State v. McZorn ( 1975 )

219 S.E.2d 201 (1975) 288 N.C. 417

STATE of North Carolina
v.
Willie Edward McZORN.

No. 44.

Supreme Court of North Carolina.

November 5, 1975.

Atty. Gen. Rufus L. Edmisten, Asst. Atty. Gen. Ann Reed, Raleigh, for the State.

William D. Sabiston, Jr., Carthage, for defendant appellant.

SHARP, Chief Justice.

Defendant's assignments of error, as brought forward in his brief, pose three questions. We consider first the contention that the stopping of defendant's vehicle and the frisking of his person were unconstitutional; that his subsequent arrest was in violation of G.S. 15-41; and that, in consequence, the revolver taken from his inside coat pocket was erroneously admitted into evidence. We find no merit in these contentions.

In our view, the facts of this case are illustrative of a proper stop and incident frisk, and are encompassed by the rationale of Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) and Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1967). See, e. g. Johnson v. Wright, 509 F.2d 828 (5th Cir. 1975) (U.S.App. Pending); United States v. Stevens, 509 F.2d 683 (8th Cir. 1975), cert. denied, 421 U.S. 989, 95 S. Ct. 1993, 44 L. Ed. 2d 479 (1975); United States v. Jefferson, 480 F.2d 1004 (4th Cir. 1973), cert. denied, 414 U.S. 1001, 94 S. Ct. 354, 38 L. Ed. 2d 236 (1973); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973).

In Terry v. Ohio, supra, the defendant was arrested for carrying a concealed weapon and subsequently convicted of that charge largely on the basis of the introduction into evidence of the weapon seized from him. The United States Supreme Court affirmed the conviction enunciating in the process a rationale which has been labeled the "stop and frisk" doctrine. In Terry, a police officer with thirty-nine years of experience, while patrolling his assigned area, observed defendant Terry and a companion repeatedly walk by a particular store gazing into its window. At one point Terry and his companion conferred with a third man after which they resumed their "measured pacing, peering and conferring." The officer suspected that the two men were "casing" the store in order to rob it either immediately or later. He therefore approached the men, identified himself, and asked their names. Receiving an inadequate response, the officer grabbed the defendant and patted down the outside of his clothing. When he felt what he believed to be a weapon, the officer reached inside the defendant's coat and removed a revolver. At his trial the defendant contended that the weapon was illegally seized because the officer lacked probable cause for both the stop and the frisk that revealed the weapon.

The United States Supreme Court held that, although the policeman's conduct in Terry was subject to Fourth Amendment limitation of reasonableness, the officer's conduct was permissible and the weapon was properly seized even though there was initially no probable cause for the intrusion. The Court held that since the officer could point to articulable facts that led him reasonably to conclude that criminal activity was afoot, he was justified in approaching the defendant for the purpose of investigating his suspicious activity. Although the Court declined expressly to decide whether facts not amounting to probable cause could justify an "investigative seizure," (392 U.S. at 19, n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889), it said that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, supra at 22, 88 S. Ct. 1880, 20 L. Ed. 2d 906. In addition, since the facts and circumstances showed that the officer was reasonably warranted in believing the defendant was armed and presented a threat to his safety, the officer was justified in conducting a limited frisk which produced the weapon. In this regard, Chief Justice Warren, delivering the opinion of the Court, said: "Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." 392 U.S. at 27, 88 S.Ct. at 1883, 20 L. Ed. 2d at 909.

The implication of Terry v. Ohio was that an officer could stop a person if upon personal observation of that individual's conduct the officer could reasonably suspect that criminal activity was afoot. This holding was expanded four years later by Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), which held that an officer could, upon the basis of information furnished him by a reliable informant, stop a person if the informant's tip was sufficient to justify a reasonable belief that a crime had been or was being committed.

