State v. Baker

• Court: North Carolina Supreme Court
• Writing for the Court: COPELAND
• Citation: State v. Baker, 320 S.E.2d 670, 312 N.C. 34 (N.C. 1984)
• Decision Date: 02 October 1984
• Docket Number: No. 74A84,74A84
• Parties: STATE of North Carolina v. Calvin Chavis BAKER.

Page 670

320 S.E.2d 670

312 N.C. 34

STATE of North Carolina v. Calvin Chavis BAKER.

No. 74A84.

Supreme Court of North Carolina.

Oct. 2, 1984.

Rufus L. Edmisten, Atty. Gen. by Henry T. Rosser, Asst. Atty. Gen., Raleigh, for the State.

Zachary T. Bynum, III, Winston-Salem, for defendant-appellant.

COPELAND, Justice.

Defendant has excepted to the denial of his motion to suppress his pretrial statement, motion for a change of venue or venire, motion for mistrial and motion to strike his testimony, and motions for appropriate relief. However, defendant did not object at trial to the rulings on his motions or to the findings of fact and conclusions of law on which the rulings were based. Defendant also failed to file objections to the findings of fact and conclusions of law which were the basis of the trial court's denial of his motions for appropriate relief. Exceptions must be properly preserved for review "by action of counsel taken during the course of the proceedings in the trial tribunal by objection noted" unless by rule or law such exception is deemed to be preserved or taken without objection. N.C.R.App.P. 10(b)(1). If no exceptions are taken to findings of fact, "such findings are presumed to be supported by competent evidence and are binding on appeal." Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962). Defendant has not properly preserved his exceptions pursuant to Rule 10(b)(1) and so they cannot properly be the basis for his assignments of error. N.C.R.App.P. 10(a). However, in the interest of justice we will review defendant's assignments of error based on these exceptions as well as those based on properly preserved exceptions.

I.

Defendant assigns as error the failure of Judge Wood and Judge Long to suppress the written and oral statements made by him to the police prior to trial. Defendant contends that at the time he made the statements he was physically threatened and intoxicated so that the statements and his waiver of the right to counsel were involuntary.

Defendant contends that he was coerced into confessing by a statement of Detective Reavis to the effect that defendant "needed the hell kicked out of him." Detective Jones recalled this statement at trial but had been unable to remember it at the voir dire hearing. Detective Reavis testified at the voir dire hearing that he did not recall making the statement. Detective Reavis interviewed the defendant between 10:30 and 11:00 p.m. on 27 June 1983. The interview was held so that the defendant could fill out a personal history sheet and be advised of his constitutional rights. The statement of which the defendant complains was made after the interview had been terminated by the defendant's request for an attorney. Defendant did not execute a waiver of his constitutional rights until the next day at 2:20 p.m. and his oral and written statements were made sometime later.

The defendant makes much of the fact that Judge Long did not have before him a transcript of the voir dire hearing conducted by Judge Wood when he ruled on the admissibility of defendant's statements at trial. Defendant argues that Judge Long relied on the decision made by Judge Wood in the voir dire hearing even though the detectives testified in that hearing that Detective Reavis made no statement about the defendant needing to have "the hell kicked out of him." The trial transcript and record indicate the opposite. Judge Long was made aware that the statement attributed to Detective Reavis had not been admitted by the officers at the voir dire hearing when he ruled defendant's statements to be admissible. While Judge Long did not make detailed findings at the voir dire hearing held during the trial, he did consider the testimony of Detective Jones that the defendant did not react to Detective Reavis' statement or appear to be afraid. Judge Long then denied defendant's motion to suppress his statements.

The defendant also argues that his statements were involuntary because he was acting under the influence of intoxicants when he made them. We find no support in the record for this argument. While the defendant may have been drinking beer and smoking marijuana on the day of the crime and of his arrest (27 June 1983), the detectives testified that he was not intoxicated on the night of his arrest nor on the following day when he made his statements. Defendant himself testified that he was not intoxicated on June 28, the day the statements were made. Judge Wood, in denying defendant's pretrial motion to suppress his statement, and Judge Long, in denying defendant's motion for appropriate relief, both weighed the conflicting testimony and concluded that the defendant was not intoxicated when he made his statement on 28 June 1983.

