{ "id": 8567796, "name": "STATE OF NORTH CAROLINA v. RONALD EARL JENKINS", "name_abbreviation": "State v. Jenkins", "decision_date": "1977-03-07", "docket_number": "No. 5", "first_page": "179", "last_page": "191", "citations": [ { "type": "official", "cite": "292 N.C. 179" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "332 So. 2d 220", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9647207 ], "opinion_index": 0, "case_paths": [ "/so2d/332/0220-01" ] }, { "cite": "235 F. Supp. 448", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1475374 ], "opinion_index": 0, "case_paths": [ "/f-supp/235/0448-01" ] }, { "cite": "191 U.S. 126", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3622203 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/191/0126-01" ] }, { "cite": "12 S.E. 2d 654", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 769", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624806 ], "opinion_index": 0, "case_paths": [ "/nc/218/0769-01" ] }, { "cite": "153 S.E. 2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564570 ], "opinion_index": 0, "case_paths": [ "/nc/269/0521-01" ] }, { "cite": "200 S.E. 2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "284 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560660 ], "opinion_index": 0, "case_paths": [ "/nc/284/0165-01" ] }, { "cite": "183 S.E. 2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569459 ], "opinion_index": 0, "case_paths": [ "/nc/279/0435-01" ] }, { "cite": "213 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "287 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560972 ], "opinion_index": 0, "case_paths": [ "/nc/287/0037-01" ] }, { "cite": "196 S.E. 2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559336 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0533-01" ] }, { "cite": "215 S.E. 2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "287 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562667 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/287/0326-01" ] }, { "cite": "93 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274978 ], "opinion_index": 0, "case_paths": [ "/nc/93/0618-01" ] }, { "cite": "77 N.C., 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683071 ], "opinion_index": 0, "case_paths": [ "/nc/77/0483-01" ] }, { "cite": "189 S.E. 175", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624330 ], "opinion_index": 0, "case_paths": [ "/nc/211/0093-01" ] }, { "cite": "81 S.E. 2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596934 ], "opinion_index": 0, "case_paths": [ "/nc/240/0244-01" ] }, { "cite": "25 S.E. 2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "223 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601860 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/223/0160-01" ] }, { "cite": "180 S.E. 2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "278 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560496 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/278/0351-01" ] }, { "cite": "151 S.E. 2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563354 ], "opinion_index": 0, "case_paths": [ "/nc/268/0509-01" ] }, { "cite": "64 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608863 ], "opinion_index": 0, "case_paths": [ "/nc/233/0390-01" ] }, { "cite": "116 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622612 ], "opinion_index": 0, "case_paths": [ "/nc/253/0086-01" ] }, { "cite": "145 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "266 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560200 ], "opinion_index": 0, "case_paths": [ "/nc/266/0269-01" ] }, { "cite": "183 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "279 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569832 ], "opinion_index": 0, "case_paths": [ "/nc/279/0477-01" ] }, { "cite": "185 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571880 ], "opinion_index": 0, "case_paths": [ "/nc/280/0306-01" ] }, { "cite": "223 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "289 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570976 ], "opinion_index": 0, "case_paths": [ "/nc/289/0522-01" ] } ], "analysis": { "cardinality": 1120, "char_count": 27546, "ocr_confidence": 0.674, "pagerank": { "raw": 3.3828376465025277e-07, "percentile": 0.8764694389518463 }, "sha256": "147c5b9f402909002a501929923d158c28d640078c29975be6464cf403aaf66b", "simhash": "1:237df4268e1722d7", "word_count": 4584 }, "last_updated": "2023-07-14T19:01:08.778506+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. RONALD EARL JENKINS" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant contends that the trial judge erred by admitting the written statement or confession purportedly signed by defendant on 19 December 1975.