In Adams v. Williams, supra, a person known to Police Sergeant (C) approached his cruiser at 2:15 a. m. and told him that a person seated in a nearby vehicle was carrying narcotics and had a gun at his waist. In consequence C went to the car, tapped on the window and requested the defendant to open the door. When, instead of doing so, the defendant rolled down the window, C reached into the car and removed a fully loaded revolver from his belt. The gun had not been visible to C from outside the car, but it was where the informant had said it would be. C then arrested the defendant for unlawfully possessing a pistol. A search incident to the arrest revealed substantial quantities of heroin on the defendant's person, a machete and a second revolver hidden in the automobile. In rejecting the defendant's contention that the officers "stop and frisk" and the initial seizure of his pistol, upon which rested the later search and seizure of other weapons and narcotics, was illegal, Mr. Justice Rehnquist, delivering the opinion of the Court, said:

"... The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.

......

"Applying these principles [Terry v. Ohio] to the present case, we believe that Sgt. Connolly acted justifiably in responding to his informant's tip. The informant was known to him personally and had provided him with information in the past.. . . Thus, while the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e. g., Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), the information carried enough indicia of reliability to justify the officer's forcible stop of Williams.

"In reaching this conclusion we reject respondent's argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person...

"While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon ... Sgt. Connolly had ample reason to fear for his safety.... Under these circumstances the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable.... The loaded gun seized as a result of this intrusion was therefore admissible at Williams' trial. Terry v. Ohio, 392 U.S., at 30, 88 S. Ct., at 1884, [20 L.Ed.2d, at 911].

"Once Sgt. Connolly had found the gun precisely where the informant had predicted, probable cause existed to arrest Williams for unlawful possession of the weapon." Adams v. Williams, supra, 407 U.S. at 145-48, 92 S. Ct. 1923-24, 32 L. Ed. 2d 616-18.

The principles enunciated in Terry v. Ohio and Adams v. Williams have been applied often. For example in United States v. Jefferson, 480 F.2d 1004 (4th Cir. 1973), cert. denied, 414 U.S. 1001, 94 S. Ct. 354, 38 L. Ed. 2d 236 (1973), the Fourth Circuit affirmed the defendant's conviction of illegal possession of a firearm. The evidence showed that sometime before his arrest, the police had received information from a reliable informant that the defendant was carrying a concealed weapon in a shoulder holster. This information was conveyed to other police officers and subsequently two officers effected a stop of the car by use of a warning siren and flashing lights. As they approached the car, the officers observed that the defendant removed a pistol from his waistline. The officers then placed the defendant under arrest. The Fourth Circuit affirming the conviction said:

"At the time the two officers stopped Jefferson their avowed purpose was not to make an arrest but to question him concerning the tip Powell had received. The Supreme Court recognized in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), that `a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' 392 U.S. at 22, 88 S.Ct. [1868] at 1880. [Cites omitted.]

"The investigatory stop executed in the present case constituted a seizure of Jefferson's person, United States v. Jackson, 448 F.2d 963 (9th Cir. 1971), and to be valid must have satisfied the reasonableness requirement of the fourth amendment. Terry v. Ohio, supra. In Terry the Supreme Court enunciated a standard for evaluating the reasonableness of a police officer's action in effecting a personal seizure which falls short of an arrest, that is `[W]ould the facts available to the officer at the moment of the seizure ... "warrant a man of reasonable caution in the belief" that the action taken was appropriate?' 392 U.S. at 21-22, 88 S.Ct. at 1880.

"Applying this standard in the present case we conclude that the information supplied by an informant whose tips had been found by [Officer] Powell to have been reliable in previous cases was sufficient to justify the officers' subsequent investigatory stop of Jefferson's vehicle." United States v. Jefferson at 1005-06.

The "stop and frisk" doctrine has also been applied in this State. See State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973); State v. Stanfield, 19 N.C.App. 622, 199 S.E.2d 741 (1973), appeal dismissed, 284 N.C. 622, 201 S.E.2d 692 (1974). These principles must be applied to the facts of the present case.

