39 N.C. App. 150 | N.C. Ct. App. | 1978
Lead Opinion
Defendant assigns as error the admission into evidence of in-culpatory statements made by her to Detective G. W. Barrow and Officer O. E. Perry at about 3:10 a.m. Before the defendant’s statements were admitted, a voir dire hearing was conducted outside the .hearing of the jury. The State’s evidence on voir dire, except where quoted, is summarized below:
Detective G. W. Barrow testified that he had gone to the defendant’s home in response to “a call which indicated that there was a domestic problem at the residence.” Three other police officers in addition to Detective Barrow and Officer Perry also arrived at the scene. Barrow stated, “I approached Mrs. Clay shortly after I arrived at the residence and saw Mr. Evans injured.” He explained, “We did not know that there had been a shooting until we talked with Mrs. Clay. At the first instance we talked to her, there was nobody in the house except Mrs. Clay, the victim
The defendant testified, “The house seemed full of policemen. There were a lot of them. More than three.” Regarding her first statement to the police, defendant testified, “I talked to some police officers about the shooting before I made the recorded statement. I told the police that Mr. Evans had come in the house kicking and choking me and that I had the gun. Mr. Turner fell back against me, and the gun went off.” Mrs. Clay testified, “I
Explaining what transpired when she left after the police had recorded her statement, defendant stated, “I did not ask them could I leave, but I went to crank my car. I blew my horn because I was blocked in by their cars and they said I could not get out. But they said I could walk out. So I shut my car door and walked around the house and left them in the back yard searching.”
After the voir dire hearing, the Court made findings and conclusions, relevant portions of which are quoted below:
[T]hat Officer Barrow advised Mrs. Clay of her constitutional rights under the Miranda decision . . .
Mrs. Clay did not request an attorney, but did not specifically waive an attorney; and that the officers then asked her what had happened, whereupon she replied and gave a voluntary statement to the effect that Mr. Evans had been shot with a shotgun and that Mr. Turner had shot Mr. Evans . . .
[A]gain at approximately 3:10 a.m. Officer Barrow and Officer Perry returned to the Clay residence, having been to the Alamance County Hospital to determine the status of the victim, and upon returning to the Clay residence had in their possession a tape recorder; that during the period of time in which they were absent from the Clay residence the defendant was not in custody or detained in any manner and felt that she could have left the house at any time; that the officers thereafter asked the defendant questions and interrogated the defendant and that she voluntarily answered the questions; that such interrogation was conducted in connection with an on-the-scene investigation of a crime and not as a result of any custodial interrogation and that at the time of the second interrogation and answers given by the defendant, the defendant had not been placed under arrest and had not been told that she could not leave the residence and was in no manner detained even though officers had remained present there at the residence during the entire period of*154 absence of Officers Perry and Barrows [sic] and that prior to asking Mrs. Clay any questions at the time of the second interrogation Mrs. Clay was reminded of the rights which she had previously been given at approximately 1:10 a.m.
That although the Miranda warnings were given at the time of the 1:15 a.m. interrogation, such warnings were not required in that such interrogation and statements made by reason thereof were the result of an on-the-scene investigation and that the statements made by the defendant at that time were voluntarily and freely made . . .
That the statements given by the defendant at the 3:10 a.m. interrogation were the result of an on-the-scene investigation rather than a custodial interrogation, the defendant not having been detained, arrested, or taken into custody, and that statements given by the defendant at that time were given voluntarily, freely, and understandingly without duress, coercion, or inducement ...
Since the trial court found as a fact that the defendant, after being advised of her constitutional rights, did not “specifically waive an attorney,” and since waiver of the right to counsel cannot be presumed from a silent record, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966); State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977); State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971), we direct our inquiry to defendant’s contention that the trial judge erred in finding and concluding that defendant’s inculpatory statements made and recorded at about 3:10 a.m. on 4 September 1977 were not the result of a “custodial interrogation” but were answers made in response to “general on-the-scene questioning.”
The United States Supreme Court, in its decision in Miranda, set forth certain constitutional rights which must be given to an individual who is the subject of a “custodial interrogation” by police officers. The Supreme Court, in Miranda, defined a “custodial interrogation” as “questioning 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.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706, accord, State v. Martin, 294 N.C. 702, 242 S.E. 2d 762 (1978); State v. Meadows, 272 N.C. 327, 158 S.E. 2d 638 (1968). In Miranda, the Court noted:
*155 Our decision is not intended to hamper the traditional function of police officers in investigating crime . . . Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process is not affected by our holding.
