State v. McCloud

• Decision Date: 13 May 1970
• Docket Number: No. 32,32
• Parties: STATE of North Carolina v. Richard DeWayne McCLOUD.
• Court: North Carolina Supreme Court

Page 753

173 S.E.2d 753

276 N.C. 518

STATE of North Carolina v. Richard DeWayne McCLOUD.

No. 32.

Supreme Court of North Carolina.

May 13, 1970.

Atty. Gen. Robert Morgan and Staff Atty., Christine Y. Denson, Raleigh, for the State.

Forrest E. Campbell, Greensboro, for defendant.

BRANCH, Justice.

Defendant assigns as error the admission of testimony by police officers concerning his alleged in-custody confession.

Upon defendant's objection to the testimony concerning his alleged confession, the trial court properly followed the procedure approved by this Court and the United States Supreme Court. State v. Gray, 268 N.C. 69, 150 S.E.2d 1; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. There was ample evidence to support the findings of fact, and the findings of fact, in turn, supported the conclusion (denominated a finding) that defendant 'freely, understandingly and voluntarily' made the various statements. Defendant offered no evidence on Voir dire and the State offered no evidence on Voir dire tending to establish an illegal arrest or an illegal search and seizure.

At the conclusion of the Voir dire the trial judge correctly admitted the alleged confession into evidence before the jury. State v. Barnes, 264 N.C. 517, 142 S.E.2d 344, and State v. Gray, supra. The State offered no evidence before the jury tending to establish an illegal arrest or an illegal search and seizure. However, defendant, testifying in his own behalf before the jury, gave evidence concerning his arrest and the seizure of certain coins from his motel room at the time of his arrest. Based upon this testimony, defendant now argues that his confession was involuntary because it was the product of an illegal arrest and an illegal search and seizure.

An arrest without warrant, except as authorized by statute, is illegal. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100.

G.S. § 15--41, in part, provides:

(1) When the person to be arrested has committed a felony or misdemeanor in the presence of the officer, or when the officer has reasonable ground to believe that the person to be arrested has committed a felony or misdemeanor in his presence;'

Further, any evidence seized from a defendant by unlawful search in violation of his Fourth Amendment rights is excluded from evidence in a criminal trial. Such unlawful search is not made lawful because of resulting discoveries. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Fruits of such evidence are excluded as well. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. And one who seeks to justify a warrantless search has the burden of showing that the exigencies of the situation made search without a warrant imperative. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed. 685; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.

Our research reveals no North Carolina cases in point concerning arrests for minor immoral offenses in which the officers entered premises occupied by defendant to make an arrest without warrant, on the ground that the offense was committed in the presence of the officer. However, other jurisdictions have reached the conclusion, under circumstances similar to those here related, that the offense was not committed in the presence of the officer.

In the case of Hart v. State, 195 Ind. 384, 145 N.E. 492, which was a prosecution for shooting a police officer who was standing outside the defendant's room when other officers broke into his room without a warrant and found a woman asleep in the defendant's bed, the Indiana Court reversed conviction for assault on the police officer on the basis that no misdemeanor was committed 'in view of the police officers' and the officers therefore had no authority to break into and search private rooms without a warrant. Accord: Adair v. Williams, 24 Ariz. 422, 210 P. 853; Goodwin v. Allen, 83 Ga.App. 615, 64 S.E.2d 212.

It would seem that unless the misdemeanor is committed in the presence of the officer in the sense that at the time of its commission through his sensory perception he might know that a misdemeanor is being committed in his presence or have reasonable ground to believe that a misdemeanor has been committed in his presence, that an arrest cannot be made without warrant. The record before us fails to show facts which would justify uninvited entry into defendant's room to make an arrest for a misdemeanor without a warrant, on the ground that the officer had reasonable ground to believe the person committed a misdemeanor in his presence. Defendant's arrest was illegal. Neither did the State justify the warrantless search by showing that the circumstances made search without a proper warrant imperative. Thus the coins taken from the motel room were unlawfully seized.

