": 758, "char_count": 16351, "ocr_confidence": 0.797, "pagerank": { "raw": 2.2834923263493462e-07, "percentile": 0.7854340156511055 }, "sha256": "52fb837f71a09d617fbd9a9b855582edfcc4cf8adeea31b76b30c46666c089d5", "simhash": "1:1d18f43c33320e50", "word_count": 2648 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Martin (Robert M.) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES ELVIE ROMERO" ], "opinions": [ { "text": "MORRIS, Chief Judge.\nDefendant 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\u2019s request would result in the imposition of a significant procedural innovation on our trial judges\u2019 treatment of confessions and other incriminatory statements.\nThe well-settled rule in North Carolina is, simply, that \u201c(a) trial judges\u2019 finding that an accused freely and voluntarily made an inculpatory statement will not be disturbed on appeal when the finding is supported by competent evidence even when there is conflicting evidence.\u201d 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, based upon the record, that the testimony supporting the voluntariness of defendant\u2019s 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 \u201cit is for the jury to determine whether the statements referred to in the testimony of the 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 supports the court\u2019s rulings that the statements in question were freely and voluntarily made, that defendant\u2019s rights were adequately protected, and that the imposition of the standard of proof advanced by defendant, though utilized in some states, is not required by North Carolina law.\nDefendant next assigns error to the trial judge\u2019s 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\u2019s attorney was not present. He contends specifically that his due process rights were violated because Officer Edmondson interrogated him regarding the charges lodged in Greene County outside the presence of the attorney representing him on related breaking 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 Officer 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.\nWe agree with defendant that his right to counsel had attached, since the proceedings 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 \u201cin 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.\u201d 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\u2019s law regarding waiver of right to counsel when a defendant is represented by a counsel in a proceeding unrelated to the charges under investigation. The record here, just as in Smith, offers no indication that defendant\u2019s counsel in the Johnston County matter also represented defendant in this case. Even had that attorney entered the Greene County proceeding on defendant\u2019s behalf\u2014 which he apparently had not \u2014 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 \u201cfreely, knowingly and understandingly made without threats or promises having been made to him.\u201d\nAt this point, it need only be said that the rule \u201cthat a defendant in custody who is represented by counsel may not waive his constitutional rights in counsel\u2019s absence, is not the law in this State.\u201d Id. at 375, 241 S.E. 2d at 680. The position taken in defendant\u2019s 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\u2019s argument that interrogations conducted in the absence of counsel violate Disciplinary Rule 7-104 of the North Carolina Code of Professional responsibility is unpersuasive. This Code section proscribes only certain conduct 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.\nDefendant\u2019s 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 Johnston County proceedings. His contention that evidence of prior convictions is admissible only to impeach a defendant\u2019s credibility as a witness reflects a misunderstanding of the law. It is a well-settled rule that\n. . . [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.\n1 Stansbury\u2019s N.C. Evidence \u00a7 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 played by Carraway in the conversation leading to defendant\u2019s 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.\nDefendant 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, \u201c[t]he existence of a motive which prompts one to do a particular act, may be considered as \u2018a 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,\u2019 Stansbury, N.C. Evidence, Sec. 83.\u201d State v. Church, 231 N.C. 39, 42, 55 S.E. 2d 792, 795 (1949). Evidence of attempts to borrow money prior to the commission of an offense was held competent as a motive, showing defendant\u2019s 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\u2019s attempts to distinguish these cases from the facts sub judice are unconvincing. Moreover, the prosecutor\u2019s inquiry had bearing on the veracity of defendant\u2019s claims that he used drugs extensively, that he was under the influence of drugs at the time he spoke to Deputy Pascasio, and that he was suffering from the effects of drug withdrawal when he talked to Officer Edmondson.\nFinally, 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, \u201cI arrested Mr. Romero for the second degree burglary of a house in Pitt County, North Carolina.\u201d When asked where he had seen defendant on 27 January 1981, Deputy Story said: \u201cI first saw him at the Pitt County Jail in Greenville.\u201d 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\u2019s prior arrests may have tended to impeach his character and credibility before defendant put his character in issue, the judge\u2019s cautionary instructions were curative of any prejudice. Furthermore, defendant\u2019s evidence, including his own testimony, conveyed the same information he now alleges to be prejudicial error.\nIn defendant\u2019s trial and the judgment rendered, we find\nNo error.\nJudges Hedrick and Martin (Robert M.) concur.", "type": "majority", "author": "MORRIS, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney John F. Mad-drey, for the state.", "Appellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES ELVIE ROMERO\nNo. 818SC632\n(Filed 16 February 1982)\n1. Criminal Law \u00a7 75\u2014 admissibility of confession \u2014standard of proof\nThe State need not prove beyond a reasonable doubt that an incriminating in-custody statement was made freely and voluntarily by defendant in order for the statement to be admissible in evidence.