State v. Perry

• Decision Date: 06 November 1979
• Docket Number: No. 1,1
• Citation: 298 N.C. 502,259 S.E.2d 496
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Rickey Dan PERRY.

Page 496

259 S.E.2d 496

298 N.C. 502

STATE of North Carolina v. Rickey Dan PERRY.

No. 1.

Supreme Court of North Carolina.

Nov. 6, 1979.

John G. McCormick, Durham, for defendant-appellant.

CARLTON, Justice.

Defendant presents four arguments on this appeal. We find one of his assertions has merit and remand for sentencing.

Defendant first asserts that it was prejudicial error for the trial judge to admit the prior written statements of the two boys since their credibility had not been impeached. This is particularly prejudicial, he argues, when no instructions were given to the jury limiting the use of those statements to corroboration of their in-court testimony. Defendant conceded on oral argument that the boys' written statements were substantially the same as their in-court testimony.

Unlike the law in many other states, prior consistent statements of a witness in North Carolina are admissible as corroborative evidence even when that witness has not been impeached. State v. Best, 280 N.C. 413, 419, 186 S.E.2d 1 (1972); State v. Rose, 270 N.C. 406, 154 S.E.2d 492 (1967). Failure of a trial court to instruct that the evidence was admitted for corroborative purposes only is not reversible error when the defendant has not requested such a limiting instruction. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745, Cert. denied 410 U.S. 987, 93 S.Ct. 1516, 36 L.Ed.2d 184 (1973), and cases cited therein. Here, defendant's counsel objected generally to the admissibility of the statements but failed to request a limiting instruction. This assignment of error is overruled.

Defendant secondly asserts that the trial judge erred in failing to suppress defendant's inculpatory statements made to Detective A. W. Clayton while defendant was in the detective's automobile. Defendant argues that this questioning amounted to a custodial interrogation which was conducted without warning him of his right to remain silent or his right to counsel in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

At trial, the judge held a lengthy Voir dire hearing on the admissibility of defendant's statements. At the conclusion of the hearing he found as a fact that, Inter alia, the police were not aware a crime had been committed when they first questioned defendant. The trial court then concluded that defendant had not been subjected to Custodial interrogation.

It is well established that statements obtained as a result of custodial interrogation without the Miranda warnings are inadmissible. Miranda v. Arizona, supra ; State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977); 2 Stansbury N.C. Evidence § 184 at 72 (Brandis rev. ed. 1973) and cases cited therein. Such warnings are not required, however, when questioning occurs while defendant is not in custody. Miranda v. Arizona, supra ; State v. Biggs, supra ; State v. Sykes, 285 N.C. 202, 203 S.E.2d 849 (1974). The articulated test for custodial interrogations is whether questioning was "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." Miranda v. Arizona, supra 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713, 50 L.Ed.2d 714, 719 (1977) (per curiam); State v. Martin, 294 N.C. 702, 707, 242 S.E.2d 762, 765 (1978).

Courts have grappled with the question whether this test should be objectively applied and involve determining whether a reasonable person would believe under the circumstances that he was free to leave, or whether it should be subjectively applied and involve determining whether the defendant believed, even unreasonably, that his freedom of movement was significantly restricted. See, Note: Custodial Interrogation after Oregon v. Mathiason, 1978 Duke L. J. 1497 (1979). Most have adopted an objective test, focusing in their determination on "something . . . said or done by authorities, either in their manner of approach or in the tone or extent of questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so." U. S. v. Hall, 421 F.2d 540 (2d Cir. 1969), Cert. denied 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970). See also State v. Hatton, 116 Ariz. 142, 568 P.2d 1040 (1977); People v. Arnold, 66 Cal.2d 438, 449, 58 Cal.Rptr. 115, 122, 426 P.2d 515, 522 (1967); Myers v. State, 3 Md.App. 534, 240 A.2d 288 (1968); People v. P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967); Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977). Cf., People v. Yukl, 25 N.Y.2d 585, 589, 307 N.Y.S.2d 857, 860, 256 N.E.2d 172, 174 (1969), Cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89 (1970) (belief of a reasonable innocent person).

