State v. HaddockAnnotate this Case
190 S.E.2d 208 (1972)
STATE of North Carolina v. Roy Arthur HADDOCK.
Supreme Court of North Carolina.
July 31, 1972.
*210 Wallace C. Harrelson, Public Defender, and Dale Shepherd, Asst. Public Defender, for defendant appellant.
Robert Morgan, Atty. Gen., and Roy A. Giles, Jr., Asst. Atty. Gen., for the State of North Carolina.
Defendant assigns as error the admission of his inculpatory statements to SBI Agent Poole, made while in custody and without benefit of counsel. He contends the incriminating statements are tainted and inadmissible because he was indigent at the time, charged with a capital offense, and incapable of waiving his right to counsel by the express language of G.S. § 7A-457(a). He relies on that statute and on State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), and State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972), in support of his position.
The record discloses that defendant was twice advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Each time defendant said he knew his rights and fully understood them. He then freely, knowingly and understandingly signed a written waiver of his constitutional right to the presence of counsel. Thus the requirements spelled out in Miranda were fully met, and defendant's entire statement was competent insofar as federal constitutional standards are concerned. Miranda v. Arizona, supra. If defendant's statement, or any part of it, was incompetent, its incompetency arises solely by reason of G.S. § 7A-457(a) (1969) which at that time provided, inter alia: "A waiver shall not be allowed in a capital case." The State contends defendant's statement was volunteered and not the result of a custodial interrogation. This requires a review of the setting and the circumstances under which defendant's incriminating statement was made.
*211 The record reveals that upon his arrival at the Danville Police Station defendant had indicated he wanted to make a statement. He had already been given the Miranda warning when he was removed from the bus. Officer Poole "asked him to wait just a moment" and again advised him of his rights as follows:"Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questions, if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer."
Officer Poole thereupon handed defendant the paper from which the Miranda warnings had been read. Defendant read the warnings himself and stated that he understood his rights. The paperwriting contained a Waiver of Rights at the bottom of the page in the following language:"I have read this statement of my rights, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, and no pressure or coercion of any kind has been used against me."
Defendant then signed the waiver. Then, without any questions on the part of the officers, defendant reiterated his earlier statement that he was coming to turn himself in and added, "The hardest thing I ever did was to pull that trigger." When Officer Poole asked him to explain that statement defendant said: "I pulled in the service station to rob the man. He had his hand in his pocket. I told him to take his hand out of his pocket. When he did, he had a gun in it." He said the man shot him in the arm and he then shot the man after which he got back into his car and the man shot a second time, shooting out the glass in the car. Defendant then said he "sort of laid down in the front seat of the car and drove away as quickly as he could." He said that prior to this incident he had been to the Kayo Station once before that morning, awakened the attendant, purchased two dollars' worth of gas, and departed. He said there was another party with him at that time and that earlier that night they had had a fight with some Negro males as a result of which he had gone to Burlington and obtained his shotgun and returned to Greensboro; that after purchasing the gas he went looking for the Negro males, couldn't find them, and returned to the Kayo Station to rob the man.
Defendant further stated that he had been to a doctor in Norfolk, Virginia, and had a bullet removed from his arm. Officer Poole asked him if he had the bullet and defendant took it from his wallet and handed it to the officer. Officer Poole asked defendant where the shotgun was and defendant stated he had thrown it in a creek near Greenville. Officer Poole asked him where this creek was located and defendant stated that "as you go out of Greenville on Highway 264, you take the right road toward the Bel Arthur section. That, after you take the right-hand road to the Bel Arthur section, you would turn left on the first dirt road; that approximately a quarter of a mile down this dirt road there was a bridge; that he threw this weapon off the left-hand side of the bridge." These directions were later followed and the weapon was found at that exact spot in the creek.
Is the foregoing narration of events the result of "custodial interrogation" and its admissibility prohibited by G. S. § 7A-457(a) due to absence of counsel? We think not.
