Appeal from judgments entered by Clark, Judge, at the 6 October 1980 Criminal Session of Superior Court, Wake County. Defendant was convicted by a jury of first degree rape, kidnapping, and first degree murder. For his conviction of first degree murder, defendant was sentenced to death. Defendant received consecutive life sentences for the crimes of kidnapping and first degree rape. From all these judgments, defendant appeals to this Court as a matter of right.
Carlton, Justice. Justice Exum concurring in part and dissenting in part.
Defendant brings forth assignments of error relating to several pre-trial matters, an alleged error in the guilt determination phase of his trial and several alleged errors relating to the sentencing phase of his trial. After a careful consideration of these assignments, as well as the record before us, we find no error in any of these proceedings and affirm.
At trial, evidence for the State tended to show that at approximately 7:20 p.m. on 12 May 1980, Ann Marie Roche, a registered nurse, was walking home on Avent Ferry Road. She was clad in a T-shirt and blue jeans, was wearing glasses and was carrying a brown gym bag. As she was nearing the Lake Raleigh Road intersection defendant, who was driving a Mercury automobile borrowed from his neighbor, turned left onto Lake Raleigh Road and blocked her path. Defendant beckoned Ms. Roche and she approached his car. The two talked for several minutes and then began arguing and, within seconds, defendant began to beat her.
All of this was observed by Howard B. Harris, Jr., who lived on Avent Ferry Road, and George Edward Schlager, who was jogging by. Mr. Schlager approached the car just as defendant was beating Ms. Roche. Ms. Roche was on the ground with her back against the driver's door. Her face and arms were cut and bleeding, and defendant was crouching over her, armed with a stick or some other object about one or two inches in diameter. Mr. Schlager asked if he could help and defendant stood and replied, "just go on, man, this doesn't concern you." Mr. Schlager then saw Mr. Harris and went to confer with him. Both saw the car leave with Ms. Roche in the passenger seat, with her head down, crying. Mr. Schlager jogged toward the car and observed the license number, RAP-980. He wrote the number on a matchbook and gave a copy of it to Mr. Harris.
Two other persons, Donna Atkins and Pamela Dodd, observed the struggle between Ms. Roche and her assailant. Ms. Atkins positively identified defendant as the assailant. Ms. Dodd observed a man beating a young woman. She testified:
I saw a guy over the front seat beating a girl brutally. The steering wheel appeared to jar at times he was beating her so hard. Then they were out of the car. He was swinging her around by the hair on the ground once that I can remember. At that time I ran in the house and called the police.
Although Ms. Dodd did not positively identify the assailant as the defendant, her description of the assailant matched that of the defendant.
Officer Ronnie Holloway arrived in the area at approximately 7:30 p.m. in response to the calls. Although he patrolled the area, he could not find the car.
On 13 May 1980 at approximately 7:30 p.m., Norman Cash, a patrol officer with Dorothea Dix Hospital, was on routine patrol in the area just south of Lake Raleigh. In a large, open field he discovered a pile of clothing and a billfold. A short distance away, he observed a body and notified the Wake County Sheriff's Department. Deputy Pickett of the Wake County Sheriff's Department was called and he, too, observed the body. At 8:45 p.m., Officer William E. Hensley, a crime scene specialist, was called to the scene. He observed a white female body, badly bruised and battered, with cuts and abrasions. The ground around the body was covered with blood. The body was nude and was approximately thirty-five feet from the pile of clothing. A T-shirt, blue jeans and glasses were recovered as well as other articles including a brown bag. The body was identified as Ann Marie Roche.
From the license number recorded by Mr. Schlager the police were able to trace the car and locate the owner. On 15 May 1980, Officer Holloway went to Stovall Drive and found the car in question. Surveillance was set up and the car was subsequently stopped by officers. It was operated by Ms. Edwards, the owner, who told the police that defendant had borrowed her car on the evening of 12 May 1980. She told police that when he borrowed the car, defendant was dressed only in blue jeans, was barefooted,
and had pulled his hair back in a pony tail. This description matched that given by all the witnesses to the assault. Surveillance of the area continued and the defendant was observed entering a trailer near where the car was parked. Raleigh police officers approached the trailer, knocked on the door, and were told to enter. Inside were two white males, two white females and a small child. Sergeant G. W. Black requested permission to search for defendant and this was denied. Shortly thereafter, however, the defendant came from the hallway of the trailer and stated, "I guess I'm the one you're looking for." Defendant was then taken into custody and placed in a patrol car.
