State v. Braswell

• Citation: 312 N.C. 553,324 S.E.2d 241
• Decision Date: 08 January 1985
• Docket Number: No. 526A83,526A83
• Parties: STATE of North Carolina v. Billy Rudolph BRASWELL.
• Court: North Carolina Supreme Court

Page 241

324 S.E.2d 241

312 N.C. 553

STATE of North Carolina v. Billy Rudolph BRASWELL.

No. 526A83.

Supreme Court of North Carolina.

Jan. 8, 1985.

Rufus L. Edmisten, Atty. Gen. by Donald W. Stephens, Sp. Deputy Atty. Gen., Raleigh, for the State.

Harrell, Titus & Hassell by Richard C. Titus and Robert A. Hassell, Raleigh, for defendant-appellant.

MEYER, Justice.

I.

Defendant argues that the trial court erred by admitting into evidence the revolver found in his house and the statements made by him in response to questions asked by Chief Deputy Oakley on the grounds that they were obtained in violation of his rights under the fifth and fourteenth amendments to the United States Constitution and article I, §§ 19 and 23 of the North Carolina Constitution. Defendant bases his argument on his contention that he was in custody once the officers entered his house and that they were required to inform him of his rights under the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) before questioning him. After a careful review of the evidence we conclude that defendant was not in custody when the officers entered his house and hold that defendant's constitutional rights have not been violated.

The rule of Miranda requiring that suspects be informed of their constitutional rights before being questioned by the police only applies to custodial interrogation. State v. Clay, 297 N.C. 555, 559, 256 S.E.2d 176, 180 (1979). A suspect is in custody when a reasonable person in his position would believe that "he had been taken into custody or otherwise deprived of his freedom of action in any significant way...." State v. Davis, 305 N.C. 400, 410, 290 S.E.2d 574, 580-81 (1982). Ordinarily, when a suspect is not in custody at the time he is questioned any admissions or confessions made by him are admissible so long as they are made knowingly and voluntarily. State v. Connley, 297 N.C. 584, 589-90, 256 S.E.2d 234, 237 (1979), cert. denied, 444 U.S. 954, 100 S.Ct. 433, 62 L.Ed.2d 327 (1979). A careful examination of the circumstances surrounding the officers' entry into defendant's residence reveals that the officers were justified in making the entry and in questioning defendant.

Deputies Oakley and Nobles were friends of defendant and had gone to his house in order to inform him of his wife's death. Upon finding defendant's empty patrol car in his driveway with the driver's door open, containing an empty revolver and a necktie bearing a bullet hole, the officers had good reason to believe that defendant might be injured and in need of assistance. This alone would justify their entry pursuant to N.C.G.S. § 15A-285 which authorizes entry by a police officer into buildings, vehicles, etc. when he believes it is reasonably necessary to save a life or prevent serious bodily harm. State v. Jolley, 312 N.C. 296, 321 S.E.2d 883 (1984). ¹ Further, when the officers discovered the back door to the house ajar and stepped in, defendant, who was very pale and sitting in a recliner, told them to come in. They did so and discovered the defendant had suffered two gunshot wounds to the chest, called an ambulance, and administered emergency medical treatment. These facts demonstrate that the officers had ample justification to enter defendant's house.

After the officers had found him, defendant told them that he wanted to die and not to call the rescue squad. Defendant also stated that he had not wanted to hurt his wife but that she would not listen to him. Deputy Oakley noticed that defendant's holster was empty and asked where his gun was and what had he done. Defendant replied that he had two guns, one on the floor by his chair and one in the patrol car. Deputy Vandiford noted defendant's answer and some of his other statements in his notebook. He testified that Deputy Oakley, who was a close friend of defendant, was not interrogating defendant but was talking to him like a father in an attempt to calm him.

