State v. Small

239 S.E.2d 429 (1977)

293 N.C. 646

STATE of North Carolina v. Ronald Earl SMALL.

No. 36.

Supreme Court of North Carolina.

December 15, 1977.

*434 Rufus L. Edmisten, Atty. Gen., by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State.

Robert E. Whitley, Kinston, for the defendant.

BRANCH, Justice.

Defendant's first assignment of error is that the trial judge erred in denying his motion to suppress defendant's in-custody statements because they were not understandingly and voluntarily made.

The unquestioned rule in this jurisdiction is that the ultimate test of the admissibility of a confession is whether the confession was, in fact, understandingly and voluntarily made. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Gray, 268 N.C. 69, 150 S.E.2d 1, Cert. denied, 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784. Thus, a confession is involuntary and not admissible into evidence when it is induced by threat, coercion, hope, or promise of reward. State v. Fox, 274 N.C. 277, 163 S.E.2d 492; State v. Biggs, 224 N.C. 23, 29 S.E.2d 121; State v. Roberts, 12 N.C. 259. Whether the conduct of an officer amounts to such coercion or promise of reward as would render a subsequent confession involuntary is a question of law reviewable on appeal. State v. Biggs, supra.

Defendant contends that his confession was induced by the coercive conduct of the police officers. He relies heavily on State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92, to support his contention. His reliance upon Pruitt is misplaced. In Pruitt, the uncontradicted evidence on the voir dire hearing showed that the police officers repeatedly told defendant they knew he committed the crime and that his story had too many holes in it; that he was lying and they did not want to "fool around;" that he was the kind of person who would be relieved to get it off his chest; and that it would be harder on him if he did not go ahead and cooperate.

In the present case, defendant offered evidence to the effect that the officers told him he was lying and that Officer Joyner offered to intercede with the judge in his behalf. The officers specifically denied any such conduct. Furthermore, the contention that defendant was questioned in an oppressively police-dominated atmosphere is tempered by the evidence showing that when defendant's family arrived at the police station interrogation ceased and his family was permitted to visit privately with him for about thirty minutes.

At the conclusion of the voir dire in this case, the trial judge, inter alia, found the following facts:

7. The defendant on September 12, 1976 was 18 years of age, had completed the 11th grade and was in control of his mental and physical faculties and did not appear to be under the influence of any drugs or intoxicants and that he did appear to be nervous; that during said interrogation and questioning no reward or inducement by any of the said law enforcement officers or hope of reward or inducement was made to the defendant to make any statement or confession; 8. That no threats or show of violence by any of said law enforcement officers were made to persuade or induce the defendant to make any statement of confession;

*435 Based upon the above findings the trial judge concluded:

6. That the statement made by the defendant to said officers on September 12, 1976, and introduced on voir dire as State's Exhibits 2 and 3 were made voluntarily, knowingly and independently.

When the trial judge's findings are supported by competent evidence, they will not be disturbed on appeal even though the evidence is conflicting. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123; State v. Bullock, 268 N.C. 560, 151 S.E.2d 9. Here there was ample evidence to support the trial judge's findings as to the voluntariness of defendant's confession and the findings in turn support his conclusion that the inculpatory statements were made voluntarily and knowingly. The uncontradicted facts that one of the officers told defendant that he could not "buy" one of his statements and that defendant was then told that he should tell the truth do not constitute a persuasive showing that defendant's will was overborne by these acts of the police officers. See, State v. Thomas, 241 N.C. 337, 85 S.E.2d 300.

Defendant further contends by this assignment of error that the confession evidence was inadmissible because defendant was illegally arrested.

An arrest without a warrant, except as authorized by statute, is illegal. State v. McCloud, 276 N.C. 518, 173 S.E.2d 753. Assuming arguendo that defendant was placed under arrest when he was handcuffed in his home, we are of the opinion that such an arrest would have been legal.

G.S. 15A-401(b)(2) in part provides:

Offense Out of Presence of Officer. An officer may arrest without a warrant any person who the officer has probable cause to believe: a. Has committed a felony . . ..

In State v. Harris, 279 N.C. 307, 182 S.E.2d 364, a police officer observed the defendant go to a place in the woods where stolen goods were concealed, look around and then leave. This Court held that the police officer had probable cause to believe that the defendant had committed a felony and consequently that both his arrest without a warrant and the ensuing search of his person were lawful. In so holding, Justice Sharp (now Chief Justice) speaking for the Court stated:

Probable cause and "reasonable ground to believe" are substantially equivalent terms. "Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. . . . To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. One does not have probable cause unless he has information of facts which, if submitted to a magistrate, would require the issuance of an arrest warrant." 5 Am.Jur.2d Arrests Section 44 (1962). "The existence of `probable cause,' justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved." (Citations omitted.) 279 N.C. at 311, 182 S.E.2d at 367.

