STATE
v.
Charles Ronald GRAY.
No. 7.
Supreme Court of North Carolina.
September 21, 1966.*7 Atty. Gen. T. W. Bruton and Asst. Atty. Gen. George A. Goodwyn for the State.
James R. Vosburgh and Leroy Scott, Washington, for defendant appellant.
LAKE, Justice.
For at least one hundred forty years, long before the insertion of the *8 Fourteenth Amendment into the Constitution of the United States, it has been the well settled law in this State that when one is on trial for an alleged criminal offense, a confession or admission by him may not be admitted in evidence, over his objection, unless it was made voluntarily and understandingly, not induced through use by the police of "the slightest emotions of hope or fear." It was so held in State v. Roberts, 12 N.C. 259. This Court has consistently followed and applied this basic principle since that decision in 1829 when it was recognized as already established by a "course of approved adjudications." State v. Barnes, 264 N.C. 517, 142 S.E.2d 344; State v. Virgil, 263 N.C. 73, 138 S.E.2d 777; State v. Guffey, 261 N.C. 322, 134 S.E.2d 619; State v. Crawford, 260 N.C. 548, 133 S.E.2d 232.
However, the mere fact that a confession was made while the defendant was in the custody of police officers, after his arrest by them upon the charge in question and before employment of counsel to represent him, does not, of itself, render it incompetent. State v. Barnes, supra; State v. Crawford, supra; State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R. 2d 1104; State v. Thompson, 224 N.C. 661, 32 S.E.2d 24. The test of admissibility is whether the statement by the defendant was in fact made voluntarily. State v. Rogers, supra; State v. Gosnell, 208 N.C. 401, 181 S.E. 323; State v. Livingston, 202 N.C. 809, 164 S.E. 337. "Any circumstance indicating coercion or lack of voluntariness renders the admission incompetent." State v. Guffey, supra. The fact that the defendant was in custody when he made the statement is a circumstance to be considered. State v. Guffey, supra. The mental capacity of the defendant is also a circumstance to be considered. State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396. There may, of course, be coercion of the mind without physical torture or threat thereof. State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620.
Whether the defendant did or did not make the statement attributed to him is a question of fact to be determined by the jury from the evidence admitted in its presence. State v. Guffey, supra. Whether the statement, assuming it to have been made, was made voluntarily and understandingly, so as to permit evidence thereof to be given in the presence of the jury, is a question of fact to be determined by the trial judge in the absence of the jury upon the evidence presented to him in the jury's absence. State v. Outing, 255 N.C. 468, 121 S.E.2d 847, cert. den., 369 U.S. 807, 82 S. Ct. 652, 7 L. Ed. 2d 555.
When the State proposes to offer in evidence the defendant's confession or admission, and the defendant objects, the proper procedure is for the trial judge to excuse the jury and, in its absence, hear the evidence, both that of the State and that of the defendant, upon the question of the voluntariness of the statement. In the light of such evidence and of his observation of the demeanor of the witnesses, the judge must resolve the question of whether the defendant, if he made the statement, made it voluntarily and with understanding. State v. Barnes, supra; State v. Outing, supra; State v. Rogers, supra. The trial judge should make findings of fact with reference to this question and incorporate those findings in the record. Such findings of fact, so made by the trial judge, are conclusive if they are supported by competent evidence in the record. No reviewing court may properly set aside or modify those findings if so supported by competent evidence in the record. State v. Barnes, supra; State v. Chamberlain, supra; State v. Outing, supra; State v. Rogers, supra.
It is to be noted that this defendant, a college student at the time of his trial, did not testify before the judge, in the absence of the jury, with reference to the voluntariness of his alleged statements to the police officers. He testified, in the presence of the jury, that he did not make *9 the statements at all, saying, "I have never admitted to anybody I broke in that place and took anything out of it." Thus, his own version of the matter is not that he was coerced or tricked into the making of a confession or that he made a confession due to his having no counsel to advise him or due to "the slightest emotions of hope or fear." His own testimony is that he did not make the statements which the police officers testified he did make. The jury apparently believed the officers and not the defendant, though there is evidence in the record to support the verdict without the alleged confession.
Notwithstanding the failure of the defendant, himself, to testify to an overpowering of his mind resulting in a confession of guilt, the seasonable objection by his counsel to the admission of the testimony of the officers concerning the alleged confession, and their exception to the ruling permitting the officers so to testify, bring us to the question of whether, as a matter of law, this testimony was incompetent.
Neither in his brief nor in oral argument before this Court does the defendant contend that the rulings of the trial court allowing the officers so to testify violated, in any respect, the long established law of this State as above summarized. We hold that in the admission of the testimony of the police officers concerning these alleged statements to them by the defendant, the trial judge complied meticulously with the law of this State and committed no error thereunder.
Nevertheless, "In passing on the admissibility of a confession, it is as much the duty of the State courts to protect the prisoner's rights under the Due Process Clause of the 14th Amendment to the Constitution of the United States as it is to protect his rights under our State Constitution." State v. Barnes, supra. In that inquiry, this Court is bound by the interpretation placed upon such provision of the Federal Constitution by the Supreme Court of the United States.
