State v. McLean

• Decision Date: 17 April 1978
• Docket Number: No. 33,33
• Citation: 242 S.E.2d 814,294 N.C. 623
• Parties: STATE of North Carolina v. Robert McLEAN, Jr.
• Court: North Carolina Supreme Court

Page 814

242 S.E.2d 814

294 N.C. 623

STATE of North Carolina v. Robert McLEAN, Jr.

No. 33.

Supreme Court of North Carolina.

April 17, 1978.

Rufus L. Edmisten, Atty. Gen., by Rudolph A. Ashton, III, Associate Atty. Gen., Raleigh, for the State.

Thomas P. McNamara, Raleigh, for defendant-appellant.

HUSKINS, Justice:

By his first assignment of error defendant contends the trial court improperly admitted into evidence the statements defendant made to Detective Holder. Defendant argues that at the time these statements were made he had not been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and accordingly the statements are inadmissible under Miranda rules.

Miranda held inadmissible only those statements made in response to "custodial interrogation" and not preceded by the requisite warnings. "By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706 (footnote omitted). The Supreme Court emphasized that only statements elicited by interrogation were affected by its holding: "The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. Accordingly, the question presented for review is whether Detective Holder's conduct constitutes "interrogation."

Cases from other jurisdictions disclose a notable lack of consensus concerning what conduct constitutes interrogation. It has been held that officers may read a ballistics report to an accused (Combs v. Commonwealth, 438 S.W.2d 82 (Ky.1969)), escort an accused to a confrontation with a codefendant (People v. Doss, 44 Ill.2d 541, 256 N.E.2d 753 (1970); see also Rosher v. State, 319 So.2d 150 (Fla.App.1975)), tell a defendant what statements have been made by a codefendant (Howell v. State, 5 Md.App. 337, 247 A.2d 291 (1968)), or ask a defendant about the origin of marijuana found in his car (Santos v. Bayley, 400 F.Supp. 784 (M.D.Pa.1975)) without being engaged in interrogation within the meaning of Miranda. Other courts have shown less hesitancy in finding officers' conduct to be interrogatory in nature. See, e. g., People v. Paulin, 33 A.D.2d 105, 308 N.Y.S.2d 883 (1969) (query concerning funeral arrangements is interrogation); Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973) (reading statement of codefendant to accused is interrogation). The United States Supreme Court has likewise had difficulty in determining what is meant by "interrogation." In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), that Court held that an officer's declaratory statements to defendant in absence of his counsel, avowedly made for the purpose of eliciting information from him, constituted interrogation. Justice Blackmun, in a dissent joined by Justices White and Rehnquist, contended otherwise, stating "not every attempt to elicit information should be regarded as 'tantamount to interrogation.' " 430 U.S. at 439, 97 S.Ct. at 1260, 51 L.Ed.2d at 462.

Given such widespread disagreement, we formulate no all-inclusive definition of "custodial interrogation." Rather, we elect to follow the case-by-case approach advocated by some of the federal courts. See United States v. Akin, 435 F.2d 1011 (5th Cir. 1970); United States v. Charles, 371 F.Supp. 204 (E.D.N.Y.1973) (each discussing whether defendant was in custody and hence had been subjected to custodial interrogation).

Under the facts of the present case we hold that Detective Holder was not engaged in interrogation when defendant made the statements which were subsequently offered in evidence against him. Holder did not ask questions or engage in conduct which, in our view, is inquisitional in nature. See State v. Burton, 22 N.C.App. 559, 207 S.E.2d 344, cert. denied, 286 N.C. 212, 209 S.E.2d 316 (1974). See also People v. Leffew, 58 Mich.App. 533, 228 N.W.2d 449 (1975). Accordingly, the trial court's findings and conclusions that defendant's statements were volunteered and therefore admissible were correct. See State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). In so deciding, however, we explicitly recognize that future cases may disclose acts or declarations, or both, which constitute "custodial interrogation" although no questions are asked. Defendant's first assignment of error is overruled.

