State v. Small

• Citation: 239 S.E.2d 429,293 N.C. 646
• Decision Date: 15 December 1977
• Docket Number: No. 36,36
• Parties: STATE of North Carolina v. Ronald Earl SMALL.
• Court: North Carolina Supreme Court

Page 429

239 S.E.2d 429

293 N.C. 646

STATE of North Carolina v. Ronald Earl SMALL.

No. 36.

Supreme Court of North Carolina.

Dec. 15, 1977.

Rufus L. Edmisten, Atty. Gen., by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State.

Robert E. Whitley, Kinston, for the defendant.

BRANCH, Justice.

Defendant's first assignment of error is that the trial judge erred in denying his motion to suppress defendant's in-custody statements because they were not understandingly and voluntarily made.

The unquestioned rule in this jurisdiction is that the ultimate test of the admissibility of a confession is whether the confession was, in fact, understandingly and voluntarily made. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Gray, 268 N.C. 69, 150 S.E.2d 1, Cert. denied, 386 U.S. 911, 87 S.Ct. 860, 17 L.Ed.2d 784. Thus, a confession is involuntary and not admissible into evidence when it is induced by threat, coercion, hope, or promise of reward. State v. Fox, 274 N.C. 277, 163 S.E.2d 492; State v. Biggs, 224 N.C. 23, 29 S.E.2d 121; State v. Roberts, 12 N.C. 259. Whether the conduct of an officer amounts to such coercion or promise of reward as would render a subsequent confession involuntary is a question of law reviewable on appeal. State v. Biggs, supra.

Defendant contends that his confession was induced by the coercive conduct of the police officers. He relies heavily on State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92, to support his contention. His reliance upon Pruitt is misplaced. In Pruitt, the uncontradicted evidence on the voir dire hearing showed that the police officers repeatedly told defendant they knew he committed the crime and that his story had too many holes in it; that he was lying and they did not want to "fool around;" that he was the kind of person who would be relieved to get it off his chest; and that it would be harder on him if he did not go ahead and cooperate.

In the present case, defendant offered evidence to the effect that the officers told him he was lying and that Officer Joyner offered to intercede with the judge in his behalf. The officers specifically denied any such conduct. Furthermore, the contention that defendant was questioned in an oppressively police-dominated atmosphere is tempered by the evidence showing that when defendant's family arrived at the police station interrogation ceased and his family was permitted to visit privately with him for about thirty minutes.

At the conclusion of the voir dire in this case, the trial judge, inter alia, found the following facts:

7. The defendant on September 12, 1976 was 18 years of age, had completed the 11th grade and was in control of his mental and physical faculties and did not appear to be under the influence of any drugs or intoxicants and that he did appear to be nervous; that during said interrogation and questioning no reward or inducement by any of the said law enforcement officers or hope of reward or inducement was made to the defendant to make any statement or confession;

8. That no threats or show of violence by any of said law enforcement officers were made to persuade or induce the defendant to make any statement of confession Based upon the above findings the trial judge concluded:

6. That the statement made by the defendant to said officers on September 12, 1976, and introduced on voir dire as State's Exhibits 2 and 3 were made voluntarily, knowingly and independently.

When the trial judge's findings are supported by competent evidence, they will not be disturbed on appeal even though the evidence is conflicting. State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123; State v. Bullock, 268 N.C. 560, 151 S.E.2d 9. Here there was ample evidence to support the trial judge's findings as to the voluntariness of defendant's confession and the findings in turn support his conclusion that the inculpatory statements were made voluntarily and knowingly. The uncontradicted facts that one of the officers told defendant that he could not "buy" one of his statements and that defendant was then told that he should tell the truth do not constitute a persuasive showing that defendant's will was overborne by these acts of the police officers. See, State v. Thomas, 241 N.C. 337, 85 S.E.2d 300.

Defendant further contends by this assignment of error that the confession evidence was inadmissible because defendant was illegally arrested.

An arrest without a warrant, except as authorized by statute, is illegal. State v. McCloud, 276 N.C. 518, 173 S.E.2d 753. Assuming arguendo that defendant was placed under arrest when he was handcuffed in his home, we are of the opinion that such an arrest would have been legal.

G.S. 15A-401(b)(2) in part provides:

Offense Out of Presence of Officer. An officer may arrest without a warrant any person who the officer has probable cause to believe:

a. Has committed a felony . . . .

In State v. Harris, 279 N.C. 307, 182 S.E.2d 364, a police officer observed the defendant go to a place in the woods where stolen goods were concealed, look around and then leave. This Court held that the police officer had probable cause to believe that the defendant had committed a felony and consequently that both his arrest without a warrant and the ensuing search of his person were lawful. In so holding, Justice Sharp (now Chief Justice) speaking for the Court stated:

Probable cause and "reasonable ground to believe" are substantially equivalent terms. "Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. . . . To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. One does not have probable cause unless he has information of facts which, if submitted to a magistrate, would require the issuance of an arrest warrant." 5 Am.Jur.2d Arrests Section 44 (1962). "The existence of 'probable cause,' justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved." (Citations omitted.) 279 N.C. at 311, 182 S.E.2d at 367.

In the case sub judice, a police officer observed a person in the early morning hours of 12 September 1976 wearing bloody clothes within 200 feet of the place where the beaten, bloody victim was later discovered. The officer made a tentative identification of defendant from a high school annual. He and other officers proceeded to defendant's home where he observed the same person he had earlier seen that morning. At approximately the same time, he saw blood spotted clothing similar to those worn by this person when he saw him in the early hours of the day. These circumstances were sufficient to warrant a reasonable belief that defendant was guilty of the felonious assault on Alexandria Hill. Therefore, defendant's arrest was not illegal.

We hold that defendant's in-custody statements were understandingly and voluntarily made subsequent to a lawful arrest.

By his second assignment of error, defendant avers that the trial judge erred in denying his motion to suppress all statements made by defendant to police officers because he was not properly advised of his constitutional rights.

Defendant admits that, prior to his initial interrogation, he was fully warned as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. It is also uncontroverted that he understandingly waived these rights both orally and in writing. His position is that the 25 to 30 minute break in his interrogation when he was permitted to talk with his family was such a time lapse as to require that he be readvised of his Miranda rights.

The factors to be considered in determining whether the initial warning became so stale and remote that a substantial possibility exists that a defendant was unaware of his constitutional rights in a subsequent interrogation when proper warnings had previously been given are stated in State v. McZorn, 288 N.C. 417, 219 S.E.2d 201, modified as to death sentence, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210, as follows:

. . . (1) the length of time between the giving of the first warnings and the subsequent interrogation . . . (2) whether the warnings and the subsequent interrogation were given in the same or different places . . . (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers . . . (4) the extent to which the subsequent statement differed from any previous statements . . . (5) the apparent intellectual and emotional state of the suspect. . . . (Citations Omitted.)

In the case before us, the subsequent interrogation took place within thirty minutes after the initial questioning was recessed. It was conducted in the same room by the same officers and concerned the same subject matter. There was no evidence that defendant was emotionally or mentally unstable or that he was unaware of his constitutional rights during the latter interrogation. Therefore, the failure of the officers to repeat the Miranda warnings did not render defendant's confession inadmissible.

Defendant next assigns as error the denial of his motion to suppress evidence relating to clothing taken from his residence. He argues that the clothing was taken from his home as a result of an illegal search and seizure.

Evidence obtained by an unreasonable search and seizure is inadmissible. See, U.S.Const. Amend. IV; N.C.Const. Art. 1, Section 20; State v. Colson, 274 N.C. 295, 163 S.E.2d 376, cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780. However, it is now well settled that when evidence is...