State v. Burton

207 S.E.2d 344 (1974) 22 N.C. App. 559

STATE of North Carolina
v.
Grady BURTON, Jr.

No. 7426SC316.

Court of Appeals of North Carolina.

August 7, 1974. Certiorari Denied November 8, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.

Martin, Howerton & Williams by Neil C. Williams, Charlotte, for defendant.

Certiorari Denied by Supreme Court November 8, 1974.

CARSON, Judge.

The defendant first contends that the trial court committed error by allowing into evidence the statements made by the defendant on the night of the arrest and the following day concerning ownership of the hat. The defendant maintains that Officer Kuchenbrod tricked him by handing him the hat and the fact that he said "Thank you" and placed it in his lap was protected by the Miranda decision and should not have been admitted into evidence. We do not believe that the holding of the Miranda case should be extended to extemporaneous statements of this nature. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant was not being interrogated at the time, and his statement was voluntary. It was not made in response to a question put to him by a law enforcement officer. Having been voluntarily given by the defendant, it was admissible for the jury's consideration. Miranda v. Arizona, supra; State v. Jackson, 280 N.C. 563, 187 S.E.2d 27 (1972).

The defendant admitted the following morning to Detective Kirkpatrick that the hat was his. The trial judge conducted a lengthy voir dire and made findings of fact and conclusions of law based thereon. His findings were supported by competent evidence and will not be disturbed on appeal. State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971); State v. Turnbull, 16 N.C.App. 542, 192 S.E.2d 689 (1972).

The defendant next contends that the court committed error in not allowing Detective Kirkpatrick to testify that the victim Wossick picked out the wrong man in the lineup. Detective Kirkpatrick had previously said that the victim was unable to identify the defendant at the lineup. If the victim had been able to identify the defendant in court, his identifying someone else at the lineup would be admissible as a prior inconsistency. State v. Penley, 277 N.C. 704, 178 S.E.2d 490 (1971); State v. Jenkins, 8 N.C.App. 532, 174 S.E.2d 690 (1970); Stansbury's N.C. Evidence (Brandis Revision), Witnesses, § 46. However, at the trial the victim stated that he was still unable to identify the defendant. For that reason the court acted properly in sustaining the objection to that question.

The defendant contends that the court committed error in not instructing the jury on circumstantial evidence. A written request for such instruction was submitted to the court before its charge to the jury. Counsel for defendant admits that no case has been found in which the defendant requested in writing a special instruction on circumstantial evidence prior to the charge and the court failed to give such instructions. The evidence in this case was direct, and we do not feel that the court committed error in refusing to charge on circumstantial evidence. The defendant contends that the court committed error in not granting his motion for nonsuit and, furthermore, that the court committed error in not giving equal stress to the contentions of the parties. We do not feel that either of these contentions has merit. We have examined the record and the charge to the jury, and we hold that the defendant received a fair trial, free from prejudicial error.

No error.

BRITT and HEDRICK, JJ., concur.