State v. Jackson , 308 N.C. 549 ( 1983 )

Justice Mitchell

concurring.

I concur in Justice Martin’s scholarly opinion for the majority. I hasten to point out, however, that, in my view a different result might well be required had this defendant been in custody at the time he confessed.

The defendant has had the benefit of excellent appellate advocacy before this Court. Counsel for the defendant has been diligent in marshaling all or most of the confession cases which have been decided by this Court. Only one of those cases, State v. Whitfield, 70 N.C. 356 (1874), dealt with an accused who was not in custody at the time of his confession. That case involved a recently freed slave who was approached in a field in a rural county of this State shortly after obtaining his freedom by his former master and two other white men. Quite probably no person living today can adequately appreciate the coercive effect upon this former slave when he was accused by these three white men of stealing a hog and told he had “better say so.” Whitfield is, in my view, a unique case having no applicability here.

The trial court’s determination that the defendant was not in custody was supported by overwhelming evidence. For me, this fact is decisive. Had it not been established in this case that the defendant was not in custody at the time of his confession, I might well join the dissenters.