20 N.C. App. 85 | N.C. Ct. App. | 1973
Defendant’s Exceptions II, III, IV, V, and VI relate to the admission into evidence of the .22 caliber pistol found in defendant’s home and the statements allegedly made by him at the Police Station. First, defendant contends the gun was the product of an illegal search and seizure. We do not agree.
“The owner of the premises may consent to a search thereof and thus waive the necessity of a valid search warrant so as to render the evidence obtained in the search competent, (citations omitted) To have such effect, the consent of the owner must be freely and intelligently given, without, coercion, duress, or fraud, and the burden is upon the State to prove that it was so, the presumption being against the waiver of fundamental constitutional rights. State v. Little, 270 N.C. 234, 154 S.E. 2d 61. However, the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, in order to make competent a confession made in custody, need not be given by officers before obtaining the consent of the owner to a search of his premises. State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25.”
While the court did not conduct a voir dire and make specific findings as to whether the defendant’s consent to search his premises was voluntarily and understanding^ given, we think such a finding is implicit in the ruling on defendant’s objection to the admission of the gun in evidence. Immediately before the gun was offered into evidence, the court conducted a voir dire with respect to the admission of certain statements allegedly made by the defendant when he was arrested on his front porch. The record shows that the defendant was given the “Miranda” warnings and that he told the officers that the gun was in the house, “go get it.” The defendant accompanied the officers into his house and sat in the living room while the gun was retrieved from its hiding place under the pillow in the bedroom. Therefore, in our opinion, there is plenary, uncontroverted evidence in the record to sustain a finding that the defendant understanding^ and voluntarily gave the officers permission to retrieve the gun with which the crime was committed.
With respect to the admission into evidence of the inculpa-tory statements made by the defendant at the police station, he contends:
• “The court erred in allowing the statement by the defendant into evidence on the grounds that the. defendant was not properly warned of his rights and was not in a*89 physical condition to voluntarily and knowingly waive his rights against self-incrimination.”
The record reveals that the defendant was arrested about 2:00 p.m. and taken to the police station where he made the statements challenged by these exceptions. Officer Bell testified:
“I had occasion to see the defendant at the City Hall. It would have been between 2:05 and 2:57, in that period of time — it was around — 2:15 or 2:57, in that period of time— approximately an hour. No officer was questioning him at that time, he was just sitting in there in the City Hall at the chair in the Detective Bureau and nobody was asking him anything at that time.”
“Mr. Dooley kept saying to the detectives, T killed the son-of-a-bitch.’ Stated that ‘Tow-head Thomas was no good.’
* * * The defendant was talking on his own, at that time.”
In State v. Painter, 265 N.C. 277, 144 S.E. 2d 6 (1965), the court concluded, as summarized below, the following:
Where there is plenary evidence to sustain a finding that the confession was voluntary and no evidence to the contrary and defendant merely objects to the admission of the confession but offers no evidence in regard to its volun-tariness, the ruling of the court admitting the confession amounts to a finding that the confession was voluntary, and the absence of a specific finding of voluntariness is not fatal.
The defendant was given the “Miranda” warnings when he was arrested at his home and was again given the “Miranda” warnings, the record shows, “between 2:05 and 2:57.” While it would have been better had the trial court upon the defendant’s, objection conducted a voir dire and made findings and conclusions regarding the admissibility of the proffered testimony, State v. Moore, 275 N.C. 141, 166 S.E. 2d 53 (1969); State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), we are of the opinion that there is plenary evidence in the record to sustain a finding that the defendant was given the “Miranda” warnings at least two times following his arrest and before he made the inculpa-tory statements which are the subject of these exceptions and. that such statements were freely, understandingly, and volun
With respect to the cross-examination of Officer Bell, the record discloses:
“I had occasion later on to talk with Mr. Dooley, later that day and the next day. At this time he made a statement to me. I have that statement with me. The statement was made at about 2:57 and I had arrived at the scene at 2:05. It was signed by myself — Prior to giving that statement, Mr. Dooley was advised of his rights. He was at the police office at the time it was given.
Q. Would you.read the statement what he told?
Objection: Sustained.
Mr. Bumgardner: Your Honor, may I be heard outside of the presence of the jury?
Court : All right, members of the jury, step out to your room.
(Jury Leaves Courtroom)
Mr. Bumgardner argues to the court concerning the ruling on the objection, and asks the court to permit him to have the statement proffered into evidence . . . Denied by the court.
Exception No. VII”
Defendant argues that since the court admitted the in-culpatory statements of defendant which were the subject of Exception No. VI, it was error not to allow Officer Bell on cross-examination to read into evidence the complete statement given to Officer Bell which he (the officer) had reduced to writing. We do not agree. It being clear that the statements made by the defendant to Officer Bell which the defendant sought to have the officer read into evidence on cross-examination were not a part of the res gestae, the court properly excluded the statements as self-serving declarations, State v. Mitchell, 15
Furthermore, since the oral statements admitted by the court were not the same or a part of the written statement excluded by the court, there is no merit in defendant’s contention that the latter was admissible under the general rule that:
“When a party’s declaration is offered against him as an admission, he is entitled to have everything brought out that was said at the time in connection with the point in controversy and explanatory of the admission, as well those parts which tend to discharge him as those which tend to charge him.” Stansbury’s North Carolina Evidence, Brandis Revision, Volume 2, Admissions, Sec. 181, at p. 60.
Additionally, defendant contends the court erred in denying his motion for judgment as of nonsuit, in admitting the spent shells found in the gun into evidence and in failing to instruct the jury as requested on the defendant’s right to defend his habitation and curtilage from a trespasser. We have carefully examined these contentions and find them to be without merit.
The defendant had a fair trial free from prejudicial error.
No error.
