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696 IN THE COURT OF APPEALS 119
State v. Thompson
a voir dire hearing, that the defendant received the warnings
required by Miranda v. Arizona, 384 U.S. 436 (1966), and
that the admission was made voluntarily. State v. Vickers, 274
N.C. 311, 163 S.E. 2d 481; State v. Mitchell, 270 N.C. 753, 155
S.E. 2d 96; State v. Ross, 269 N.C. 739, 153 S.E. 2d 469. Here
there was no voir dire hearing, and no finding that defendant's
admission was voluntary. The contention of the State that the
testimony of the officer was for the purpose of impeachment
is not persuasive. T'he defendant did not testify. His alleged
admission, not otherwise competent, is not made so simply be-cause
it would tend tQ impeach the testimony of another wit-ness.
It was error to admit a confession of defendant through
the back door without complying with the proper legal safe-guards
required under Miranda and without making a finding
after voir dire hearing that such confession was voluntary.
See 2 Stansbury, N. C. Evidence (Brandis rev.), 5 186, at 82-83.
[2] The defendant also assigns as error the action of the
trial court in allowing the State to reopen its case and present
additional testimony after completion of the charge to the
jury while denying to the defendant the opportunity to offer
testimony in rebuttal.
The court has discretion to reopen a case for additional
evidence even after the jury has retired and begun its delibera-tions.
State v. Shutt, 279 N.C. 689, 185 S.E. 2d 206, cert. denied,
406 U.S. 928; State v. Noblett, 47 N.C. 418; Parish v. Fite, 6
N.C. 258. Certainly it is proper tQ reopen the case at the con-clusion
of the court's charge before the jury has retired. But
if the State is permitted to reopen its case, fairness requires
that the defendant be afforded an opportunity for rebuttal.
State u. Anderson, 281 N.C. 261, 188 S.E. 2d 336; State v.
Harding, 263 N.C. 799, 140 S.E. 2d 244; see State v. Perry,
231 N.C. 467, 57 S.E. 2d 774. The defendant can, as in this case,
be severely handicapped if the jury is allowed to hear only the
State's evidence on an important aspect of the case.
Here the court's refusal to allow defendant a chance for
rebuttal cannot be considered harmless error. At least one juror
felt that the construction of the interior of the front seat of the
truck was a matter of critical importance. The ease with which
defendant could change seats and assume the position of driver
may have been crucial to this juror who was concerned enough
to inquire openly. It is impossible to tell what Stancil might have
said if he had been allowed to testify, but it might well have
Object Description
| Title | North Carolina Court of Appeals Reports [v.019, Spring Session 1973 - Fall Session Session 1973] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1974 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 19, Spring Session 1973 - Fall Session Session 1973. Cited as 19 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 37.5 MB; 848 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_019.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 720 |
| Full Text | 696 IN THE COURT OF APPEALS 119 State v. Thompson a voir dire hearing, that the defendant received the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and that the admission was made voluntarily. State v. Vickers, 274 N.C. 311, 163 S.E. 2d 481; State v. Mitchell, 270 N.C. 753, 155 S.E. 2d 96; State v. Ross, 269 N.C. 739, 153 S.E. 2d 469. Here there was no voir dire hearing, and no finding that defendant's admission was voluntary. The contention of the State that the testimony of the officer was for the purpose of impeachment is not persuasive. T'he defendant did not testify. His alleged admission, not otherwise competent, is not made so simply be-cause it would tend tQ impeach the testimony of another wit-ness. It was error to admit a confession of defendant through the back door without complying with the proper legal safe-guards required under Miranda and without making a finding after voir dire hearing that such confession was voluntary. See 2 Stansbury, N. C. Evidence (Brandis rev.), 5 186, at 82-83. [2] The defendant also assigns as error the action of the trial court in allowing the State to reopen its case and present additional testimony after completion of the charge to the jury while denying to the defendant the opportunity to offer testimony in rebuttal. The court has discretion to reopen a case for additional evidence even after the jury has retired and begun its delibera-tions. State v. Shutt, 279 N.C. 689, 185 S.E. 2d 206, cert. denied, 406 U.S. 928; State v. Noblett, 47 N.C. 418; Parish v. Fite, 6 N.C. 258. Certainly it is proper tQ reopen the case at the con-clusion of the court's charge before the jury has retired. But if the State is permitted to reopen its case, fairness requires that the defendant be afforded an opportunity for rebuttal. State u. Anderson, 281 N.C. 261, 188 S.E. 2d 336; State v. Harding, 263 N.C. 799, 140 S.E. 2d 244; see State v. Perry, 231 N.C. 467, 57 S.E. 2d 774. The defendant can, as in this case, be severely handicapped if the jury is allowed to hear only the State's evidence on an important aspect of the case. Here the court's refusal to allow defendant a chance for rebuttal cannot be considered harmless error. At least one juror felt that the construction of the interior of the front seat of the truck was a matter of critical importance. The ease with which defendant could change seats and assume the position of driver may have been crucial to this juror who was concerned enough to inquire openly. It is impossible to tell what Stancil might have said if he had been allowed to testify, but it might well have |