\nHertford County Sheriff James Baker was questioned concerning a statement made by defendant and upon defendant\u2019s objection the jury was excused and a voir dire hearing was held.\nSheriff Baker testified that defendant was brought to the Hertford County jail from Florida during the early morning hours of 19 December 1975. At noon on that day he had his deputies bring defendant to the courthouse. He read the Miranda warnings to defendant and specifically asked him if he wanted a lawyer, to which defendant replied, \u201cnot at this time.\u201d Defendant then made an oral statement and the Sheriff sent for Chief Wheeler of the Murfreesboro Police Department. Upon Chief Wheeler\u2019s arrival defendant was again warned of his rights and he then signed a waiver. of rights. Sheriff Baker stated that he talked with defendant for about thirty minutes before he made the oral statement and at that time defendant appeared to be normal. No one made any promises to defendant nor was defendant threatened in any way. Defendant actually signed the written waiver of rights at 3:30 p.m. and signed the typewritten confession at 4:00 p.m. During the period between 12:00 and the signing of these writings, defendant was also booked, fingerprinted and certain required reports were made out by police officers. The written waiver of rights was a repetition of the Miranda warnings. It contained a statement that defendant understood his rights and that he affirmatively waived presence of counsel. The essence of his written confession was that defendant, Travis Watford, Brynell Askew and Kenneth Hall went to Mr. Liverman\u2019s home at about 1:50 a.m. on 8 November 1975 for the purpose of robbing him. Defendant stated that Hall gave him a pistol as he left the automobile and that during his confrontation with Mr. Liverman he panicked and fired the pistol. He then took the money box and ran. Upon hearing someone call from the house, he shot toward the house. He and his companions went to a motel in Virginia where the money was divided. One of his companions brought him back to Murfreesboro in the early hours of the morning.\nDefendant, testifying on voir elite, stated that he was brought from Florida by local officers and that during the trip he was handcuffed and wore chains. They arrived at Winton at about 4:45 a.m. on 19 December 1975 and he was placed in the Hertford County jail. He was awakened at noon on that day and carried to the courthouse. He testified that the Sheriff asked him if he wanted a lawyer and he replied that he did. He was handed the written waiver of rights and he signed it without reading it because he thought he was getting a lawyer. He did not sign the written confession and the signature appearing on that writing was not his own. On cross-examination defendant stated that he was twenty years old and that he could read and write. He had received a general education diploma. He admitted that his \u201crights\u201d had been read to him on several other occasions in Hertford County.\nJudge Fountain found facts consistent with the State\u2019s evidence and concluded:\n. . . [T]hat such statement, if any, as made by the defendant on the 19th day of December, 1975, was freely, knowingly and voluntarily made after knowingly, voluntarily and expressly waiving his right to counsel and his right to remain silent. Finally, the Court, while having considered all defendant\u2019s evidence which is in conflict with the Court\u2019s findings, finds it is not believable and for that reason along with the other findings concludes that the defendant\u2019s objection should be and it is overruled.\nIt is well settled in this jurisdiction that when an in-custody confession is challenged the trial judge must conduct a voir dire hearing to determine whether the confession was voluntarily made. When the voir dire evidence is conflicting, as here, the trial judge must weigh the credibility of the witnesses, resolve the contradictions and the conflicts, and make appropriate findings of fact. When supported by competent evidence his findings are conclusive on appeal. State v. Biggs, 289 N.C. 522, 223 S.E. 2d 371; State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844; State v. Morris, 279 N.C. 477, 183 S.E. 2d 634. Here there was ample, competent evidence to support the trial judge\u2019s findings which in turn support his conclusions and ruling. The trial judge properly admitted defendant\u2019s confession.