*1 State v. Porter STATE OF NORTH CAROLINA v. JOHNELL PORTER and KEITH EMER SON ROSS
No. 8026SC698 (Filed February 1981) — interrogation 1. Criminal Law 75.7— not result § statements required of custodial warnings Miranda hiding Where defendants were tracked bloodhound and arrested while bridge robbery, arresting police under a after a an officer was asked over the bag found, bag radio whether a bank had been one defendant stated that the bank car, asked, was in the and the officer then “What bank and such defendant replied, bag robbery,” “The from the such defendant’s statements were not the in-custody interrogation against although result of and were admissible him given warnings had not been the Miranda since the first statement was volun- message him, in teered to a radio not directed to officer did not reasonably question likely know that his before the second statement would elicit incriminating an statement. — in-custody incriminating 2. Criminal Law 74.3—§ codefendant — spontaneous competency against utterances codefendant Whеre defendant and his codefendant were tracked bloodhound and hiding bridge robbery, arresting arrested while under a after a an officer was police bag found, asked over the radio whether a bank had been defendant stated bag car, the bank was in the and the officer then “What bank replied, robbery,” clearly defendant implicated defendant’s statements only jury the codefendant since the natural inference the could have made undеr the circumstances both defendant and the codefendant had however, robbery; been involved in the such statements constituted utterances defendant and were admissible the eodefendant even though testify defendant did not trial and the eodefendant thus had no opportunity to cross-examine him. — — Robbery robbery guilt sufficiency 4.6—§ 3. armed of both of defendants jury evidence for The State’s evidence was sufficient for the to find that both defendants guilty robbery storеkeeper of armed where it tended to show that a gunpoint by person; robbed at fled from the scene the robbers more than one robbery Dodge Aspen; person Dodge Aspen in a red at least one left the red as being pursued by policeman; it was officers used bloodhound to followthe trail leaving Dodge Aspen approximately of those the red one mile until found bridge; both defendants under a a .32 caliber revolver was found under the bridge; rоbbery and one of the defendants referred to bank taken in the statements made to the officers. Judge (Harry C.) dissenting. Martin Ferrell, Judge. udgment defendants from J entered
APPEAL APPEALS COURT OF *2 Appeals 1980. January of 3 December 1980. Heard in the Court charged indicted for with and each were The defendants over each for trial were consolidated Their cases armed objection. defendant’s B. Mr. Hal that on 5 October
State’s evidence showed County, Mecklenburg Martin, working at while аs a clerk a store robbery, on gunpoint. During Martin was struck was robbed at regained con- Martin unconscious. When the head and rendered sciousness, customer, Lackey, lying Mr. William on he a saw taken, Money and sandwich labels had been and some floor also. missing. cigarettes were
Lackey store on the he came to the dav testified that asking if him radio supervisor over the heard his Wilson next heard bag. Porter defendant When found a bank had the officers Pаtrolman exclaimed, is in the car.” bank question, he this re- bag?”; and defendant “What bank then calling police. Martin was Lackey police phone the car he had described to the over the Wilson, patrolman the Meck- the store. Mr. Joe seen outside lenburg County Department, that as a result of the Police testified police dispatcher, description a call from the he soon after Dodge Judging began pursuit Aspen. of a red movement vehicle, appeared persons in the rear of in the there to him to be saw high further that after a the vehicle. Patrolman Wilson testified chase, speed collision with he ran his vehicle into a ditch to avoid a Dodge Dodge Aspen. person and run into the red He saw a leave the Dodge left the scene. the woods. The then brought point at which Patrolman A was bloodhound County officers followed person run the woods. Wilson saw a into spot where both approximately mile to a one the bloodhound bridge. A .32 caliber revolver under a defendants were found bridge. both defendants The officers held under the also found they then noti- Patrolman Wilson gunpoint were handcuffed. until suspects. holding two dispatcher radio fied v. Porter State plied, “The from the objected admission of the statements to the above,
Both defendants hearing voir dire and a Porter referred to findings on the evidence of fact based held. The court made utterances, not in the statements were concluded that in-custody interrogation, Porter’s and allowed an defendants. into evidence both presented the State showed that on Further evidence Dodge Aspen with three black Dennis Sink saw red October 1979 persons being by police Sink pursued vehicle. saw in it males during the paper bags automobile Aspen in the throw *3 bags picked up which contained pursuit. Subsequently, cigarettes in' thеm. and boxes with food labels robbery and re- of armed were convicted
Both defendants appeal. now prison sentences from which ceived Edmisten, Attorney Attorney by Assistant General General II, Ben G. Irons the State. for appel- Lyle J. Yurko
Assistant Public defendant Defender for lant Keith Emerson Ross. Pollard, Pollard, Dozier, by Scott T. Miller & defendant
appellant Porter. Johnell HILL, Judge. by brought assignments forth of error
We first discuss
testimony as to the
regarding
Wilson’s
Patrolman
both defendants
immеdiately
two
after the
made
statements
him,
that as to
Porter contends
Defendant
defendants’ arrest.