*212 The United States Supreme Court said in Miranda v. Arizona, supra: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . . Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Thus, assuming defendant's indigency, the presence of counsel was not required because defendant's statement at the police station in Danville was not the result of an in-custody interrogation initiated by the officers. Rather, it was defendant's own voluntary narration, freely and understandingly related. It is perfectly apparent that from the moment defendant was removed from the bus he was anxious to talk and that his entire narration of events is properly classified as a volunteered statement. In fact, the officers would not allow him to talk until he had twice been advised of his constitutional rights and had freely, knowingly and understandingly waived those rights, including the right to counsel, in writing. Defendant's volunteered confession would have been admissible by constitutional standards even in the absence of warning or waiver of his rights. By the same token they were admissible in the trial of this case notwithstanding the provision in G.S. § 7A-457(a) (1969) that "[a] waiver shall not be allowed in a capital case." No waiver is involved with respect to volunteered statements, and the quoted language defendant relies on has no application to the factual situation depicted by the setting and circumstances under which defendant's incriminating statement was made. Officers are not required to gag the guilty who want to confess.
State v. Lynch, supra, was not a capital case and is not authority for defendant's position here. In Lynch defendant was fully advised of his constitutional rights, stated he did not want a lawyer, but did not sign a written waiver as then required by G.S. § 7A-457(a) (1969). Even so, it was held that Lynch's voluntary narrative statement was not the result of an in-custody interrogation and was therefore admissible in evidence even though the statement was given in the absence of counsel. Only certain tape recorded statements in response to in-custody interrogation by the officers were held inadmissible because defendant's waiver of counsel was not in writing. Thus Lynch, in these respects, supports our conclusion that defendant's narration of events which occurred the night DeShazo was killed is properly classified as a volunteered statement.
We said in State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972): "At all times pertinent to this case, an indigent defendant in a capital case could not waive the right to counsel either orally or in writing," citing G.S. § 7A-457 and State v. Lynch, supra. The quotation has no application to volunteered statements.
Volunteered statements are competent evidence, and their admission is not barred under any theory of the law, state or federal. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972); State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); Miranda v. Arizona, supra. And a voluntary in-custody statement does not become the product of an "in-custody interrogation" simply because an officer, in the course of defendant's narration, asks defendant to explain or clarify something he has already said voluntarily.
We hold that defendant's statement to the officers was truly the product of free choice, entirely devoid of physical or mental intimidation, and without the slightest compulsion of in-custody interrogation procedures. The sturdy pillar of Fifth *213 Amendment rights against self-incrimination so forcefully upheld in Miranda would be subverted by a contrary view. Defendant spoke in the unfettered exercise of his own will, and his statements may not now be distorted into something they never were.
The constitutionality of the no-waiver sentence in G.S. § 7A-457 was not raised in Lynch, Bass, Chance, or in this case. It should be noted, however, that the sentence in that statute which forbids an indigent to waive counsel in a capital case was held unconstitutional in State v. Mems, N. C., 190 S.E.2d 164 (1972).
Defendant's first assignment of error is overruled.
Other assignments relating to admissibility of the bullet, the sawed-off shotgun defendant used to kill DeShazo, and defendant's statements concerning them, lose their vitality in light of our holding that defendant's narration of events on the night of the murder was volunteered and not the result of questioning initiated by the officers.
Evidence of defendant's guilt is overwhelming. His conviction results from a trial free from prejudicial error. The verdict and judgment of the trial court must therefore be upheld.
BOBBITT, Chief Justice (concurring in result).
I concur in the result on these grounds: (1) Defendant's statements to Officer Poole were made voluntarily and were not the product of an "in-custody interrogation." (2) By its decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, 1972, the Supreme Court of the United States, holding that punishment by death is not permissible under statutory provisions such as those incorporated in present North Carolina statutes, has invalidated and rendered obsolete that portion of G.S. § 7A-457(a) which relates solely to a "capital case."
As stated in my concurring in result opinion in State v. Mems, ante, 190 S.E.2d 174, I do not share the view that the State's counsel have standing to challenge the constitutionality of G.S. § 7A-457(a). Surely, the General Assembly has greater authority to declare and determine the State's policy and position than the State's prosecuting attorneys.
HIGGINS and SHARP, JJ., join in this concurring in result opinion.