State v. Elam, 439

• Decision Date: 15 January 1965
• Docket Number: No. 439,439
• Parties: STATE of North Carolina v. Bobby Lewis ELAM.
• Court: North Carolina Supreme Court

Page 601

139 S.E.2d 601

263 N.C. 273

STATE of North Carolina v. Bobby Lewis ELAM.

No. 439.

Supreme Court of North Carolina.

Jan. 15, 1965.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard, for the State.

Yarborough, Blanchard & Tucker, Raleigh, for defendant appellant.

PARKER, Justice.

The State's evidence shows these facts: In March 1964 Calvin Berry Bagwell, his wife, and children lived in a dwelling house situate at 1300 Wake Forest Road. He was in the Safety Taxi Company business. He kept in his house in a green box money for his payroll, and also a small box containing money for his wife's use for domestic purposes, which was kept in the dining room under a little bench. Bobby Lewis Elam during that time lived across the road from him at 1225 Wake Forest Road. Elam had visited his house more than fifty times, had had meals there, had dated his daughter for a long period of time, knew where these money boxes were kept, and that he kept money in these boxes at night. Elam knew when he fixed his payroll he put his money for the payroll in the green box, carried it upstairs, and put it under his bed. Elam had been in his home when he put money in these boxes.

On the night of 19 March 1964 there was company at his house. After they left, he closed up his house, put the lock on the door on the north side and fastened to it a chain latch or chain lock which reached from the wall over to the door. Elam had put that latch on the door. After doing this, about 12:15 a. m. he went upstairs to his room and went to bed. A few minutes later his wife and children came upstairs. Upstairs there is a bedroom for his daughters, one for his little boy, one for his wife and himself, and one for another little boy. On this night all four bedrooms wer occupied. His daughter Ruby was sleeping in bed with his youngest daughter. The steps to the upstairs are covered with carpet. His wife brought up the green money box containing the money for his payroll, put it under his bed, and gave it a little kick. In this box he had about $447 in money. He went to sleep and when he awakened the next morning and went downstairs, he found that the door on the north side of his house had been broken open, the chain lock on it was broken off, and the door was standing open about a foot and a half. The screen door had been unlocked. The door on the south side of his house was open also. He looked for his money box under the bed and found that it was gone. Later during the morning a policeman brought the green money box to his home. He opened the box. The box had some of his papers in it, but all the money was gone. When he went to bed that night, there was in the small box in the dining room about $10 in change and a $100 bill and some checks and papers. It was locked. The next morning he found that this box was gone. About twenty minutes after the policeman returned the box in which he kept money for his payroll, police officers brought in this money box. It had been broken open, and the money was gone.

On the night his money was stolen he had worked approximately twelve hours that day. He heard nothing between 12:15 a. m. and 6:00 a. m. on 20 March 1964.

R. L. Bunn is a detective sergeant with the Raleigh Police Department. He was assigned the job of investigating the breaking of Calvin Berry Bagwell's house. He talked with defendant on 6 May 1964 in a room in the detective bureau of the Raleigh Police Department. Bunn was asked by the prosecuting officer, 'What conversation did you have at the time?' Defendant's counsel objected and stated that he would like to examine Bunn in respect to this conversation. Whereupon, the court directed the jury to retire to its room, and in the absence of the jury defendant's counsel cross-examined Bunn, who testified as follows:

'I first introduced myself to Mr. Elam, advised him what he was doing there, and then advised him of his rights, that he did not have to make a statement. I told him that I was an officer of the law. I told him that he did not have to make a statement, that he was entitled to call friends, attorneys, anyone he desired. He was asked if he wanted to confer with anyone or make a phone call; he said he had no one that he wanted to talk to. He did not say that he wanted to talk to a lawyer. He stated that he did not want to talk to one and I specifically asked him if he wanted to talk to an attorney. He said that he did not. That was the first thing I said to him after introducing myself to him. I told him that I was Detective Sergeant R. L. Bunn, detective with the Raleigh Police Department. I was not dressed in uniform at that time; I was dressed in a suit. I did not tell him that he was under arrest. I told him that he was under investigation. I told him what he was under investigation for. I did not have him in custody at that time. He could have walked out if he had wanted to. If he had started walking out the door I would have restrained him. He was not in my custody. There were two other warrants, different charges on file for his arrest for worthless checks. As far as the charge of burglary he could have left. No warrant had been issued at that time. I did not make a statement to him that it would be better for him to make a statement if he would if he didn't it would go hard on him. I did not make the statement to him that if he did not tell me what happened that I was going to charge him with all those checks and also three charges of breaking and entering. He did not ask to make a telephone call prior to the time that I interrogated him.

