STATE of North Carolina
v.
James F. POPE, III
No. 556A88.
Supreme Court of North Carolina.
December 18, 1992.*743 Lacy H. Thornburg, Atty. Gen. by Debra C. Graves, Asst. Atty. Gen., Raleigh, for the State.
Thomas H. Eagen, Durham, for defendant-appellant.
WEBB, Justice.
By his first assignment of error, the defendant contends that the trial court erred by receiving into evidence the transcript of the suppression hearing conducted in the Wake County murder case, and by incorporating that court's order into its own order denying the defendant's motion to suppress. The defendant's objection to the trial court's procedure was overruled.
The Wake County motion was heard during the 6 June 1988 criminal session of superior court. The motion in this case was heard 12 August 1988. The issues in both cases, and the evidence presented thereon, were substantially the same except that in the present case the State presented evidence that the .45 caliber handgun would have been inevitably discovered. As to this additional issue, the trial court made its own independent findings. Although the trial court did read the transcript of the Wake County case and incorporate findings in that order into its own, the court allowed the defendant to call witnesses and to present additional evidence.
The defendant contends that the trial court's procedure violates the hearsay rule. We find no error in the trial court's actions. The trial judge, having read the transcript from the first hearing, apparently concluded that the evidence before him was essentially the same as the evidence before the Wake County court and therefore adopted that court's findings as his own. Even if the trial court's actions were erroneous, any error was harmless beyond a reasonable doubt. The defendant concedes that the issues before the two courts were the same and does not suggest how he was prejudiced by the court's actions. The defendant was represented at the suppression hearing in this case by counsel who was also present at the Wake County hearing and who cross-examined the State's witnesses at the first hearing. The defendant was again given the opportunity to cross-examine the State's witnesses and to present evidence additional to the evidence presented in Wake County. We, therefore, overrule this assignment of error.
The defendant next assigns error to the admission into evidence of his incriminating statements. This assignment of error has merit. Although it seems clear that the defendant made the incriminating statements freely, voluntarily and understandingly after he had been fully advised of his rights, decisions of the United States Supreme Court require us to hold that the statements should have been excluded from the evidence. We base our decision on Minnick v. Mississippi, 498 U.S. 146, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990); Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988); and Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). These cases establish a rule that when a defendant has invoked his Fifth Amendment right to be free from interrogation unless assisted by counsel, an officer may not initiate any further interrogation of the defendant. Even if the defendant has consulted an attorney, an officer may not further interrogate the defendant unless his attorney is present or the defendant himself initiates the interrogation. The rule prohibits interrogations in regard to crimes other than the crimes for which a *744 defendant has been arrested. A violation of this rule requires that such incriminating statements be suppressed from the evidence.
This case is distinguishable from McNeil v. Wisconsin, ___ U.S. ___, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991). In that case, the defendant invoked his Sixth Amendment right to counsel at a court appearance. An officer interrogated the defendant at a later time in regard to a separate crime and the Supreme Court of the United States held the statements made by the defendant during this interrogation were admissible against him. The Supreme Court made a distinction between the invocation of a defendant's Sixth Amendment right to counsel and a Fifth Amendment right to counsel. The Sixth Amendment provides that all criminal defendants have the right to the assistance of counsel for their defenses. If a defendant invokes this right to counsel, officers may interrogate him in regard to other offenses. The Fifth Amendment has been interpreted by the United States Supreme Court to mean that a person has the right to counsel during a custodial interrogation by officers. When a Fifth Amendment right to counsel is invoked, officers may not initiate any interrogation of a person about the offense with which he has been charged or any other offense.
In this case, there is no question that the defendant invoked his Fifth Amendment right to an attorney before he made an inculpatory statement. He did so on 17 September 1987 when he told the detective with the Durham Police Department that he did not want to answer any questions at that time, but he might be willing to make a statement after he had talked to a lawyer. He also did so on 2 October 1987 when he told a detective with the City of Raleigh Police Department that he did not want to talk about the incident until he had conferred with an attorney.
Under the rule of the above cases decided by the United States Supreme Court, the inculpatory statements made to the detectives should have been excluded from the evidence because they were made at a time when the defendant's attorney was not present. It makes no difference that the defendant may have requested an attorney in regard to questions in regard to charges involving a break-in at the Spanish Trace Apartments. When this request was made, the detectives could not initiate any interrogation in regard to any other crimes.
