State v. Torres , 99 N.C. App. 364 ( 1990 )

Judge PARKER

concurring in the result.

I concur in the result only for the reason that in my opinion defendant was in custody while she was detained at the Sheriff’s Department before questioning. Under the objective standard in State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982), the question is whether a reasonable person in the suspect’s position would believe that he was in custody or free to leave. The sheriff’s deputy testified that if defendant had attempted to leave, she would not have been allowed to do so. The record also reveals, however, that prior to any questioning by any law enforcement officials, defendant was not only read her constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), but she was specifically asked if she wanted a lawyer at that time. After consulting with a friend who was present, defendant responded that she did not. In view of this specific exchange concerning defendant’s desire for counsel, defendant’s earlier question in the patrol car as to whether she needed a lawyer and the response that she did not need a lawyer at that time were of no consequence. Unlike in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed. 2d 378 (1981), defendant did not make a specific request for counsel, and the question was asked and answered several hours before any interrogation took place. Defendant made no incriminating statements prior to being informed of her rights, and the evidence reveals no indication of pressure or coercion for her to talk. Defendant was obviously cognizant of the importance of counsel. She had several hours not only to consider but also to talk with friends and relatives who were in and out as to whether she should have a lawyer. Under these circumstances defendant, in my opinion, freely, voluntarily, and knowingly waived her right to remain silent and to have counsel present before being interrogated or giving her statement. For this reason the trial court did not err in denying the motion to suppress.