On 15 May 1980, Deputy Sheriff P. J. Bissette obtained a search warrant to search the trailer where defendant had been arrested and conducted a search. During the search, Officer Bissette found and seized a pair of blood-stained blue jeans. Officer Hensley, who assisted in the search, found a Rapala Finland knife and a leather carrying case on the dash of a vehicle parked in front of the trailer. He then inspected the Mercury vehicle which had been taken to the Wake County Courthouse and found fresh stains on the driver's side as well as grass caught between certain sections of the vehicle. He observed red stains on the hubcaps and underneath the vehicle. During the autopsy of Ms. Roche, Officer Hensley observed an unusual circular impression, approximately five centimeters in size, on the right hip. He noted a corresponding five centimeter area in the chassis of the Mercury automobile.
S.B.I. agent Mark Nelson came to the crime scene on the evening of 13 May at approximately 11:30 p.m. He made numerous tests and observations and stated his opinion that one particular bloody smear was consistent with the large bloody object, like a body, being rolled or dragged down the slope of the field. He also examined the Mercury automobile and found blood in numerous places. He also performed tests on the vaginal and anal smears taken from Ms. Roche's body and found the presence of sperm.
Dr. Dana D. Copeland, a pathologist, conducted the autopsy on Ms. Roche on 14 May 1980. He observed cuts on the front part of her body, all parallel. The cuts were straight across and were of a uniform, shallow depth. The placement and uniform depth, in
Dr. Copeland's opinion, indicated that the cuts had been made deliberately shallow and "with some care and effort." His conclusion was that Ms. Roche's cuts were caused by a sharp instrument like a knife. Dr. Copeland found numerous lacerations on her head and hands which were, in his opinion, produced by beating with a long, blunt instrument with a round striking surface. In addition to the numerous cuts and abrasions throughout Ms. Roche's body, her left leg was completely fractured and broken at the top. The pelvis was fractured and separated. Compression injuries in the pelvic region were consistent with her having been struck by an automobile. Seven internal bleeding had taken place and he found injuries in the vaginal area which, in his opinion, could have been produced by forcible sexual intercourse. Her right rib was also broken. In Dr. Copeland's opinion, Ms. Roche died as a result of loss of blood from the injuries she sustained. Moreover, his opinion was that she could have remained alive from a period of two hours up to a maximum of twenty-four hours after receiving the injuries observed.
At approximately 8:12 p.m. on 15 May 1980, Deputies Freddie Benson and Ted Lanier and Detective J. C. Holder of the Raleigh Police Department began interviewing the defendant. Deputy Benson advised defendant of his Miranda rights and defendant signed a waiver of rights form. Defendant stated that he understood his rights. Deputy Benson left the room and Detective Holder began to question defendant. He again advised defendant of his rights and defendant was calm and in control. Detective Holder testified that "Johnny looked at me, and he said that he did it. He asked me if I was happy. I told him that I was not happy. I said, 'What did you do.' He said that he killed that girl." Defendant then proceeded to give Officers Holder and Lanier a complete statement.
Defendant's statement to the officers can be summarized as follows: On 12 May 1980 he was at a cookout on Stovall Drive and needed more bear. He borrowed the Mercury from Ms. Edwards and drove to the A & P Store on Western Boulevard where he purchased a bag of charcoal. Upon leaving the store he got into a fight with a black person and ran and hid until they left. He then went to an apartment complex on Avent Ferry Road and removed some money from the coin-operated laundry machines. As he drove down Avent Ferry Road he saw Ms. Roche walking and
blew his horn. She waved, and he turned into the first dirt road, backed and turned, and sat headed toward Avent Ferry Road to await the girl. When Ms. Roche walked up to the car, he pinched her. She slapped him, and they began scuffling. He then apologized, and she said he had already hurt her arm. He asked her to go riding with him and she got into the car. A jogger came up during the scuffle and defendant told the jogger to keep his eyes on what he was doing. He and Ms. Roche then drove down Avent Ferry Road headed south and, after making a few turns, they eventually reached a wheat field. Defendant told her to get out of the car and "tried to get into her pants." She resisted, and he told her he was going to have to get his "damn gun" from the vehicle, although, in fact, he did not have one. Defendant got a tire tool out of the trunk of the car, and Ms. Roche removed her pants. As she did so, he struck her on the side of the head and she fell to the ground. He then had forcible sexual intercourse with her. She tried to pull his hair, and he began to hit her some four or five times on the head and got blood on his face, shoulder, wrist and pants. According to defendant, he swung his knife at her and cut her on the face and neck, but he didn't mean to cut her. He then attempted anal intercourse, and when she resisted, he hit her again, and, instead of fighting, she just laid there bleeding. Defendant then got into his car and drove down to turn around. He could barely see over the steering wheel, but knew he had run over her with the car because he heard a thump and the car got stuck. He spun the tires to free the car and then drove home. When he arrived, the police were at the trailer. He returned to the cookout and explained the blood on his clothing and body as the result of the fight at the A & P.