We cannot hold beyond a reasonable doubt that this error was harmless. N.C.G.S. § 15A-1443(b) (1988). For this error, there must be a new trial.
The defendant also assigns error to the admission into evidence of the .45 caliber handgun that was found at the place the defendant told the detectives it was located, as well as evidence of ballistic and fingerprint analyses performed on the weapon. When evidence is obtained as the result of illegal police conduct, not only should that evidence be suppressed, but all evidence that is the "fruit" of that unlawful conduct should be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920). The defendant contends the .45 caliber handgun was found as the result of an unlawful interrogation, so that it was error not to exclude from the evidence the handgun and the ballistic and fingerprint tests performed on it.
The State contends the pistol and the test results were properly admitted under the inevitable discovery exception to the exclusionary rule. We agree. The United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984), held that evidence which would otherwise be excluded because it was illegally seized may be admitted into evidence if the State proves by a preponderance of the evidence that the evidence would have been inevitably discovered by the law enforcement officers if it had not been found as a result of the illegal action. This Court held to the same effect in State v. Garner, 331 N.C. 491, 417 S.E.2d 502 (1992).
*745 The State made a motion prior to trial that the court determine whether the handgun would have been discovered inevitably if the defendant had not told the officers where it was located. This motion was made so that in the event the interrogation of the defendant was at some time held to be unlawful, there would be an alternative rule under which this evidence could be admitted.
A hearing was held on this motion. The evidence at this hearing showed that the defendant had placed the handgun under the seat on the driver's side of a 1953 model Ford truck owned by Alan Eastridge, which was sitting on blocks in the yard of Mr. Eastridge. Mr. Eastridge was unaware that the pistol was in the truck. When the defendant was arrested he had in his possession bank checks issued to Mr. Eastridge. A detective went to the home of Mr. Eastridge and told him he was looking for a handgun that the defendant may have used in a robbery and a murder. Mr. Eastridge had known the defendant for several years and on 12 September 1987, Mr. Eastridge saw the defendant walk from the back of Mr. Eastridge's house. Mr. Eastridge gave the detective permission to search the premises but the handgun was not found. Mr. Eastridge searched his home, but did not find the handgun. Mr. Eastridge was not at home when the handgun was recovered by the detectives. The truck was sold in January or February of 1988. Mr. Eastridge testified that "[w]hen I sell something, I look in every crack and crevice of the truckcar or anythingto make sure there's nothing valuable in there or anything left, or even change. I just look, you know, just look good in one." He also testified that if he had found the handgun, he would have delivered it to the detectives.
The court made findings of fact consistent with the evidence including a finding that had the officers not found the handgun, Mr. Eastridge would have found it and given it to the officers. The court concluded that the handgun would have been inevitably discovered and been made available to the detectives if they had not discovered it through the interrogation of the defendant. It ordered that this evidence be admitted at trial.
Mr. Eastridge, who dealt in used automobiles, testified that when he sold a vehicle he looked "in every crack and crevice" to make sure there was nothing of value left in the vehicle. If Mr. Eastridge were speaking the truth, and the court could find by the preponderance of the evidence that he was, it could find the discovery of the handgun could not have been avoided if the handgun had remained under the seat of the truck until the sale of the truck was consummated. The handgun remained in place for several weeks after the defendant put it there until it was recovered by the detectives. The court could find by the preponderance of the evidence that the handgun would have remained in place until found by Mr. Eastridge. The truck was sold before the trial of the defendant commenced so that the handgun and the results of the tests performed upon it would have been available to the State without the discovery of the handgun as a result of the interrogation. This evidence was properly admitted under the inevitable discovery exception to the exclusionary rule.
We do not discuss the defendant's other assignments of error, as the questions they raise may not recur at a new trial.
NEW TRIAL.
LAKE, J., did not participate in the consideration or decision of this case.
FRYE, Justice, concurring in part, dissenting in part.
I concur in the majority's conclusion that defendant is entitled to a new trial. However, for the reasons stated in my concurring opinion in State v. Garner, 331 N.C. 491, 417 S.E.2d 502 (1992), I dissent from the Court's conclusion that the handgun was properly admitted into evidence under the inevitable discovery exception to the exclusionary rule.