384 U.S. at 477, 86 S.Ct. at 1629, 16 L.Ed. 2d at 725, accord, State v. Blackmon, supra.
In determining whether police questioning constituted a “custodial interrogation” or a “general on-the-scene questioning,” courts have considered the following factors as relevant: (1) the nature of the interrogator, People v. Cesare, 55 App. Div. 2d 959, 391 N.Y.S. 2d 424 (1977) (four armed police officers); (2) the time and place of the interrogation, Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed. 2d 714 (1977) (state patrol office); Orozcu v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed. 2d 311 (1969) (in defendant’s bedroom at 4:00 a.m.); (3) the degree to which suspicion had been focused on the defendant, Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed. 2d 1 (1976); People v. Glover, 52 Misc. 2d 520, 276 N.Y.S. 2d 461 (1966); (4) the nature of the interrogation, State v. Blackmon, supra, (spontaneous response to a neutral question); Commonwealth v. Sites, 427 Pa. 486, 235 A. 2d 387 (1967) (questioning designed to elicit a confession); (5) the extent to which defendant was restrained or free to leave, Orozcu v. Texas, supra; State v. Martin, supra, (defendant voluntarily went to police station, was not considered a suspect, was not under arrest or restrained in any manner), State v. Dennis, 16 Wash. App. 417, 558 P. 2d 297 (1976) (officer stated defendant was free to leave at any time but remained in position where he could restrict defendant’s freedom of movement). See also, Annot., “What Constitutes 'Custodial Interrogation’ Within Rule of Miranda v. Arizona,” 31 A.L.R. 3d 565 (1970) and cases cited therein.
While none of the above factors standing alone is determinative of the issue, they are all relevant in deciding whether police questioning constitutes a “custodial interrogation.” The questioning did occur in the defendant’s home. However, we believe that any lessening of “the compelling atmosphere inherent in the process of in-custody interrogation” resulting from defendant being in familiar surroundings is largely vitiated by the fact
The fact that defendant was allowed to leave after the officers had tape recorded her statement and was not formally charged until around 7:00 a.m., is likewise not dispositive. The defendant testified that when she did attempt to leave in her automobile, the police refused to move their cars which were blocking her and told her that she was free to walk away. It would be highly artificial to limit “custodial interrogation” to questioning that occurs only after a formal arrest. In such a situation, the police would need only to delay the formal arrest of the accused in order to circumvent the constitutional safeguards dictated by Miranda.
It is clear that suspicion had focused on the defendant at the time of the second interrogation. Officer Perry and Detective Barrow, after having been told by the defendant that her brother shot Evans, had gone to the hospital “to check the condition of Evans and had returned with a tape recorder” to further their interrogation of the defendant. We think it is significant that the police officers had undertaken to give the defendant her Miranda warnings before the 1:10 a.m. interrogation, and reminded her before the second interrogation at 3:10 a.m. that she had already
We are cited by the State to the case of State v. Parrish, 32 N.C. App. 636, 233 S.E. 2d 690 (1977) in support of its contention that defendant’s inculpatory statement here was the result of a noncustodial interrogation. The cited case held that the defendant had been given his Miranda warnings, and that the statements were voluntarily and understandingly made. The language in the case that the defendant’s incriminating statement was the result of an on-the-scene investigation and not a custodial interrogation is dictim, and, although correct under the facts of that case, is no support to the State’s contentions here. We are likewise adver-tent to the cases of Oregon v. Mathiason, supra-, Beckwith v. United States, supra-, State v. Meadows, supra. In our opinion, these cases are clearly distinguishable on the facts, and they merely point out that the question whether an inculpatory statement is the result of a custodial interrogation is to be decided on the presence or absence of certain factors unique to the factual situation in each case.
In our opinion, in the present case the evidence adduced on voir dire and the findings of fact made by the trial judge do not support the conclusion that the defendant’s inculpatory statements “were the result of an on-the-scene investigation rather than a custodial interrogation.” In our opinion, the evidence in the present case demonstrates a “coercive environment” rendering the 3:10 a.m. statements of the defendant inadmissible in the absence of any evidence showing that she affirmatively waived her right to counsel.
