State v. Harris

• Citation: 338 N.C. 129,449 S.E.2d 371
• Decision Date: 03 November 1994
• Docket Number: No. 345A92,345A92
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina, v. Bobby Lee HARRIS.

Page 371

449 S.E.2d 371

338 N.C. 129

STATE of North Carolina, v. Bobby Lee HARRIS.

No. 345A92.

Supreme Court of North Carolina.

Nov. 3, 1994.

Michael F. Easley, Atty. Gen. by William B. Crumpler, Associate Atty. Gen., for the State.

Charles H. Henry and Charles K. Medlin, Jr., Jacksonville, for defendant-appellant.

WEBB, Justice.

The defendant's first two assignments of error deal with the admissibility of a statement the defendant made to Sheriff Ed Brown. The defendant made a motion to suppress this statement and a hearing was held on this motion.

The evidence at this hearing showed that the defendant and Joe Simpson surrendered to the sheriff's department of Haralson County, Georgia. Lt. Mack Whitney of the Onslow County Sheriff's Department and three other law enforcement officers went to Haralson County, Georgia, to return the two men to North Carolina. On the morning of 27 August 1991, Lt. Whitney met the defendant at the Haralson County Jail. Lt. Whitney fully advised the defendant of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant said he wanted an attorney and no interrogation of the defendant was had at that time. The defendant signed a form acknowledging that he had been fully advised of and understood his rights. The defendant volunteered the information that Mr. Redd's shotgun was at the home of Joe Simpson's grandmother with whom the two men had been staying while they were in Georgia. Lt. Whitney retrieved the shotgun and returned it to North Carolina.

Lt. Whitney and an SBI agent brought the defendant and Joe Simpson back to Jacksonville and put them in the Onslow County Jail on the evening of 27 August 1991. During the evening, Sheriff Brown allowed the defendant's brother to visit the defendant. The defendant's brother then came to the sheriff's office and told the sheriff that the defendant wanted to talk to him.

The sheriff had the defendant brought to his office at approximately 11:20 p.m. on 27 August 1991. Those present in the office with the sheriff and the defendant were Lt. Whitney, the defendant's brother and his brother's wife. A cassette tape was used to record the conference. The sheriff began the conference by asking the defendant whether he wanted to come and talk to him in regard to what had happened and the defendant answered that he wanted to do so. The defendant started to make a statement and Sheriff Brown then interrupted him and again advised him of his rights under Miranda except he did not advise him that he could stop answering questions at any time. The sheriff also did not ask the defendant, "[d]o you want a lawyer now?" The defendant then made an incriminating statement.

The court made findings of fact consistent with the above evidence including a finding that Sheriff Brown did not encourage the defendant to speak to him. The court concluded that the defendant freely, understandingly, voluntarily, knowingly, and intelligently waived his Miranda rights and agreed to speak with Sheriff Brown without the presence of an attorney. The defendant's motion was overruled.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court held that once a defendant has requested counsel, law enforcement officers may not again interrogate him until he is provided with counsel unless he initiates further communication with the officers. The defendant says the evidence showed Sheriff Brown plainly initiated a custodial interrogation of him in violation of Edwards. He says that the totality of circumstances, including the involvement of a family member as well as removing him from the jail to the friendlier confines of the sheriff's office, coupled with the incomplete recital of the defendant's constitutional rights, could not overcome his earlier assertion of the right to counsel. We disagree. The evidence clearly showed and the court found that the defendant initiated further communication with the sheriff. The fact that the defendant's brother carried the message to Sheriff Brown, that the defendant wanted to talk to him, does not mean the sheriff initiated the conversation. The answers the defendant gave to the sheriff as their conference began clearly show it was the defendant and not Sheriff Brown who initiated the conversation.

This assignment of error is overruled.

In his second assignment of error, the defendant contends he was not adequately warned under Miranda because Sheriff Brown did not tell him that if he decided to answer any questions he could stop at any time and ask for a lawyer and the sheriff did not ask him if he wanted a lawyer at that time. The defendant acknowledges that approximately twelve hours earlier, Lt. Whitney had properly warned him of his Miranda rights in Haralson County, Georgia.

