State v. Hall

• Decision Date: 01 December 1998
• Docket Number: No. COA97-1560.,COA97-1560.
• Citation: 508 S.E.2d 8,131 NC App. 427
• Parties: STATE of North Carolina v. Bill Edward HALL, Defendant.
• Court: North Carolina Court of Appeals

508 S.E.2d 8

131 NC App. 427

STATE of North Carolina v. Bill Edward HALL, Defendant.

No. COA97-1560.

Court of Appeals of North Carolina.

December 1, 1998.

Michael F. Easley, Attorney General by Joyce S. Rutledge, Associate Attorney General, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Anne M. Gomez, Assistant Appellate Defender, Durham, for defendant-appellant.

SMITH, Judge.

Defendant was charged with two counts of robbery with a dangerous weapon for the robbery of Anchor Seafood Restaurants, Inc., d/b/a Firehouse Fish-N-Fixins Restaurant (Firehouse) and one of its employees. Defendant pled not guilty to both counts and the cases were consolidated for hearing. The jury found defendant guilty on both counts and defendant was sentenced to a term of imprisonment.

I.

Defendant first assigns as error the grand jury indictments charging him with the crimes. Both indictments were signed by the grand jury foreman and clearly indicated the charges against defendant, but neither of the boxes designating "True Bill" or "Not a True Bill" were marked. Defendant claims this omission renders the indictments fatally defective and thus invalid. We disagree.

Article I, section 22 of the North Carolina Constitution states that "no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment." N.C. Const. art. I, § 22. The purposes of this section are not to require adherence to mere technicalities of law, but to provide notice to the defendant of the crime with which he is charged, to protect the defendant from twice being tried for the same offense, to enable the defendant to adequately prepare a defense, and to enable the court to properly pronounce the sentence imposed. See State v. Stokes, 274 N.C. 409, 411, 163 S.E.2d 770, 772 (1968)

. So long as the indictment charges "`in a plain, intelligible and explicit manner,' the criminal offense the accused is `put to answer,' [then that indictment] affords the protection guaranteed by Art. I, Secs. 11 and 12, Constitution of North Carolina." State v. Helms, 247 N.C. 740, 742, 102 S.E.2d 241, 243 (1958) (citations omitted); N.C. Gen.Stat. § 15-153 (1983) (indictment is sufficient in form if it states the charge against the defendant in a "plain, intelligible, and explicit manner"); see also State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978) (indictment constitutionally sufficient if it apprises defendant of charge).

This does not end our inquiry, however, because N.C. Gen. Stat. § 15A-644(a) contains certain requirements for a valid indictment. This section states that an indictment must contain the following:

(1) The name of the superior court in which it is filed;

(2) The title of the action;

(3) Criminal charges pleaded as provided in Article 49 of this Chapter, Pleadings and Joinder;

(4) The signature of the prosecutor, but its omission is not a fatal defect; and

(5) The signature of the foreman or acting foreman of the grand jury attesting the concurrence of 12 or more grand jurors in the finding of a true bill of indictment.

N.C. Gen.Stat. § 15A-644(a) (1997) (emphasis added). Although subsection (a)(5) sounds mandatory, it has been held to be merely directory. See State v. House, 295 N.C. 189, 201, 244 S.E.2d 654, 660 (1978)

; State v. Midyette, 45 N.C.App. 87, 262 S.E.2d 353 (1980). Reading the provision as directory "makes substance paramount over form." Midyette, 45 N.C.App. at 89,

262 S.E.2d at 354; see House, 295 N.C. at 203,

244 S.E.2d at 662 ("to interpret [this provision] as requiring the quashing of a bill of indictment... [for failure to attest to concurrence of twelve or more jurors] would be to attribute to the Legislature an intent to paramount mere form over substance"). Finally, with regard to this provision, it is important to note that State v. McBroom, 127 N.C. 528, 37 S.E. 193 (1900), which held that the endorsement "a true bill" is essential to the validity of an indictment, was expressly overruled in State v. Sultan, 142 N.C. 569, 54 S.E. 841 (1906).