Once the deputies had entered defendant's house their primary purpose was to preserve his life and keep his condition from worsening before the ambulance arrived. Viewed objectively there is nothing in the officers' conduct that would lead a reasonable person in defendant's position to believe that he was in custody. The fact that the officers had probable cause to believe that defendant had murdered his wife is immaterial for two reasons. First, the officers testified that they did not go to defendant's house to arrest him, but to inform him of his wife's death. Second, any subjective intent the officers may have had to arrest defendant is immaterial because their subjective intent is irrelevant to the question of whether a reasonable person in defendant's position would believe himself to be in custody. Davis, 305 N.C. at 410, 290 S.E.2d at 580-81. Therefore, we hold that defendant was not in custody while Deputies Oakley, Nobles and Vandiford were in his house, and they were under no duty to inform defendant of his constitutional rights before questioning him.

Even though defendant was not entitled to be informed of his constitutional rights his answer to Deputy Oakley's question concerning the location of his gun is inadmissible unless it was voluntarily and understandingly made. Connley, 297 N.C. at 589-90, 256 S.E.2d at 237 (1979). The trial court properly held a voir dire hearing during which Deputy Vandiford testified, inter alia, that defendant was rational when he answered the questions. After the hearing was concluded the trial court found as a fact that no threats or promises of reward were made to defendant and that he was competent at the time he made his statements. "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." State v. Baker, 312 N.C. 34, 39, 320 S.E.2d 670, 674 (1984). The trial court's findings that no threats or promises were made to defendant and that he was competent are supported by competent and substantial evidence and are thus binding on this Court. The trial court's conclusion that defendant's statements were voluntarily and understandingly made is supported by the findings. Defendant was not denied his rights under the federal constitution or the North Carolina Constitution.

II.

Approximately midway through the State's case, Sheriff Ralph Tyson of Pitt County was called to the stand. Defendant objected, apparently on the basis that the testimony would be hearsay, and the trial judge recessed the court in order to conduct a voir dire hearing. For some reason not disclosed by the record defendant did not attend the hearing though his counsel was present. Defendant argues that by conducting the hearing out of his presence the trial court denied him his rights under the sixth and fourteenth amendments of the United States Constitution to confront the witnesses against him. Defendant denies that he waived his confrontation rights and contends that, because he was tried upon an indictment charging him with a capital felony, he is prevented by the public policy of the State from waiving his right to be present at any stage of the trial.

It is well-established that under both the federal and North Carolina constitutions a criminal defendant has the right to be confronted by the witnesses against him and to be present in person at every stage of the trial. State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969). The constitutional right of an accused to be confronted by the witnesses against him is a personal privilege which he may waive expressly or by a failure to assert it in apt time even in a capital case. Id. at 209-10, 166 S.E.2d at 659-60.

However, when a defendant is being tried for a capital felony public policy prevents the accused from waiving his right to be present at any stage of the trial. Id. at 209, 166 S.E.2d at 659.

Because the State announced that it did not seek the death penalty in this case for lack of any aggravating circumstance the case lost its capital nature. State v. Leonard, 296 N.C. 58, 62, 248 S.E.2d 853, 855 (1978). For that reason defendant's constitutional right to be present at all stages of the trial was a purely personal right that could be waived expressly or by his failure to assert it.

The record does not disclose an express waiver by defendant of his right to attend the hearing. However, defendant may also waive this right by a failure to timely assert it, as he has done in this case. The trial judge announced his decision to have a voir dire hearing on the admissibility of Sheriff Tyson's testimony following an objection by defendant's counsel. Defendant does not contend that he was absent from the courtroom while the State was presenting its case, and we conclude that defendant knew or should have known that a voir dire hearing of Sheriff Tyson would be held. Defendant, an experienced deputy sheriff, had attended previous voir dire hearings during the course of the trial and doubtless knew the general purpose of a voir dire. Yet, neither he nor his counsel asserted his right to attend. The most likely reason for defendant's absence is that neither he nor his counsel felt that his presence was necessary. Defendant's counsel was present in the courtroom at the time the trial judge announced his intention to hold a voir dire hearing and at the hearing itself. In a non-capital case counsel may waive defendant's right to be present through failure to assert it just as he may waive defendant's right to exclude inadmissible evidence by failing to object. The inaction of defendant and his counsel amounted to a failure to timely assert defendant's right to be present. While it is the better practice for the trial judge to obtain an explicit waiver from a defendant before conducting a voir dire hearing or any other important proceeding in the defendant's absence, it was not error...