The rule in North Carolina is that a confession following an illegal arrest is not Ipso facto involuntary and inadmissible, but the circumstances surrounding such an arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible. State v. Moore, 275 N.C. 141, 166 S.E.2d 53.

It has long been the rule in this jurisdiction that the admissibility of a confession is determined by the facts appearing in evidence when it is received or rejected, and not by facts appearing in evidence at a later stage in the trial. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572. However, defendant points to the line of cases represented by Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242, and Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895, as altering this rule.

In the case of Davis v. North Carolina, supra, the petitioner was a Negro of low mentality who was kept in a detention cell for sixteen days, where he spoke to no one but the police and was subjected to daily, intermittent interrogation. There was no evidence that he was advised of his 'constitutional rights.' A purported confession by petitioner was offered into evidence over petitioner's objection, and the court heard conflicting evidence on the issue and ruled the confession to be voluntary and admissible. Holding the confession to be involuntary, the United States Supreme Court stated:

'It is our duty in this case, however, as in all of our prior cases dealing with the question whether a confession was involuntarily given, to examine the Entire record and make an independent determination of the ultimate issue of voluntariness. E.g., Haynes v. State of Washington, 373 U.S. 503, 515--516, 83 S.Ct. 1336, 1344--1345, 10 L.Ed.2d 513 (521, 522) (1963); Blackburn v. State of Alabama, 361 U.S. 199, 205, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (247) (1960); Ashcraft v. State of Tennessee, 322 U.S. 143, 147--148, 64 S.Ct. 921, 923, 88 L.Ed. 1192 (1195, 1196) (1944). Wholly apart from the disputed facts, a statement of the case from facts established in the record, in our view, leads plainly to the conclusion that the confessions were the product of a will overborne.' (Emphasis added)

In Blackburn v. Alabama, supra, petitioner was arrested on a charge of robbery during an unauthorized absence from a veterans' hospital where he had been classified as one hundred percent mentally incompetent. He had previously been discharged from the army because of permanent mental disability. He signed a confession written by a deputy sheriff after eight or nine hours of sustained interrogation. Shortly thereafter he was committed to a State hospital after a finding of insanity. However, four years later he was declared competent to stand trial. Upon his trial in an Alabama State Court, his confession was admitted into evidence over objection, after a Voir dire hearing by the court. Important evidence concerning the involuntariness of the confession was not introduced until after admission of the confession into evidence, and defendant's counsel did not later request reconsideration of that ruling. Holding that the use of this confession violated defendant's constitutional rights, the United States Supreme Court said:

'We take note also of respondent's argument that our decision must be predicated solely upon the evidence introduced by defendant before admission of the confession. * * * It is quite true that Blackburn's counsel, so far as the record shows, made no request that the judge reconsider his ruling on the basis of this additional data.

'* * * (W)e reject the motion that the scope of our review can be thus restricted. Where the involuntariness of a confession is Conclusively demonstrated at any stage of a trial, the defendant is deprived of due process bny entry of judgment of conviction without exclusion of the confession.' (Emphasis added)

At this point we think it proper to consider and distinguish instant case from the case of State v. Hall, 264 N.C. 559, 142 S.E.2d 177. In Hall the State offered in evidence articles obtained from defendant's home without a search warrant while the defendant was in jail. The search was made with consent of defendant's wife. Defendant was confronted with the articles and he thereupon admitted that he stole the property. The facts to not show whether a Voir dire hearing was held to determine admissibility of the confession at the first trial. This Court, in holding that the property was unlawfully obtained and improperly admitted into evidence, said:

'* * * However, the confession which led to its recovery was not made until the officers confronted the defendant in jail with the clock and radio which they had obtained as a result of a search which had violated his rights. At the next trial the court may determine whether the confession was actually free and voluntary or whether it was triggered by the use the officers made of the fruits of their illegal search to such an extent as to render...