State v. Campbell

• Decision Date: 15 June 1999
• Docket Number: No. COA98-654.,COA98-654.
• Citation: 515 S.E.2d 732,133 NC App. 531
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Jeffrey Clifton CAMPBELL.

515 S.E.2d 732

133 NC App. 531

STATE of North Carolina v. Jeffrey Clifton CAMPBELL.

No. COA98-654.

Court of Appeals of North Carolina.

June 15, 1999.

Attorney General Michael F. Easley, by Assistant Attorney General Amy R. Gillespie, for the State.

William H. Leslie, Asheville, for defendant-appellant.

HUNTER, Judge.

Defendant was convicted of first-degree burglary and first-degree statutory rape of a fifteen-year-old female ("victim").

The State's evidence at trial indicated that late on the night of 27 May 1997, the victim awoke to find a male assailant in her bed attempting to strangle her. The victim begged for the assailant to let her go, whereupon the assailant covered her mouth, instructed her not to talk, and raped her. He then told the victim that he would kill her and her mother if she told her mother about the incident. The assailant left the room, but returned soon afterwards, looking for his belt. The assailant failed to retrieve his belt and then left the victim's bedroom. Afterwards, the victim went to her mother's bedroom and awakened her.

The victim's mother, Jane Hurrell ("Hurrell"), took the victim to a friend's house and then went to the police station and reported the crime. The next morning, Asheville Police Detective Dawn Dowdle and other officers went to the Hurrell home, where Hurrell showed them the belt she had found in the victim's bedroom. Detective Dowdle learned that Hurrell suspected defendant of the crimes.

Detective Dowdle telephoned defendant's home several times and talked to his mother. She told his mother that she wanted to talk with defendant about a case she was investigating. Detective Dowdle left a message for defendant to call her back. Defendant returned the call, and he and Detective Dowdle scheduled an appointment after she advised him about the case she was investigating.

On 2 June 1997, defendant came to the Asheville Police Station via his own transportation. He arrived early and was escorted to the interview room. Defendant was joined by Detective Dowdle and Detective Forrest Weaver, who were both in plain clothes. When they entered the room, Detective Weaver told defendant that he was free to go, he was not under arrest, and that he could leave at any time. Detective Dowdle explained why she had asked defendant to be interviewed. At some point during the interview, Detective Weaver again told defendant that he was free to go, he was not under arrest, and that he could leave at any time.

During the course of defendant's interview with Detectives Dowdle and Weaver, he claimed to have had a preexisting consensual, sexual relationship with the fifteen-year-old victim. In response, Detective Dowdle told him, "I think you're lying." At that point, Detective Weaver asked Detective Dowdle to step out of the room. At trial, Detective Weaver testified that he believed defendant wished to speak to him alone.

After Detective Dowdle left the room, Detective Weaver told defendant again that he was not under arrest and that he was free to go. He asked defendant if he could understand this. Defendant responded in the affirmative. Defendant then began to make a statement concerning the rape of the victim. Detective Weaver stopped him, and asked, "Now, you understand that you are not under arrest, you're free to go?" Defendant again responded in the affirmative. The detective then said, "Go ahead with your statement." Defendant continued to make a verbal confession of the crimes occurring the night of 27 May 1997. Detective Weaver once again asked defendant if he understood that he was not under arrest and that he was free to go. Defendant stated that he understood, and then proceeded to write a statement confessing to the crimes. Detective Weaver did not make defendant any promises about what would happen if he were to confess.

After defendant finished his statement, he left the police station. The entire meeting had lasted approximately thirty minutes. Warrants for defendant's arrest were issued the next day. Defendant was subsequently tried and convicted at the 8 December 1997 session of criminal superior court in Buncombe County. He was sentenced to 103 to 133 months on the charges of first-degree burglary and 336 to 413 months on the charge of first-degree statutory rape, said sentences to run consecutively.

Defendant first assigns error to the trial court's granting the prosecution's motion to correct the date of the offense listed on the indictments from 2 June 1997 to 27 May 1997.