testimony
Arizona,
under Miranda
have been excluded
should
1602,
(1966),
his
436,
because
[1] We deal first with Porter’s contention. It is clear from the record that defendant Porter made his statements tо Patrolman given warnings Wilson before Miranda and that the defend custody; but, clearly, question coming ants were in the first over the supervisor radio from the was addressed to Patrolman Wilson and interrupted not to either defendant. Defendant Porter the conver sation between the two officers and volunteered the location of the bag. bank A volunteered confession is admissible even in the Miranda, warnings rights. supra. absence of or waiver of question posed The issue then becomes whether the next Patrolman Wilson converts his conversation with Porter into a interrogation,” rendering “custodial next thus Porter’s statement inadmissible. We that it not. conclude does
Patrolman Wilson had not been at the scene of the There is no evidence that he knew what taken at the store. only pursued Aspen Wilson later came onto the scene when he pursued his car first and later the defendants with the aid of the — and, bloоdhound. It was a natural in our — *4 opinion, interrogation not to be construed as to ask in custodial response statement, to Porter’s volunteered “What bank — question put Porter contends that when the however — innocently police investigation accusatory entered into the stage required right and that Wilson was to Porter of his to tell persuaded. remain silent. We are not practice reasonably likely police “A that the should know is to incriminating response suspect evoke an from a . . . amounts to surely interrogation. police account But since the cannot be held actions, the for the of their words or able unforeseeable results only interrogation on to words or actions definition of can extend they part police have known were reason officers that should ably likely incriminating response.” v. Rhode Island to elicit an 297, Innis, _U.S__, 1682, (1980). 308 S.Ct. 64 L.Ed.2d 100 whether, to in the brief conversation This case boils dоwn 572 Wilson, Patrolman the officer
between defendant Porter and suddenly respondent to have known that the would be moved should not, incriminating response. particularly in make an We conclude light brevity emphasis “off-hand” nature of the of Innis’s on the policeman’s remarks.
Although somewhat different in the case of State the facts are McZorn, 417, 219 (1975), as death v. 288 N.C. S.E.2d 201 to modified (1976), language Sharp, on penalty 428 of Chief Justice U.S. 433, judice. page helpful in the case sub Haddock, 675, 682, 190 v. 281 N.C.
As we said in State
208,
voluntary in-custody
(1972),
state
S.E. 2d
‘[a]
“in-custody
product
of an
ment does not become
interrogation” simply
officer,
in the course of
because an
narration,
explain
appellant’s
to
or clar
asks defendant
ify
already
voluntarily.’
something he
said
Since
has
that defendant’s statements
there is no evidence here
questioning
overbearing police
were made in
statement,
police procedures designed
or
tо elicit a
other
they
product of free choice and
we conclude that
were the
in-custody interroga
slightest compulsion of
without the
properly
procedures.
admissi
tion
Therefore
U.S.,
(10th
1974);
Holloway
Thomas,
Cir.
ble. See
v.
Patrolman Wilson was accused,” and “focus on the There was no asked “What bank Porter’s confession.” motivated “to elicit a the officer was not assignment merit and overruled. of error is without ter’s [2] extrajudicial Next, we deal statements did not with the State’s contention that defendant Por implicate Ross. testify asked prepared that when he
Patrolman Wilson said, bag?”, got we Porter “What bank by the trial robbery,” (Emphasis added.) was edited This statement jury that Porter judge dire Wilson testified before on voir so that editing said, so not believe this *5 We do implicate Ross. it sanitized the statement that did being chased were arrested after two defendants The APPEALS COURT OF 573 N.C. being caught, Upon approximately bloodhound for one mile. robbery, we two handcuffed. When referred to a were both only jury trial have made at believe the natural inference the could is that both men had been involved in the Ross, we do implicated Although the statement we hold that have should statement necessarily follows that it not believe to him. excluded as been contention, set forth
Contrary
the rule
Ross’s
to defendаnt
judice if
apply
case sub
to the
cited would not
the Bruton case
Bruton,
In
spontaneous utterances.