\nNeither do we find merit in defendant\u2019s contention that the trial judge erred by failing to instruct the jury as to the law relating to the voluntariness of defendant\u2019s confession. The language contained in State v. Walker, 266 N.C. 269, 145 S.E. 2d 833, supports our conclusion. There Justice Bobbitt (later Chief Justice), speaking for the Court, stated:\n. . . In S. v. Davis, 253 N.C. 86, 116 S.E. 2d 365, Higgins, J., in accordance with decisions cited in the quotation from S. v. Rogers, 233 N.C. 390, 64 S.E. 2d 572, said: \u201cAccording to our practice the question whether a confession is voluntary is determined in a preliminary inquiry before the trial judge.\u201d After such preliminary inquiry has been conducted, the approved practice is for the judge, in the absence of the jury, to make findings of fact. These findings are made only for one purpose, namely* to show the basis for the judge\u2019s decision as to the admissibility of the proffered testimony. They are not for consideration by the jury and should not be referred to in the jury\u2019s presence.\nIf the judge determines the proffered testimony is admissible, the jury is recalled, the objection to the admission of the testimony is overruled, and the testimony is received in evidence for consideration by the jury. If admitted in evidence, it 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 if made. Hence, evidence as to the circumstances under which the statements attributed to defendant were made may be offered or elicited on cross-examination in the presence of the jury. Admissibility is for determination by the judge unassisted by the jury. Credibility and weight are for determination by the jury unassisted by the judge.\nDefendant argues that the trial judge erred in refusing to permit him to testify as to how he was secured while being transported from Miami, Florida, to the Hertford County jail in Winton, North Carolina.\nDuring the course of direct examination defendant testified that after being apprehended in Miami, Florida, he was driven back to Winton, North Carolina, and arrived at the jail there at about 4:45 a.m. on 19 December 1975. Only two stops were made during this trip. At this point he was asked how he was secured while traveling and objection to this question was sustained. The record reveals that defendant would have responded that he was secured by handcuffs and waist chains and leg shackles. He contends that this evidence was admissible as bearing upon the weight and credibilty to be given to the purported confession made by him following this return trip to North Carolina.\nFurther testimony of defendant reveals that shortly after arriving at the jail at 4:45 a.m. he went to bed and slept' until 12:00 noon. During this period of approximately seven hours, he was awakened only twice, at which times he was offered breakfast and lunch. When finally awakened at 12:00 noon, defendant was taken to the Sheriff\u2019s office for interrogation. The evidence reveals that the written confession was not signed until about 4:00 p.m.\nIt is true that \u201c [o] nee a confession is admitted, weight and credibility are entirely for the jury; and the defendant may introduce evidence designed to persuade the jury . . . that it was made under such circumstances as to deprive it of credibility.\u201d [Emphasis added.] 2 Stansbury\u2019s N. C. Evidence (Brandis Rev. 1973) \u00a7 187, pp. 88-89; State v. Barber, 268 N.C. 509, 151 S.E. 2d 51. However, we are of the opinion that the manner in which defendant was secured while returning to North Carolina was a fact so remote in time and place from the actual confession that its admission would have carried little weight as a circumstance affecting the credibility of the statement. Certainly in light of the other strong evidence presented by the State, we do not think that the admission of this evidence would have changed the verdict of the jury.\nDefendant assigns as error the failure of the trial judge to immediately stop the prosecutor\u2019s cross-examination concerning certain extrajudicial statements made by defendant in the prosecutor\u2019s presence.\nDefendant stated on direct examination that he knew nothing about the charged crime. Upon cross-examination the following exchange took place:\n\u201cQ. Mr. Jenkins, let me ask you this. Do you remember sitting in that back room right in there with your lawyer, with Sheriff Baker and me when you offered to volunteer to go to Virginia to find the steel box that you took from Mr. Liverman?\nMr. Johnson: Objection.\nThe Court: Overruled.\nException No. 9\nMr. Johnson: Request the jury be instructed.\nThe Court: Instructed in what way?\nMr. Johnson: To disregard what Mr. Burgwyn said.\nThe Court: Overruled.\nException No. 10\nA. No, sir.\nQ. Do you deny that?\nA. Yes, sir, I do.