70 N.C. App. 509 | N.C. Ct. App. | 1984
Lead Opinion
Defendant contends the court erred in denying his motion to suppress his confession. We agree, and accordingly award a new trial.
The voir dire hearing on the motion to suppress established without contradiction that the confession was made under the following circumstances:
In late September 1981, defendant was arrested in Tennessee on charges of attempted burglary and possession of burglary tools. He was released on bond and returned to his home in Kentucky.
Defendant appeared at a preliminary hearing in Tennessee in mid-October 1981. At that hearing Tennessee authorities threatened to prosecute him under the Tennessee habitual criminal statute if he did not cooperate, and offered him “consideration,” help, and the possibility of a probationary sentence if he did cooperate. The “cooperation” requested consisted of talking with authorities from other states about crimes defendant had committed in those states.
Pursuant to defendant’s agreement to cooperate, Lieutenant McCoy of the Hendersonville, Tennessee, Police Department arranged for law enforcement officials from several states, including North Carolina, to question defendant. On 5 November 1981 defendant presented himself to McCoy, who drove him in a police car to a local restaurant. There, in a back room, ten or twelve law enforcement officials questioned defendant, one at a time, about various crimes. Defendant thereupon made the confession which was the subject of his motion to suppress at trial. He testified that he confessed to Asheville police detectives only because Tennessee authorities had threatened him with prosecution as a habitual criminal, which possibly meant life in prison, if he did not cooperate with North Carolina authorities. He also stated that Lieutenant McCoy offered him “possibly a probated sentence” if he cooperated. He in fact received a probationary judgment in Tennessee.
Lieutenant McCoy of Tennessee testified that he, Assistant District Attorney Dee Gay, and a third person spoke to defendant
Gay, the Tennessee Assistant District Attorney, testified that he told defendant he had no control over other jurisdictions and that defendant would be prosecuted for crimes committed in those jurisdictions. He also told defendant, however, that his office would “take . . . into consideration” defendant’s cooperation with Detective McCoy about crimes committed in other jurisdictions.
Based on the foregoing voir dire testimony, the court found that the North Carolina officers who took defendant’s statement did not threaten or coerce him and did not offer hope of reward or inducement. With respect to coercion and hope of reward on the part of Tennessee authorities, the court found:
That some statements had been made with respect to charges pending against him in the State of Tennessee, but the Defendant had been advised that the authorities in the State of Tennessee had no control over what actions would be taken by the State of North Carolina; and in fact, the Defendant was told prior to his statement that the District [Attorney in North Carolina would prosecute him.
The court concluded that defendant made his confession voluntarily and denied the motion to suppress.
Incriminating statements obtained by the influence of hope or fear long have been held involuntary and thus inadmissible. See State v. Pruitt, 286 N.C. 442, 212 S.E. 2d 92 (1975); State v. Roberts, 12 N.C. 259 (1827) (“a confession obtained by the slightest emotions of hope or fear ought to be rejected.”). The Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 23, of the North Carolina Constitution prohibit criminal convictions based on involuntary confessions.
In cases in which the requirements of Miranda have been met and the defendant has not asserted the right to have counsel present during questioning, no single circumstance may be viewed in isolation as rendering a confession the product of improperly induced hope or fear and, therefore, involuntary. In those cases the court must proceed to determine whether the statement made by the defendant was in fact voluntarily and understandingly made, which is the ultimate test of the admissibility of a confession. In determining whether a defendant’s statement was in fact voluntarily and understandingly made, the court must consider the totality of the circumstances of the case and may not rely upon any one circumstance standing alone and in isolation.
State v. Corley, 310 N.C. 40, 48, 311 S.E. 2d 540, 545 (1984) (emphasis in original).
The totality of the circumstances here indicates that defendant’s confession was induced by both threats and hopes conveyed to him by Tennessee law enforcement officials. Uncontradicted testimony from defendant and from Tennessee authorities revealed that defendant was given the choice, after his arrest in Tennessee, of (1) exercising his right to silence and facing possible, if not probable, prosecution under a habitual criminal statute which could lead to life in prison, or (2) cooperating with officers from other states, including North Carolina, and receiving “consideration” and help from Tennessee authorities. Defendant was released under bond and subsequently returned to Tennessee to make statements to officers from several states. Tennessee officers drove him in a police car to the interrogation location, and the questioning proceeded behind closed doors with ten or twelve officers surrounding defendant. While the Asheville detectives carefully respected defendant’s constitutional rights, they recognized that his confession to them was prompted by the hope that it would help him in Tennessee.