Porter’s statements constituted
232,
States, 352 U.S.
v. United
Supreme
overruled Paoli
Court
longer
saying
(1957),
it was no
that
We must which is a statement A utterance taneous utterances. spontaneity. It is considered its reliable because of considered to the stimulus in immediate reaction that if a statement is made reflect, unlikely it is opportunity to an without occurrence and Stansbury’s Evi N.C. See the statement would be fabricated. dence, 164, 1973). not matter that (Brandis It does p. 554 rev. § Johnson, question. See State statement is in to a Deck, 209, 214, 203 288, 291, 239 (1978); 285 N.C. State v. S.E.2d 829 (1974). S.E.2d
574 Porter
State v. judice, In the case sub there is evidence that both defendants just high chase; speed they had been in a involved automobile had approximately been tracked on foot for one mile officers with a bloodhound; they brought bridge had been from under a gunpoint and handcuffed. At time a voice on the radio asked Patrolman Wilson bag. whether the officers a had found bank In immediate question, to the of stimulus this defendant bag Porter exclaimed that the inwas the car. Officer When bag?”, responded, “What Porter undergoing experience. Defendant Porter was In traumatic surrounding him, all find that excitement of that was we Por- unlikely spontaneous ter’s to the extent above, Therefore, have fabricated them. for the reasons stated we hold Porter’s were admissible utterances predicating defendant Ross and that the established Bruton rule extrajudicial right of admission statements on of codefendant apply tо cross-examine his codefendant-declarant does not and was assignment admissibility not violated. error as Ross’s of to the of Porter’s statements is overruled.
[3] Both defendants assign as error the denial of their motions dismiss. The motions to dismiss should have been denied as to each was, each, if there as to substantial evidence of all mate rial elements of the offense. It not matter whether the does evidence Smith, 72, 252 App. is direct or circumstantial. Seе v. State N.C. judice, (1979). S.E.2d 535 In the case sub there was evidence that gunpoint person; Hal B. Martin was robbed at more than one robbery Dodge that the robbers fled from of the in a red the scene Aspen; person Dodge Aspen that at least one left the red as it was being pursued by policeman; that officers used a bloodhound to leaving Dodge approxi Aspen follow the trail of those the red mately bridge; one mile until found under a both defendants bridge; that а .32 revolver caliber was found under the and that one robbery. referred to a taken in defendants We hold that this is which could substantial evidence from find that Collins, participated both defendants in the See v. State 250, 241 App. (1978). assignments N.C. S.E.2d 98 These of error are overruled. assignments brought
We have error examined the other forward the defendants and find them to be without merit. OF APPEALS COURT
State error. No
Judge Webb concurs.
Judge (Harry C.) dissents. MARTIN dissenting. (Harry C.) Judge MARTIN majority opinion. The respectfully I must dissent prejudicial error suffered cаse is whether defendants heart of the admission, incriminating objections, of the over Porter, pertinent The he and Ross were arrested. made after understanding long helpful to an parts record are not and are of the of this issue. robbery were established
After the facts of the armed Wilson, Jr., Lackey, the state called Joe witnesses Martin and Mecklenburg County police he received a radio officer. He testified robbery looking suspect mеssage headed north about and high vehicle, Aspen, it at red 1976 followed vehicle. He located finally Aspen speed, a collision. The and had to ditch his car to avoid driveway highway. backing He point into the at that out of a woods, the red car drove off saw a black male run into the and helicop- came; they got high speed. and a Other officers a bloodhound suspects dog up upon the trail and soon came two ter. The took bridge. portion with a of an old who had covered themselves wooden weapons, out the officers ordered the two defendants With drawn bridge. was handcuffed and under the The defendant Porter from advised as to his constitutional was under arrest and had been to Miranda. Wilson radioed superior rights his officer. pursuant jury: testimony following in the absence of the The was taken Sergeant message I had from Burden Prior to the radio telling questions, other than asked Defendant Porter no bridge I under had the defendants to come out from them. None of the communications with either of no anything else. officers asked them QUESTION BY THE COURT:
Q. was. what the statement me Tell “what bank I asked then car” and is in the A. bag from the replied “the bag?” Defendant COURTOF APPEALS CROSS Mr. Pollard for Defendant EXAMINATION Porter: speaking Sergeant We were walkie-talkie and message suspects Burden heard the that we had two custody.The handcuffed. Mr. Porter had rights not been read his under arrest. he was After responded Defendant Porter I “It is in car” asked him question, “what followingtestimony presence jury:
The inwas Sergeant communicating I Burden and were with Sergeant walkie-talkie After radios. Burden “Did
you replied, find a bank defendant Porter as if answering the radio: *8 bag said, “Thebank is in the car.” At that time I “What bag”. bag bank I was not aware at that time bank that a hg.d been in taken Then Defendant Porter responded: bag robbery” “The from the .... After Mr. Porter made the I statements made radio stating suspects
announcements that said: bag
“That the in bank the car.” Later, witness Overcash testified: asking Then a voicecame over the radio if there was a bag
bank found. happened Q. What next?