\u201d\nThere were two or three other similar questions and like answers. After taking a recess the trial judge instructed the jury:\nThe Court: Ladies and gentlemen, the objection that Mr. Johnson has made is sustained and in view of that I am going to reinstruct you that you will disregard any questions that have been asked the defendant about any conference with the District Attorney or his then attorney, Mr. Herbin, or anyone else at the time Mr. Burgwyn was asking him about just before this ten-minute recess. Disregard it. Don\u2019t consider it for any purpose. Obviously, the questions asked do not constitute evidence so you will disregard the questions as well as any reference to that. . . .\nIt is well settled that when a defendant takes the witness stand he may be impeached as any other witness. State v. Dawson, 278 N.C. 351, 180 S.E. 2d 140; State v. McKinnon, 223 N.C. 160, 25 S.E. 2d 606. One of the ways he may be impeached is by showing prior extrajudicial statements inconsistent with his testimony at trial. 1 Stansbury\u2019s N. C. Evidence (Brandis Rev. 1973) \u00a7 46, p. 128; State v. Cope, 240 N.C. 244, 81 S.E. 2d 773. However, defendant strenuously argues that the challenged cross-examination was precluded by the provisions of G.S. 15A-1025 which provides:\nThe fact that the defendant or his counsel and the solicitor engaged in plea discussions or made a plea arrangement may not be received in evidence against or in favor of the defendant in any criminal or civil action or administrative proceedings.\nThe language of this statute clearly states its purpose. This record does not reveal that any evidence of plea negotiations as smh was offered into evidence. In fact, the record shows that the District Attorney unequivocally stated that he had never discussed a plea at all with defendant\u2019s then counsel Mr. Herbin, or the defendant. It is true that it could be inferred that the District Attorney, defense counsel and the Sheriff might have been discussing the disposition of this case. However, it is just as reasonable to infer that defendant had, in fact, made the confession admitted into evidence and that the District Attorney was exploring the possibility of using defendant as a witness in cases against his alleged accomplices when this inconsistent statement was purportedly made. Even had the statements been made during a plea-bargaining session, we do not think that the District Attorney\u2019s questions, which tended to impeach defendant\u2019s testimony by showing a contradictory statement, would violate the provisions of the statute unless the fact of plea bargaining was revealed. The trial judge\u2019s instruction to the jury to disregard the questions also tended to cure any possible prejudice to defendant.\nThis assignment of error is overruled.\nDefendant next assigns as error the exclusion of certain testimony sought to be elicited by him on cross-examination of the prosecuting witness.\nDefense counsel attempted to question the prosecuting witness, Walter Liverman, about an incident occurring in the spring or summer of 1975 at his restaurant. Objections to these questions were sustained by the trial judge. The record reveals that if the witness had been allowed to answer the questions, he would have testified that he recalled an earlier incident involving his refusal to sell beer to two intoxicated individuals.\nIt is defendant\u2019s contention that evidence of this prior incident suggests that other persons might have had a motive to rob Mr. Liverman, thus making it less likely that defendant committed the robbery. A similar argument was considered and rejected in State v. Smith, 211 N.C. 93, 189 S.E. 175, wherein this Court stated:\nWhile under certain circumstances it has been held by this Court competent for the defendant to introduce evidence tending to show that someone else than he committed the crime charged, S. v. Davis, 77 N.C., 483, it is well settled that such evidence is not admissible unless it points directly to the guilt of the third party, evidence which does no more than create an inference or conjecture as to such guilt is inadmissible.\n... To the same effect is Wharton\u2019s Criminal Evidence (11th Ed.), Vol. 1, par. 274, p. 349, where it is said: \u201cIn any event, before such testimony can be received, there must be such proof of connection with the crime or such a train of facts or circumstances as tends to point out someone other than the accused as the guilty party. Remote acts, disconnected from and outside of the crime itself, cannot be separately proved for such a purpose.