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North Carolina v. Conard

Filed: December 1, 1981.

STATE OF NORTH CAROLINA
v.
SHERRY CONARD



Appeal by defendant from Howell, Judge. Judgment entered 22 January 1981 in Superior Court, Polk County. Heard in the Court of Appeals 16 November 1981.

Martin (Robert M.), Judge. Chief Judge Morris and Judge Hedrick concur.

Martin

The defendant first assigns as error the admission into evidence of statements made by defendant to Hazel Wiggins, a Polk County Magistrate. The defendant asked to speak with Mrs. Wiggins, whom defendant knew well because Mrs. Wiggins had worked with the defendant in the past as a juvenile officer. Mrs. Wiggins testified that the defendant told her that "you've always tried to help me and I want you to know the truth about the whole thing." The defendant alleges that her statement to Mrs. Wiggins is not admissible because the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), were not met.

Miranda warnings are only required when an accused is 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 has been taken into custody or otherwise deprived of his freedom. State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973). In this case the defendant was in custody. The trial court, however, concluded that Mrs. Wiggins "was not an employee of the Polk County Sheriff's Department or any law enforcement agency of the State of North Carolina, but was a Magistrate . . . and did not interrogate as a Police Officer or Agent or Representative of any Law Enforcement Agency . . ." We agree with the trial court.

In State v. Johnson, 29 N.C. App. 141, 223 S.E.2d 400, disc. rev. denied, 290 N.C. 310, 225 S.E.2d 831 (1976), this Court refused to exclude inculpatory statements made by a defendant in custody to a radio dispatcher employed by the police department. The Court concluded that the dispatcher "was not a sworn police officer and did not have the power of arrest; . . . did not make criminal investigations, did not interview witnesses or defendants and was not employed to take statements from anyone . . . was

not in any way acting as a police officer, and, in fact, was not a law enforcement officer, and that even though defendant was in custody her talking with him was not a police interrogation." Id. at 143, 223 S.E.2d 402.

The Johnson case controls the case at bar. The only difference is that in the present case Mrs. Wiggins was a judicial official; while in Johnson the witness was a civilian employee of the police department. Neither woman was engaged in law enforcement, although both worked closely with law enforcement officials and both worked in the building where the law enforcement agencies were located. Neither witness was acting as a law enforcement officer at the time that she talked with the defendant. Further, in the present case the defendant specifically asked to talk with Mrs. Wiggins, while in Johnson the dispatcher initiated the conversation. The admission of Mrs. Wiggins' testimony was proper in view of the findings of fact and conclusions of law made by the trial judge.

The defendant next contends that her statement to Mrs. Wiggins was not made voluntarily as required by State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975). "In determining whether a minor's in-custody confession was voluntarily and understandingly made the judge will consider not only his age but his intelligence, education, experience, the fact that he was in custody, and any other factor bearing upon the question. In other words, 'the "totality of circumstances" rule for admission of out-of-court confessions applies to the confessions of minors as well as adults.'" (Citation omitted.) State v. Lynch, 279 N.C. 1, 13, 181 S.E.2d 561, 568-69 (1971). The trial court's finding that a confession was voluntarily and understandingly made is conclusive on appeal if there is evidence in the record to support it. State v. Cooper, supra; State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970).

In this instance the trial court found that at the time the defendant made the statement in question, she was coherent, rational and not under the influence of drugs or alcohol. The court concluded as follows:

[T]hat [the] statement made by defendant to the extent that it implicates her in any crime was made freely and voluntarily and was not the result of coercion, inducement or any other factor that would constitute the statement involuntary,

as defined by applicable law and that the Court concludes that the above-mentioned statements are true notwithstanding the youth and immaturity of the defendant, this all being taken into ...


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