In State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975), sentence vacated on other grounds, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976), we discussed the need to give an additional Miranda warning after a proper warning has been given. Chief Justice Sharp, writing for the Court, said,

The consensus is that although Miranda warnings, once given, are not to be accorded "unlimited efficacy or perpetuity," where no inordinate time elapses between the interrogations, the subject matter of the questioning remains the same, and there is no evidence that in the interval between the two interrogations anything occurred to dilute the first warning, repetition of the warnings is not required.

Id. at 433, 219 S.E.2d at 212. The ultimate question is whether the defendant, with full knowledge of his legal rights, knowingly and intentionally relinquished them.

There is no reason to believe the defendant, having been fully and properly advised of his Miranda rights approximately twelve hours before his interview with Sheriff Brown, had forgotten them. Certainly he should have known of his right to an attorney before he could be interrogated by the officers for he had exercised his right on that day. It was not necessary for Sheriff Brown to advise the defendant again of his rights under Miranda.

This assignment of error is overruled.

The defendant next assigns error to certain portions of the district attorney's argument to the jury, made over the objection of the defendant. The district attorney argued that the defendant was already on probation for another crime, that he knew what he was doing and, "[w]e don't have a person who [has] never been in any trouble." The defendant did not take the stand in this case and did not offer any evidence as to his own reputation and character.

The defendant, relying on State v. Tucker, 317 N.C. 532, 346 S.E.2d 417 (1986) and State v. Miller, 271 N.C. 646, 157 S.E.2d 335 (1967), says allowing the district attorney to argue as he did was error requiring a new trial. In Tucker, we ordered a new trial because the district attorney argued that testimony of former crimes, elicited only to impeach the defendant as a witness, should be considered substantive evidence for conviction. In Miller, we held it was prejudicial error in a trial for breaking or entering to imply that the defendants were habitual storebreakers when there was no evidence to support such an implication. The defendant says that by allowing the district attorney to make the argument he made in this case, the jury was inflamed to convict him for crimes for which he was not being tried.

The distinction between this case and Tucker and Miller is that in this case there was substantive evidence which supports the district attorney's argument. In his recorded statement to Sheriff Brown, which was played for the jury, the defendant said he was afraid his probation would be revoked and he needed money to leave town. This was evidence that the defendant had a motive to rob and murder Mr. Redd. The district attorney's argument was proper.

This assignment of error is overruled.

The defendant's next two assignments of error involve a motion for appropriate relief made by the defendant after the guilt phase of the trial, but before the sentencing hearing. Timothy E. Merritt and Charles K. Medlin were appointed to represent the defendant. While the jury was being selected, Mr. Medlin became aware that Mr. Merritt was ill and in pain. Mr. Medlin offered to take on more in-court responsibilities but Mr. Merritt declined, saying that the jury voir dire "kept his mind off the pain." During the seven days of jury selection, the court's schedule was interrupted three times to accommodate Mr. Merritt's need for medical treatment.

After the jury was seated, the trial proceeded without interruption. However, after the guilt phase was completed the sentencing phase was continued for eleven days because of the hospitalization of Mr. Merritt. The diagnosis at this time was bone marrow cancer and the prognosis was terminal. ¹ Mr. Merritt was relieved as counsel for the defendant and Charles H. Henry was appointed to replace him for the sentencing hearing, which was continued.

The defendant made a motion for appropriate relief prior to the sentencing hearing, contending that he had ineffective assistance of counsel because of the illness of Mr. Merritt. In the motion, which was sworn to by Mr. Medlin, Mr. Medlin said he believed the sickness and pain Mr. Merritt was suffering adversely affected his ability to conduct the trial. He said that on occasion, "Sunday sessions" were scheduled to discuss strategy and Mr. Merritt was late for them so that little strategy was discussed. Mr. Medlin said in the motion that Mr. Merritt, against his advice, made a motion in limine to suppress a part of the defendant's confession, which led the State to move to suppress other parts of the confession. Both motions were allowed, which excluded evidence of second-degree murder which might have led to a conviction of second-degree rather than first-degree murder.

Mr. Medlin also said...