'He did not make any request or reference to a bond. I did not tell him that if he would tell me the truth I would get the charges cut. I did not tell him that if he'd tell the truth I'd get him out under bond. I told him about the seriousness of the charge on which I was investigating him. I did tell him that he was entitled to a lawyer if he wanted one. He stated that he did not.

'I interrogated him approximately two and a half hours, between two and a half and three hours. It was not a continuous interrogation. We talked about his stay in different parts of the country, friends of his, his family; it was not all interrogation. During that time he was allowed to use the telephone. He did not use the telephone. He did not ask to use one.'

Bunn testified thereafter in substance on direct examination by the prosecuting officer for the State: After Elam had told about what he had done in breaking in Bagwell's house, he asked to talk with Robert Hedrick, solicitor of the Raleigh city court. Hedrick came to the room in the detective bureau. Elam told him what he had told Bunn, and asked him could he have the charges reduced if he would enter a plea to a lessor offense. Hedrick told him he did not have that authority. Elam asked Hedrick if he could have a bond. Hedrick told him he had no authority to set a bond for him on a capital charge. Elam told Hedrick he was aware of the seriousness of the charge, and he understood it carried a death penalty.

On recross-examination by defendant's counsel, Bunn testified in substance: Hedrick told Elam he had a right to have counsel. Elam had a cousin with the Raleigh Police Department, detective sergeant L. T. Williams. He asked Elam if he would like to talk to Williams, and he replied no. He asked Elam if he wanted him to contact his father with whom he had talked several times, and Elam replied no.

On redirect examination Bunn testified in substance: Prior to this time Elam had been charged with breaking in Bagwell's home, and had entered a plea to a lesser offense in the Raleigh city court. On another occasion Elam had been charged with breaking and entering Bagwell's house, and had been permitted to enter a plea to a lesser offense. Elam had talked with Hedrick on that occasion.

At this point Judge May found as a fact that the statement made by Elam to Bunn was made freely and voluntarily, and that the statement was made without any inducements, promises, or offer of reward, or threats or coercion, and overruled defendant's objection. Defendant assigns this as error.

After Judge May ruled the statement competent, the jury was called back into the courtroom, and Bunn testified in substance: He introduced himself to Elam as a police officer of the Raleigh Police Department and informed him that he was there on a charge of burglary of Bagwell's house at 1300 Wake Forest Road. He told Elam he did not have to make a statement, that he was entitled to counsel, and that he could make a telephone call if he so desired. Elam replied he did not want an attorney and did not want to call anyone. Elam first said that he knew nothing about the breaking-in of Bagwell's house, that it was news to him. They then discussed a trip Elam had made to New York City and how he got the money to make the trip. After about two and one-half to three hours of conversation, Elam said that about 4:00 a. m. on 20 March 1964 he parked his car on the west side of the street in front of the Bagwell house, that he went to the door on the north side of Bagwell's house, jimmied the lock with a screwdriver, and took the screwdriver and pried the chain night latch, that he had installed, loose from the wall. He then opened the door and went in the house. He then went upstairs to see the daughter of Bagwell. When he saw her in bed with another girl, he was afraid to wake her up for fear someone else in the house would wake up. As he started to leave, he recalled the Bagwell family handing money on various occasions when he was there and one box being kept under the bed. He then eased into Mr. Bagwell's room and took the box under the bed. He carried it downstairs, and then took the box in the dining room. He then went out the door he had opened. He left the small box in the garage in the rear of the house. The larger box that he had taken from under the bed he threw from his car on Brookside Drive...