State v. Garrison , 294 N.C. 270 ( 1978 )

240 S.E.2d 377 (1978)

STATE of North Carolina
v.
Lewis Alexander GARRISON.

No. 70.

Supreme Court of North Carolina.

January 24, 1978.

Atty. Gen. Rufus L. Edmisten and Charles J. Murray, Asst. Atty. Gen., Raleigh, for the State.

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

SHARP, Chief Justice.

Defendant brings forward three assignments of error. The first is that the court erred in admitting into evidence defendant's "alleged confession."

Upon defendant's objection to the admission in evidence of "any statement of the defendant," Judge Smith conducted a voir dire to determine the circumstances under which any statements by defendant were made. After hearing the testimony of both Officer Cook and defendant, Judge Smith found the circumstances to have been as testified to by Cook. In addition, he found that on the night in question defendant was not under the influence of alcohol or drugs and that he was fully able to read and write.

Based on the foregoing findings the judge held that defendant had "freely, intelligently, voluntarily and understandingly" twice waived his right to counsel—verbally at the home of Mrs. Duncan and in writing at approximately 11:45 p. m. at the sheriff's office. Judge Smith thereafter found that neither waiver was the result of any promise of reward, pressure, threat or coercion and that both waivers were constitutionally obtained and valid in all respects. He therefore adjudged "that any statement made by defendant on the night of March 1st, 1977, or the early morning of March 2nd, 1977," would be admitted in evidence "if the same is otherwise admissible."

Defendant excepted to this order but thereafter made no objection to the admission of any statement, oral or written, which defendant had made.

Cook's testimony, heretofore detailed in our preliminary statement of facts, was that on the night in question he first confronted defendant at Mrs. Duncan's home about 10:30 or 11:00 p. m. Before asking defendant any questions relating to the intrusion which had occurred earlier at the Griffin residence, Cook orally gave defendant the Miranda warning, and defendant orally waived both his right to counsel and his right to remain silent. Cook testified that after defendant told him "he had been down to the phone booth there at Yank's Grill, which is close to Mrs. Griffin," he requested defendant to accompany him to the sheriff's office. Defendant agreed to go and got dressed for that purpose.

It is not clear from the record whether Cook continued to interrogate defendant as he drove him to the sheriff's office. However, Cook testified that as they entered "the bay" and were approaching "the interrogation part of the office," he asked defendant "about some stuff that was gone out of Mrs. Griffin's home." Defendant responded by telling him that he had taken some articles, including a change purse, but that he had lost them out of his pocket running home, stating approximately where he thought he had lost them.

At about 11:45 p. m. Cook, in the interrogation room in the presence of Sheriff Fowler, again warned defendant of his constitutional rights, and this time defendant executed a written waiver of his right to counsel and right to remain silent. Deputy Cook and Sheriff Fowler then talked to him approximately an hour, and thereafter defendant signed the statement introduced in evidence as State's Exhibit 4.

The court's findings, made at the conclusion of the voir dire, are clearly supported by plenary evidence. They are, therefore, conclusive on appeal. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). Indeed, the findings are largely supported by defendant's own testimony. Although defendant made the general statement that he was "scared," he makes no contention that he was under the influence of drugs or alcohol; that he was threatened, coerced, promised leniency; or that he did not understand his rights. Moreover, he admitted that on previous occasions other officers had explained them to him, and that he signed Exhibit 4 because he "felt like signing it."

Appellant's contention, as stated in his brief, is "that the interrogation stopped at the mother-in-law's house and resumed in the bay of the office of the sheriff. That when the defendant made the statement in the bay ``that he had been in Mrs. Griffin's,' he was being interrogated by Sergeant Cook for the second time and had not been given his Miranda warnings. Therefore, the appellant argues that the written confession later given was tainted and should not have been allowed in evidence." This contention has no merit. As the court found, Officer Cook had fully warned defendant of all his constitutional rights before he interrogated him at the home of his mother-in-law and the circumstances did not require a repetition of the warnings. See State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976); State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975).

The "bay" interrogation occurred less than one hour and 15 minutes after the initial warning had been given. All interrogations throughout were conducted either by or in the presence of the same officer, Deputy Cook. Furthermore, the resulting statements, although dissimilar, were not fundamentally contradictory. Finally, during all the questioning, defendant was calm and in full possession of all his faculties; he could read and write; and he was experienced in dealing with law enforcement officers. By his own statement, he never drank alcoholic beverages and he was not under the influence of drugs. Applying to this situation the guidelines laid down in State v. McZorn, supra, Sheriff Cook's failure to repeat the Miranda warnings as he and defendant walked through the bay to the interrogation room at the sheriff's office did not render defendant's statements inadmissible. From the four corners of this record it is clear that all of defendant's statements were voluntarily and understandingly made after he had been fully and fairly warned of all of his constitutional rights.