Based on their findings that defendant had not been intoxicated or threatened, both judges concluded that defendant's statements were voluntarily made. While Judge Wood did not hear Detective Jones' testimony concerning the statement made by Detective Reavis there was sufficient evidence before him to support his finding. Findings by the court that no threats or promises were made to the defendant to induce him to make a statement are proper findings of fact. State v. Jackson, 308 N.C. 549, 578, 304 S.E.2d 134, 150 (1983). Findings of fact made by the trial judge following a voir dire hearing on the voluntariness of a defendant's confession are conclusive on appeal if supported by competent evidence in the record. Id. at 569, 304 S.E.2d at 145; State v. Oxendine, 305 N.C. 126, 135, 286 S.E.2d 546, 551 (1982); State v. Rook, 304 N.C. 201, 212, 283 S.E.2d 732, 740 (1981). The findings of Judges Wood and Long that the defendant was not threatened or intoxicated are supported by competent and material evidence and are binding on this Court. Their conclusions that defendant's confession was voluntary is supported by the findings.

Defendant also contends that his waiver of the right to counsel was not knowingly and intelligently made. We disagree. The defendant argues that he was intoxicated when he waived his rights and made his statement because of the beer and marijuana he had consumed on the day of the crime. But, as previously mentioned, the evidence indicates that defendant was not intoxicated when he waived his rights. Whether a waiver of constitutional rights has been knowingly and intelligently made is to be determined from the totality of the circumstances. State v. Steptoe, 296 N.C. 711, 716, 252 S.E.2d 707, at 711 (1979). Judge Wood concluded that defendant was not intoxicated when he waived his rights on 28 June 1983 and that his waiver was knowingly and voluntarily made. His findings are supported by competent and material evidence.

The fact that on the night of his arrest defendant had refused to talk and requested an attorney does not prevent his statement from being voluntary. Defendant on his own and without prompting from the detectives informed them that he wished to talk about the crime. Police may question an accused who has invoked his right to silence and to counsel if the accused himself initiates further communication with the police concerning the crime. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). That is exactly what defendant did here. We hold that in the totality of the circumstances defendant's waiver of his constitutional rights was knowingly, voluntarily, and intelligently made.

II.

In his brief defendant argues that the trial court erred in denying his motion for appropriate relief based on the changed testimony of Detective Jones. We find no error and affirm the ruling of the trial court.

In denying defendant's motion for appropriate relief Judge Long found as a fact that "[d]uring the interview Officer Reavis did not threaten the defendant in any way and the defendant did not express any fear and did not mention any statement made by the detective on the previous evening." Findings that no threats or promises were made to the defendant is a proper finding of fact. Jackson, at 578, 304 S.E.2d at 150. Findings of fact made by a court in its order granting or denying a motion for appropriate relief are binding on appeal if supported by evidence in the record. State v. Bush, 307 N.C. 152, 168, 297 S.E.2d 563, 573 (1982); State v. Stevens, 305 N.C. 712, 719-20, 291 S.E.2d 585, 591 (1982). This test is applicable even if the evidence is conflicting. Stevens, at 720, 291 S.E.2d at 591. There is abundant evidence in the record to support Judge Long's findings and they in turn support his conclusion that defendant's confession was voluntary.

III.

We next turn to defendant's contention that the trial court erred in denying his motions for change of venue or change of venire. Defendant argues that pretrial publicity was so extensive and of such an inflammatory nature that he could not obtain a fair trial. In support defendant refers to numerous newspaper articles written about the crime and contends that this publicity was more inflammatory and widespread in the county of prosecution. Defendant contends that denial of his motion was clearly prejudicial in light of the fact that jurors had access to newspapers before the trial and in the jury room during deliberations. We hold that the trial court properly exercised its discretion and that defendant was not prejudiced.

A trial court must grant a change of venue or order a special venire "[i]f, upon motion of the defendant, the court determines that there exists in the county in which prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial, ..." N.C.Gen.Stat. § 15A-957 (1983). A motion for a change of venue, or a change of venire, is addressed to the sound discretion of the trial court and its ruling will not be disturbed in the absence of an abuse of discretion. State v. Jerrett, 309 N.C. 239, 250, 307 S.E.2d 339, 345 (1983). State v. Oliver, 302 N.C....