State v. Hunter

• Decision Date: 27 January 1982
• Docket Number: No. 73,73
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dwayne Tyrone HUNTER.

Page 535

286 S.E.2d 535

305 N.C. 106

STATE of North Carolina v. Dwayne Tyrone HUNTER.

No. 73.

Supreme Court of North Carolina.

Jan. 27, 1982.

Malcolm R. Hunter, Jr., Asst. Appellate Defender, Raleigh, for defendant-appellant.

BRANCH, Chief Justice.

Defendant assigns as error the trial judge's ruling admitting into evidence the incriminating statement made by him to police officers.

In support of this assignment of error, defendant first argues that his confession and the seizure of the knife were inadmissible into evidence because they were tainted by a warrantless and illegal arrest.

When defense counsel requested a voir dire hearing, the trial judge properly excused the jury and heard evidence from the State and defendant concerning the voluntariness of defendant's confession. At the conclusion of the hearing, the court, inter alia, found and concluded:

3. Prior to the defendant being asked any questions by law enforcement officers, he was read the applicable Constitutional Rights relating to right to counsel and right against self-incrimination,

Let's see. Did you introduce into evidence the signed waiver?

MR. WEBSTER: Your Honor, we simply read the waiver into evidence. We did not introduce the signed waiver.

COURT: Did you wish to introduce it into evidence?

MR. WEBSTER: Yes, Your Honor, I would move to introduce the signed waiver.

COURT: All right. Have the waiver marked for identification as State's Exhibit Number 1. State's Voir Dire Exhibit Number 1 will be received into evidence.

MR. CHAVIS: OBJECTION.

COURT: OVERRULED.

--as are fully set out in State's Voir Dire Exhibit 1, which is hereby incorporated by reference.

4. After these rights were read to the defendant, he was asked if he understood these rights and affirmatively stated that he did understand these rights. The defendant was further asked if he desired an attorney and specifically stated that he did not desire an attorney. The defendant was then asked if he would then answer the questions of law enforcement officers. The defendant answered that he would answer the questions of law enforcement officers.

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6. The defendant thereafter was orally read the waiver portion of State's Voir Dire Exhibit 1 as fully set out in State's Voir Dire Exhibit 1, and, specifically asked if he understood the waiver portion, and the defendant indicated that he understood the waiver portion of State's Voir Dire Exhibit 1. The defendant further indicated his desire to waive his rights as set out in State's Voir Dire Exhibit 1, and talk to law enforcement officers. The defendant signed the waiver portion of State's Voir Exhibit 1.

7. At all times during the interview process the defendant was rational, his responses to questions appropriate. The defendant did not exhibit the odor of alcohol or physical manifestations of intoxication.

8. At no time during the interview process was the defendant subjected to any promises--any threats, physical or mental, by law enforcement officers or other individuals. At no time during the interview process was the defendant made any promises, express or explicit, to induce the defendant to make a statement.

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Conclusions of Law: The defendant's statement was freely, understandingly and voluntarily made after the defendant was fully informed of all applicable constitutional and statutory rights relating to self incrimination and right to counsel, and after knowing, voluntary and intelligent waiver of those rights.

The trial court then, treating defendant's motion for a voir dire as a motion to suppress, overruled the motion.

It is well established that when a trial court's findings of fact are supported by competent evidence, even though conflicting, such findings are conclusive and will not be disturbed on appeal. 4 Strong's, North Carolina Index 3d, Criminal Law § 76.10 (1976), and cases there cited.

There was ample competent evidence to support the trial judge's findings of fact and the findings of fact in turn support his conclusion of law and ruling as to the voluntariness of defendant's confession. Being satisfied of the threshold requirement of voluntariness of defendant's confession, we turn to his argument that an illegal arrest so tainted the confession and seizure of the knife as to make this evidence inadmissible.

