State v. Thomas , 284 N.C. 212 ( 1973 )

200 S.E.2d 3 (1973) 284 N.C. 212

STATE of North Carolina
v.
Larry Eugene THOMAS.

No. 29.

Supreme Court of North Carolina.

November 14, 1973.

Atty. Gen. Robert Morgan and Assoc. Atty. Norman L. Sloan, Raleigh, for the State.

Joe P. McCollum, Jr., Monroe, for defendant appellant.

MOORE, Justice.

Defendant first assigns as error the admission of his alleged "confession" into evidence. From defendant's brief it is not entirely clear whether this assignment of error relates solely to his signed statement or also relates to the two inculpatory statements allegedly made by him to Officer Sutton and Sergeant Helms prior to his making the signed statement. The first statement was made before he was arrested. When Officer Sutton first saw him and before Sutton said anything to him, defendant said he had "shot the sucker" and was looking for the police to turn himself in. The second statement was made after he had been arrested for murder and was being held at the Monroe Police Department. When Sergeant Bill Helms—whom defendant knew—walked in, defendant spontaneously inquired: "Bill, is the dude dead?"

Miranda warnings are only required to be given when a person is being subjected to "custodial interrogation;" that is, "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." (Emphasis added.) Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966). A volunteered confession is admissible even in the absence of warnings or waiver of rights. Miranda v. Arizona, supra; State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431 (1973); State v. Haddock, 281 N.C. 675, 190 S.E.2d 208 (1972). See also State v. Inman, 269 N.C. 287, 152 S.E.2d 192 (1967). Measured by Miranda standards, we hold that the two statements made by defendant to Officer Sutton and Sergeant Helms were spontaneous and volunteered, and were properly admitted into evidence.

Defendant also gave Sergeant Helms a signed statement setting forth the details of the shooting of the deceased. When this statement was offered into evidence, defendant objected and the court properly held a voir dire to determine the voluntariness of the statement. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); State v. Barber, 278 N. C. 268, 179 S.E.2d 404 (1971); State v. Catrett, 276 N.C. 86, 171 S.E.2d 398 (1970). After finding that defendant had been properly warned of his constitutional rights, the trial court concluded:

"The court at this time finds that the statement was freely, voluntarily and intelligently made, that the defendant was not under the influence of any intoxicating beverage or narcotic drug, and that Officer Helms had known him for a number of years and that he was normal and rational, and that he was advised of his constitutional rights before he made any statement and waived his right to have an attorney present by affirmatively stating he did not want an attorney present after being advised that he had a right to have an attorney present."

It is a well-established principle in North Carolina that a person may intelligently, knowingly, and voluntarily waive his privilege against self-incrimination and his right to legal counsel. State v. Turner, 283 N.C. 53, 194 S.E.2d 831 (1973); State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970). In this case defendant was twice given the warnings required by Miranda v. Arizona, supra, and as Mr. Chief Justice Warren there said:

". . . After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. . . ." 384 U.S. at 479, 86 S.Ct. at 1630, 16 L. Ed. 2d at 726.

The findings of the trial judge that defendant waived his right to legal counsel and freely and voluntarily made the signed statement are fully supported by competent and uncontradicted evidence. These findings, therefore, are conclusive on appeal and this Court cannot properly set aside or modify them. State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972); State v. Harris, 279 N.C. 177, 181 S.E.2d 420 (1971); State v. McRae, supra; State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). Accordingly, we hold that the trial judge properly admitted into evidence defendant's signed statement.

Defendant next alleges that the trial judge erred in his charge to the jury by stating the State's contention regarding the intoxication of defendant and not stating defendant's contention. A judge is not required by law to state the contentions of the parties, but when he does give the contention of the State on a particular phase of the case, it is error to fail to give defendant's opposing contention arising out of the evidence on the same aspect of the case. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962). The trial judge's charge in this case, however, reveals no support for defendant's allegations. The judge charged on contentions as follows:

"Officer Sutton on cross examination testified that he smelled a faint odor of alcohol about the defendant at the time he had him in the car; he didn't smell it out on the street but he smelled it when he got him in the police car.

"Officer Helms testified that the defendant, before he made a statement to him about what occurred there, said he had had eight or nine drinks and a number of beers, but didn't say exactly when he had had them.

"The defendant would contend that you should consider that in this case. (Emphasis added.) . . . The State would contend that he was not intoxicated, that the officers knew him and that they testified that he was not. That is a matter for you to determine."

The trial judge further charged on the effect of intoxication as follows:

". . . [V]oluntary intoxication is not a legal excuse for crime. However, if you find that the defendant was intoxicated, you should consider whether this condition affected his ability to formulate the specific intent which is required for the conviction of first degree murder. In order for you to find the defendant guilty of first degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual specific intent to kill, formed after premeditation and deliberation. If, as a result of intoxication, the defendant did not have the specific intent to kill the deceased, formed after premeditation and deliberation, he is not guilty of first degree murder. Therefore, I charge you that if, upon considering the evidence with respect to the defendant's intoxication, you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first degree murder, you will not return a verdict of guilty of first degree murder, but will consider whether you find the defendant guilty of second degree murder, as I have heretofore charged you, or not guilty."

The general rule in this State is that objections to the charge in reviewing the evidence and stating the contentions of the parties must be made before the jury retires to afford the trial judge an opportunity for correction; otherwise they are deemed to have been waived and will not be considered on appeal. State v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971); State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (1971); State v. Butler, 269 N.C. 733, 153 S.E.2d 477 (1967). No such objections were made in this case. Moreover, at the end of the charge the trial judge asked if there were any requests for further instructions. Defense counsel replied in the negative. In view of the court's full explanation on the effect of intoxication, we do not see how defendant could have been prejudiced by the failure of the court to further state defendant's contention. This assignment is without merit.

Lastly, defendant contends that the trial court erred in its charge by not defining "reasonable doubt." In the absence of a special request, the trial court is not required to define the term "reasonable doubt." State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971); State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v. Potts, 266 N.C. 117, 145 S.E.2d 307 (1965). Defendant made no such request, and therefore it was not necessary for the court to define this term.

Defendant has had a fair trial, free from prejudicial error. The jury's verdict is fully supported by the evidence, and the judgment must therefore be upheld.

No error.