State v. Best , 5 N.C. App. 379 ( 1969 )

168 S.E.2d 433 (1969) 5 N.C. App. 379

STATE of North Carolina
v.
John Franklin BEST.

No. 698SC191.

Court of Appeals of North Carolina.

July 23, 1969.

Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis and Trial Atty. I. B. Hudson, Jr., Raleigh, for the State.

Herbert B. Hulse and George F. Taylor, Goldsboro, for defendant appellant.

BRITT, Judge.

Defendant assigns as error the form of the warrant under which he was charged and tried. He contends that the warrant fails to state an offense within the meaning of the statute because it "alleges purely conclusions of law and does not state what words were used to constitute the alleged offense." He also contends that the allegation "on 9 August 1967 and diverse (sic) other occasions" is to vague an allegation to support a conviction.

An indictment or warrant is sufficient if it charges the offense in a plain, intelligible, and explicit manner and contains averments sufficient to enable the court to proceed to judgment and to bar a subsequent prosecution for the same offense. 4 Strong, N.C. Index 2d, Indictment and Warrant, § 9, p. 348. Where time is not of the essence of the offense charged, an indictment may not be quashed for failure to allege the specific date on which the crime was committed. When the exact time and place are not essential elements of the offense itself, defendant must move for a bill of particulars if he desires more definite information in respect thereto. 4 Strong, N.C. Index 2d, Indictment and Warrant, § 9, p. 350. Defendant made no motion for a bill of particulars. The assignments of error relating to the sufficiency of the warrant are without merit and are overruled.

Defendant assigns as error the refusal of the court to allow his motion to suppress evidence because of unlawful arrest and illegal identification; also the allowance of testimony relating to the identification of his voice by the prosecutrix while he was held or detained in the sheriff's office.

On voir dire, Chief Deputy Sheriff Sasser testified that immediately after 11:00 a.m. on 17 August 1968, after he was advised by Mrs. Vinson that she had received another telephone call from the person who had been calling her and the telephone company had determined that the call had originated at the home of Sarah B. Pridgen, defendant's mother, Mr. Sasser together with two other deputies sheriff went to the Pridgen home, arriving there within three or four minutes after leaving the sheriff's office. Upon arrival they found an elderly man sitting in a chair in the yard; he was later identified as defendant's grandfather. In the Pridgen residence, they found the defendant, dressed only in pants and T-shirt; the only other occupant of the house or premises was a seven-month-old child. At Mr. Sasser's request, the defendant accompanied him and the other two officers to the sheriff's office in the courthouse. With respect to defendant's constitutional rights, Mr. Sasser's testimony was as follows:

"I advised him that he had the right to remain silent; I read the Miranda—He had the right to remain silent and not make any statement; anything that he said could and would be used against him in court should he be indicted; that he had the right to talk to a lawyer for advice before we asked him any questions and to have him or anyone else with him during questioning; he had the same right to advice and presence of a lawyer even if he could not afford to employ one, and if he was indigent a lawyer would be appointed to represent him before any questioning if he desired. I asked him if he understood these rights and he said that he did. I told him that if he decided to answer questions now without a lawyer present he would still have a right to stop answering them at any time and would have the right to stop answering questions at any time until he talked to a lawyer. In response to my question he said he did understand each of these rights and having these rights in mind I asked him did he wish to talk to us or make any statement. At that time he didn't make any statement."

While taking the defendant to the sheriff's office, Mr. Sasser arranged by radio for Mrs. Vinson to go there. Upon arrival, defendant was kept in one room and when Mrs. Vinson arrived she was directed to an adjoining room; a partition wall that did not reach the ceiling separated the two rooms, enabling Mrs. Vinson to hear what was said by persons in the other room. The police proceeded to ask defendant several routine questions which he answered. Mrs. Vinson then declared that he recognized defendant's voice as the voice of the person who had been making the obscene calls to her.

Mrs. Vinson did not see the defendant at the sheriff's office but saw him a few minutes later at the magistrate's office where a warrant was issued and defendant was given a preliminary hearing. It was there that she recognized the defendant as one who had worked in the yard of her home for some two or three years and she expressed considerable surprise that the accused was the same person who had worked for her.

Defendant contends that the voice identification by Mrs. Vinson in the sheriff's office was illegal and that the evidence of identification of defendant based thereon should have been excluded. The trial judge conducted a voir dire in the absence of the jury and at the conclusion of the evidence on voir dire ruled as follows; "There was no illegal arrest. Motion as to listening to only one voice. Denied."

By virtue of the Sixth and Fourteenth Amendments to the Constitution of the United States, a defendant who is charged with a misdemeanor amounting to a serious offense has a constitutional right to the assistance of counsel during his trial. A warrant charging a violation of G.S. § 14-196 charges a serious offense, entitling defendant to the assistance of legal counsel. State v. Morris, 275 N.C. 50, 165 S.E.2d 245. In State v. Williams, 274 N.C. 328, 163 S.E.2d 353, opinion by Lake, J., it was held that the right to have counsel appointed and to consult with him prior to participation in a police lineup is not to be deemed waived merely because of a fuilure of the defendant to request such appointment or consultation.

In State v. Moore, 275 N.C. 141, 166 S.E.2d 53, the Supreme Court held that a confession obtained from a person in custody as a result of an illegal arrest is not ipso facto inadmissible, voluntariness remaining the test of admissibility. We think the same rule would apply in this case and that it is not necessary for us to determine if defendant was "under arrest" at the time Mrs. Vinson heard him talk in the sheriff's office. It is necessary, however, that we inquire if defendant's constitutional rights were violated at the time of the voice identification.

In State v. Wright, 274 N.C. 84, 161 S. E.2d 581, in an opinion written by Huskins, J., it is said:

"* * * [R]equiring the accused to walk, to wear certain type clothing, to talk and repeat words allegedly uttered by the assailant at the time of the crime, nothing else appearing, are pretrial procedures which defendant may be compelled to perform without violating his constitutional rights under the Fifth, Sixth and Fourteenth Amendments. Even so, when performed by the accused for purposes of identification by the prosecutrix they then become part of a ``critical' stage requiring the presence of counsel unless that right has been voluntarily, knowingly, and intelligently waived. Gilbert v. California, Supra [388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178]. It thus becomes necessary to examine the facts and circumstances under which defendant allegedly waived his right to assistance of counsel at the confrontation with Mrs. Byrd for identification purposes and during in-custody interrogation by Officers Upchurch and King." (Emphasis added.)

Waiver of constitutional rights may be made orally and without advice of counsel. State v. Wright, supra. In the trial of the instant case, when defendant's counsel moved to suppress the evidence pertaining to Mrs. Vinson's identification of defendant's voice in the sheriff's office, the trial judge properly excused the jury and conducted a voir dire. State v. Gray, 268 N.C. 69, 150 S.E.2d 1. However, the trial judge made no determination as to whether defendant voluntarily, knowingly, and intelligently waived counsel at the time he was asked questions in the sheriff's office and his answers were overheard by Mrs. Vinson. For failure of the court to make this determination, defendant is entitled to a new trial.

Inasmuch as the defendant is awarded a new trial for the reasons above stated, we do not deem it necessary to pass upon the other questions brought forward and argued in defendant's brief, as they may not arise upon a retrial.

New trial.

MALLARD, C. J., and PARKER, J., concur.