43 N.C. App. 38 | N.C. Ct. App. | 1979
The substance of the voir dire testimony was as follows:
Officer Hoggard testified that he advised defendant of his Miranda rights when he first arrived at the scene of the shooting:
I advised him that he had a right to remain silent. That anything he said would be used in a court of law. I advised him he had a right to an attorney. If he could not afford an attorney, one would be appointed for him by the state. And, I also advised him that he had a right to stop talking to me at anytime he wanted to.
Defendant did not request an attorney, nor did he refuse to talk to Officer Hoggard. He told the officer that “he had to stop Bill Abner. That Bill Abner was getting away with his drugs and he had to stop him and that’s the reason he shot him.”
Defendant was then taken to the police station to be booked. He was not re-advised of his Miranda rights. Later on that night,
Mrs. Barbour: “Raymond, tell me it’s not true.”
Defendant: “Yes, I shot him.”
Mrs. Barbour: “Why?”
Defendant: “Because you know what happened.”
At the conclusion of Officer Hoggard’s testimony, the court found that the statements by defendant to his wife were made in response to her question, “Tell me it’s not true”, and that Officer Hoggard had asked no questions of defendant. The Court therefore concluded that defendant’s statement was “spontaneous”, and “not the product of custodial interrogation, even though it was made at a time when he was in custody.”
Defendant excepted to the Court’s ruling and contends on appeal that he was not “effectively” advised of his Miranda rights' and that his statement to his wife was involuntary. We disagree. The decision of the North Carolina Supreme Court in State v. Fletcher, 279 N.C. 85, 181 S.E. 2d 405 (1971), is dispositive of this issue.
In Fletcher, the defendant confessed his guilt to the victim of the crime. He made his statement while in jail and in the presence of a police officer, who failed to recite the Miranda warnings to defendant. However, the confession resulted from a question put to defendant by the victim, and not by the police officer. The Court found that the defendant’s statement was not the result of custodial interrogation. Therefore, the Miranda warnings were not required. State v. Morris, 275 N.C. 50, 165 S.E. 2d 245 (1969); State v. Meadows, 272 N.C. 327, 158 S.E. 2d 638 (1968).
We hold in the case at bar that defendant’s statement to his wife was volunteered in response to the question she asked. The statement was not the result of custodial interrogation, and the
Moreover, even if the statement was erroneously admitted, the error was harmless. Defendant does not contend that he did not shoot Abner. There is no reasonable possibility, therefore, that the statement contributed to his conviction. State v. Fletcher, supra.
He didn’t even open his mouth about it being an accident. And, the first time that this defendant has opened his mouth about slipping and being an accident, is when he’s been on trial in this Court. That’s his lawyer’s defense. . . . That’s a defense that’s been thought up since it happened that night.
According to defendant, this language was “calculated to cause prejudice.” He contends that the prosecutor traveled outside of the record and impermissibly commented upon the defendant’s silence while in custody. This argument misses the point. The reference, if any, to defendant’s silence served merely to point out that defendant failed to characterize or explain the shooting as an accident to his wife when she asked him why he had shot Abner.
In this jurisdiction wide latitude is given to counsel in the argument of contested cases. Moreover, what constitutes an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge. State v. Bowen, 230 N.C. 710, 55 S.E. 2d 466. . . .
We hold that the prosecutor’s argument was not “sufficiently grave to be prejudicial in order to entitle defendant to a new trial.” State v. Parks, 14 N.C. App. 97, 100, 187 S.E. 2d 462, 464 (1972), cert. denied, 281 N.C. 157, 188 S.E. 2d 366 (1972); State v. Seipel, 252 N.C. 335, 113 S.E. 2d 432 (1960).
G.S. § 15A-1215(a) provides in pertinent part:
If before final submission of the case to the jury, any juror dies, becomes incapacited or disqualified, or is discharged for any other reason, an alternate juror becomes a juror, in the order in which selected, and serves in all respects as those selected on the regular trial panel. [Emphasis added.]
Furthermore, the statute provides that alternate jurors “must be sworn and seated near the jury with equal opportunity to see and hear the proceedings. They must attend the trial at all times with the jury, and obey all orders and admonitions of the judge.”
It is well settled that the decision as to a juror’s continued competency to serve rests within the trial judge’s sound discretion. State v. Waddell, 289 N.C. 19, 220 S.E. 2d 293 (1975); State v. Moore, 24 N.C. App. 582, 211 S.E. 2d 470 (1975). There was no necessity for the trial judge in this case to explain “lack of attention.” We hold that his action did not constitute an abuse of his discretion and, therefore, no reversible error was committed.
No error.