Although the attestation by the foreman is a mere technicality, there must be some evidence in the record that a "true bill" was presented to the court. See Midyette, 45 N.C.App. 87,262 S.E.2d 353; see also Sultan, 142 N.C. at 573, 54 S.E. at 842 ("[N]o endorsement by the grand jury is necessary. The record that it was presented by the grand jury is sufficient in the absence of evidence to impeach it."); State v. Avant, 202 N.C. 680, 682, 163 S.E. 806, 807 (1932) ("There is no statute in this State requiring that a bill of indictment, which has been duly considered and returned into court by a grand jury shall be endorsed by the foreman or otherwise, as `a true bill,' or as `not a true bill.'"). This Court, in Midyette, a case very similar to the one before us, held that "an indictment returned by the grand jury is not defective or insufficient where the foreman failed to mark the box indicating a true bill or not a true bill where the court minutes show that all bills of indictment were returned true bills." Midyette, 45 N.C.App. at 90,

262 S.E.2d at 355 (emphasis added). Likewise, the North Carolina Supreme Court has stated,

It is provided by statute ... that grand juries shall return all bills of indictment in open court through their acting foreman.... No endorsement by the foreman or otherwise is essential to the validity of an indictment, which has been duly returned into court by the grand jury, and entered upon its records. The validity of the indictment is determined by the records of the court, and not by the endorsements, or the absence of endorsements on the bill.

Avant, 202 N.C. at 682-83, 163 S.E. at 807 (citations omitted).

The problem we face in this case is that the parties have provided us with no evidence whatsoever of the presentation of the bill of indictment to the trial court, thus rendering us unable to determine from the record the validity of the indictment. We must therefore rely on the presumption of validity of the trial court's decision to go forward with this case. It is the defendant's burden to prove reversible error which prejudiced the outcome of his case. See State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). Because defendant failed to meet this burden by not providing this Court with evidence that the trial court was unjustified in assuming jurisdiction over this case, we hold that the indictment is valid. However, because this issue was raised for the first time on appeal, this holding is without prejudice to defendant's right to file a motion with the trial court regarding the validity of the bill of indictment.

II.

Defendant next asserts that the trial court erred in not suppressing his 8 January 1997 statement to the police. On this date, detectives found defendant at a friend's home and asked him to accompany them to the police station. Defendant agreed. Detectives offered defendant a ride in the police car, which defendant accepted. They then drove defendant to the station and questioned him about the Firehouse robbery. Defendant was advised that he did not have to stay, but that the officers needed to talk to him. No Miranda warnings were given. The questioning lasted approximately one or one and one-half hours, wherein defendant made inculpatory statements regarding his involvement in the robbery. Defendant's counsel objected to the introduction of this statement on the ground that defendant was "in custody" and had not been given his Miranda warnings. The trial court, after a lengthy voir dire hearing, overruled this objection and allowed the introduction of this statement, stating:

At this time as to the statement made on January 8th, the Court will find that this statement and the events leading up to it, he had not been arrested at that time. Also, that he had voluntarily gone on request to discuss matters with the law enforcement officers. The Court will further find that it appears that there was nothing extraordinary as to promises or leniency for his assistance. The Court will not suppress the January 8th statement as it so appears.

At the outset, we should note that "[t]he trial court's findings of fact after a voir dire hearing concerning the admissibility of the confession are conclusive and binding on the appellate courts when supported by competent evidence." State v. Davis, 305 N.C. 400, 410, 290 S.E.2d 574, 581 (1982) (citing State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977)). The question of whether defendant was in custody, for purposes of Miranda, is a question of law, however, and fully reviewable by this Court. Although the trial judge found that defendant "had not been arrested" at the time the statement was made, there was no finding as to whether defendant was in custody. "The absence of such a finding, however, does not prevent this Court from examining the record and determining whether defendant was in custody." State v. Torres, 330 N.C. 517, 525, 412 S.E.2d 20, 24 (1992) (citing Davis, 305 N.C. at 414-15,290 S.E.2d at 583).

A person is in custody, for purposes of Miranda, when he is "taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). This does not extend to pre-arrest investigative activities. See State v. Pruitt, 286 N.C. 442, 448, 212 S.E.2d 92, 96 (1975). The United States Supreme Court has spoken on the issue of whether a defendant is in custody. "In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but `the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.'" Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293, 298 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77...