In the case sub judice, a police officer observed a person in the early morning hours of 12 September 1976 wearing bloody clothes within 200 feet of the place where the beaten, bloody victim was later discovered. The officer made a tentative identification of defendant from a high school annual. He and other officers proceeded to defendant's home where he observed the same person he had earlier seen that morning. At approximately the same time, he saw blood spotted clothing similar to those worn by this person when he saw him in the early hours of the day. These circumstances were sufficient to warrant a reasonable belief that defendant was guilty of the felonious assault on Alexandria Hill. Therefore, defendant's arrest was not illegal.

*436 We hold that defendant's in-custody statements were understandingly and voluntarily made subsequent to a lawful arrest.

By his second assignment of error, defendant avers that the trial judge erred in denying his motion to suppress all statements made by defendant to police officers because he was not properly advised of his constitutional rights.

Defendant admits that, prior to his initial interrogation, he was fully warned as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. It is also uncontroverted that he understandingly waived these rights both orally and in writing. His position is that the 25 to 30 minute break in his interrogation when he was permitted to talk with his family was such a time lapse as to require that he be readvised of his Miranda rights.

The factors to be considered in determining whether the initial warning became so stale and remote that a substantial possibility exists that a defendant was unaware of his constitutional rights in a subsequent interrogation when proper warnings had previously been given are stated in State v. McZorn, 288 N.C. 417, 219 S.E.2d 201, modified as to death sentence, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, as follows:

. . . (1) the length of time between the giving of the first warnings and the subsequent interrogation . . . (2) whether the warnings and the subsequent interrogation were given in the same or different places . . . (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers . . . (4) the extent to which the subsequent statement differed from any previous statements. . . (5) the apparent intellectual and emotional state of the suspect.. . . (Citations Omitted.)

In the case before us, the subsequent interrogation took place within thirty minutes after the initial questioning was recessed. It was conducted in the same room by the same officers and concerned the same subject matter. There was no evidence that defendant was emotionally or mentally unstable or that he was unaware of his constitutional rights during the latter interrogation. Therefore, the failure of the officers to repeat the Miranda warnings did not render defendant's confession inadmissible.

Defendant next assigns as error the denial of his motion to suppress evidence relating to clothing taken from his residence. He argues that the clothing was taken from his home as a result of an illegal search and seizure.

Evidence obtained by an unreasonable search and seizure is inadmissible. See, U.S.Const. Amend. IV; N.C.Const. Art. 1, Section 20; State v. Colson, 274 N.C. 295, 163 S.E.2d 376, cert. denied, 393 U.S. 1087, 89 S. Ct. 876, 21 L. Ed. 2d 780. However, it is now well settled that when evidence is delivered to a police officer upon request and without compulsion or coercion, the constitutional provisions prohibiting unreasonable search and seizure are not violated. U. S. v. Pate, 324 F.2d 934, cert. denied, 377 U.S. 937, 84 S. Ct. 1341, 12 L. Ed. 2d 299; State v. Coolidge, 106 N.H. 186, 208 A.2d 322; State v. Reams, 277 N.C. 391, 178 S.E.2d 65, cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74; Duffield v. Peyton, 209 Va. 178, 162 S.E.2d 915. Neither do the constitutional guarantees against unreasonable search and seizure prohibit a seizure of evidence without a warrant when no search is required and the seized article is in plain view. See, U. S. v. Pate, supra; State v. Virgil, 276 N.C. 217, 172 S.E.2d 28; State v. Howard, 274 N.C. 186, 162 S.E.2d 495; State v. Craddock, 272 N.C. 160, 158 S.E.2d 25.

The court's findings relevant to this assignment of error are:

2. That Officer Joyner, Smith and Sharpless were let in the home by Mrs. Small and showed to the defendant's bedroom. There Officer Sharpless immediately recognized items of clothing that the defendant had been wearing when observed earlier that morning with blood on certain of these items; * * * * * * *437 11. That the defendant's clothes observed by Officer Sharpless and the other officers in the defendant's bedroom were handed to the said officers by the defendant's mother; that the defendant's jacket and shoes in the pantry in the kitchen were given to the officers by the defendant's sister, Joanne Small . . . .

These findings of fact are supported by competent evidence and support Judge Walker's conclusion that "the clothes of the defendant were voluntarily given to the officers by the defendant's mother, Mildred Small, and by the defendant's sister, Joanne Small." We also note that according to all the evidence, a portion of the seized clothes were in plain view and were taken without any search. The trial judge correctly denied defendant's motion to suppress evidence relating to the clothing taken from his home.

Defendant assigns as error the denial of his motion for a mistrial on the ground of prejudicial statements made by a prospective juror. The record discloses the following:

. . . The court then stated for the record that upon the voir dire examination of the jury and after two jurors had been challenged for cause by the State and said challenge is granted by the court, the defendant moved that the voir dire examination of the jury be made a part of the record based on motions that could be made with regard to the change of venue of this trial of excessive publicity appeared. The court found that no motion had previously been filed by the defendant for change of venue and that showing of such adverse publicity in the trial as to show the prejudice to the defendant and therefore denied defendant's motion. The court stated further that during the course of the jury examination and selection by the State that a juror reported that he knew the defendant based on an incident that the defendant had been involved in. The court stated that there was no showing by this prospective juror of what the incident was or the outcome of such incident and thereafter the defendant moved for mistrial based on the statement of this juror, and the court finds that no prejudice had resulted to the defendant by virtue of the statement made by the prospective juror and that the prospective juror was excused and was not chosen as a juror and therefore the court denied the defendant's motion for mistrial.