The court concluded that the confession was voluntary because there was no coercion or offer of help from North Carolina authorities. Its findings, however, do not address the uncon-tradicted evidence that Tennessee authorities pressured defend
We are cognizant of the statement in Pruitt, supra, 286 N.C. at 458, 212 S.E. 2d at 102, that “any improper inducement generating hope must promise relief from the criminal charge to which the confession relates, not to any merely collateral advantage.” Collateral advantage or boon, however, has been defined to mean, “for instance [,] a promise to give the prisoner some spirits [,] or to strike off his handcuffs [,] or to let him see his wife.” State v. Booker, 306 N.C. 302, 308, 293 S.E. 2d 78, 82 (1982) (quoting State v. Hardee, 83 N.C. 619, 623 (1880), which in turn quotes “1 Taylor Ev., Sec. 802”). Confessions given as a consequence of such inducements need not be excluded. The inducements here, however, related to other criminal charges and are altogether different from the above examples. Further, as Dean Brandis has noted, “[w]hile [the statement in Pruitt] is less debatable if confined to the examples given, surely any inducement, however ‘collateral,’ is sufficient to require exclusion if the circumstances indicate a serious possibility that it could trigger a false confession.” 2 H. Brandis, North Carolina Evidence Sec. 184 (1982). See State v. Chamberlain, 263 N.C. 406, 139 S.E. 2d 620 (1965), in which defendant’s confession, induced by the implied threat that he would also be charged with kidnapping, another and more serious crime which, like that of habitual criminal here, involves a potential life sentence, was held inadmissible; State v. Smith, 8 N.C. App. 442, 174 S.E. 2d 676, cert. denied, 277 N.C. 116 (1970), in which a confession to armed robbery to escape a marijuana charge was held inadmissible.
The facts of the cases cited in support of the statement in Pruitt, moreover, bear no relation whatever to those here. In the first of those cases, State v. Hardee, 83 N.C. 619 (1880), a young woman promised to marry defendant if he would tell her about
In the second case, State v. Pressley, 266 N.C. 663, 147 S.E. 2d 33 (1966), defendant made a statement to a Georgia sheriff implicating himself in a North Carolina larceny. The Supreme Court expressly noted a crucial distinction between that case and this one by stating: “Defendant makes no contention that his statement . . . was involuntary or that the Georgia officer offered him any inducement to confess a crime committed outside his jurisdiction." Id. at 666, 147 S.E. 2d at 35 (emphasis supplied).
We therefore find Hardee and Pressley readily distinguishable and the above statement from Pruitt not dispositive. As indicated above, our Supreme Court recently established as the “ultimate test of the admissibility of a confession” whether it “was in fact voluntarily and understanding^ made” as determined by “the totality of the circumstances.” Corley, supra, 310 N.C. at 48, 311 S.E. 2d at 545. The uncontroverted evidence here shows that defendant’s statement was induced by the threat of life in prison if he did not confess and the hope of a “probated judgment” if he did. Application of the “totality of the circumstances” test to that uncontroverted evidence establishes beyond peradventure that the confession was not in fact voluntarily made. We thus hold the confession involuntary as a matter of law, Chamberlain, supra, and that its admission requires a new trial.
New trial.
. Defendant presents a further issue which, in light of the majority decision to award a new trial, the opinion does not address. He contends that double jeopardy
It would seem, however, that the breaking or entering cannot properly be used both to convict defendant of a separate crime and to elevate the larceny offense from misdemeanor to felony status and that if, upon re-trial, defendant again is convicted of both breaking or entering and larceny, judgment should be entered on the larceny conviction as upon a conviction for misdemeanor larceny only. See State v. Edmondson, 70 N.C. App. 426, 320 S.E. 2d 315 (1984) (questioning holdings of Smith and Downing); see also Wood v. Ross, 434 F. 2d 297 (4th Cir. 1970) (in North Carolina case, double jeopardy where defendant tried for breaking and entering and then tried for a felony in which the breaking and entering was an indispensable element).
Four appeals before this Court during the current calendar year have presented this issue (Edmondson, supra; Downing, supra; Smith, supra; and the instant case). The facts in at least one other presented the issue but the briefs did not address it. The issue likely will recur until the Supreme Court resolves it.
If the State exercises its right to appeal provided by the dissent, this case apparently will present this issue to the Supreme Court for the first time on appeal rather than discretionary review. The judges of this Court do not agree upon the appropriate resolution. Cf. Edmondson, supra, with Smith, supra. Resolution by the Supreme Court thus would be propitious.
The author of the majority opinion has appended this footnote speaking for himself only and not for the other judges of this panel.
Dissenting Opinion
dissenting.
I regard defendant’s dealings with the court officials in the State of Tennessee as being in the nature of a plea bargain. I am confident he knew what he was doing every minute and made his decision in the cold light of reason. He was no frightened innocent who was led to talk by overreaching promises of law enforcement officials in Tennessee.
In Tennessee he could have been sentenced as a habitual criminal and possibly received a life sentence on probation. According to his testimony, in exchange for his promise to cooperate with law enforcement officers from North Carolina and other states, it was agreed that he would not be sentenced as a habitual felon but would be placed on probation. The State of Tennessee kept the bargain. He, a professional criminal who had pursued his career in several states over a long period of years, was allowed
No one contends defendant was promised any help on the North Carolina case. Indeed, he was assured by the North Carolina authorities that he would be prosecuted. Although he was probably as aware of his “rights” as the officers, before he made his statement to the North Carolina officers he was fully advised of all his constitutional rights and understandingly waived them and confessed. No one promised him anything or did anything to generate any hope that he could expect any relief on the criminal charges to which his confession related.
In sum, defendant was promised nothing, either by the Tennessee officials or those from North Carolina that could possibly indicate the slightest chance that a false confession to the North Carolina crimes was generated by the conduct of the officials. Instead, I believe he made a plea bargain in Tennessee under the terms of which he received a lighter sentence in exchange for, among other things, a confession to crimes committed in North Carolina. This is not coercion in the constitutional sense. I would admit the confession.