State v. Pollock , 22 N.C. App. 214 ( 1974 )

206 S.E.2d 382 (1974) 22 N.C. App. 214

STATE of North Carolina
v.
Harold Roger POLLOCK.

No. 743SC340.

Court of Appeals of North Carolina.

July 3, 1974.

Atty. Gen. Robert Morgan by Associate Atty. John R. Morgan, Raleigh, for the State.

Wheatly & Mason, P. A., by L. Patten Mason, Beaufort, for defendant appellant.

HEDRICK, Judge.

Defendant asserts that the trial court committed error by allowing the patrolman to testify, over defendant's objection, as to incriminating statements made by defendant following his arrest without first conducting a voir dire to ascertain (1) whether these inculpatory remarks were made after the so-called "Miranda Warnings" were given, and (2) whether the Statements were voluntarily and understandingly made after defendant knowingly and intelligently waived his rights. The incriminating statements by defendant were in response to a series of questions asked by the patrolman and are as follows:

"Q. State whether or not you asked the defendant if he had had anything to drink.

Objection.

Court: Overruled.

DEFENDANT'S EXCEPTION NO. 2

A. Yes, sir, I did.

Q. What, if anything, did he tell you?

Objection.

Court: Overruled.

DEFENDANT'S EXCEPTION NO. 3

A. He said, ``Beer'.

Q. State whether or not you asked him how much.

Objection.

Court: Overruled.

DEFENDANT'S EXCEPTION NO. 4

A. Yes, sir, I did.

Q. What did he tell you?

A. 8 cans.

Move to Strike.

Court: Denied.

DEFENDANT'S EXCEPTION NO. 5

Q. State whether or not you asked him where he had drunk the beer.

Objection.

Court: Overruled.

DEFENDANT'S EXCEPTION NO. 6

A. Yes, sir, I did.

Q. What, if anything, did he tell you?

A. He said, ``Newport'.

Q. State whether or not you asked him when he started drinking the beer.

Objection.

Court: Overruled.

DEFENDANT'S EXCEPTION NO. 7

A. Yes, sir, I did.

Q. What did he tell you?

A. He said, ``Five o'clock'.

Q. State whether or not you asked him when he had stopped drinking the beer.

Objection.

Court: Overruled.

DEFENDANT'S EXCEPTION NO. 8

A. Yes, sir, I did.

Q. What did he tell you?

A. He said, ``When you caught me.'

Q. After you had asked him these questions, Officer Askew, state whether or not you asked the defendant whether or not he was under the influence of an intoxicating beverage.

Objection.

Court: Overruled.

DEFENDANT'S EXCEPTION NO. 9

A. Yes, sir, I did.

Q. What did he tell you?

A. He said, ``I guess I am.'

DEFENDANT'S EXCEPTION NO. 10"

While defendant contends that these statements were in effect a confession and that they were the product of a custodial interrogation and that a voir dire should have been conducted, the State submits that the questions asked by the patrolman were merely incidental to a general investigation and not in custody interrogation requiring compliance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Furthermore, the State, citing State v. Tyndall, 18 N.C.App. 669, 197 S.E.2d 598 (1973) and State v. Beasley, 10 N.C.App. 663, 179 S.E.2d 820 (1971), maintains that the Miranda warnings are not applicable in a motor vehicle case, and that thus, there was no need to conduct a voir dire to determine if such warnings were given.

The United States Supreme Court, in the Miranda decision defined a custodial interrogation as one "initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action." Although we are cognizant of the investigatory stage exception carved out in Miranda, we are unable, in light of the factual context of this case, to understand how the State can argue that the statements elicited from defendant were not made during an in custody interrogation. The facts clearly reveal that defendant was arrested at the site where he had first been stopped; was transported to the Newport Police Station in a police car, and was then asked the questions which are the focal point of this assignment of error. Such circumstances dictate the conclusion that the defendant was in custody, under arrest, and deprived of his freedom in a significant way, and that the defendant was entitled to the Miranda warnings.

Next, we must consider the State's contention that the Miranda warnings are inapplicable to motor vehicle violations. The main support for this argument is found in dictum which appears in State v. Beasley, 10 N.C.App. 663, 179 S.E.2d 820 (1971). Beasley quoted with approval a New Jersey decision, State v. Macuk, 57 N.J. 1, 268 A.2d 1 (1970), wherein the New Jersey court said: "[W]e are of the opinion that, in view of the absence of any indication to the contrary by the United States Supreme Court, the rules of Miranda should be held inapplicable to all motor vehicle violations."

In a recent decision of our Supreme Court, State v. Sykes, 285 N.C. 202, 203 S.E.2d 849, filed April 10, 1974, Justice Huskins, writing for the court made the following germane comment:

"We observe in passing that State v. Beasley [supra] and State v. Tyndall [supra], should not be interpreted to hold that the rules of Miranda are inapplicable to all motor vehicle violations. We said in State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971): ``One who is detained by police officers under a charge of driving under the influence of an intoxicant has the same constitutional and statutory rights as any other accused.' (Emphasis added) We adhere to that view." State v. Sykes, 285 N.C. 202, 203 S.E.2d 849 (1974).

Any extra-judicial statement of an accused is a confession if it admits defendant's guilt as to one of the vital parts of the offense charged. State v. Williford, 275 N.C. 575, 169 S.E.2d 851 (1969); State v. Hamer, 240 N.C. 85, 81 S.E.2d 193 (1954). In the case now before us, there can be no question but that the answers given by defendant to the police officer's questions qualify as a confession. From the earliest days of our judicial system, the North Carolina courts have recognized that an extra-judicial confession is admissible against a defendant when, and only when, it was, in fact, voluntarily and understandingly made. State v. Roberts, 12 N.C. 259 (1827). This proposition has been reaffirmed in more recent times. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966), cert. denied 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784 (1967); State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951); State v. Moore, 210 N.C. 686, 188 S.E. 421 (1936). The accepted procedure for determination of whether the confession was voluntarily and understandingly made is to conduct a voir dire in the absence of the jury. State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Gray, supra. Moreover, a general objection is sufficient to challenge the admission of a proffered confession if timely made, and upon such objection, the trial judge should dismiss the jury and conduct a voir dire hearing. State v. Haynes, 276 N.C. 150, 171 S.E.2d 435 (1969). Thus, upon defendant's entering a general objection, the trial court was in error in not conducting a voir dire to determine if defendant had been given his Miranda warnings, and had voluntarily and understandingly made the incriminating statements only after freely and knowingly waiving his rights.

Defendant has other assignments of error which we do not discuss as they are not likely to recur on a new trial.

We are of the opinion and so hold that the defendant is entitled to a new trial.

New Trial.

BRITT and CARSON, JJ., concur.