STATE of North Carolina
v.
Barry Dale HOLCOMB.
No. 9.
Supreme Court of North Carolina.
October 17, 1978.*890 Rufus L. Edmisten, Atty. Gen. by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State.
N. Lawrence Hudspeth, III, and Larry G. Reavis, Winston-Salem, for defendant-appellant.
BRANCH, Justice.
Defendant by his first assignment of error contends that the trial judge erred by denying his motion to suppress evidence concerning the location of the murder weapon and by ruling that the weapon was admissible into evidence.
Defendant argues that the dialogue between defendant and his uncles at the sheriff's office which resulted in his assistance in finding the murder weapon constituted a "custodial interrogation" which was conducted without the warnings or procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In State v. Wright, 274 N.C. 84, 161 S.E.2d 581, 586 (1968), cert. denied, 396 U.S. 934, 90 S. Ct. 275, 24 L. Ed. 2d 232 (1969), we stated:
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, lays down the governing principle that as a constitutional prerequisite to the admissibility of statements obtained from an accused during custodial police interrogation, the suspect must be advised in unequivocal terms (1) that he has a right to remain silent; (2) that anything he says can and will be used against him in court; (3) that he has a right to consult with a lawyer and to have a lawyer with him during interrogation; and (4) that if he is an indigent a lawyer will be appointed to represent him. . . .
These "Miranda warnings" are only required when an accused is about to be subjected to "custodial interrogation." State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). "Custodial interrogation" is a questioning initiated by law enforcement officers after a person *891 has been taken into custody or otherwise deprived of his freedom. Miranda v. Arizona, supra; State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973).
This record discloses that defendant's uncles Bobby Lee Smith and James Smith were at the Charles Holcomb homeplace when they heard that defendant had been taken into custody. They immediately went to the sheriff's office in Yadkin County for the purpose of "consoling" defendant. At the sheriff's office, Bobby Lee asked Deputy Hicks if he had the weapon with him; and Hicks replied, "No, and he didn't tell me where it was." The uncles obtained permission from the police officers to talk with defendant in hopes of locating the apparently valuable rifle which belonged to deceased. After some conversation between them, defendant agreed to carry them to the place where he had left the rifle.
In our opinion, the discovery of the murder weapon did not result from "custodial interrogation." It is true that defendant was in police custody, but there was no questioning initiated by the police concerning the murder weapon. Rather the conversation between defendant and his kinsmen grew out of a natural concern by defendant's uncles for the plight of defendant and occurred only with the permission of the police. Neither do we find merit or support in this record for defendant's contention that his uncles were acting as agents of the police when they talked with him concerning the murder weapon. Even had the evidence of the discovery of the weapon and the admission of the weapon into evidence been erroneous, we do not believe that the admission of this evidence would have contributed to defendant's conviction, particularly in light of the overwhelming evidence elicited from defendant's own family that he shot and killed his father with a gun. State v. Fletcher and State v. St. Arnold, supra. Nevertheless, defendant's counsel in his oral argument before this Court advanced, for the first time, the theory that the admission of this evidence weakened defendant's defense of insanity because his ability to lead others to the place where he had concealed the murder weapon was inconsistent with the evidence of insanity. The record does not lend support to this rather slender reed upon which defendant now relies for support. To the contrary, the record shows that defendant had difficulty directing the officers to the area where he left the weapon. He remembered only that he hung the gun on a tree limb, and he had a vague recollection of a rock quarry. It was only after his uncles and a deputy sheriff had driven through Wilkesboro to the Kerr Scott Dam area, then back toward Yadkin County, where some local men directed them to the rock quarry road, that the sheriff noticed some tracks going up a bank which led him to the weapon. We find little in this evidence which would negate defendant's defense of insanity.
We hold that the trial judge did not err when he denied defendant's motion to suppress evidence concerning the location of the murder weapon and that he correctly ruled that the gun was admissible into evidence.
Defendant assigns as error the failure of the trial judge to submit voluntary manslaughter to the jury as a possible verdict.
Voluntary manslaughter is the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971); State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967).