\u201d\nIn State v. Lambert, 93 N.C. 618, it was held that the trial judge properly excluded evidence tending to show only that a third person had a motive to commit the crime with which the defendant was charged.\nAlthough the testimony which defendant sought to elicit on cross-examination was properly excluded, we note that a complete account of the same incident was later received into evidence from another witness. It is well established that any error in the exclusion of evidence is cured when other evidence of similar import is subsequently admitted. State v. Vinson, 287 N.C. 326, 215 S.E. 2d 60; State v. Edmondson, 283 N.C. 533, 196 S.E. 2d 505; 1 Stansbury\u2019s N. C. Evidence (Brandis Rev. 1973) \u00a7 30, p. 79.\nDefendant also contends that the trial judge erred by refusing to allow him to testify that he knew of other black males living in Murfreesboro who were about his size and had goatees. This testimony, he argues, was relevant in that it would have discredited the prosecuting witnesses\u2019 identification of defendant.\n\u201cEvidence may have some tendency to prove a fact and still be inadmissible because its probative force is so weak that to receive it would confuse the issues, unfairly surprise the opponent, or unduly prolong the trial.\u201d 1 Stansbury\u2019s N. C. Evidence (Brandis Rev. 1973) \u00a7 77, p. 236. While the testimony offered by defendant may have some slight relevance, we feel its probative value is so weak that it should not have been allowed to distract the jury\u2019s attention from material matters. The trial judge, therefore, correctly excluded this evidence.\nDefendant next contends that the trial judge erred by failing to grant his motions to set aside the verdict and grant a new trial. He does not attack the trial judge\u2019s instructions as to intoxication and unconsciousness. Rather, he takes the position that the trial judge abused his discretion in denying the motions because, in view of the abundant evidence as to drunkenness and unconsciousness, it is manifest that the jury totally disregarded his instructions as to those defenses. These motions are, in effect, motions to set aside the verdict as being contrary to the greater weight of the evidence.\nA motion to set aside a verdict as being contrary to the greater weight of the evidence is addressed to the trial judge\u2019s sound discretion and his ruling thereon will be upheld absent a showing of abuse of discretion. State v. Vick, 287 N.C. 37, 213 S.E. 2d 335; State v. Mason, 279 N.C. 435, 183 S.E. 2d 661.\nAdmittedly there were numerous defense witnesses who stated that defendant was in a highly intoxicated condition on the morning of 8 November 1975. On the other hand, defendant\u2019s confession which was admitted into evidence discloses that he, with other persons, planned beforehand and carried out the robbery of Mr. Liverman. The testimony of Mr. and Mrs. Liver-man concerning defendant\u2019s actions while on their premises strongly refutes defendant\u2019s evidence of intoxication and unconsciousness. Under these circumstances, no abuse of discretion on the part of the trial judge appears.\nFinally, defendant takes the position that the judgment imposing a life sentence should be vacated because it constituted cruel and unusual punishment and denied defendant equal protection of the laws in violation of the Eighth and Fourteenth Amendments to the United States Constitution and in violation of Article I, \u00a7\u00a7 19 and 27 of the North Carolina Constitution.\nWe have held in a host of cases that when the punishment does not exceed the limits fixed by statute, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Cameron, 284 N.C. 165, 200 S.E. 2d 186; State v. Caldwell, 269 N.C. 521, 153 S.E. 2d 34; State v. Wilson, 218 N.C. 769, 12 S.E. 2d 654.\nDefendant\u2019s argument that he was denied equal protection of the laws because of the wide range of discretion allowed the trial judge under G.S. 14-87 (a) is without merit. The Legislature has granted a wide discretion to the trained presiding judge who has had the opportunity to hear the facts, observe the parties to the proceeding and, after verdict, to inquire into the habits, mentality and past record of the person to be sentenced before imposing punishment within the statutory limits. The use of this discretionary power by the trial judge is not a denial of equal protection of the laws. Howard v. Fleming, 191 U.S. 126, 48 L.Ed. 121, 24 S.Ct. 49; Bratton v. Sigler, 235 F. Supp. 448; State v. Victorian, 332 So. 2d 220. Even were we inclined to enter upon a journey of legislative policy making, this case would provide a sorry vehicle. Here defendant, while engaged in a planned armed robbery, at short range put three bullets into a victim who offered no visible resistance and after completing the robbery fired two bullets toward a person within her own dwelling. Defendant\u2019s past record furnished no basis for leniency. We think that Judge Fountain was well justified in imposing the maximum sentence provided by the statute.