At approximately 10:26 p.m. on 15 May 1980, defendant consented to a taped interview. Prior to this taking place, Officer Holder again advised defendant of his rights and defendant again repeated essentially the confession summarized above. Later that evening, defendant accompanied Detective Holder and other officers to the crime scene and showed them various items involved in the crime.
Defendant offered no evidence during the guilt determination phase of the trial.
Upon receiving the jury verdict finding defendant guilty of first degree murder, first degree rape, and kidnapping, the court
convened the sentence determination phase of the trial before the same jury. The State offered no evidence during this phase, choosing to rely instead upon the evidence introduced at the guilt determination phase. The defendant presented evidence through his brother and sister, who described in detail their life with their parents. Their parents were violent and constantly drunk and beat their children frequently. Their father spent time in prison, and the children were placed in foster homes. Defendant was forced to begin drinking by his father before he was ten years of age and would get "stone-drunk." Defendant became a heavy drinker and drug user.
Dr. Bob Rollins, a specialist in forensic psychiatry, examined defendant and diagnosed defendant as having a mental disorder of emotionally unstable personality as a result of experiences during his formative years. Dr. Rollins also testified that defendant was able to proceed to trial in that he understood his legal situation and was able to cooperate with his lawyer. Dr. Rollins felt that defendant understood what he was charged with, the different pleas he might make and the possible consequences of the situation. He further testified:
Mr. Rook just has never been able to make a satisfactory adjustment out in society, not been able to get along with people. He's been involved in violence, the longest he had ever been employed is three weeks; he can't get along with his own family, with his wife, or with anybody. He just doesn't have the capacity to do that.
It was also Dr. Rollins's opinion that defendant associates sexual gratification with violence and aggressive acts and is sexually excited by violence and aggression. His opinion was that defendant, to some extent, "enjoys inflicting pain on other people." Dr. Rollins was of the opinion that defendant would not benefit from psychiatric treatment and believed that defendant's conduct would continue in the future in a manner similar to that of the past if he were to go free. In Dr. Rollins's opinion, defendant, at the time of the crime, was aware that what he was doing was wrong and that he would be held responsible for his actions. Chief District Court Judge George F. Bason of the Tenth Judicial District testified that during the years Mr. Rook was involved in the juvenile courts, no beneficial program was available to help him.
Dr. Seymour Halleck, a psychiatrist, testified that defendant's brutality probably resulted from his exposure to brutality himself as a child. He also testified that defendant suffered a mental illness although he was not insane. He stated:
I base my opinion on the fact that anybody that uses as much alcohol and as many drugs as he has and who has this kind of history of so much deprivation, so little moral or social learning, but I'm primarily based it on the drug issue, anybody who uses these drugs cannot exercise rational judgment, anybody with a degree of alcoholism found in this family as the disease, this kind of alcoholism is definitely a disease.
Dr. Halleck agreed with Dr. Rollins that defendant would not benefit from psychiatric treatment for any brief period of time.
At the conclusion of the testimony, the trial court instructed the jury on the sentencing phase. Three aggravating circumstances were submitted to the jury: (1) whether the murder was committed while defendant was engaged in the commission of the rape of the victim; (2) whether the murder was committed while the defendant was engaged in the commission of the kidnapping of the victim; and (3) whether the murder was especially heinous, atrocious or cruel. Sixteen mitigating circumstances were submitted to the jury.*fn1 The jury found beyond a reasonable
doubt each of the aggravating circumstances and that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty. The jury also found one or more mitigating circumstances, although it did not designate which of the sixteen were found, and then found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. The jury then returned a recommendation that the death penalty be imposed, and the court entered judgment imposing the death penalty for the crime of first degree murder. Defendant also received consecutive life sentences for the crimes of kidnapping and first degree rape. From these judgments, defendant appealed of right to this Court.