This record discloses that defense counsel did not specifically question or object to the legality of the "pickup" or the arrest so as to place this contention at issue or before the trial judge at the voir dire hearing. Defendant did not object to testimony regarding the reason for the pickup and arrest offered prior to the voir dire. Neither did he object to the testimony concerning the discovery of the knife following the voir dire although he did object to its introduction as an exhibit. There is no indication in the record that a pretrial motion was made challenging the legality of the arrest as provided in G.S. 15A-975. Defendant did not raise a fourth amendment challenge to the arrest during the voir dire but rather generally attacked the voluntariness of his confession.

The only reference to his arrest or "pickup" is contained in the following quotes.

Defendant testified on voir dire:

He [Officer Mitchell] did not, at that time [when defendant was picked up], tell me I was under arrest.... When he got me down there in that room he did not tell me that I was under arrest.... I was first told that I was under arrest after--I think after he fingerprinted me.

After the voir dire was concluded, defense counsel in his argument stated:

[I]t's our contention that whenever the defendant was brought down that day he wasn't told whenever he was picked up he was under arrest. He wasn't told until sometime later. That whenever he got to the Courthouse down there in the room while interrogating him that no one told him that he was under arrest.

These statements do not point to probable cause for arrest or the legality of the arrest and the "pickup" but relate to the time when defendant was in custody or under such restraint as to make his inculpatory statements custodial in nature. Such evidence relates to the voluntariness of his statements.

The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions. Further, a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal. State v. Dorsett, 272 N.C. 227, 158 S.E.2d 15 (1967); State v. Grundler, 251 N.C. 177, 111 S.E.2d 1 (1959), cert. denied, 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 738 (1960).

Our examination of this record discloses that defendant did not attack the admission of his confession into evidence on the ground that he was illegally arrested or "picked up." The gravamen of his motion was the voluntariness of the confession and his challenge was based upon coercion. The evidence, the findings of the court, and the ruling of the court were obviously based on this theory.

A defendant, represented by counsel, cannot sit silently by at trial and object to the admission of evidence for the first time on appeal. See State v. Richardson, 295 N.C. 309, 326-27, 245 S.E.2d 754, 765 (1978).

We held in State v. Vickers, 274 N.C. 311, 163 S.E.2d 481 (1968), that a timely general objection was sufficient to challenge the voluntariness of a confession and require a voir dire hearing when the objection clearly called the matter to the trial judge's attention. See also State v. Edwards, 274 N.C. 431, 163 S.E.2d 767 (1968). However, when a confession is challenged on other grounds which are not clearly brought to the attention of the trial judge, a specific objection or explanation pointing out the reason for the objection or motion to suppress is necessary. State v. Richardson, supra. In order to clarify any misunderstanding about the duty of counsel in these matters, we specifically hold that when there is an objection to the admission of a confession or a motion to suppress a confession, counsel must specifically state to the court before voir dire evidence is received the basis for his motion to suppress or for his objection to the admission of the evidence.

We are aware of defendant's reliance upon Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Defendant's reliance on these cases is misplaced since the issue of an illegal arrest was not timely raised in this case.

By this assignment of error, defendant also contends that his confession should have been suppressed because the officers acted in violation of G.S. 15A-501(2) by failing to take defendant before a judicial officer without unnecessary delay.

In State v. Richardson, supra, we considered the question here raised. There we noted that G.S. 15A-974(2) provides that evidence "obtained as a result" of a substantial violation of the provisions of Chapter 15A must be suppressed upon timely motion, and that the use of the term "result" in the statute indicated that a causal relationship between a violation of the statute and the acquisition of the evidence sought to be suppressed must exist. We reasoned that evidence will not be suppressed unless it has been obtained as a consequence of the violation. The evidence must be such that it would not have been obtained but for the unlawful conduct of the investigating officer. G.S. 15A-974(2) requires, at a minimum, this sort of causal connection between violations of Chapter 15A and the evidence objected to if such evidence is to be suppressed.

In the case before us, we find no such causal...