State v. Riddick

• Decision Date: 21 December 1976
• Docket Number: No. 16,16
• Parties: STATE of North Carolina v. Herman Leroy RIDDICK, Jr.
• Court: North Carolina Supreme Court

Page 506

230 S.E.2d 506

291 N.C. 399

STATE of North Carolina v. Herman Leroy RIDDICK, Jr.

No. 16.

Supreme Court of North Carolina.

Dec. 21, 1976.

Rufus L. Edmisten, Atty. Gen., John M. Silverstein, Special Deputy Atty. Gen., Raleigh, for the State of North Carolina.

Frank W. Ballance, Jr., Warrenton, for defendant-appellant.

HUSKINS, Justice:

Was the search warrant in this case issued upon a showing of probable cause to search the described premises? If so, the search warrant was validly issued; otherwise not. State v. Ellington, 284 N.C. 198, 200 S.E.2d 177 (1973); State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972). Defendant contends no probable cause was shown in the affidavit upon which the warrant was issued and the court therefore erred in admitting the fruits of the search. This constitutes his first assignment of error.

Within the meaning of the Fourth Amendment and G.S. 15--25(a), now G.S. 15A--243 to 245, probable cause means a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Campbell, supra. Thus, the affidavit upon which a search warrant is issued is sufficient if it 'supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender.' State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).

Here, the affidavit in question detailed the presence of tracks made by tennis shoes with a diamond tread leading from the victim's residence to a point near the Riddick premises. It specified reasons for searching those premises for tennis shoes with a diamond tread, for the possible murder weapon, for loot stolen from the victim's home, and gave reasons why such evidence might be found in the Riddick household. We hold the affidavit contains a sufficient recital of facts and underlying circumstances to constitute probable cause for issuance of the search warrant.

In the alternative, defendant argues that the search warrant, even if validly issued, did not cover the room occupied by him and his wife. Thus he contends the seizure of his shoes and clothing was illegal. For the reasons which follow, this contention has no merit.

The lawfully issued search warrant authorized the officers to search the premises occupied by Anthony Riddick, H. Leroy Riddick and Velma Riddick. While searching Anthony's room the officers saw, through an open doorway, a pair of tennis shoes similar to those described in the warrant and later determined to belong to defendant. Seizure of these shoes was lawful. '(A)n item is lawfully seized even though it is not listed in the warrant if the officer is at a place where he has a legal right to be and if the item seized is in plain view.' State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). Accord, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974). Nor were the officers required to terminate the search once the tennis shoes of Anthony Riddick were seized. When the officers discovered three pairs of shoes, each of which fit the description in the warrant, it was lawful to seize all three pairs. G.S. 15--25 (Cum.Supp.1974).

Defendant further argues that even if the search and seizure was constitutionally permissible, it was illegal under the new rules of criminal procedure, particularly G.S. 15A--253. It suffices to say that these rules were effective 1 September 1975 and thus are not applicable to this search which took place prior to that date. Even so, were the new rules applicable, the search and seizure here in question did not violate them.

Defendant's final contention under his first assignment of error is that his alleged consent to a search on the afternoon of June 27 was invalid because the officers advised him they had seized the wrong clothing initially and his 'consent' for an additional search was in reality only acquiescence and thus not free and voluntary. This contention has no merit because it finds no support in the record. The record discloses that defendant told the officers they had seized the wrong clothes--not the other way around, and defendant himself suggested that the officers exchange the clothing then in their possession for the clothing he said he was actually wearing on June 26. Under those circumstances, the officers returned to the Riddick home and, with defendant's free and voluntary consent, joined him in searching for a pair of bell-bottom dungarees and a blue zip-up shirt he said he was wearing on June 26. It was during that search that the officers saw the blue T-shirt on the washstand with a torn place in the front of it similar in size and shape to a blue scrap of material that had been found on the dining room floor where Mrs. Dozier's body was discovered. Moreover, the testimony of defendant's mother confirms and corroborates the testimony of the officers that defendant freely consented to the search he now seeks to question. There is no merit in defendant's first assignment of error.

Defendant's second assignment is grounded on his contention that the court erred by admitting over objection his extrajudicial incriminating statement made to SBI Agents Brinson and Wise on July 2 after he had exercised his right to remain silent and to have an attorney present.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), lays down the ground rules governing the admissibility of statements obtained from an accused during custodial police interrogation. These rules prescribe that the suspect must be advised (1) that he has a right to remain silent; (2) that anything he says can and will be used against him in court; (3) that he has a right to consult with a lawyer and to have a lawyer with him during interrogation; (4) that if he is an indigent a lawyer will be appointed to represent him; and (5) that if he at any time prior to or during questioning indicates that he wishes to stop answering questions or to consult with an attorney before speaking further, the interrogation must cease. The totality of circumstances under which the statement is made should be considered in passing upon its competency, State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620 (1965); and the statement is rendered incompetent by circumstances indicating coercion or involuntary action. State v. Guffey,261 N.C. 322, 134 S.E.2d 619 (1964).

When the admissibility of an incustody confession is challenged the trial judge must conduct a Voir dire to determine whether the requirements of Miranda have been met and whether the confession was in fact voluntarily made. The general rule is that the trial judge, at the close of the Voir dire hearing, Should make findings of fact to show the bases of his ruling. See State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975); State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969). If there is a Material conflict in the evidence on Voir dire he Must do so in order to resolve the conflict. State v. Smith, 278 N.C. 36, 178 S.E.2d 597 (1970). If there is no conflict in the evidence on Voir dire, it is not error to admit a confession without making specific findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends. State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976); State v. Simmons,286 N.C. 681, 213 S.E.2d 280 (1975); State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971). In that event the necessary findings are implied from the admission of the confession into evidence. State v. Whitley, 288 N.C. 106, 215 S.E.2d 568 (1975). If there is a conflict in the evidence which is Immaterial and has no effect on the admissibility of the confession, it is not error to admit the confession without findings because the purpose of specific findings of fact is to show, for the benefit of the appellate court on review, the factual bases of the trial court's determination of admissibility. State v. Conyers, 267 N.C. 618, 148 S.E.2d 569 (1966); State v. Walker, 266 N.C. 269, 145 S.E.2d 833 (1966). Thus, where a conflict in the evidence is immaterial and does not affect the admissibility of the challenged statement, findings are not required, although again, it is always the better practice to make findings.

The question now before us is whether the evidence on Voir dire, considered in its totality, shows a violation of the Miranda rules by continued interrogation of defendant after 10:10 a.m. when he stated he would not answer any more questions and wanted to consult a lawyer. For the reasons which follow, we hold that it does not.

The record discloses that on 27 June 1975 and twice on 2 July 1975 defendant was fully advised of his constitutional rights as required by Miranda. On each occasion defendant stated that he understood his rights and, having them in mind, wished to answer the questions without a lawyer present.

When interrogated on June 27 defendant gave a detailed statement of his activities on June 26, the day Mrs. Dozier was murdered. In that narrative he stated he had worn a pair of bell-bottom dungarees, a blue zip-up shirt, and the pair of tennis shoes the officers had seized. He said he did not go in or near the Dozier house but was rabbit hunting with his dogs in the field behind the Dozier residence where the tennis shoe tracks were found.

When first interrogated on July 2 defendant substantially repeated his previous statement concerning his dress and activities on June 26. When the officers informed defendant that several witnesses said he was wearing a blue T-shirt on the day of the murder and exhibited the torn garment to him, defendant said he did not...