State v. Bishop , 272 N.C. 283 ( 1968 )

158 S.E.2d 511 (1968) 272 N.C. 283

STATE of North Carolina
v.
Josiah BISHOP.
STATE of North Carolina
v.
Raymond L. BASKIN.
STATE of North Carolina
v.
Lester THOMPSON.
STATE of North Carolina
v.
MacArthur McCAIN.

No. 257.

Supreme Court of North Carolina.

January 12, 1968.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. Bernard A. Harrell, for the State.

W. O. Rosser, Whitakers, and Alfred S. Bryant, Durham, for defendants.

BRANCH, Justice.

The principal contention of defendants is that the court erred in admitting into evidence the confessions of defendants.

The test of admissibility is whether the statements made by defendants were in fact voluntarily and understandingly made. State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Roberts, 12 N.C. 259. Although the fact that the defendant was in custody is a circumstance to be considered when considering the voluntariness of a confession, State v. Guffey, 261 N.C. 322, 134 S.E.2d 619, this fact does not of itself render it incompetent. State v. Barnes, 264 N.C. 517, 142 S.E.2d 344.

When a confession of a defendant is offered into evidence, and the defendant objects, the trial judge should then excuse the jury and in the absence of the jury hear the evidence of both the State and defendant upon the question of whether defendant, if he made an admission or confession, voluntarily and understandingly made the admission or confession. State v. Rogers, supra; State v. Gray, supra; State v. Conyers, 267 N.C. 618, 148 S.E.2d 569.

The general rule is that after such inquiry the trial judge shall make findings of fact to show the basis of his ruling on the admissibility of the evidence offered, and that the facts so found are conclusive on the appellate courts when supported by competent evidence. Nevertheless, the conclusions of law drawn from the facts found are not binding on the appellate courts. State v. Hines, 266 N.C. 1, 145 S.E.2d 363; State v. Walker, 266 N.C. 269, 145 S.E.2d 833; State v. Conyers, supra. However, in the case of State v. Keith, 266 N.C. 263, 145 S.E.2d 841, where the defendant contended that he had made no confession, the court recognized that there is no necessity for findings of fact where there is no conflicting testimony offered on the voir dire.

In the case of State v. Conyers, supra, the trial judge held a preliminary voir dire as to the voluntariness of the defendant's alleged confession, and at the conclusion of the voir dire entered into the record a statement finding defendant's statement to have been made "freely and voluntarily" * * * The court, citing State v. Barnes, supra, held the court's declaration to be a statement of its conclusion and improperly entered. In this case there was testimony by the defendant which presented a sharp conflict in the evidence upon the voir dire. The holding in Keith was recognized and distinguished in Conyers on the basis that no conflicting testimony was offered.

Here, the trial judge, upon objection, properly excused the jury and in the absence of the jury conducted a voir dire hearing. The court gave both the State and defendants opportunity to offer evidence. The State offered evidence, and defendants chose to offer none. The trial court's finding that defendants were duly warned of their constitutional rights prior to making any statement is supported by competent evidence, and this Court is bound by this finding.

In order to consider fully defendants' contention that the court erred in admitting the statements made by defendants, we must review the court's conclusion that such statements as were made were made voluntarily.

The admissibility of this evidence is to be determined by the facts appearing in evidence when it is received or rejected, and not by the facts appearing in the evidence at a later stage of the trial. State v. Rogers, supra.

The rules of law which we have considered to this point have been rules of law laid down by the North Carolina Supreme Court. It is with pardonable pride that we note that for over one hundred forty years the rule enunciated in State v. Roberts, supra that "a confession obtained by the slightest emotions of hope or fear ought to be rejected" has been an approved and applied rule of this Court. Thus, the rationale of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, is not new with us, but the broad and farreaching language, which we must acknowledge as binding on us, has had such a massive impact upon criminal jurisprudence and law enforcement that we must construe and apply its language to the facts of the instant case.

The case of Miranda v. State of Arizona, supra, erects certain safeguards as to the question of "in-custody" suspects which require, in effect, that the suspect be warned: (1) that he has the right to remain silent, (2) that any statement he does make may be used as evidence against him in court, (3) that he has the right to counsel, either appointed or retained, prior to and during the interrogation, and (4) that if he is indigent, counsel will be appointed for him prior to any questioning, if he so desires.

The most compelling argument offered by defendants is based on that portion of the Miranda opinion which states:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked."

In considering this argument, the pertinent excerpts from the voir dire, taken in the absence of the jury, are as follows:

"COUNSEL FOR DEFENDANT REQUESTS THAT HE BE ALLOWED TO QUESTION THE WITNESS IN THE ABSENCE OF THE JURY.

AT THIS POINT THE JURY WAS EXCUSED FROM THE COURTROOM AND THE FOLLOWING PROCEEDINGS HAD IN THE ABSENCE OF THE JURY:

Q. Did he sign any statement in your presence at that time?

A. He signed this.

Q. Did he sign any written confession?

A. No sir.

Q. Did you make any notes as to what he said?

A. No sir.

Q. Did he refuse to make any statements?

A. With reference to this, yes sir.

Q. That's all.

MR. HOLDFORD, SOLICITOR: Did you talk to Raymond Baskin also that day?