Prior to trial, defendant entered several motions which were denied by the trial court. The denial of these motions provides the basis for four of defendant's primary contentions on this appeal. He first contends that the trial court erred in denying his motion to suppress custodial statements because the findings of fact of the trial court in the order were not supported by sufficient
and competent evidence. He also contends that the trial court erred in ruling that his confession was voluntary in that it was obtained by the influence of hope or fear implanted in his mind by the acts and statements of police officers during his custodial interrogation. Defendant also contends that his motion to suppress all evidence obtained as a result of the search warrant issued for the trailer on Stovall Street and the Mercury automobile should have been allowed because the record reveals insufficient facts or circumstances to support the finding of probable cause by the magistrate who issued the search warrant. Finally, defendant contends that his motion to dismiss the proceedings pursuant to G.S. 15A-2000 should have been allowed on the grounds that that section of our General Statutes is unconstitutional on its face and as applied to him. We discuss these contentions seriatim.
As a result of defendant's motion to suppress his custodial statements, the trial court conducted an extensive voir dire hearing on the admissibility of the statements. Evidence was presented both by the State and defendant. Thereafter, the court entered extensive findings of fact and conclusions of law and denied the motion. With respect to the trial court's order, defendant first contends that certain findings of fact contained therein were not supported by substantial and competent evidence. We find no merit to this contention.
Defendant acknowledges the general rule in this jurisdiction that findings of fact made by the trial court following a voir dire hearing on the voluntariness of a confession are conclusive on appellate courts if supported by competent evidence in the record. State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975). No reviewing court may properly set aside or modify those findings if so supported. State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971). Indeed, a trial judge's findings will not be disturbed on appeal when the finding is supported by competent evidence even when there is conflicting evidence. State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970).
Here, the trial court found as a fact that "Lieutenant Benson advised the defendant that he was a G.D. liar, and then read a
warrant to the defendant charging him with murder and advised him that he was being charged with murder."
Defendant admits the truth of this finding but contends, however, that it is incomplete. Defendant argues that this finding should include a statement to the effect that Benson stated that "He had good evidence against him [the defendant] and that he didn't go down to the magistrate and get warrants for first degree murder without good evidence against him." Defendant contends that the finding made by the trial court is not a fair and clear statement of the events transpiring on the evening of 15 May 1980 absent the language he would add. We disagree. While there is some evidence from the defendant on voir dire which supports his contention as to events transpiring during the interrogation, other evidence before the trial court on voir dire supports the finding as stated. Indeed, Detective Holder flatly denied that Detective Benson told the defendant that he had "good evidence" implicating the defendant. Detective Holder testified, "At the time Freddie [Benson] left the room he did not say anything to him other than calling him a liar." [Emphasis added.] Hence, the trial court's finding was supported by competent evidence, and there was no error in the failure of the trial court to make the extended finding formulated by the defendant.
Defendant next contends that the following finding of fact was also not supported by competent evidence: "That Officer Benson spoke to the defendant in a loud but not an angry or threatening tone of voice." Defendant contends that the finding that the tone of voice used by Officer Benson during interrogation was not angry or threatening is not supported by evidence. Defendant primarily relies, in support of this argument, on the response of Detective Holder on cross-examination that, "Freddie Benson became very angry and upset at the time." We do not think the quoted testimony contradicts the trial court's finding that Benson's voice was not "angry or threatening." Immediately following the quoted testimony, Holder further testified that "Freddie Benson raised his voice. He didn't yell at him. He just raised his voice." Moreover, Benson himself testified that, "I used a loud tone of voice to tell him he was lying . . . I did not at any time threaten, make any promises or strike Mr. Rook when I was in the room." Immediately following this incident, Detective Benson left the room and took no further part in interrogation of the
defendant. Thus, the trial court's finding that Detective Benson's tone of voice was loud but not angry is supported by evidence and is binding on this Court.