\n2. Criminal Law \u00a7 75.4\u2014 counsel in other cases \u2014in-custody statements in absence of counsel \u2014 waiver of counsel\nDefendant\u2019s due process rights were not violated because an officer interrogated him about a burglary charge in Greene County without the presence of an attorney who was representing him on breaking and entering charges in Johnston County since (1) there was no indication that defendant\u2019s counsel in Johnston County also represented defendant in the Greene County case, and (2) even had the attorney entered the Greene County case on defendant\u2019s behalf, defendant effectively waived his right to counsel before discussing the Greene County burglary with the officer.\n3. Criminal Law \u00a7 34.4.\u2014 other crimes by defendant \u2014 competency to show relationship with accomplice\nCross-examination of defendant regarding whether his alleged accomplice in the crimes charged had pled guilty in a case in another county in which defendant was convicted on two charges of breaking and entering was competent to show the relationship between defendant and the alleged accomplice in light of the significant role played by the accomplice in a conversation leading to a statement made by defendant in the presence of the accomplice and a deputy sheriff.\n4. Criminal Law \u00a7 33.2\u2014 evidence of motive \u2014price of drugs and source of money\nCross-examination of defendant regarding the price of drugs and source of money he used to buy them was competent to show defendant\u2019s motive in committing burglary and larceny.\n5. Criminal Law \u00a7 85.2\u2014 improper impeachment of defendant\u2019s character-curative instructions\nAlthough testimony by two State\u2019s witnesses concerning defendant\u2019s prior arrests may have tended to impeach his character and credibility before defendant put his character in issue, any prejudice was cured when the trial judge sustained objections to the testimony and instructed the jury not to consider the testimony elicited.\nAppeal by defendant from Allsbrook, Judge. Judgment entered 19 February 1981 in Superior Court, GREENE County. Heard in the Court of Appeals 18 November 1981.\nDefendant was indicted for burglary in the second degree, larceny after breaking and entering, and receiving and possession of stolen goods.\nThe evidence tended to show that Mary Shackleford\u2019s home at Walstonburg in Greene County was broken into on 29 January 1980, and that several items, including a television set, rifle, cedar chest, telephone, silver cream pitcher and some jewelry were stolen. The state\u2019s case against defendant rested on three in-culpatory statements made by defendant to authorities.\nBen Edmondson of the Greene County Sheriff\u2019s Department testified on voir dire that he took a statement from defendant in October of 1980 in which defendant admitted participating in the January breakin. He testified that he spoke to defendant sometime after the first of October and advised defendant of his rights before taking the confession. Edmondson did not reduce the statement to writing until the day of trial. Defendant on voir dire testified that he was not guilty, but that he gave a false confession in reliance on Edmondson\u2019s promise that he would be sentenced to no more than five years confinement if he pled guilty. He also said that he confessed to the breakin because he faced charges in Johnston County on which he knew he would be incarcerated, and he wanted to take the blame for another man charged in the Greene County burglary, Ritchie Creech, because he thought the five-year sentence would run concurrently with the time he would have to serve on his sentence stemming from the Johnston County crime. Defendant was represented by counsel in Johnston County at the time, but he was not appointed counsel in Greene County until 24 October. Defendant testified that Creech told him that Creech\u2019s father would furnish defendant\u2019s bond if defendant would shoulder the blame. Defendant also said that he was \u201cnot in his right mind\u201d when he gave the statement to Edmondson, because he had been taking drugs before being confined.\nThe evidence shows that defendant also confessed to Pitt County Deputy Lee Pascasio on 20 October 1980. Defendant was being held in Greene County for the Shackleford breakin. He had been arrested on 17 October for breaking into a house in Pitt County and had been taken to the Pitt County jail. After arriving in Pitt County on the 17th, defendant was read Miranda warnings in relation to the Pitt County breakin, and the defendant at that time indicated that he did not want to make a statement. On 20 October, defendant, accompanied by Creech and Creech\u2019s father, approached Deputy Pascasio on the day of defendant\u2019s first appearance in Pitt County District Court and asked to speak with the deputy. All four men went to the sheriff\u2019s office where defendant told Pascasio that he and a man named Phillip Carraway perpetrated the crimes in Pitt and Greene Counties and that Creech was not involved. Pascasio did not read defendant his Miranda rights on 20 October.\nJohnston County Deputy Sheriff Richard G. Story testified on voir dire that he transported defendant and Phillip Carraway on 27 January 1981 from Pitt County jail to Johnston County, where defendant was to appear as a witness for the State in a criminal trial. During the trip, Carraway stated that Creech was involved in the Greene County breakin, but defendant corrected Carraway and said that it was just he and Carraway who committed the crime.\nThe trial court found that all three of the statements were made freely and voluntarily and were, therefore, admissible into evidence. Defendant was convicted of burglary in the second degree. Defendant appeals from an order of imprisonment.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney John F. Mad-drey, for the state.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for defendant appellant." }, "file_name": "0048-01", "first_page_order": 80, "last_page_order": 87 }