Regulation of the manner and the extent of inquiry on the voir dire examination of prospective jurors is a matter largely in the discretion of the trial judge. In order for an appellant to show reversible error on appeal, he must show an abuse of discretion on the part of the trial judge and resulting harmful prejudice. State v. Young, 287 N.C. 377, 214 S.E.2d 763, modified as to death sentence, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208. The allowance or refusal of a motion for mistrial is a matter resting in the sound discretion of the trial judge, and his ruling will not be disturbed absent a showing of abuse of that discretion. State v. Birckhead, 256 N.C. 494, 124 S.E.2d 838.

In our opinion, the trial judge should have permitted the recording of the voir dire examination of prospective jurors so that defendant would have been in position to make pertinent portions of that examination a part of the record for possible appellate review. However, the record does not contain an exception to the trial judge's ruling on this motion and, therefore, is not properly before us for review. Even so, we might have, in our discretion, considered this ruling had defendant made a showing of prejudice which was so substantial as to require a new trial. However, we are unable to perceive how the failure to record the voir dire examination of prospective jurors could have precluded a motion for change of venue. The record discloses only one statement by one juror indicating any previous knowledge of defendant or of the case. We are therefore unable to find any substantial prejudice to defendant in that juror's isolated and unamplified statement that he knew defendant because of his involvement *438 in another incident. We hold that the trial judge did not abuse his discretion in denying defendant's motion for a mistrial.

Defendant's assignment of error number 5 is as follows:

The court erred in failing to find and to instruct the jury that the defendant's evidence raised the issue of coercion or duress as a defense to the confession.

Defendant concedes that the trial judge determines the admissibility of a confession. However, he argues that, upon request, the trial judge should have instructed the jurors to consider all circumstances surrounding the interrogation and arrest of defendant in determining what weight they would give to his confession.

It is true that, when a confession is admitted into evidence, it is for the jury to determine whether the statement was, in fact, made and to determine the weight, if any, to be given to the confession. State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648. However, in assisting the jury in its search for the truth, the trial judge has wide latitude in presenting issues. He must charge the applicable principles of law and apply the law to the facts of the case without expressing an opinion concerning the sufficiency of the evidence to prove any fact. 3 Strong's N.C. Index 2d, Criminal Law, Section 111.

When defendant requested this instruction, the trial judge should have charged the jury that if it found that defendant made the confession then the jury should consider all of the circumstances under which it was made in determining whether the confession was truthful and the weight the jury would give to it. The trial judge instructed the jurors that they were the sole judges of the weight to be given any evidence; that they were the sole judges of the credibility of all the witnesses; that the jurors should depend on their recollection of the evidence, and not his; and that they should consider all the evidence and the argument of counsel in reaching their verdict. In light of these instructions, it is apparent that the jury was clearly informed that it should consider any evidence before it including the arrest and interrogation of defendant in determining the weight and credibility, if any, it would attach to defendant's confession.

Under the circumstances of this case, we find no prejudicial error in the failure of the trial judge to pinpoint the above instruction to the confession evidence.

This assignment of error is overruled.

Defendant contends that the trial judge erred by not stating in his summary of the evidence that Dr. Phillips testified that the victim's blood was type ABO group O +.

The trial judge must charge on all substantive features of the case and recapitulate, with reasonable accuracy, the evidence and the respective contentions of the parties. However, the general rule is that unless objections to recapitulation of the evidence or statements of contentions are brought to the court's attention in apt time to afford opportunity for correction, the objections are waived. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839. The omission to which defendant points by this assignment of error does not concern a substantive feature of the case, and defense counsel did not call this omission to the attention of the trial judge even when he inquired of defense counsel if there were other requested instructions. Thus the failure of the trial judge to include this testimony in his summary of the evidence does not constitute prejudicial error.

We find no merit in defendant's contention that the trial judge expressed an opinion in violation of G.S. 1-180 when he charged the jury that the State relied on both circumstantial and direct evidence.

Finally, we agree with defendant's position that sentence imposed in the assault with intent to commit rape case should be arrested. The State proceeded on the theory that Alexandria Hill was killed by defendant during an assault upon her with intent to commit rape. It is well established that a defendant who is convicted upon the theory of the felony murder *439 rule cannot be separately punished for the commission of the underlying felony. State v. White, 291 N.C. 118, 229 S.E.2d 152; State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238, modified as to death sentence, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1208; State v. Woods, 286 N.C. 612, 213 S.E.2d 214, modified as to death sentence, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208; State v. Thompson, 280 N.C. 202, 185 S.E.2d 666.

We have carefully considered this entire record and find no error warranting a new trial.

In the murder case: NO ERROR.

In the assault with intent to commit rape case: JUDGMENT ARRESTED.