The State's evidence on voir dire showed that within the hour prior to the time Watkins stopped defendant's car he had received information from a known informant of proven reliability that defendant was then at a certain "beer joint" in an area of West Southern Pines where he was accustomed to frequent several bars; that defendant was driving a `74 green Chevrolet Vega; and that defendant had on his person the .38 revolver which had been used to kill Mr. McAskill. As Deputy Watkins was cruising the area where defendant was reported to be, he encountered defendant coming toward him in his car. The deputy effected a stop by use of his siren and lights, approached the car, and identified himself to defendant. After asking defendant to get out of his car, the deputy frisked him, and found a fully loaded .38 caliber revolver in his inside pocket. At that point Deputy Watkins placed defendant under arrest for carrying a concealed weapon. All the evidence shows that defendant was initially arrested for carrying a concealed weapon and that he was subsequently charged with murder and armed robbery.

Defendant concedes in his brief "that the evidence on voir dire is sufficient to support the court's findings that Deputy Sheriff Watkins was justified in relying upon the information given him by a confidential informer." Although the officer may not have had probable cause on the basis of the informant's tip to arrest defendant for carrying a concealed weapon when he initially stopped defendant's car, see, e. g. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); State v. Edwards, 286 N.C. 162, 209 S.E.2d 758 (1974); State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975), we conclude that the informant's tip carried sufficient "indicia of reliability" to justify the officer's stop of defendant's car. See Johnson v. Wright, supra; United States v. Jefferson, supra.

Having concluded that the circumstances justified Watkins in forcibly stopping defendant's vehicle to investigate the murder of Mr. McAskill, we must determine whether the subsequent frisk was also permissible. In Adams, the Court quoting Terry, said: "`When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,' he may conduct a limited protective search for concealed weapons. 392 U.S. at 24, 88 S.Ct. at 1881, [20 L.Ed.2d at 908]." Adams v. Williams, supra, 407 U.S. at 146, 92 S. Ct. 1923, 32 L. Ed. 2d 617. The officer need not be absolutely certain that the individual is armed. It is enough if a reasonably prudent man in the circumstances would be justified in concluding that the suspect was armed and dangerous.

Applying the Terry-Adams standards to this case, we conclude that Watkins, as a man of reasonable caution, after receiving the informant's tip, was warranted in the belief that defendant was armed with a weapon which could and would be fatally used against him and his companion, Agent Dowdy. The reasonableness and validity of this belief was demonstrated by defendant's remark that had he known the purpose for which the officers had stopped him, he would have killed them before permitting them to take him alive. Clearly the frisk was fully justified.

As soon as the frisk revealed that defendant was carrying a revolver, the officer had probable cause to arrest him for carrying a concealed weapon in violation of G.S. 14-269. Indeed, at that point, the officer had absolute knowledge that defendant was violating the statute and that he was committing a misdemeanor in his presence. Thus, defendant's arrest for carrying a concealed weapon was not in violation of his constitutional rights, and Watkins did not exceed his authority under our State law to arrest without a warrant. G.S. 15-41(1), which was in effect on 18 January 1975 but was superseded by G.S. 15A-401(b) on 1 July 1975, authorized any peace officer to arrest without a warrant any person who had committed a misdemeanor in his presence or whom he had "reasonable ground" to believe had committed a misdemeanor in his presence.

We hold therefore that defendant's warrantless arrest was neither unconstitutional nor violative of State statute and that the pistol, Exhibit 5, was properly admitted in evidence. We note, however, that since the arrest was constitutionally permissible mere statutory illegality would not have rendered the weapon inadmissible in this case. State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706 (1973). (For arrests made since 1 July 1975 see G.S. 15A-974.)

Appellant's next assignment of error challenges the admissibility of his in-custody statement. As detailed in the preliminary statement, immediately after defendant was taken to the police station the officers told him they wanted to talk with him about the McAskill robbery and murder, and he was given the Miranda warnings. He said he understood them and was ready to talk with the officers then. At that point the officers asked him certain background questions, unrelated to the robbery and murder, and the record indicates he answered fully and truthfully. However, when he first gave an answer the officers knew to be false, Agent Dowdy immediately told defendant all the facts which their investigation of the crime had revealed and advised him that tests would be made to ascertain whether the bullet removed from Mr. McAskill's body had been fired from defendant's gun. Defendant then said he did not wish to say anything else at that point. The interrogation ceased and Dowdy left the room.