We hold the court’s error in admitting the 3:10 a.m. in-culpatory statement was clearly prejudicial and that the defendant is entitled to a new trial.
Because of our disposition of the case, it is unnecessary to discuss defendant’s remaining assignments of error.
Dissenting Opinion
dissenting.
I respectfully dissent. Before turning to the legal question raised on this appeal, there are several statements in the majority opinion (not in the recitation of facts) I feel must be mentioned. They are:
1. “The defendant was questioned on two separate occasions over a period of hours from 1:00 a.m. until after 3:00 a.m.” The record shows the officers received a call at approximately 1:05 a.m. to go to the scene. Defendant made her first statement to the officers about 1:10 a.m., some seven to ten minutes after they arrived. This statement was exculpatory. These officers then left to go to the hospital. Although other officers remained at the scene, there is no evidence that anyone other than Barrow and Perry talked with defendant. They returned at approximately 3:10 a.m., when they took the second statement from defendant. So the evidence indicates the officers talked to defendant for a few minutes about 1:10 a.m. and a few minutes about 3:10 a.m. and not “over a period of hours.”
2. “[T]hat the officers persisted in their questioning until the defendant made the incriminating statements sometime after 3:00 a.m.” The defendant on voir dire testified the police asked her, “Who shot Nate? ... I told them that I shot Nate. They didn’t ask me any more questions after that.” This is all the evidence found in the voir dire record concerning the question asked defendant and her reply. Surely this cannot properly be categorized as “persistent” questioning.
3. “Even if the defendant had wanted to leave her home at that hour, she likely had nowhere to go.” That the defendant had “nowhere to go” is irrelevant to the question of whether she was in custody at that time.
4. “[T]he police officers had undertaken to give the defendant her Miranda warnings . . .. Clearly the officers felt that their in
5. “It is clear that suspicion had focused on the defendant at the time of the second interrogation.” The voir dire evidence discloses that at the time of the second questioning, 3:10 a.m., all the officers’ information indicated Turner had shot Evans. No one had given them information that defendant had shot Evans prior to their taking defendant’s second statement. It is submitted that the voir dire record does not sustain the majority’s statement.
The legal question involved in this appeal is whether the court erred in denying defendant’s motion to suppress her in-culpatory statement. Two witnesses testified at the voir dire hearing on this motion, the defendant and Officer Barrow. Their testimony is short, and the portions essential to this appeal may be summarized as follows:
Detective Barrow:
I did not have a suspect in mind before I talked to defendant. She was not under arrest or in custody. I gave her the Miranda warnings. [1:10 a.m.] She said Turner shot Evans. She said Turner had left. We had answered a call about a domestic disturbance at defendant’s home. The first statement was taken about 1:10 a.m., some seven to ten minutes after we arrived.
We [Barrow and Perry] went to the hospital and returned about 3:10 a.m. We did not advise her of Miranda at that time. She was not under arrest or in custody or being detained in any way. She was never threatened or coerced into giving a statement or promised anything.
There were police officers at the house at all times from 1:10 a.m. to 3:10 a.m. Two other officers stayed there when we went to the hospital. Defendant did not leave during that time. I guess she could have left if she had wanted to. I later talked to Turner about 3:50 a.m. We had no information defendant had shot Evans before the 3:10 statement. We did not tell her not to leave when we went to the hospital.
*160 Defendant Clay:
Two cars of police came to the house. John Henry Clapp was in the dining room with me. The police [at 3:10 a.m.] asked me, “Who shot Nate?” I told them I shot Nate. They didn’t ask any more questions after that. I left the house after I made the [3:10 a.m.] statement. Day was breaking when I left home. I did not ask them if I could leave. My car was blocked in by the police cars, but they said I could walk out.
I feel I could have left the house before I made the statement if I had wanted to go, and I don’t think they would have tried to stop me.
I was not arrested at my house that night. I was not threatened to get me to answer questions. I knew I did not have to talk to the police and that I could have a lawyer.
I had been beaten up and was upset, mad and nervous. But not because of the police. I felt safe then.
I was arrested about 7:00 a.m. that morning.
Based upon the voir dire evidence, the court made findings of fact and conclusions of law. The court concluded as a matter of law that the statements given by defendant were the result of an on-the-scene investigation by the officers, rather than custodial interrogation, and denied the motion to suppress.
