State v. Little , 133 N.C. App. 601 ( 1999 )

515 S.E.2d 752 (1999)

STATE of North Carolina
v.
James Nathaniel LITTLE, Jr.

No. COA98-873.

Court of Appeals of North Carolina.

June 15, 1999.

Attorney General Michael F. Easley, by Special Deputy Attorney General James Peeler Smith, for the State.

Clifford Clendenin O'Hale & Jones, LLP, by Walter L. Jones, Greensboro, for defendant-appellant.

EAGLES, Chief Judge.

First we consider whether the trial court erred by denying defendant's motion to suppress his statement to Detective Jones of the Greensboro Police Department. Defendant argues that he requested counsel and that Detective Jones re-initiated contact with him in violation of his fifth amendment right to counsel by entering the interview room and reading him his rights. After careful review, we disagree.

The fifth amendment, applicable to the states through the fourteenth amendment, Malloy v. Hogan, 378 U.S. 1, [84 S. Ct. 1489] 12 L. Ed. 2d 653 (1964), is a protection against self-incrimination. In Miranda v. Arizona, 384 U.S. 436, [86 S. Ct. 1602] 16 L. Ed. 2d 694 (1966), the United States Supreme Court held that this fifth amendment right is the source of the right to the presence of counsel during custodial interrogation. "Interrogation," for fifth amendment purposes, refers not only to express questioning of a suspect by the police, but also to questioning or actions that police "should know are reasonably likely to elicit an incriminating response from a suspect." Rhode Island v. Innis, 446 U.S. 291, 301, [100 S. Ct. 1682, 1689-90] 64 L. Ed. 2d 297, 308 (1980). Absent initiation by the defendant, if he invokes his right to the presence of counsel during interrogation, police may not "interrogate" the defendant further until he has been afforded the opportunity to consult with counsel. Edwards v. Arizona, 451 U.S. 477, [101 S. Ct. 1880] 68 L. Ed. 2d 378 (1981).

State v. Nations, 319 N.C. 329, 330, 354 S.E.2d 516, 517 (1987).

While we doubt that it would be desirable to build a superstructure of legal refinements around the word "initiate" in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to "initiate" any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.

State v. Williams, 314 N.C. 337, 349, 333 S.E.2d 708, 716-17 (1985) (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S. Ct. 2830, 2835, 77 L. Ed. 2d 405, 412 (1983)). The United States Supreme Court stated that "interrogation" under Miranda refers to express questioning as well as any words or actions on the part of the police, "other than those normally attendant to arrest and custody," that the police should know are reasonably likely to elicit incriminating responses from the suspect. State v. Jones, 112 N.C.App. 337, 342, 435 S.E.2d 574, 577-78 (1993). After the trial court establishes that the defendant re-initiated contact with police, the trial court must further make findings and conclusions that defendant waived his right to counsel under the totality of the circumstances. State v. Jenkins, 311 N.C. 194, 199, 317 S.E.2d 345, 348 (1984).

Here Detective Jones testified and the trial court found that Detective Jones was informing defendant of his Miranda rights, which Detective Jones was required to do, when defendant told Detective Jones that he wanted to talk about the charges. Detective Jones testified that defendant stated that he had told officers earlier that he wanted an attorney but that he had changed his mind and was ready to talk about the charges. Detective Jones had no prior knowledge of the defendant's earlier request for counsel and had not begun questioning defendant when defendant waived his right to counsel. The trial judge made the following pertinent findings of fact:

3. That prior to the defendant's meeting with Detective Jones, the defendant had previously informed an unidentified Greensboro police officer that he wanted an attorney.

4. That Detective Jones had no knowledge of this request.

5. That upon meeting with Detective Jones, the defendant was read his Miranda Rights.

6. That when the Detective got to the third question on the rights form, "you have the right to talk to a lawyer and to have a lawyer present with you while you are being questioned," the defendant told Detective Jones that although he had told another officer that he wanted an attorney, he had changed his mind and now wanted to talk about the charges.

7. That the defendant executed a waiver of rights form.

8. That the defendant then recited a three page statement to Detective Jones, wherein he signed each page.

From these facts, the trial court concluded that as a matter of law, defendant's statement that he had changed his mind while Detective Jones was reading defendant his Miranda rights was a re-initiation by defendant. Detective Jones, without knowledge of defendant's earlier request for an attorney, simply was following police procedure and read defendant his rights. Before Detective Jones could even get through the normal arrest procedure of reading the suspect his rights, defendant stated that he had changed his mind and now wanted to talk to officers about the charges. The reading of a person's rights is a normal result of an arrest and custody and thus does not fall under the definition of "interrogation" or "re-initiation" as set out by the United States Supreme Court. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 308 (1980); Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S. Ct. 2830, 2834-35, 77 L. Ed. 2d 405, 412 (1983). See also State v. Underwood, 84 N.C.App. 408, 411, 352 S.E.2d 898, 900 (1987) (holding that an officer's delivery and reading of arrest warrants to defendant while he was in custody and after defendant's request for an attorney constituted a routine incident of the custodial relationship and was not an improper initiation of questioning by the officer), overruled on other grounds, State v. Thompson, 328 N.C. 477, 494, 402 S.E.2d 386, 395 (1991). Accordingly, the trial court properly held that defendant waived his right to counsel and did not suppress defendant's statements to Detective Jones. This assignment of error is overruled.

Finally, we consider whether the trial court erred by denying defendant's motion to dismiss the charge of kidnaping at the close of the evidence. Defendant argues that the State's evidence shows only that the defendant, during the course of the robbery, escorted the victim from the teller machine to the victim's car where they both traveled a matter of feet before the robbery was entirely consummated. Defendant contends that the restraint and asportation were not discernible beyond the steps necessary to complete the robbery and that the trial court erred in denying the defendant's motion to dismiss because the evidence did not comport with the elements of kidnaping. We disagree.

In determining whether a kidnaping occurred, the pertinent issue is whether the removal involved is integral to the commission of the underlying offense. State v. Joyce, 104 N.C.App. 558, 567, 410 S.E.2d 516, 521 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992). The North Carolina Supreme Court has rejected the notion that the "removal" as used in G.S. § 14-39 requires a movement "for a substantial distance." State v. Surrett, 109 N.C.App. 344, 349, 427 S.E.2d 124, 127 (1993) (quoting State v. Fulcher, 294 N.C. 503, 522, 243 S.E.2d 338, 351 (1978)).

Here, the asportation was not "minor" or "merely technical in nature." The victim of the robbery was moved a distance of "more than 200 feet—across a parking lot, out onto a street, and down a hill into a cul-de-sac." Here, the defendant forced the victim away from the teller machine after having already taken the victim's money and after having forced the victim to withdraw even more money from the teller machine. The asportation was therefore obviously unnecessary to extract more money from the victim. Accordingly, the trial court did not err in denying defendant's motion to dismiss the charge of kidnaping. This assignment of error is overruled.

No error.

Judges LEWIS and HORTON concur.