Approximately 20-30 minutes later Dowdy returned, and Deputy Watkins read to defendant the warrant charging him with the murder of Mr. McAskill. Dowdy then asked defendant if he could do anything for him, and defendant requested him to inform his parents, his brother and his girl friend of his situation and to get him some cherry Lifesavers (candy). Dowdy told him he would do as requested. At that point, no further questions having been put to him, defendant said, "I might as well tell you about it ... I shot McAskill." Agent Dowdy then requested that he "explain what happened," and defendant responded with a detailed statement.

Defendant now contends that Dowdy's request that he explain his volunteered statement that he killed Mr. McAskill was police interrogation and that his confession was not admissible because Agent Dowdy failed to repeat the Miranda warnings when he came back into the room after his 20-30 minute absence.

In our view, defendant's explanation of what happened was a voluntary, spontaneous statement not made in response to police interrogation, and further warnings were not required. In Miranda itself the Supreme Court said: "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding to-day." Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966). Defendant's statement, "I may as well tell you what happened ... I shot McAskill," was volunteered after all police interrogation had ceased and after he had been officially charged with Mr. McAskill's murder. The fact that Agent Dowdy asked defendant to explain what happened did not convert the conversation into an "interrogation."

As we said in State v. Haddock, 281 N.C. 675, 682, 190 S.E.2d 208, 212 (1972), "[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." Since there is no evidence here that defendant's statements were made in response to overbearing police questioning or other police procedures designed to elicit a statement, we conclude that they were the product of free choice and without the slightest compulsion of in-custody interrogation procedures. Therefore they were properly admissible. See Holloway v. U. S., 495 F.2d 835 (10th Cir. 1974); State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973), and cases cited therein; State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431 (1973).

Even if we were to construe as police interrogation Agent Dowdy's request that defendant "explain what happened" after he had confessed he killed McAskill we would nonetheless conclude, under the circumstances of this case, that it was unnecessary for Agent Dowdy to repeat the Miranda warnings either when he reentered the room or before he asked defendant to explain.

Many courts have considered the question whether Miranda warnings must be repeated at subsequent interrogations when they have been properly given at the initial one. See Note, The Need to Repeat Miranda Warnings at Subsequent Interrogations, 12 Washburn Law Journal 222 (1973), where the cases are collected and analyzed. The concensus is that although Miranda warnings, once given, are not to be accorded "unlimited efficacy or perpetuity," where no inordinate time elapses between the interrogations, the subject matter of the questioning remains the same, and there is no evidence that in the interval between the two interrogations anything occurred to dilute the first warning, repetition of the warnings is not required. United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970); State v. Sears, 298 So. 2d 814 (La. 1974). However, the need for a second warning is to be determined by the "totality of the circumstances" in each case. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971). "[T]he ultimate question is: Did the defendant, with full knowledge of his legal rights, knowingly and intentionally relinquish them?" Miller v. United States, 396 F.2d 492, 496 (8th Cir. 1968), cert. denied, 393 U.S. 1031, 89 S. Ct. 643, 21 L. Ed. 2d 574 (1969); Brown v. State, 6 Md.App. 564, 252 A.2d 272 (1969).

Courts have included the following factors, among others, in the totality of circumstances which determine whether the initial warnings have become so stale and remote that there is a substantial possibility the individual was unaware of his constitutional rights at the time of the subsequent interrogation: (1) the length of time between the giving of the first warnings and the subsequent interrogation. See State v. Gilreath, 107 Ariz. 318, 487 P.2d 385 (1971) (second and third interrogations occurred 12 and 36 hours respectively after the first; repeated warnings not required) (applying Escobedo principles); Watson v. State, 227 Ga. 698, 182 S.E.2d 446 (1971) (7 hour interval held not to require repeated warning); People v. Hill, 39 III.2d 125, 233 N.E.2d 367 (1968); Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973) (less than an hour); Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971) (five hours) (applying Escobedo principles); 12 Washburn Law Journal 222, 226; (2) whether the warnings and the subsequent interrogation were given in the same or different places, United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970); Brown v. State, 6 Md.App. 564, 252 A.2d 272 (1969); (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers, Id.; (4) the extent to which the subsequent statement differed from any previous statements; Brown v. State, supra; (5) the apparent intellectual and emotional state of the suspect. State v. Magee, 52 N.J. 352, 245 A.2d 339 (1968), cert. denied, 393 U.S. 1097, 89 S. Ct. 891, 21 L. Ed. 2d 789 (1969).