\nThis record shows that defendant had the benefit of a fairly conducted trial free of prejudicial error.\nNo error.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Charles M. Hensey, for the State.", "Bruce C. Johnson, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RONALD EARL JENKINS\nNo. 5\n(Filed 7 March 1977)\n1. Criminal Law \u00a7 75 \u2014 admissibility of confession \u2014 waiver of counsel\nDefendant\u2019s confession was properly admitted in evidence where - the court made findings consistent with the State\u2019s evidence on voir dire that defendant was given the Miranda warnings before interrogation, defendant stated he did not want an attorney and thereafter made an oral statement, and defendant signed a written waiver of his rights before signing a typewritten confession, and where the court found that defendant\u2019s testimony that he stated that he wanted a lawyer and signed the written waiver of his rights without reading it because he thought he was getting a lawyer was not believable.\n2. Criminal Law \u00a7 76 \u2014 voluntariness of confession \u2014 determination by judge\nThe trial court did not err in failing to instruct the jury as to the law relating to the voluntariness of defendant\u2019s confession since voluntariness is for determination by the judge unassisted by the jury.\n3. Criminal Law \u00a7\u00a7 33, 75 \u2014 credibility of confession \u2014 manner of securing defendant during transportation to this State\nThe manner in which defendant was secured while being transported from Florida to North Carolina was a fact so remote in time and place from defendant\u2019s confession that its admission would have carried little weight as a circumstance affecting the credibility of the confession, and the exclusion of such evidence was not prejudicial, where defendant went to bed shortly after arriving at a jail in North Carolina at 4:45 a.m. and slept until 12:00 noon, defendant was then taken to the sheriff\u2019s office for interrogation, and defendant\u2019s written confession was not signed until 4:00 p.m.\n4. Criminal Law \u00a7\u00a7 23, 89 \u2014 prior inconsistent statements \u2014 plea negotiations\nThe district attorney\u2019s cross-examination of defendant about prior inconsistent statements made in the presence of the district attorney, the sheriff and defendant\u2019s former counsel did not violate G.S. 15A-1025 where the record does not reveal that any evidence of plea negotiations as such was offered into evidence.\n5. Criminal Law \u00a7 35\u2014 motive of others to commit the crime\nIn this prosecution for armed robbery, the trial court did not err in refusing to permit defendant to cross-examine the victim about a prior incident at the victim\u2019s restaurant involving his refusal to sell beer to two intoxicated individuals for the purpose of showing that other persons might have had a motive to rob the victim, since evidence tending to show that someone else committed the crime is not admissible unless it points directly to the guilt of the third party.\n6. Criminal Law \u00a7\u00a7 33, 66 \u2014 credibility of identification \u2014 others meeting description of defendant\nThe trial court did not err in refusing to permit defendant to testify for the purpose of discrediting a robbery victim\u2019s identification of him that he knew of other black males living in the town where the crime occurred who were about his size and had goatees, since the probative value of the testimony was so weak that it should not have been allowed to distract the jury\u2019s attention from material matters.\n7. Criminal Law \u00a7\u00a7 6, 132 \u2014 intoxication and unconsciousness \u2014 jury\u2019s disregard of instructions \u2014 motion for new trial\nThe trial court in an armed robbery case did not abuse its discretion in refusing to set aside the verdict of guilty on the ground that in view of the abundant evidence as to defendant\u2019s intoxication and unconsciousness, it is manifest that the jury totally disregarded the court\u2019s instructions on those defenses, since defendant\u2019s evidence of intoxication and unconsciousness was refuted by testimony of the victim and his wife concerning defendant\u2019s actions at the time of the crime and by defendant\u2019s confession which disclosed that he, with other persons, planned beforehand and carried out the robbery.