{ "id": 8524047, "name": "STATE OF NORTH CAROLINA v. DARRYL WASHINGTON", "name_abbreviation": "State v. Washington", "decision_date": "1982-05-18", "docket_number": "No. 8126SC1216", "first_page": "309", "last_page": "313", "citations": [ { "type": "official", "cite": "57 N.C. App. 309" } ], "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": "145 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560200 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0269-01" ] }, { "cite": "151 S.E. 2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563354 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0509-01" ] }, { "cite": "241 S.E. 2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573284 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0407-01" ] }, { "cite": "404 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174724 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/404/0477-01" ] }, { "cite": "240 S.E. 2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547089 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0042-01" ] }, { "cite": "285 S.E. 2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570458 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0680-01" ] }, { "cite": "213 S.E. 2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 709", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570180 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0709-01" ] }, { "cite": "384 U.S. 737", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047392 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0737-01" ] }, { "cite": "305 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569189, 8569320, 8569360, 8569238, 8569277 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0305-01", "/nc/305/0305-04", "/nc/305/0305-05", "/nc/305/0305-02", "/nc/305/0305-03" ] }, { "cite": "283 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 293", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521803 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0293-01" ] }, { "cite": "175 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561677 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0001-01" ] }, { "cite": "179 S.E. 2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560114 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0268-01" ] } ], "analysis": { "cardinality": 484, "char_count": 9342, "ocr_confidence": 0.796, "pagerank": { "raw": 2.652112897754374e-07, "percentile": 0.8241461181713683 }, "sha256": "c7a11bcc03a78ef2fda535fca208f87b78e810462cea5d4f08a942ff15815caf", "simhash": "1:028ac03f7e3d03ee", "word_count": 1515 }, "last_updated": "2023-07-14T20:31:38.946391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DARRYL WASHINGTON" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nDefendant assigns as error the denial of his motion to suppress the confession. We hold that, the confession was properly admitted into evidence at trial. The trial court\u2019s findings with respect to the voluntariness of a confession, if supported by competent evidence in the record, are conclusive. State v. Barber, 278 N.C. 268, 179 S.E. 2d 404 (1971); State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970); State v. Hawley, 54 N.C. App. 293, 283 S.E. 2d 387 (1981), disc. rev. denied, 305 N.C. 305 (1982). Officers Murphy and Smith testified at the suppression hearing. The evidence at the hearing supports the trial court\u2019s conclusion that the statement was freely and voluntarily given. Likewise, the entire record on appeal supports this conclusion. Davis v. North Carolina, 384 U.S. 737, 16 L.Ed. 2d 895 (1966); State v. Silver, 286 N.C. 709, 213 S.E. 2d 247 (1975). Defendant further urges this Court to impose upon the state a requirement that the voluntariness of a confession as a basis for admissibility be proved beyond a reasonable doubt. Our Court has rejected this standard of proof, adopting under these circumstances a preponderance of the evidence standard. See State v. Johnson, 304 N.C. 680, 285 S.E. 2d 792 (1982); State v. Byrd, 35 N.C. App. 42, 240 S.E. 2d 494 (1978). The preponderance of the evidence standard complies with the constitutional tests under the United States Constitution. Lego v. Twomey, 404 U.S. 477, 30 L.Ed. 2d 618 (1972). We hold that the standard of proof required for a determination of voluntariness as it relates to the admissibility of a confession is a preponderance of the evidence.\nDefendant next argues that the trial court erroneously permitted testimony which improperly impeached defendant\u2019s character and constituted evidence of his prior criminal conduct. On direct examination of officer Smith, the state questioned him regarding the circumstances of a statement which the defendant had given the officer on a previous occasion. Without objection, the officer testified that this was not the first time he\u2019d warned defendant of his rights; that he had previously used the same waiver form; that there was no difference in defendant\u2019s ability to understand the officer on the two occasions; that on both occasions defendant appeared competent; and that prior to talking with the defendant on the second occasion, the officer was confident that the defendant would again give him a statement. Defendant objected only twice during this series of questions. The trial judge sustained his objection when the officer was asked whether defendant made a written statement on the first occasion. Defendant\u2019s objection to a question concerning the number of occasions the officer had warned defendant of his rights was overruled.\nThe rule in North Carolina is that when evidence is admitted over objection, but evidence of the same import is introduced without objection prior or subsequent to the admission of the evidence in dispute, the benefit of the objection is lost. State v. Chapman, 294 N.C. 407, 241 S.E. 2d 667 (1978). The assignment of error is overruled.\nFinally, defendant contends that he is entitled to a new trial because the trial court improperly expressed an opinion on the weight of the evidence, in violation of N.C.G.S. 15A-1232.