In the present case the subsequent "interrogation" occurred only 20-30 minutes after the initial interrogation terminated. It was conducted in the same room and by the same officer who gave the initial warnings. Furthermore, the confession is not inconsistent with any earlier statements by the appellant. During the first interrogation he said merely that he did not wish to talk about the murder at that time. In addition, there is no indication that defendant was so intellectually deficient or emotionally unstable that he had forgotten his constitutional rights that had been fully explained to him a short time earlier. Clearly, defendant's statements were not rendered inadmissible by the failure of the officer to repeat the Miranda warnings.

Here we note the oblique suggestion in defendant's brief that the failure of the officers themselves to notify the 24-year old defendant's parents, brother, and girl friend that he was in custody before they began to interrogate him "violated the spirit if not the letter of the law laid down in Miranda."

Defendant did not make this contention in the trial court and, on appeal, we find in the record nothing whatever to indicate that defendant's statement was coerced in any way or that his decision "to tell the officers about it" was induced or influenced in any degree by the fact that his family and girl friend had not been notified of his situation. On the contrary, all the evidence, including defendant's own testimony on voir dire, clearly and convincingly supports the judge's finding that the statement which defendant volunteered was freely and understandingly made. The clear implication is that, within one hour after he was taken into custody, defendant had realized the officers had the evidence of his guilt and it was futile to deny it further.

Defendant's final assignment of error raises the question whether, upon the facts of this case and the charge of the court, he can be sentenced for both the murder of Mr. McAskill and the armed robbery of Kenneth.

The State prosecuted defendant for first degree murder on the theory that he killed Mr. McAskill while engaged in the perpetration of the felony of armed robbery. Where a homicide is committed in the commission of, or in the attempt to commit, an armed robbery the State is not required to prove premeditation and deliberation; G.S. 14-17 pronounces it murder in the first degree. State v. Bunton, 247 N.C. 510, 101 S.E.2d 454 (1958).

The evidence tended to show that when defendant and his companion entered the McAskill store defendant, who had a revolver, said to Kenneth, "This is a hold up; give me your money." Kenneth handed him his wallet containing $15.00 and, at that point, Mr. McAskill, who had been dozing in his chair, "raised up." Defendant told his companion "to get him," but when the companion did nothing, defendant shot. Mr. McAskill fell to the floor, and the two men fled with Kenneth's money.

The judge charged the jury that in order to convict defendant of first degree murder, "the State must prove beyond a reasonable doubt, first, that the defendant committed murder by committing, or attempting to commit, the act of armed robbery and, second, that the defendant, while committing the act of armed robbery, proximately caused John Henry McAskill's death." The jury returned verdicts that defendant was guilty of the armed robbery of Kenneth McAskill and the first degree murder of John Henry McAskill.

Defendant contends the evidence shows that he attempted to commit, and committed, only one armed robbery—the robbery of Kenneth. He argues further that, under the court's charge, his conviction of felony-murder could only have been based on the jury's finding that he killed Mr. McAskill in perpetrating this armed robbery. Therefore, since the armed robbery was used to prove an essential element of the charge of murder in the first degree, defendant asserts he cannot be sentenced for the robbery. The authorities support this contention, and defendant's third assignment of error is sustained. State v. McLaughlin, 286 N.C. 597, 213 S.E.2d 238 (1975). See State v. Carroll, 282 N.C. 326, 193 S.E.2d 85 (1972); State v. Peele, 281 N.C. 253, 188 S.E.2d 326 (1972); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972). Compare State v. Alexander, 284 N.C. 87, 199 S.E.2d 450 (1973), cert. denied, 415 U.S. 927, 94 S. Ct. 1434, 39 L. Ed. 2d 484 (1974).

As to the charge of armed robbery,

Judgment arrested.

As to the murder charge,

No error.