State v. Rogers

• Decision Date: 02 October 1974
• Docket Number: No. 7420SC584,7420SC584
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. John ROGERS, Jr.

Page 384

208 S.E.2d 384

23 N.C.App. 142

STATE of North Carolina v. John ROGERS, Jr.

No. 7420SC584.

Court of Appeals of North Carolina.

Oct. 2, 1974.

Certiorari Denied and Appeal Dismissed by Supreme Court Nov. 8, 1974.

Atty. Gen. James H. Carson, Jr., by Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

Robert L. Huffman, Monroe, for defendant appellant.

MORRIS, Judge.

Defendant contends that the trial court erred in its finding of facts and conclusions of law at the close of voir dire examination and in denying the defendant's objections thereto. After hearing the evidence in the absence of the jury, the trial judge made findings that the defendant was properly warned of his constitutional rights as required by the Miranda decision, 'that the defendant understood his rights and that he voluntarily and understandingly waived his rights before making the alleged statement; that at no time did his mother say anything in the conference about obtaining him a lawyer prior to the time the statement was made; that at no time prior to the time the statement was made was any promise or threat made to the defendant; and that the statement was freely understandingly and voluntarily made.' On the basis of these findings the trial judge concluded as a matter of law that the statement was admissible in the trial of this action.

Defendant's first argument with respect to this assignment of error is that his mother's statement to the interrogating officers concerning obtaining an attorney for him was a request that the interrogation cease and the failure to cease the interrogation constituted a denial of his constitutional right to counsel. We find defendant's argument unpersuasive.

As the record clearly shows, all the defendant's mother did was ask if she could get him a lawyer. She did not say she was going to retain an attorney to represent her son nor did she instruct the officer to stop the interrogation until an attorney was present.

Under similar circumstances the United States Supreme Court in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), could find no denial of the right to counsel. Even if his mother had standing to insist upon or waive defendant's right to counsel, which we do not concede, as in Frazier this was but a 'passing comment'. In any event, the court found that no statement with respect to obtaining counsel was made by defendant's mother prior to defendant's giving a statement. There was sufficient competent evidence to support this finding, and it is binding on appeal. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

The defendant next argues that his confession of guilt was not made voluntarily in that he only agreed to sign the statement after officers told him what sentence he might receive if he signed the statement prepared by them as opposed to the sentence he might receive if he did not sign the statement. We also conclude that this argument is without merit.

It is well settled in this State that when an officer induces a confession from a suspect by use of hope or fear, such statement is considered involuntary in law and inadmissible into evidence. State v. Biggs, 224 N.C. 23, 29 S.E.2d 121 (1944). Here, however, there is conflicting evidence with regard to whether any promise or threat was made to the defendant prior to the time he signed the confession. The officer who questioned the defendant, denies such a threat or expression of hope was made. Such a conflict in the testimony on voir dire raises a question of credibility, which is for the determination of the trial court, and its findings of fact supported by competent evidence are conclusive. State v. Blackmon, supra. We find ample evidence in the record to support the trial judge's findings.

Defendant next contends that the trial court erred in overruling defendant's objections to questions asked of, and the denying of, defendant's motions to strike answers of Officer Mayberry relating to his conference with and statements made to him by the defendant. Defendant's sole basis for objection was that the statement confessing guilt was not voluntarily made. As we have concluded that the findings of the trial judge with regard to the voluntariness of the confession are supported by competent evidence and conclusive on appeal, this assignment of error is overruled.

It also is asserted that the trial court erred in denying defendant's motion to quash the bill of indictment and dismiss that count of the bill of indictment charging defendant with larceny of a minibike because of fatal variance between allegation and proof. In the indictment McClendon and the defendant were charged with larceny of 'one Nova-super Sport minibike and approximately six (6) dollars in money . . . of the said Thomas Gas Company'. It later developed that the minibike was not the property of said corporation, but rather was owned by one Marshall Pete Edwards. We again find no error.

As we pointed out in State v. Crawford, 3 N.C.App. 337, 164 S.E.2d 625 (1968), cert. denied 275 N.C. 138 (1968), it is not incumbent upon the State to establish the ownership of the property which the defendant Intended...