Whether a statement made by a defendant is competent as evidence is a question to be determined by the trial judge upon evidence presented to him in the absence of the jury. State v. Outing, 255 N.C. 468, 121 S.E. 2d 847 (1961), cert. denied, 369 U.S. 807, 7 L.Ed. 2d 555 (1962). Findings of fact made by the trial judge are conclusive if supported by competent evidence in the record. We may not properly set aside or modify those findings if so supported. State v. Barber, 278 N.C. 268, 179 S.E. 2d 404 (1971). The trial court’s findings of fact are supported by the testimony of Barrow and Clay. These findings support the conclusion that defendant was not in custody when questioned by the officers and such statements by defendant were admissible as evidence. Our Supreme Court has recognized the difference between on-the-scene questioning and custodial interrogation condemned by
In applying this test to the evidence received on voir dire, the facts clearly support the court’s conclusion that defendant was not in custody at the time of the 3:10 a.m. statement and that it was made by defendant freely and voluntarily and understanding^, without duress, coercion, or inducement.
In People v. Hazel, 252 Cal. App. 2d 412, 60 Cal. Rptr. 437 (1967), the court held the custody requirement of Miranda was to be determined by the reasonable belief or intent of the suspect, rather than that of the officer, where suspect has not been arrested or physically deprived of his freedom of action. The voir dire evidence sustains the result that defendant Clay did not reasonably believe that her freedom of action was restricted. All the evidence is to the contrary.
In People v. Glover, 52 Misc. 2d 520, 276 N.Y.S. 2d 461 (1966), the court held one of the criteria for distinguishing on-the-scene questioning and custodial interrogation depended upon the subjective intent of the officer. Does the officer have a reasonable belief that the person he is questioning is a suspect? If during the questioning the officer forms a reasonable belief that the person is. a suspect, the questioning becomes custodial interrogation. Miranda warnings must be given before questioning may lawfully continue. “But Miranda cannot be tortured to ‘throw back’ to his first fateful answer so as to bring that first answer within the ambit of ‘custodial interrogation’ as defined in Miranda. Nothing in Miranda, suggests that it does!” Id. a 527, 276 N.Y.S. 2d at 467. The voir dire evidence sustains the conclusion that defendant was not a suspect until after the 3:10 a.m. statement. State v. Martin, 294 N.C. 702, 242 S.E. 2d 762 (1978).
An investigation that is focused on the defendant as a suspect does not, in itself, require the application of the principles of Miranda. The interrogation must be custodial in nature before the requirements of Miranda are necessary. Beckwith v. United States, 425 U.S. 341, 48 L.Ed. 2d 1 (1976). (Beckwith was interrogated by I.R.S. officers in a house sometimes occupied by him. The Court held it was not a custodial interrogation and Miranda
The majority suggests that the presence of police officers in defendant’s home created a “compelling atmosphere” or a coercive environment. Defendant, to the contrary, said the presence of the officers did not make her nervous or afraid and that she felt safe. In Oregon v. Mathiason, 429 U.S. 492, 50 L.Ed. 2d 714 (1977), the Court concluded that a mere coercive environment, absent any formal arrest or physical restraint of freedom, was not a custodial interrogation within the meaning of Miranda. “ ‘[A]ny interview ... by a police officer will have coercive aspects to it.’ ” Id. at 495, 50 L.Ed. 2d at 721.
I find this case within the facts and holding in State v. Meadows, supra. In Meadows, police officers received a call a shooting had occurred and went to the scene to investigate. They found the victim there, wounded. The officer asked defendant what had happened and defendant replied, “I shot him.” Although this testimony was evidently offered to impeach defendant, the Court’s opinion was before Harris v. New York, 401 U.S. 222, 28 L.Ed. 2d 1 (1971), which approved the use of a confession without Miranda warnings to impeach a defendant. Justice Bobbitt (later Chief Justice) based the Court’s opinion on the conclusion that defendant was not in custody and that although defendant was a suspect, the question was a part of a general investigation by the officers and not an in-custody interrogation. In State v. Martin, supra, the facts are analogous to the case at bar. The Court relied on Mathiason, supra, and held the statements were not a result of custodial interrogation.
I find the evidence on voir dire supports the trial court’s conclusion that the defendant’s inculpatory statement was not the result of custodial interrogation and was voluntary.
From a reading of the entire charge of the court, defendant’s second assignment of error appears to be without merit.
For these reasons, I find no error in the trial.