State v. Parrish , 32 N.C. App. 636 ( 1977 )

233 S.E.2d 690 (1977) 32 N.C. App. 636

STATE of North Carolina
v.
Elton Ray PARRISH.

No. 768SC817.

Court of Appeals of North Carolina.

April 6, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.

Taylor, Allen, Warren & Kerr by Robert D. Walker, Jr., Goldsboro, for defendant.

MARTIN, Judge.

Defendant has grouped his thirty-four assignments of error into six arguments in his brief. He first contends the court erred by failing to excuse one of the jurors, Juror Dunbar, for cause. During the jury selection, Mr. Dunbar stated that he felt that persons arrested or charged with crimes were probably guilty, and that if he thought the defendant was guilty then he would vote to convict the defendant even if he had a reasonable doubt. In response to questions by the court, however, Mr. Dunbar stated that he would follow the court's instructions and that he would require the State to prove all the elements of the crime beyond a reasonable doubt if the court so instructed. The court then found the juror qualified. Later during the jury selection defendant proceeded to exercise his fourteen peremptory challenges and was denied an additional peremptory challenge of Juror Hooks. By exhausting his peremptory challenges and thereafter asserting his right to challenge peremptorily an additional juror, defendant preserved his exception to the denial of his challenge for cause of Juror Dunbar. State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Allred, 275 N.C. 554, 169 S.E.2d 833 (1969).

In the case of State v. Dixon, 215 N.C. 438, 440, 2 S.E.2d 371, 372 (1939) our Supreme Court held that "[t]he finding that a juror is a fair one, though he has formed and expressed an opinion, is a matter in the discretion of the trial judge and is not reviewable on appeal." (Citation omitted.) See also State v. Terry, 173 N.C. 761, 92 S.E. 154 (1917). Moreover, it has been stated that:

"Admission that he held an opinion before, or at the time of, the voir dire examination, in the course of which a juror states that he can disregard such opinion, listen to the evidence, and apply to it the instructions of the court, and that he can and will be fair and impartial in the trial of the issue, brings to play the trial judge's exercise of his discretion." 47 Am.Jur.2d Jury § 305 (1969).

In the case at bar, there is no showing of prejudice against defendant on the part of Juror Dunbar. Although his answers during questions by defendant's counsel reveal some concern regarding the effect of defendant's having been arrested and charged, this point was pursued and clarified during further questioning by the trial judge. Dunbar's responses to the judge's questions clearly sustain the implied finding by Judge Small that Dunbar would still require the State to prove each element of the crime beyond a reasonable doubt. State v. Boyd, supra. This assignment of error is therefore overruled.

The defendant next contends the court erred in allowing the defendant's extrajudicial statement in evidence. He argues that the record does not reflect that defendant expressly waived his right to counsel and that the evidence reflects that the defendant in fact requested that he be allowed counsel. Defendant relies on State v. Robbins, 4 N.C.App. 463, 167 S.E.2d 16 (1969). This case is distinguishable from the one under consideration. In the Robbins case the defendant was told by the arresting officer that "we have no way of giving you a lawyer but one will be appointed for you if you wish if and when you go to court." It is understandable that a statement of this kind may well cause a defendant to understand that he was not entitled to court-appointed counsel prior to trial.

In the case at bar, the judge's conclusions that the defendant's oral statements were admissible are clearly supported by the voir dire evidence of record. All the evidence on voir dire tends to show that the defendant was first advised of his constitutional rights as prescribed by the United States Supreme Court in Miranda, and that he was asked: "Do you want a lawyer?" The defendant responded: "I'll tell you all I know" and stated that he did not want a lawyer at that time. The officers then proceeded to explain that if he decided to answer questions then he had a right to stop talking at any time. The defendant then told the officers that he understood all his rights and that he wished to talk to the officers and answer questions right then. At that point, the officers read to defendant a waiver statement to the effect that:

"I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer. [Emphasis added.] I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me."

The defendant then read and signed this waiver in the presence of three witnesses.

The evidence indicates that the defendant understood his right to counsel and his right to remain silent; that he did not indicate a desire to talk to an attorney before making a statement or to stop talking during the course of his statement; and that the same was freely, voluntarily and understandingly made while several witnesses, including the defendant's wife, were present. We therefore find no error in the trial court's conclusion that: "The defendant purposely, freely, knowingly and voluntarily waived each of his rights. . . ." Thus, the defendant intelligently and understandingly rejected the offer of counsel.

Furthermore, as the State's brief points out, Miranda warnings and waiver of counsel are only required when a defendant is being subjected to custodial interrogation. State v. Blackmon, 284 N.C. 1, 199 S.E.2d 431 (1973). A custodial interrogation means 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. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Miranda warnings are thus required only when there has been such a restriction on a person's freedom as to render him "in custody." See Oregon v. Mathiason, ___ U.S. ___, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977).

In the case at bar, the evidence is undisputed that defendant was questioned in his own home in the presence of his wife. At the time he gave his statement to the officers, he was neither under arrest nor in custody and he was neither detained nor deprived of his freedom in any significant way. He was not placed under arrest until after he confessed orally to his participation in the offense and after he went to the Wayne County Sheriff's Department several hours later. Clearly, defendant made the incriminating statements in response to interrogation, yet he was neither in custody nor deprived of his freedom in any significant way.

Defendant's remaining arguments have been carefully reviewed and found to be without merit.

No error.

MORRIS and VAUGHN, JJ., concur.