\nState\u2019s witness officer Smith testified at trial concerning the circumstances under which defendant\u2019s confession was given. The trial court summarized his testimony as follows:\n[T]he defendant stated that he understood his rights and that [he] was willing to talk to [an officer] about it and make a statement. . . . [T]he defendant signed a Waiver of his right to remain silent and a Waiver of his right to have counsel during the interview by Officer Smith.\n[T]here were no promises, coercions, threats or any type of duress placed upon the defendant, Darryl Washington, at the time Officer Smith and Officer Mitchell were interviewing him.\nThe State has offered further evidence which tends to show that the defendant, Darryl Washington, made a statement freely and voluntarily. (Emphasis ours.)\nIt is defendant\u2019s contention that the italicized portion of the charge added weight and credibility to defendant\u2019s confession, considerations which were exclusively for jury determination.\nN.C.G.S. 15A-1232 prohibits the trial judge from expressing \u201can opinion whether a fact has been proved.\u201d Simply put, the trial judge must confine his summary of the evidence to the facts and avoid drawing conclusions based thereon. It would appear that the challenged instruction was error.\nOnce the trial judge rules on the admissibility of a confession and the testimony is received in evidence for jury consideration, it is for the jury to determine the weight and credibility to be given thereto. State v. Barber, 268 N.C. 509, 151 S.E. 2d 51 (1966); State v. Walker, 266 N.C. 269, 145 S.E. 2d 833 (1966). The defendant may offer evidence at trial tending to show that no statement was made or that it was the result of coercive or unfair tactics on the part of the officers taking it. Under these circumstances, the voluntariness of the confession becomes not just a factor going to its initial admissibility, but is highly relevant as it pertains to weight and credibility. Prejudicial error would result if the trial judge were to suggest to the jury that a statement was in fact made or if he were to conclude in the presence of the jury that it was willingly and voluntarily given. Such was not the situation in the case sub judice.\nDefendant did not offer testimony on his own behalf. The evidence before the jury was uncontradicted that defendant\u2019s constitutional rights were protected and that the statement was \u201cvoluntarily\u201d given. Defendant\u2019s only evidence, offered through cross-examination, raised questions as to the accuracy of defendant\u2019s statement, in that the witnesses\u2019 version of the robbery differed in some respects from the defendant\u2019s version in the confession.\nThe record discloses that prior to summarizing the evidence the trial judge stated that \u201c[t]he State has offered evidence in this case which tends to show, and what, if anything, the evidence does show is for you as members of the jury to decide.\u201d Having summarized defendant\u2019s evidence, as gleaned through cross-examination, the trial court left to the jury a determination of the weight and credibility to be given the confession by stating: \u201cIf you find that the defendant made that confession, then you should consider all of the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it.\u201d Under the facts of this case, we hold that defendant has not shown prejudicial error.\nNo error.\nChief Judge MORRIS and Judge Clark concur.", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General Myron C. Banks, for the State.", "Assistant Appellate Defender Lorinzo L. Joyner for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DARRYL WASHINGTON\nNo. 8126SC1216\n(Filed 18 May 1982)\n1. Criminal Law \u00a7 75\u2014 voluntariness of confession \u2014 standard of proof\nThe standard of proof required for determination of the voluntariness of a confession is proof by a preponderance of the evidence.\n2. Criminal Law 8 169.3\u2014 admission of testimony \u2014 error cured by similar testimony admitted without objection\nThe benefit of an objection to testimony is lost when evidence of the same import is introduced without objection prior or subsequent to the admission of the evidence in dispute.\n3. Criminal Law \u00a7 114.2\u2014 instructions \u2014expression of opinion on evidence \u2014 absence of prejudice\nThe trial court expressed an opinion on the evidence in instructing the jury that the State had offered further evidence tending to show that defendant \u201cmade a statement freely and voluntarily.\u201d However, defendant was not prejudiced by such error where the evidence before the jury was uncon-tradicted that defendant\u2019s statement was voluntarily given; defendant\u2019s evidence, offered through cross-examination, only raised questions as to the accuracy of the statement; and the trial court left to the jury the determination of the weight and credibility to be given the confession by instructing that if the jury should find \u201cthat the defendant made that confession, then you should consider all of the circumstances under which it was made in determining whether it was a truthful confession and the weight you will give to it.\u201d\nAppeal by defendant from Johnson, Judge. Judgment entered 30 April 1981 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 28 April 1982.\nDefendant appeals his conviction of robbery with a firearm. Two employees of McDonald\u2019s restaurant in Charlotte, North Carolina, testified that on 8 September 1980 two black men entered their establishment as they were closing for the night and took approximately $4,000 from the safe and cash register. The two men wore face masks. The taller of the two men was armed with a shotgun, while the shorter man carried a pistol.\nThe defendant made a pretrial motion to suppress an incriminating statement he made to police officers on 16 October 1980. Based on the evidence offered at a voir dire hearing, the trial court denied defendant\u2019s motion, and the confession was read to the jury.\nDefendant offered no testimony on his own behalf.\nAttorney General Edmisten, by Special Deputy Attorney General Myron C. Banks, for the State.\nAssistant Appellate Defender Lorinzo L. Joyner for defendant." }, "file_name": "0309-01", "first_page_order": 339, "last_page_order": 343 }