Appeal by defendant from Johnson, Judge. Judgment entered 30 April 1981 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 28 April 1982.
Martin (Harry C.), Judge. Chief Judge Morris and Judge Clark concur.
Defendant 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's 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's 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.
Defendant next argues that the trial court erroneously permitted testimony which improperly impeached defendant's 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'd warned defendant of his rights; that he had previously used the same waiver form; that there was no difference in defendant's 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's objection to a question concerning the number of occasions the officer had warned defendant of his rights was overruled.
The 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.
Finally, 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.
State's witness officer Smith testified at trial concerning the circumstances under which defendant's confession was given. The trial court summarized his testimony as follows:
[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.
[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.
The State has offered further evidence which tends to show that the defendant, Darryl Washington, made a statement freely and voluntarily. (Emphasis ours.)
It is defendant's contention that the italicized portion of the charge added weight and credibility to defendant's confession, considerations which ...