By his second assignment of error defendant contends the trial court erred in denying his request to examine the rape victim's handwritten statement made several days after she was assaulted. This statement had been given to the prosecuting attorney by Miss Walker, and she made mention of it during the course of her cross-examination. Defense counsel then specifically requested permission to inspect the statement. This request was denied. The trial court conducted no in camera inspection of the statement and made no findings of fact relating to the denial of defendant's request.

In State v. Hardy, 293 N.C. 105 at 127-28, 235 S.E.2d 828 at 842 (1977), we held that "justice requires the judge to order an in camera inspection when a specific request is made at trial for disclosure of evidence in the State's possession that is obviously relevant, competent and not privileged." If the court then determines that such evidence is material and favorable to the defense, it must order that it be disclosed to defense counsel. As noted in the Hardy opinion, "The relevancy for impeachment purposes of a prior statement of a material State's witness is obvious." Id. Accordingly, it was error for the trial court to deny summarily defendant's specific request for the prior written statement of State's witness Gwen Walker.

While defendant failed to move at trial that a sealed transcript of Miss Walker's statement be placed in the record for appellate review, prosecution and defense counsel did enter into a stipulation that the statement be made a part of the record on appeal. Accordingly, we now consider and determine whether the court's refusal to permit defense counsel to examine this statement at trial constitutes prejudicial error. Compare State v. Hardy, supra, at 128, 235 S.E.2d at 842. In order to resolve this issue, we must address two questions. First, was Miss Walker's prior statement favorable and material to the defense? If so, the trial court should have ordered that the statement be disclosed. If not, the trial court committed no prejudicial error, although the procedure followed by Judge McConnell was improper under the Hardy rule. Second, was the prior statement sufficiently favorable to the accused that it created "a reasonable doubt that did not otherwise exist" as to the guilt of the accused? United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342, 355 (1976). If the undisclosed statement does not create such a doubt, the error arising from its nondisclosure is harmless and does not necessitate a new trial. Id.

We are persuaded that Miss Walker's prior statement is weakly "favorable and material" to the defense in that she testified on cross-examination that she was knocked unconscious when defendant forced her to the ground but her prior written statement made no mention of unconsciousness. This discrepancy might have been exploited by defense counsel to question the accuracy of her recollection concerning her version of other events which transpired on the evening she was assaulted. The trial court, therefore, should have granted defendant's request to inspect the statement. Even so, the content of the statement falls woefully short of creating a reasonable doubt as to defendant's guilt. It corroborates Miss Walker's testimony in almost every respect and discloses nothing which calls into question her veracity or casts significant doubt on the accuracy of her testimony at trial. Under the harmless error standard set forth in Agurs, or any other standard for harmless error (see, e. g., Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)), Judge McConnell's error in refusing to order this statement disclosed to defense counsel is harmless and does not warrant a new trial. Accordingly, defendant's second assignment of error is overruled.

During cross-examination of Miss Walker defense counsel asked whether the persons who responded when she banged on the door of her apartment after she had been assaulted were wearing any clothes. The trial court thereupon, on its own motion, excused the jury and instructed defense counsel that it regarded this question as an attempt to attack the character of Miss Walker's housemates by innuendo, and that such questioning was improper. Defendant's exception to this ruling constitutes his third assignment of error. He contends the trial court's ruling improperly curtailed his right to develop facts relating to "the environment of sexual immorality and promiscuity in which the prosecutrix voluntarily chose to live" and precluded him from testing her recollection of events which transpired on the evening she was assaulted.

In this jurisdiction cross-examination may concern any subject which is relevant to the issues in the case. State v. Huskins, 209 N.C. 727, 184 S.E. 480 (1936). The cross-examination must, however, concern relevant matters. Yadkin Valley Motor Co. v. Ins. Co., 220 N.C. 168, 16 S.E.2d 847 (1941). And determination of the proper limit of cross-examination rests largely in the discretion of the trial judge. See, e. g., State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971).

Whether Miss Walker lived in an "environment of...