\n8. Constitutional Law \u00a7 36; Robbery \u00a7 6 \u2014 life imprisonment for armed robbery \u2014 constitutionality\nJudgment imposing on defendant a sentence of life imprisonment for armed robbery does not constitute cruel and unusual punishment.\n9. Constitutional Law \u00a7 20; Robbery \u00a7 6 \u2014 sentence for armed robbery \u2014 discretion of court \u2014 equal protection\nA defendant sentenced to life imprisonment for armed robbery was not denied equal protection of the laws because of the wide range of discretion allowed the trial judge under G.S. 14-87(a).\nAppeal by defendant from Fountain, J12 April 1976 Session of Hertford Superior Court. Defendant was charged with armed robbery to which he entered a plea of not guilty.\nThe State\u2019s evidence, in substance, was as follows:\nWalter G. Liverman testified that on 8 November 1975 he closed his grill in Murfreesboro, North Carolina, between 1:30 and 1:45 a.m. and proceeded to his home. He was carrying a cash box which contained approximately $1,100. He drove his automobile into his lighted carport which had a \u201cstoop\u201d upon which a door opened into the house. Mr. Liverman placed his cash box on the concrete steps leading into the house and locked his automobile. He heard his dog barking and as he started toward the backyard he heard steps behind him. When he turned he saw defendant Ronald Earl Jenkins coming toward him with a pistol. Defendant said \u201cthis is a holdup\u201d and before Mr. Liver-man could raise his hands, defendant shot him three times. One bullet entered his chin and exited through his jaw. One struck him near his nose and exited through the back of his neck and the third bullet pierced his finger. Before he lapsed into unconsciousness the witness saw defendant take his cash box and flee. The witness further testified that Ronald Earl Jenkins\u2019 mother, Bernice Jenkins, had worked for him for fifteen years and that he had known Ronald since he was a small boy.\nMrs. Janet Warren Liverman testified that she was awakened by the barking of their boxer dog and shortly thereafter she heard three shots. She went to her bedroom window and saw a man whom she did not recognize. A second man passed within three yards of her window and when she called out to him, he fired two shots toward her. When he turned and fired the shots, she recognized this person as defendant Ronald Earl Jenkins. Without objection both Mr. and Mrs. Liverman positively identified defendant as the man who shot and robbed Mr. Liverman. Both these witnesses stated that they did not immediately tell the police that they recognized defendant because they were afraid.\nThe State also offered evidence of a confesssion which will be discussed in the opinion.\nDefendant testified that he had known the Livermans all of his life and had occasionally worked for them. On the night of 7 November 1975 and the early morning hours of 8 November 1975 he had been drinking beer, liquor and vodka and smoking marijuana. He recalled that he had accompanied Teresa Bird and Peggy High, students at Chowan College, to their dormitory at about 1:00 a.m. Shortly thereafter he passed out and remembered nothing else until the next morning. Defendant denied going to the Liverman residence or having any knowledge of the robbery until the next day. He was questioned concerning the Liverman robbery by police officers on Sunday, 9 November 1975, and left for Florida that night. He remained in Florida until he was arrested and brought back to Winton on 19 December 1975. He stated that he went to Florida because the local police were trying to implicate him in the Liverman robbery because of his past record.\nCherry Ball and Peggy High testified that they saw defendant on the night of 7 November 1975 and that he was highly intoxicated. He left one of the Chowan College girls\u2019 dorma-tories at 1:00 a.m. on 8 November 1975, that being the hour at which all male persons were required to leave. Ardell Brooks, defendant\u2019s sister, testified that she saw defendant on the night of 8 November 1975 and he was highly intoxicated at that time. Defendant\u2019s mother, Bernice Jenkins, also testified that she saw defendant at about 12:30 a.m. on that night and he was under the influence. The testimony of defendant\u2019s other witnesses was either cumulative or irrelevant.\nThe jury returned a verdict of guilty as charged and Judge Fountain imposed a sentence of life imprisonment.\nAttorney General Edmisten, by Assistant Attorney General Charles M. Hensey, for the State.\nBruce C. Johnson, for defendant." }, "file_name": "0179-01", "first_page_order": 199, "last_page_order": 211 }