The United States Supreme Court itself has used an objective rather than a subjective application of the Miranda test in Oregon v. Mathiason, supra. There, defendant, a suspect in a burglary case, was asked to meet a police officer at a state parole office to answer some questions. In holding that this was not a custodial interrogation mandating Miranda warnings, the Court focused on three time frames events occurring Prior to the questionings, including the fact that the defendant had voluntarily appeared in response to a written request; events happening During the questioning, including the fact that defendant was told at the outset he was not under arrest but that he was a suspect; and events taking place After the questioning, including the fact that defendant was allowed to leave the parole office unhindered even though he had confessed to the burglary. At least one state court has echoed this objective three factor analysis. See, Hunter v. State, 596 P.2d 23 (Alaska 1979).

Although this Court has not previously articulated an objective test of custodial interrogation, we have to all practical purposes applied such a standard in our consideration of the question in the past.

In State v. Martin, 294 N.C. 702, 242 S.E. 762 (1978) police had gone to a home to question a suspect who, it turned out, was not there at the time. Encountering instead the defendant, they asked if he would talk with them. He agreed, and explained the original suspect's role in the murder while he sat in the police car. After being advised he was a witness, he was taken to City Hall where he made a statement. At the end of the statement, he involved himself as an active participant in the crime. He was immediately given his Miranda warnings but was allowed to leave. We held such investigative questioning was not custodial interrogation, citing Oregon v. Mathiason, supra, and reasoning that "all the evidence shows that defendant . . . was not under arrest and his freedom to depart was not restricted." State v. Martin, supra at 707, 242 S.E.2d at 765.

In State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977), police went to the defendant's home and asked him to help them search for deceased who was believed to have been knifed. Police asked defendant if he had been to deceased's house, and when he said yes, asked him if he had a knife. He did and he voluntarily gave it up. At the end of this conversation, the defendant volunteered an inculpatory statement and at that point all questioning ceased and he was given his Miranda warnings. There, as here, police had no certain idea a crime had been committed and were initially requesting defendant's help in an investigation. At the point when defendant volunteered a statement involving himself in a crime, he was given Miranda warnings. We again held that the initial questioning was not a custodial interrogation.

In State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978) the defendant was in jail on an unrelated charge and the police had no idea a crime had been committed in a distant county. The "interrogation" objected to was a chance remark made in idle conversation to a sheriff's deputy which placed defendant by his own admission in the county where the crime at trial had taken place. The deputy thought nothing of the remark until several days later when he was apprised of the crime in the other county. Again, we held such questioning was not custodial interrogation.

In all three cases, events occurring prior to the questioning involved primarily those routinely associated with investigations where police initially sought out a defendant only to gather information about missing persons or known crimes. In all three cases the interrogation itself involved questioning by one or two police in an open-ended, nonthreatening manner. And in all three cases, the result of the interrogations was either to release the defendant or to arrest him only if the investigation had developed probable cause to do so.

While these fact patterns do not provide the exclusive definition of noncustodial interrogation, they do apply to the case Sub judice. Here, prior to questioning, police were investigating a routine missing person report. Defendant was visited by one plainclothes detective in an unmarked car at defendant's place of work. The police did not know a crime had been committed. During questioning, defendant voluntarily entered the car and immediately gave an inculpatory statement. At that point, the detective ceased all questioning and took defendant to the station where he was given Miranda warnings. Furthermore, after giving his statements and posting bond on an unrelated charge, defendant was allowed to leave. Taking all these facts into consideration, at no point until defendant had made his inculpatory statement would a reasonable person have believed under the circumstances that his freedom of movement was restrained in any significant way so that he was "in custody."

Moreover, if Detective Clayton had not gone to the gas station to question defendant, he would have been sadly remiss in his duties. In the words of the Supreme Court in Oregon v. Mathiason :

(P)olice officers are not...