Defendant was charged with first degree murder, first degree rape and first degree burglary of an 86-year-old woman. He received two consecutive life terms upon negotiated pleas of guilty to second degree murder, first degree rape and first degree burglary. Sentence was imposed by Judge Seay at the 6 November 1978 Special Criminal Session of Superior Court, Caswell County.
Carlton, Justice. Justice Brock took no part in the consideration or decision of this case. Justice Exum dissenting in part.
On appeal, defendant presents five contentions for our review: (1) That his rights were denied under principles established by the United States Supreme Court in Dunaway v. New York, 99 S. Ct. 2248 (1979); (2) that his right to be taken promptly to a magistrate was denied, violating principles established by the United States Supreme Court in McNabb v. United States, 318 U.S. 322, 63 S. Ct. 608, 87 L. Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957), and by our own legislature in G.S. 15A-501 and G.S. 15A-511; (3) that the trial court did not properly find that defendant had freely and voluntarily waived his right to counsel; (4) that the trial court erred in finding that defendant freely and voluntarily consented to the taking of hair samples, and (5) that the three offenses charged merged and only one life term would be the appropriate sentence.
We reject defendant's contentions and affirm the trial court. We discuss the contentions in order.
I. The Contention Under Dunaway v. New York
In Dunaway, supra, the proprietor of a pizza parlor in Rochester, New York was killed during an attempted robbery. A Rochester detective was told by another officer that a jailed informant had supplied a possible lead implicating the defendant. The detective questioned the jail inmate but learned nothing sufficient to get a warrant for defendant's arrest. Nevertheless, he ordered other detectives to "pick up" defendant and "bring him in." Three detectives located defendant and he was taken under custody but was not told he was under arrest. Police testified, however, he would have been physically restrained if he had attempted to leave. He was driven to police headquarters in a police car and placed in an interrogation room where he was questioned by officers after having been given his Miranda warnings. He waived counsel and eventually made statements and drew sketches that incriminated him in the crime. At trial, defendant moved to suppress the statements and sketches and the motion was denied. Defendant was convicted as charged. The United States Supreme Court granted certiorari "to clarify the Fourth Amendment's requirements as to the permissible grounds for custodial interrogation. . . ." 99 S. Ct. at 2253, in a situation when there is less than probable cause for a full-fledged arrest.
That Court then held that police officers violated defendant's fourth and fourteenth amendment rights.
The Court first noted that defendant was "seized" in the fourth amendment sense when he was taken involuntarily to the police station. The State had readily conceded that the police lacked probable cause to arrest defendant before his incriminating statement during interrogation. The Court rejected the State's argument that the seizure of defendant did not amount to an arrest and was permissible under the fourth amendment because the police had a "reasonable suspicion" that defendant possessed "intimate knowledge about a serious and unsolved crime." 99 S. Ct. at 2254. The Court noted that detention of defendant was in important respects indistinguishable from a traditional arrest. Defendant was not questioned briefly where he was found, but was taken from a neighbor's home in a police car, transported to a police station, and placed in an interrogation room. The Court noted that defendant was never informed that
he was free to leave and, in fact, police testified that he would have been physically restrained if he had attempted to leave. The Court emphasized the central importance and historical guarantee of the fourth amendment's probable cause requirement and refused to adopt the New York Court's balancing test of "reasonable police conduct under the circumstances" to cover all seizures that do not amount to technical arrests. The Court concluded that "detention for custodial interrogation -- regardless of its label -- intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." 99 S. Ct. at 2258.
The Court then addressed the question whether the connection between the unconstitutional police conduct and the incriminating statements and sketches obtained during the illegal detention was nevertheless attenuated to permit the use at trial of the statements and sketches. The Court held, citing Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), that although a confession after proper Miranda warnings may be found to be "voluntary" for purposes of the fifth amendment, this type of "voluntariness" is merely a "threshhold requirement" for fourth amendment analysis. The Court stated:
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be sustantially diluted. . . . Arrests made without warrant or without probable cause, for questioning or "investigation," would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings.
99 S. Ct. at 2258-59, citing Brown v. Illinois, supra at 602, 95 S. Ct. at 2261, 45 L. Ed. 2d at 426.
While this decision by our United States Supreme Court clearly has major ramifications with respect to the question of the legality of custodial questioning on less than probable cause, we do not believe that it controls the case at bar. First, this case is significantly distinguishable on the facts and, second, defendant effectively waived any rights he might have had under Dunaway
by failing to notify either the State or the court during plea negotiations that he intended to appeal denial of his suppression motion.