N.C. Gen.Stat. § 15A-923(e) (1997) provides that "[a] bill of indictment may not be amended;" however, "amendment" in this context has been interpreted to mean "any change in the indictment which would substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984). Where time is not an essential element of the crime, an amendment in the indictment relating to the date of the offense is permissible since the amendment would not substantially alter the charge set forth in the indictment. State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994) (citing Price, 310 N.C. at 598-99,

313 S.E.2d at 559). A change in an indictment does not constitute an amendment where the variance was inadvertent and defendant was neither misled nor surprised as to the nature of the charges. State v. Bailey, 97 N.C.App. 472, 389 S.E.2d 131 (1990). In the present case, time is not an essential element of the crime. Defendant was obviously aware that the 2 June 1997 date on the indictment was incorrect for defendant made the appointment to meet with the police, and met with them, on 2 June 1997. Defendant was neither misled nor surprised as to the nature of the charges. While a variance as to time does become material and of essence when it deprives a defendant of an opportunity to adequately present his defense, see Price; State v. Kamtsiklis, 94 N.C.App. 250, 380 S.E.2d 400, disc. review denied, 325 N.C. 711, 388 S.E.2d 466 (1989), the record in the present case indicates that there was no evidence of an alibi defense or any other defense wherein time would be material. We conclude that the change of date in this indictment was not an amendment proscribed by N.C. Gen.Stat. § 15A-923(e). Accordingly, we overrule this assignment of error.

Secondly, defendant contends the trial court erred in admitting his confession on the basis that it was involuntary and the unlawful product of a custodial interrogation, violating Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The requirement that a suspect be given Miranda warnings is triggered when the suspect "has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. The United States Supreme Court has recognized that Miranda warnings are not required simply because the questioning takes place in the police station or other "coercive environment" or because the questioned person is one whom the police suspect of criminal activity. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 713-14, 50 L.Ed.2d 714, 719 (1977) (per curiam). The United States Supreme Court has held that an appellate court should consider the totality of the circumstances surrounding the interrogation to determine if a suspect was "in custody;" however, "the definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest." State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, cert. denied, ___ U.S. ___, 118 S.Ct. 248, 139 L.Ed.2d 177 (1997) (citing Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam)

). For Miranda purposes, the test for whether a person is in custody is whether a reasonable person in the suspect's position would feel free to leave or compelled to stay. State v. Rose, 335 N.C. 301, 439 S.E.2d 518,

cert. denied, 512 U.S. 1246, 114 S.Ct. 2770, 129 L.Ed.2d 883 (1994).

In the present case, defendant took affirmative steps to contact the police after they contacted him regarding the rape of the victim. He made an appointment to meet Detectives Dowdle and Weaver at the police station at a time convenient to him. He arrived at the station under his own volition and agreed to speak with the police officers. At no time was he searched, handcuffed, or restricted in his movement. Before the officers began questioning defendant, they told him he was free to leave. During the course of questioning, Detective Weaver told defendant that he was free to leave on at least four occasions, and asked him each time whether he understood what he meant. Defendant replied in the affirmative each time. These exchanges occurred before defendant spoke with the officers, before he incriminated himself verbally, and just before he wrote the confession. At the end of the interview, defendant left the station alone.

Defendant relies on the holding in State v. Harvey, 78 N.C.App. 235, 336 S.E.2d 857 (1985), where this Court held that a juvenile defendant was in custody when he was questioned by two officers in a closed office; however, the Court also considered the additional factors that defendant was taken far from his home by police officers, subjected to lengthy questioning, was never expressly told that he was not under arrest or that he was free to leave and could end the questioning at anytime, and was seventeen years old with an IQ of 78. Id. The additional factors which the Court relied on in Harvey are not present in the case sub judice. Defendant volunteered to be interviewed, traveled to the police station of his own volition, and was informed on various occasions that he was free to go. No evidence indicated that defendant misunderstood or was unable to understand these statements. Based on the totality of the circumstances, we conclude that a reasonable person in defendant's position would have felt...