The defendant contends that the admission of the testimony of the police officers with reference to the alleged statements by the defendant violated this provision of the Constitution of the United States, as interpreted by the Supreme Court of the United States in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. He so contends on the ground that the record does not show, and the trial court did not find, that the officers told the defendant, prior to the alleged statements by him, that if the defendant was indigent a lawyer would be appointed to represent him if he so desired. The defendant's second trial, from which this present appeal is taken, commenced two days after the announcement of the decision in the Miranda case. That decision, therefore, controls our decision here, if it is otherwise applicable to the facts disclosed in the present record. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882.
The trial court found as a fact that before the defendant made the statements in question, if he did make them, he was advised that he had a right to have and to confer with counsel; that any statement he made might be used against him; that he had a right to remain silent; and also found as a fact that if the defendant made the statements he made them freely, voluntarily and understandingly, without promise of reward, duress or other pressure. Each of these findings is amply supported by competent evidence in the record.
There is nothing in the record to suggest that this defendant was informed that if he was an indigent person he was entitled to have counsel appointed for him and to confer with such court appointed *10 counsel before answering any question put by the officer, and the trial judge made no finding that the defendant was so advised. On the other hand, there is no evidence in the record and no contention in the record or before us in the defendant's brief, or in the argument of his able counsel, that the defendant was or is an indigent person unable, financially or otherwise, to employ counsel to advise and defend him. On the contrary, the record shows that the defendant was never confined in jail but was allowed bond and that such bond was posted by or for him shortly after his arrest. It also appears from the record that at his trial he was represented by not one but two experienced and capable counsel, admittedly privately employed to defend him. The record shows that the defendant was, at the time of his arrest in August, 1965, a high school graduate and that approximately a month thereafter he became a student at East Carolina College. There is nothing in the record to suggest that his college fees and expenses were paid otherwise than by himself or his relatives.
We are, therefore, brought to this question: Did the Supreme Court of the United States in the Miranda case hold that, as a matter of law, irrespective of a defendant's actual ability to employ counsel, no statement made by him to an officer, while in the custody of the officer and in response to a question by the officer, may be introduced in evidence against the defendant unless it affirmatively appears that the officer first told the defendant that if he was an indigent person counsel would be appointed to represent him?
We do not so interpret the decision in the Miranda case. It clearly appears from that opinion of the Supreme Court of the United States that the admissibility of evidence of a confession, made in response to police interrogation while the defendant is in custody, depends upon the sufficiency of the record to demonstrate "the use of procedural safeguards effective to secure the privilege against self-incrimination." The Court "spelled out" procedural safeguards which must be employed "unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it."
It is to be observed that in the present case the statements ascribed by the police officers to the defendant were not made while the defendant was in jail or in the presence of the police officers alone or after prolonged questioning. The record shows that they were first made, if at all, in a private home to which the defendant had voluntarily gone to discuss this matter with the owner of the property he is charged with having broken and entered and stolen. His statement to Deputy Beach was made, if it was made, there in the living room of that home in which room were the defendant, the man he had voluntarily gone to see, the defendant's cousin, who had accompanied him on that mission, and Deputy Beach. The statement was made, if it was made at all, within a few minutes after the officer arrived and informed the defendant that he was under arrest, and also informed him of the nature of the charge against him, of his right to remain silent, of the possible use against him of any statement he might make and of his right to confer with counsel before making any statement whatever. The defendant never requested the appointment of counsel. Officer Roberson, in whose presence the subsequent statements were made, if they were made, was no stranger to the defendant. Both are young men who then lived on the same street of a small town, only a few houses apart, and who had known each other for many years. There is no evidence whatever in this record that the defendant was coerced by or was in fear of either officer, or that either induced any statement by him through "the slightest emotions of hope or fear."
*11 In the Miranda case the defendant was questioned "in a room in which he was cut off from the outside world." He was "in a police-dominated atmosphere." The Court said, "An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today." The Court stressed the fact that "[i]nterrogation still takes place in privacy," and that police officers are frequently urged by police manuals to conduct their interrogations "alone with the person under interrogation," and to deprive the subject of "every psychological advantage," such as having "his family and other friends * * * nearby, their presence lending moral support." The police arrested Miranda and took him to a special interrogation room where they secured a confession. In the companion cases, decided in the same opinion, the defendants were detained and interrogated, night and day, for lengthy periods. "In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures." Of Miranda, the Court said, "[T]he indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies." Stewart, one of the other defendants, was said to be "an indigent Los Angeles Negro who had dropped out of school in the sixth grade." Under these circumstances, the Court said, "This atmosphere carries its own badge of intimidation."
Thus, the Miranda case does not hold that the Fourteenth Amendment to the United States Constitution forbids the introduction in evidence of a confession made in custody if "adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings." The right to be protected by such procedural devices is the right of the defendant against self-incrimination through the use of confessions or admissions not "the product of his free choice." The facts of the present case distinguish it from the Miranda case and its companions, decided contemporaneously.