Dunaway and the case at bar differ significantly in the following respects:
(1) In Dunaway, three detectives went to get the defendant on the basis of a tip. The Court specifically stated that defendant involuntarily went with the police. Here, defendant initiated the contact with the sheriff's office by calling the dispatcher on the telephone. This defendant voluntarily accompanied the deputies.
(2) In Dunaway, the evidence clearly established that defendant would not have been allowed to leave had he attempted to do so. Here, there is no evidence that defendant would not have been allowed to leave. Moreover, Judge Kivett found as a fact at the suppression hearing that defendant, during the period prior to his arrest, was free to leave the dispatcher's room and the sheriff's office at the Caswell County Jail. There is sufficient evidence in the record to support the trial court's finding and we are bound by it on this appeal. State v. Freeman, 295 N.C. 210, 221, 244 S.E.2d 680, 686 (1978); State v. Jones, 293 N.C. 413, 424, 238 S.E.2d 482, 489 (1977); State v. Thompson, 287 N.C. 303, 317, 214 S.E.2d 742, 751 (1975), death sentence vacated, 428 U.S. 908, 96 S. Ct. 3215, 49 L. Ed. 2d 1213 (1976).
(3) In Dunaway, the Court found that the detention of defendant was indistinguishable from a traditional arrest because petitioner was not questioned briefly where he was found but was instead taken from a neighbor's home to a police car and transported directly to an interrogation room. Here, however, petitioner volunteered his availability, and was obtained from his home because he had called in information to the sheriff. He was taken by car to the yard of the crime scene to be available to provide further information to the sheriff but arrived in the midst of a busy investigation and promptly made himself unavailable for coherent questioning by falling asleep.
(4) In Dunaway, there is some evidence of physical coercion by the police at the time of the pickup. See People v. Dunaway, 61 App. Div. 2d 299, 305-06, 402 N.Y.S. 2d 490, 495 (1978) (Cardamone, J., dissenting). Here, there is no evidence of any physical coercion by the police at any time.
(5) In Dunaway, the Court, citing Brown, supra, identified several factors to be considered "in determining whether the confession is obtained by exploitation of an illegal arrest": (a) The temporal proximity of the arrest and the confession (less than two hours elapsed between the arrest and the confession), (b) the presence of intervening circumstances (the Court found none), and (c) the purpose and flagrancy of the official misconduct (the arrest without probable cause had a "quality of purposefulness" in that it was an "expedition for evidence" admittedly undertaken "in the hope that something might turn up"). 99 S. Ct. at 2259, citing Brown v. Illinois, supra at 603-05, 95 S. Ct. at 2261-62, 45 L. Ed. 2d at 427-28. Here, (a) over ten hours elapsed between the time defendant left his home with the deputies and the confession, (b) there was a significant "intervening event" of defendant sleeping from 3:30 a.m. until 9:00 a.m. at his own request as well as ample evidence defendant could have left at any time including the stop at the convenience store, and (c) there certainly was no evil purpose or "expedition for evidence" on the part of the deputies in originally going for the defendant for defendant himself had called to offer information about the crime and to volunteer his help. Indeed he was so eager to help that he didn't even wait for police to come to his door but came out when they sounded the car horn.
In summary, we do not think that the principles regarding detention for custodial interrogation promulgated by Dunaway contemplate the factual situation disclosed by the record before us. Certainly these facts do not "trigger the traditional safeguards against illegal arrest." Defendant here originally confronted police on his own volition for the purpose of providing additional information. He then elected to sleep several hours in the police car in which there is no evidence to indicate that he was restrained. Before being questioned, the police had developed adequate probable cause to suspect defendant of the crimes from the result of their investigation and defendant was accorded all of his constitutional rights.
With respect to the claim under Dunaway, we add this final note. As indicated supra, since there is evidence to support it, we are bound by the trial court's finding that the defendant was not under arrest until he was advised of his rights and questioning commenced. We would simply note that there was also sufficient evidence to have supported a trial court finding that defendant
was restrained beginning at approximately 10:00 a.m. when he and the deputies left the crime scene by car and started toward Yanceyville. Even under that finding, however, defendant's reliance on Dunaway would be misplaced because at that time sufficient probable cause existed to detain defendant.
The record reveals that by the time the investigation was nearly completed (sometime just prior to 10:00 a.m.) the police had established the following links between defendant and the crime:
(1) Bare footprints were found in and about the house and defendant was wearing no shoes at the ...