A. Yes sir.

Q. Before talking to him did you advise him of his constitutional rights?

A. Yes sir, I did.

Q. Did you use the same form?

A. Yes sir. (Warning as to constitutional rights substantially the same as quoted on page 4 of this opinion).

* * * * * *

Q. Did you talk to Lester Thompson?

A. Yes, I did.

Q. Before questioning him did you advise him of his rights?

A. Yes sir.

Q. Did you use the same form that the city of Rocky Mount had given you and which you have testified from before?

A. Yes sir.

Q. What did you advise him?

A. (Warning as to constitutional rights substantially the same as quoted on page 4 of this opinion).

Q. And did you talk to MacArthur McCain?

A. Yes, I did.

Q. Before talking to him did you advise him of his constitutional rights?

A. Yes sir. Lt. Richardson, the Identification officer, was present at that time.

Q. At that time did you use the form provided for you by the city of Rocky Mount Police Department?

A. Yes sir.

Q. State for the record what you advised him?

A. (Warning as to constitutional rights substantially as quoted on page 4 of this opinion)

* * * * * *

Q. Did either one of these four defendant * * * ask for an attorney at that time?

A. They did not. Each one of them asked to make a telephone call, except one, and right now I am not sure which one that was.

Q. The three that asked, were they allowed to make a telephone call?

A. Yes sir, they were * * *.

Q. Did you threaten these defendants in any way to get them to make a statement?

A. No sir, I did not.

Q. Did you offer them any hope of reward to get them to make a statement?

A. No sir, I did not.

Q. Did you tell them the court would go lighter on them to get them to make a statement?

A. No sir.

* * * * * *

MR. ROSSER: Mr. Winstead, did either one of those four defendants make a voluntary statement at that time with reference to this matter?

A. At that time, no.

Q. They didn't have a lawyer at that time, either, did they?

A. No. sir.

Q. Was a lawyer later brought in there to them, about a day later?

A. I understand he was. I don't know it for a fact.

Q. But neither one of them made a statement at that time?

A. No sir.

Q. That is all.

MR. HOLDFORD: Mr. Rosser, do you wish to put on any evidence?

MR. ROSSER: No, sir. If they made no statement I am not hurt.

A. They later did, but not at that time.

MR. ROSSER: Mr. Winstead, will you tell for the record if you thoroughly explained those four questions to each defendant, you think they understood them, don't you?

A. I know they did.

* * * * * *

MR. HOLDFORD, SOLICITOR: Mr. Winstead, how much later was it that they made the statements to you?

A. Later on in the presence of Lt. Moore and Detective Luper they did make a statement in my presence. Each one of them separately and all together.

Q. How much later was that?

A. The following day, I believe.

Q. The following day when they made a statement, before each one of them made a statement, did you or Mr. Moore again advise them of these rights which you had advised before?

A. Yes sir.

Q. Did you go through the same procedure?

A. Yes, sir."

The evidence above quoted and other evidence in the voir dire examination reveals that defendants were warned of their constitutional rights before being questioned the first day they were in custody, and that they did not make a statement at that time. The record further indicates that they were not pressed for further statement at that time, and that on the following day, after again being fully warned of their constitutional rights, they then freely made inculpatory statements. It should be noted at this point that it is affirmatively shown that there were no lengthy interrogations, that counsel was offered to defendants, that they were not held incommunicado. (In fact, all defendants used the telephone, except one, and he was offered the opportunity.) The record is replete with the approved warnings, the offer of counsel, and shows no occasion on which any one of the defendants was questioned without the opportunity of having an attorney present.

We do not interpret the portion of the Miranda opinion now under consideration to mean that when a defendant is "in custody" and has been duly advised of his constitutional rights, and he states that he does not want to make a statement at the first questioning, that law enforcement officers are forever barred from asking another question. We do interpret it to mean that when a defendant is being interrogated and he indicates that he wishes to remain silent, that interrogation must not then be continued. The vice sought to be removed is the evil of continued, incessant harassment by interrogation which results in breaking the will of the suspect, thereby making his statement involuntary. This interpretation of this particular facet of Miranda is seemingly adopted by Justice Clark when in his dissenting opinion he stated:

"Now, the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additional advising the accused that he has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him. When at any point during an interrogation the accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or postponed." (Emphasis ours)

This conclusion is borne out by the opinion itself when it discusses in extenseo certain practices of sustained interrogation and trickery cited in investigatory manuals as having been used by custodial officers. Justice White in his dissenting opinion refers to these procedures as follows: "But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence."2 This statement is footnoted with the following:

"2. In fact, the type of sustained interrogation described by the Court appears to be the exception rather than the rule. A survey of 399 cases in one city found that in almost half of the cases the interrogation lasted less than 30 minutes. Barrett, Police Practices and the Law—from Arrest to Release or Charge, 50 Calif.L.Rev. 11, 41-45 (1962) Questioning tends to be confused and sporadic and is usually concentrated on confrontations with witnesses or new items of evidence, as these are obtained by officers conducting the investigation. (Citing legal publications)"

It is to be noted that the above reference to dissenting opinions in Miranda is solely for the purpose of showing the interpretation that members of the Court placed on the results reached as to this particular phase of the opinion.