In its "spelling out" of its holding, the Court said in the Miranda case:
"[W]e cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. * * * However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed."
These safeguards were stated to be (1) advice in unequivocal terms that the prisoner has the right to remain silent; (2) the explanation that anything said can and will be used against him in court; (3) clear information to the prisoner that he has the right to consult with a lawyer and to have the lawyer with him during interrogation; and (4) warning that "if he is indigent a lawyer will be appointed to represent him."
We do not understand the Miranda case to hold that a confession may not be admitted in evidence when shown to have been freely and voluntarily made by one who, in fact, is not an indigent, is not unable to obtain advice of counsel of his choice, and so is not entitled to have court appointed counsel, merely because he was not advised of a right which he would have had if, in fact, he had been an indigent.
We hold that the admission of this defendant's alleged statements to the officers does not violate his right under the Due Process Clause of the Fourteenth Amendment, as interpreted by the United States Supreme Court in the Miranda case, because there is nothing in the record to show, and it has not been contended by the defendant, either in the trial court or before us, that this defendant was an indigent entitled to have counsel appointed for him at the time of his arrest and conversations with the officers. It cannot violate *12 this defendant's constitutional right against self-incrimination for the officers in their interrogation to fail to advise him of rights which some other person might have but which he does not have in view of his own circumstances.
There being nothing in this record to show that the statements alleged to have been made by the defendant were not voluntary, in fact, or that procedures adequate to safeguard his right against self-incrimination were not followed at his interrogation, his exceptions to the rulings allowing the officers to testify as to such statements are without merit and are overruled.
The remaining exceptions brought forward by the defendant in his brief are also without merit. His assignments of error 26, 27 and 28 relate to the sustaining by the court of the State's objections to questions directed by his counsel to his mother and uncle as to whether they heard the defendant admit "taking this stuff." The defendant's mother had testified, immediately prior to these questions:
"Charlie Gray has never admitted to me that he took this stuff from anywhere. I was present with Deputy Sheriff Beach and Sheriff Roberson in the front of the police station or at the police station but there was no conversation I remember. I did not hear him and have never heard him any other time admit that he took these things. I have heard him deny he took them."
There was no error in refusing to permit questions designed solely to elicit repetition of this testimony. In Re Smith's Will, 163 N.C. 464, 79 S.E. 977. After the court sustained the objection to the question directed to the defendant's uncle, the uncle was permitted to testify, without objection:
"I didn't hear him say anything in front of Jerry Beach. * * * I don't remember him saying anything particularly."
Any error which there may have been in sustaining the objection to this question, directed to the uncle, was cured by allowing the uncle immediately thereafter to so testify. Baynes v. Harris, 160 N.C. 307, 76 S.E. 230.
The only other exception brought forward in the defendant's brief relates to the above quoted passage from the charge of the court to the jury. In the passage in question, the court said:
"[Y]ou may find him guilty as charged or you may find him not guilty of breaking and entering and guilty of larceny or you may find him guilty of larceny and not guilty of breaking and entering. They are separate offenses."
Obviously, this statement is a lapsus linguae since in it the court twice told the jury they could find the defendant not guilty of breaking and entering and guilty of larceny. However, it was not called to the attention of the court at the time, and we do not believe the jury could have misunderstood the intent of the court to say that it could find the defendant guilty or not guilty of either of the offenses.
In any event, this is not the basis of the defendant's exception to this portion of the charge. He contends that this statement of the court was error because the court did not instruct the jury that it could find the defendant not guilty of both offenses. The statement in question occurred near the beginning of the charge. In the last two paragraphs of the charge, the court dealt separately with the offense of breaking and entering and with the offense of larceny. He expressly told the jury, as to each count of the indictment, *13 that if it had a reasonable doubt as to the defendant's guilt, it would be the duty of the jury to render a verdict of "not guilty" on that charge. The court instructed the jury fully and correctly as to the elements of each of the offenses with which the defendant was charged and as to the burden of proof. We find no prejudicial error in the charge to the jury. There can be no question but that the jury understood from this charge, considered as a whole, that it could acquit the defendant of either or both of these separate and distinct charges, and should so acquit him if they had a reasonable doubt as to his guilt. They found him guilty of both.
Rule 28 of the Rules of Practice in this Court provides: "Exceptions in the record not set out in appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him." We have nevertheless examined the remaining assignments of error set forth in the defendant's statement of the case on appeal. We find no basis therein for disturbing the judgment rendered below, a conclusion in which the defendant's counsel apparently concurs since these assignments are not mentioned either in his original or in his supplemental brief in this Court.
The sentence imposed by the court below is well below the maximum permitted to be imposed for either of these offenses by the applicable statutes. G.S. §§ 14-54, 14-70 and 14-72. If it be thought that the sentence imposed is unduly severe in view of the nature of the property taken and of the defendant's alleged offer to the owner to return it prior to his arrest, which question is not before us, the defendant may, if so advised, seek relief from the Board of Paroles or some other exercise of the powers of executive clemency.
No error.