Manslaughter is a lesser included offense of murder in the second degree. However, instructions on a lesser included offense are required only when there is evidence which would permit the jury to find that such included crime of lesser degree was committed by the accused. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).
In the case before us, the State's evidence tends to show that defendant saw his father sitting in his rocker-recliner chair in the *892 living room of his home. Defendant thereupon went to his car, obtained a gun, loaded it and returned to the carport door which led into the living room and shot his father. There was evidence that defendant and his father did not get along very well, but there had been no trouble between them on the day of the shooting. The State's evidence made out a case of murder in the first degree, and defendant offered no evidence to rebut the State's evidence as to the nature of the crime. Defendant's evidence tended to support only his plea of not guilty by reason of insanity.
This record discloses no evidence which would support a verdict of manslaughter, and we, therefore, hold that the court properly refused to charge on that lesser included offense. We note, in passing, that defense counsel specifically requested the trial judge not to instruct on manslaughter. Ordinarily, one who causes the court to commit error is not in position to repudiate his action and assign it as grounds for a new trial. State v. Payne, 280 N.C. 170, 185 S.E.2d 101 (1971); Sumner v. Sumner, 227 N.C. 610, 44 S.E.2d 40 (1947).
By his final assignment of error, defendant contends that portions of the trial judge's instructions improperly coerced the jury into returning a verdict. Prior to dinner recess between 6:00 p. m. and 7:00 p. m., the trial judge stated:
. . . Tomorrow is Thanksgiving. If at all possible, I would like to, in consideration of all concerned, have you reach a verdict before the evening is over, if you can. I want it to be clearly understood that the court is not, in any way, attempting to rush you in any way or to try to dictate to you as to what you should or should not do; but you have the responsibility to decide on the verdict in this case; and I'll not try to rush that or hamper you in any way in arriving at what you consider to be a just verdict under the instructions I have given you.
On numerous occasions, this Court has said that a trial judge has no right to coerce a verdict, and a charge which might reasonably be construed by a juror as requiring him to surrender his well-founded convictions or judgment to the views of the majority is erroneous. State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978); State v. Cousin, 292 N.C. 461, 233 S.E.2d 554 (1977); State v. Roberts, 270 N.C. 449, 154 S.E.2d 536 (1967).
In instant case, Judge Kivett was careful to point out to the jury that he was not "attempting to rush you in any way or to try to dictate to you what you should or should not do . . .." In light of this cautionary language, we do not feel that this instruction improperly coerced the jury.
Defendant also challenges an instruction the trial judge gave the jury after bringing them into the courtroom at 9:55 p. m. to inquire whether they felt they were making any progress. Upon being told that they were "sort of hung up," Judge Kivett instructed in part:
These matters are mentioned now because some of them may not have been in your thoughts. This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion or opinions of other jurors or because of the importance of arriving at a decision. This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candidness. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed.
You may be as leisurely in your deliberations as the occasion may require and take all the time that you feel necessary. The giving of this instruction at this time in no way means it is more important than any other instructions. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you.
Defendant contends that the jury was improperly coerced by that portion of the charge in which the court instructed, "If at *893 all possible, you should resolve any differences and come to a common conclusion so that this case may be completed." We disagree. In State v. McKissick, 268 N.C. 411, 150 S.E.2d 767 (1966), Chief Justice Parker quoted with approval from 89 C.J.S. Trial § 481, p. 128:
What amounts to improper coercion of a verdict by a trial court necessarily depends to a great extent on the facts and circumstances of the particular case and cannot be determined by any general or definite rule. . . . In urging the jury to agree on a verdict, the court should emphasize that it is not endeavoring to inject its ideas into the minds of the jurors and that by such instruction the court does not intend that any juror should surrender his own free will and judgment, and these ideas should be couched in language readily understood by the ordinary lay juror.
In instant case, the court did emphasize that it was not endeavoring to inject its ideas into the minds of the jurors and expressly stated the language approved in McKissick to the effect that no juror "should surrender their honest convictions."
A contextual reading of the charge discloses that the trial judge did not improperly coerce the jury to return a verdict.
NO ERROR.