We do not know what makes criminals confess. Be it apprehension, a desire to rid themselves of their feeling of guilt, braggadocio, or the better side of mankind which demands that truth be spoken. All we know is that it does happen.

The present record shows that adequate safeguard procedures to protect against self-incrimination were used at the interrogation of each of the defendants. Further, the record shows that defendants' alleged statements were, in fact, freely made. Their rights under the Fifth and Fourteenth Amendments were fully protected. We hold that the trial judge correctly admitted statements of the defendants.

The defendants later testified before the jury that they never made any inculpatory statements to the officers. Whether defendants made the statements offered into evidence and the weight, if any, to be given to such statements is solely for determination by the jury. State v. Walker, supra.

Defendants also assign as error the admission of testimony concerning search of Baskin's automobile and the items alleged to have been found in the automobile.

Upon objection to this evidence, the court again excused the jury and held an extended voir dire examination. The uncontradicted evidence elicited on the voir dire is to the effect that officer Patterson asked the driver and person in possession of the automobile for permission to search it. The driver of the automobile, McCain, gave Patterson the keys, and the search was conducted. Further, the voir dire did not reveal that the defendant had been taken into custody or significantly deprived of his freedom of action. The search was conducted in the investigatory stage rather than the accusatory stage.

In the case of State v. Temple, 269 N.C. 57, 152 S.E.2d 206, the defendant's motion to suppress evidence resulting from a search of the defendant's automobile was denied when the voir dire evidence disclosed that the police officer told the defendant that he was a suspect in a rape case and that he was searching for a girl's panties and asked permission of the defendant to search his automobile. The defendant granted this permission, and a girl's panties were found in the automobile. The court held that the motion to suppress was properly denied for the reason the defendant voluntarily consented to the search.

"Where the person voluntarily consents to the search, he cannot be heard to complain that his constitutional and statutory rights were violated." State v. McPeak, 243 N.C. 243, 90 S.E.2d 501; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; State v. Williams, 269 N.C. 376, 152 S.E.2d 478.

Again, in the case of State v. Belk, State v. Pearson and State v. Berry, 268 N.C. 320, 150 S.E.2d 481, where upon voir dire, after motion to suppress the evidence, the voir dire evidence tended to show that the owner and operator of an automobile in respect to officer's request that he be allowed to search, stated that he would get the key to the trunk and thereupon did obtain the key and gave it to the officer. The Court held that the consent to search rendered the evidence obtained competent and that the passengers in the automobile could not object to such evidence when the person having possession and control of the vehicle consented to the search.

In the case of State v. Bell, 270 N.C. 25, 153 S.E.2d 741, the defendant objected to the admission of evidence of exhibits found in defendant's automobile. The trial court, in the absence of the jury, heard the State's evidence as to the circumstances of the search. The defendant cross-examined State's witness at length, but offered no evidence when given the opportunity to do so. This Court held that the failure of the trial judge to find facts when he overruled defendant's objection was not fatal since his ruling that the evidence was competent was necessarily based on a finding that the search was legal. See also State v. Litteral, 227 N.C. 527, 43 S.E.2d 84.

Since, in the instant case, the officers who made the search had reasonable grounds to believe a felony had been committed, the search preceding the arrest and with defendants' consent, was legal. United States v. Sala, 1962 D.C.Pa., 209 F.Supp. 956.

There was sufficient evidence presented on voir dire to show a free and intelligent consent to the search of the vehicle and to demonstrate that defendants suffered no loss of their constitutional rights under either the State or Federal Constitution. The trial judge properly overruled defendants' objection.

Defendants' contention that the trial judge erred in overruling their motions for judgments as of nonsuit is without merit.

The naked extra-judicial confession of guilt by a defendant must be supported by evidence aliunde which establishes the corpus delecti. The corpus delecti may be established by direct or circumstantial evidence. State v. Cope, 240 N.C. 244, 81 S.E.2d 773; State v. Thomas, 241 N.C. 337, 85 S.E.2d 300; State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396.

Here, theft of the truck and a breaking and entering of the storehouse was established aliunde the confessions. Also, the stolen truck was backed up to the door of the storehouse with the motor running when the officer arrived. Defendants were located in the nighttime a short distance from the storehouse, driving an automobile without having in their possession a registration card. When a permissive search of the automobile was made, the officer found wire cutters, a pistol, and wet shoes. One pair of the wet shoes fitted tracks found along the ditch bank near the storehouse which was broken and entered. This evidence, when taken with the confessions of defendants, is amply sufficient to repel the motions of defendants for nonsuit.

We have carefully examined defendants' other assignments of error and we find no prejudicial error which warrants a new trial.

No error.