Defendant's second contention is that the trial court erred in disallowing his motion for a mistrial based upon the following occurrence:

On the cross-examination of defendant, after he had denied that on 21 February 1977 he had broken into an automobile belonging to Mr. Brooks and taken a CB radio, the district attorney said, "I'll ask you if you didn't tell the officers where you sold the radio?" Defendant's objection to the question was sustained and he did not answer the inquiry. Defendant moved for a mistrial, and the court correctly denied the motion.

On cross-examination, for the purpose of impeachment, the district attorney may question a defendant who elects to testify in his own behalf with reference to specific acts of criminal and degrading conduct, provided the questions are based on information and asked in good faith. State v. Broom, 222 N.C. 324, 22 S.E.2d 926 (1942). Such cross-examination is not limited to conduct for which defendant has been convicted but encompasses any act of the witness which tends to impeach his character. State v. McKenna, 289 N.C. 668, 224 S.E.2d 537 (1976); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972). "The rule is necessary to enable the State to sift the witness and impeach, if it can, the credibility of a defendant's self-serving testimony." State v. Foster, 284 N.C. 259, 275, 200 S.E.2d 782, 794 (1973). It is for the trial judge to say how far the State may go "in sifting" the witness who denies the commission of the acts about which he is cross-examined. The scope of such cross-examination is subject to his discretion. State v. Williams, 279 N.C. 663, 675, 185 S.E.2d 174, 181 (1971). Of course, as in the case of other collateral facts, the State is bound by the witness's answers to the extent that they cannot be contradicted by other evidence. State v. Broom, supra; 1 Stansbury's North Carolina Evidence, § 111 (Brandis rev. 1973). Nevertheless, a witness's denial of a conviction or of specific degrading conduct does not per se preclude further cross-examination with reference to these matters. State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970); State v. Robinson, 272 N.C. 271, 158 S.E.2d 23 (1967).

The court in its discretion did not require defendant to answer the question whether he had told the officers where he sold the radio. The cross-examination was halted as soon as defendant had denied that he had broken into Mr. Brooks's automobile and that he had taken therefrom a CB radio. Obviously, the district attorney's questions implied that he had information contrary to defendant's denials, but it is equally clear that the record is devoid of any suggestion that the questions were asked in bad faith. Prima facie, the cross-examination was proper. Certainly, on this record, it would be absurd to say that the district attorney's question, to which the court sustained defendant's objection, affected the outcome of the trial. Defendant's second assignment of error is overruled.

Finally, defendant contends that because of conflicting evidence as to whether defendant's unauthorized entry into the Griffin residence was during the nighttime "the trial judge should have instructed the jury that they could return a verdict of felonious breaking and entering." This contention is futile for it is based upon a false premise.

It is quite true that to warrant a conviction of burglary the State must show that there was a breaking and entering during the nighttime of a dwelling or sleeping apartment with the intent to commit a felony therein. "The law considers it to be nighttime when it is so dark that a man's face cannot be identified except by artificial light or moonlight." State v. Frank, 284 N.C. 137, 145, 200 S.E.2d 169, 175 (1973). However, the record contains no evidence tending to show that defendant entered the Griffin house during the daytime.

The evidence for the State tended to show that defendant entered the Griffin dwelling after 9:00 p. m. Defendant's wife testified that he left Mrs. Duncan's home, where they were then living, at 7:15 p. m. and did not return until about 10:30 p. m. Defendant himself testified that he left his mother-in-law's home about 7:00 or 7:30 p. m.; that the Duncan home was from half a mile to a mile and a half from the Griffin house; that before going to the Griffin home he went to Yank's Grill, where he attempted unsuccessfully to make a phone call and to find somebody to take his wife to the doctor; that from there he went to the Griffin home and entered it because it was the only house in which he saw a light. Moreover, in the written statement which defendant signed he stated that he entered the Griffin home at "about 9:00 p. m." Further, we take judicial notice that in Union County on 1 March 1977 the sun set at 6:10 p. m. and that it was nighttime before 7:00 p. m. See the schedule for "Sunrise and Sunset" computed by the Nautical Almanac Office, United States Navel Observatory.

Thus, there existed no conflict in the evidence with reference to the time of defendant's intrusion into the Griffin house which required the submission of an issue of nonburglarious or felonious breaking or entering. State v. Jones, 291 N.C. 681, 231 S.E.2d 252 (1977); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972). Here we note that, based on defendant's statement that he entered the Griffin home solely for the purpose of using the telephone, the court submitted the issue of defendant's guilt of nonfelonious breaking or entering. Notwithstanding, on the clear, strong, and convincing evidence the jury found defendant guilty of burglary in the first degree. In his trial, we find

No Error.