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North Carolina v. Perry

Filed: November 6, 1979.

STATE OF NORTH CAROLINA
v.
RICKY DAN PERRY



Defendant appeals from judgment of Lee, Judge, entered at 31 May 1977 Session of Durham County Superior Court.

Carlton, Justice. Justice Brock took no part in the consideration or decision of this case.

Carlton

Defendant presents four arguments on this appeal. We find one of his assertions has merit and remand for sentencing.

Defendant first asserts that it was prejudicial error for the trial judge to admit the prior written statements of the two boys since their credibility had not been impeached. This is particularly prejudicial, he argues, when no instructions were given to the jury limiting the use of those statements to corroboration of their in-court testimony. Defendant conceded on oral argument that the boys' written statements were substantially the same as their incourt testimony.

Unlike the law in many other states, prior consistent statements of a witness in North Carolina are admissible as corroborative evidence even when that witness has not been impeached. State v. Best, 280 N.C. 413, 419, 186 S.E.2d 1 (1972); State v. Rose, 270 N.C. 406, 154 S.E.2d 492 (1967). Failure of a

trial court to instruct that the evidence was admitted for corroborative purposes only is not reversible error when the defendant has not requested such a limiting instruction. State v. Bryant, 282 N.C. 92, 191 S.E.2d 745, cert. denied 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973), and cases cited therein. Here, defendant's counsel objected generally to the admissibility of the statements but failed to request a limiting instruction. This assignment of error is overruled.

Defendant secondly asserts that the trial judge erred in failing to suppress defendant's inculpatory statements made to Detective A. W. Clayton while defendant was in the detective's automobile. Defendant argues that this questioning amounted to a custodial interrogation which was conducted without warning him of his right to remain silent or his right to counsel in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

At trial, the judge held a lengthy voir dire hearing on the admissibility of defendant's statements. At the conclusion of the hearing he found as a fact that, inter alia, the police were not aware a crime had been committed when they first questioned defendant. The trial court then concluded that defendant had not been subjected to custodial interrogation.

It is well established that statements obtained as a result of custodial interrogation without the Miranda warnings are inadmissible. Miranda v. Arizona, supra; State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977); 2 Stansbury N.C. Evidence ยง 184 at 72 (Brandis rev. ed. 1973) and cases cited therein. Such warnings are not required, however, when questioning occurs while defendant is not in custody. Miranda v. Arizona, supra; State v. Biggs, supra; State v. Sykes, 285 N.C. 202, 203 S.E.2d 849 (1974). The articulated test for custodial interrogations is whether questioning was "initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, supra at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; Oregon v. Mathiason, 429 U.S. 492, 494, 97 S. Ct. 711, 713, 50 L. Ed. 2d 714, 719 (1977) (per curiam); State v. Martin, 294 N.C. 702, 707, 242 S.E.2d 762, 765 (1978).

Courts have grappled with the question whether this test should be objectively applied and involve determining whether a

reasonable person would believe under the circumstances that he was free to leave, or whether it should be subjectively applied and involve determining whether the defendant believed, even unreasonably, that his freedom of movement was significantly restricted. See Note: Custodial Interrogation after Oregon v. Mathiason, 1978 Duke L.J. 1497 (1979). Most have adopted an objective test, focusing in their determination on "something . . . said or done by authorities, either in their manner of approach or tone or extent of questionings, which indicates that they would not have heeded a request to depart or to allow the suspect to do so." U.S. v. Hall, 421 F.2d 540 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S. Ct. 1123, 25 L. Ed. 2d 398 (1970). See also State v. Hatton, 116 Ariz. 142, 568 P. 2d 1040 (1977); People v. Arnold, 66 Cal. 2d 438, 449, 426 P. 2d 515, 522, 58 Cal. Rptr. 115, 122 (1967); Myers v. State, 3 Md. App. 534, 240 A. 2d 288 (1968); People v. P., 21 N.Y. 2d 1, 233 N.E. 2d 255, ...


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