Defendant next objects to the following finding of fact: "Holder advised the defendant that neither he nor Officer Lanier could help him and that the only thing that could help him was to tell the truth." Defendant contends that while there is conflicting evidence as to what Detective Holder did in fact tell the defendant concerning helping him, it is clear that the tenor of Holder's conversation with defendant prior to his confession was concern with giving him help for his drinking and drug problems. Defendant contends that Detective Holder "implicitly" promised to help the defendant. Again, we disagree. Even the defendant concedes that the evidence on this finding is "conflicting," and we find that the record reveals compelling evidence which supports the trial court's finding. Detective Holder testified:
I told Johnny at that point, I said, Johnny, I can't help you. We cannot help you. The only thing that can help you is the truth. . . .
I reemphasized the point that the only thing for him to do at that point was to tell the truth, that I could not help him, Mr. Lanier could not help him.
Clearly, there is abundant evidence to support the trial court's finding.
Defendant next contends that the trial court erred in entering the following finding of fact:
At no time did either officer advise or promise the defendant that he could or would be helped in court or with the District Attorney on the charges against him and offered no help to him with his alcoholic problems.
Defendant also contends that certain other findings similar to that quoted above regarding the offer of help to him with respect to his alcoholic problems are unsupported by evidence at the voir dire hearing. Defendant contends, as we address more fully in the next section of this opinion, that the evidence clearly shows that the defendant's confession was induced by an offer of help to keep him from receiving the death penalty and that, in return for confessing, he was told that he would be sent to prison where he would receive help for his drinking and drug problems. All findings to the contrary, defendant contends, are unsupported by the evidence.
There is simply no merit to defendant's contentions in this regard. The record is replete with testimony to support all of the trial court's findings that no offer of help was made to defendant in order to induce him to make his confession. For example, Detective Holder testified:
I never offered or advised Mr. Rook that he could be helped in court. I never advised that he could be helped with the District Attorney's Office with respect to these charges.
No one during the course of the interview touched Mr. Rook's person in any threatened manner, strike him, or do anything of that nature to him.
We hold, therefore, that each of the challenged findings of fact is supported by competent evidence in the record and is binding on this Court. Moreover, we have examined the remaining findings
of fact in the order denying suppression of defendant's confession and find that each of them is supported by competent evidence adduced at the voir dire hearing. These assignments of error are overruled.
With respect to the trial court's order denying defendant's motion to suppress his custodial statements, defendant next contends that the trial court's findings of fact do not support its conclusion of law that his confession was voluntarily and understandingly made. Defendant contends that the circumstances of his confession were such that the confession was obtained by the influence of hope and fear implanted in his mind by the acts and statements of police officers during his custodial interrogation.
As noted in the preceding section of this opinion, facts found by the trial court are conclusive on appellate courts when supported by competent evidence. Nevertheless, the conclusions of law drawn from the facts found are not binding on the appellate court. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511 (1968). Hence, whether the conduct and language of the investigating officers amounted to such threats or promises or influenced the defendant by hope and fear as to render the subsequent confession involuntary is a question of law, as defendant contends, reviewable on appeal. State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968); State v. Biggs, 224 N.C. 23, 29 S.E.2d 121 (1944). Even where the procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1968), are recited by the officers and defendant signs a waiver stating that he understands his constitutional rights, including his right to counsel, the ultimate test of the admissibility of a confession still remains whether the statement made by the accused was in fact voluntarily and understandingly given. The fact that the technical procedural requirements of Miranda are demonstrated by the prosecution is not, standing alone, controlling on the question of whether a confession was voluntarily and understandingly made. The answer to this question can be found only from a consideration of all circumstances surrounding the statement. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; Accord, Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); State v. Pruitt, 266 N.C. 442, 212 S.E.2d 92.
Our inquiry, therefore, is whether the facts revealed by the record before us indicate that the challenged confession was obtained by the influence of hope or fear implanted in defendant's mind by the acts and statements of the police officers during defendant's custodial interrogation. The long-standing rule in this jurisdiction was stated by Chief Justice Taylor in Stat v. Roberts, 12 N.C. (1 Dev.) 259, 260 (1827):
The true rule is, that a confession cannot be received in evidence, where the Defendant has been influenced by any threat or promise; for, as it has been justly remarked, the mind, under the pressure of calamity, is prone to acknowledge, indiscriminately, a falsehood or a truth, as different agitations may prevail; and therefore a ...