A. About that time Porter said it was in the car. bag, turkey?
Officer Wilsonthen said what State Porter said, Q. Wilson “What happened after Officer What turkey?” bag, suspect back Wilson radioed I Officer
A. believe was in the car. said it Officer
Q. What, you after anything, hear said if did said, “What taken at the store. it was the one that was A. He said Q. said, Who “The one from the store?” A. Porter. judge charge jury, stated:
During his by radio and Officer Burden Wilson talked with That found, to which the been if a bank had was asked car, upon in the and that it was Defendant Porter said stated, being “What Jury, which Now, is evidence there Members of the admitted Porter has the Defendant tends to show that you charged If case. relating this to the crime fact admission, an made such find that the defendant under circumstances you all of the should consider then *9 a determining it was whether in which it was made you give weight will tо it. that admission and the truthful any give judge caution- trial during did the the trial At no time concerning should jury how ary limiting to the instruction or testimony of Porter. consider the APPEAL
ROSS’S ob- Ross’s by over into evidence Porter allowed The statements Ross, is their admission extremely prejudicial jections are charged, very crime admit The statements error. reversible very to “sanitize” effort though The redacted to some extent. even nature. prejudicial their as to Ross indicates the statements 578 OF COURT APPEALS
Porter,
declarant,
testify in
did not
the trial.
the out-of-court
right
way
of cross-
no
Porter. Ross’s
Ross had
to cross-examine
examination,
Confrontation Clause of
sixth
secured
of
Constitution and section 23
amendment of the United States
Carolina,
by the
I
was violated
article
of the Constitution of North
States,
123,
testimony. Bruton v. United
391 U.S.
admission of this
Fox,
277, 163
State v.
(1968);
S.E.2d 492
L. Ed. 2d
274 N.C.
Johnson,
(1976).
App.
State v.
(1968);
PORTER’S incriminating of the vital I new trial for Porter because vote a custody without question put while in to him the officer majority says Wil- with the Miranda complying rules. The оfficer big “was no focus getting picture” and that there son was “still question put Wilson had to defendant. on the accused” when the *10 OF APPEALS COURT the car description of robbery some and armed knowledge woods, into the run car, man saw chased He had involved. Por- unerringly identified that a bloodhound with man tracked him with drawn hiding, arrested nose, and Porter found with its ter custody. handcuffed, in and under arrest weapon. was Porter robbers. one of the had handcuffed Surely, that he Wilson believеd car,” statement, bag in the “the Porter’s first It is true that message him. directed to response to a radio apparently was a any ambiguous; have referred it could was That statement alone Miranda, however, Then, any compliance with without “bag.” type turkey?” bag, or “What “What bank Porter Wilson asked bag from or “the taken at the store” replied, “the one that was Porter jury. Wil- quoted were before the All the question about Porter the that when he asked testified son further in had been taken (Wilson) that a bank bag, did not know robbery. in to the Although made statement the first fairly categorized be and can was volunteered radio transmission Miranda, protected is not spontaneous, and therefore as certainly violated subsequent question and answer of defendant Clearly, rights all out in Miranda. as set Porter’s constitutional present: defendant invoking procedures were Miranda elements chase, handcuffed; custody, the сircumstances in from was arrest, Porter. suspicion properly focused on tracking “suspect” when Porter him as a Wilson referred to Officer rights under of his was entitled to be advised arrested. Porter turkey?” bag, question, “What was asked the Miranda before he reasonably knew devastating reply. Officer and made his why incriminating. That was any by Porter be answer would Wilson, “What the words According he used question. he asked the any bag just bank inquiring but a bank He wasn’t about with an armed connection prej- rights, safeguard By constitutional the failure to Porter’s new trial. entitled to a and he is udicial error was committed