Appeal from Judge Lacy H. Thornburg, presiding at the 23 February 1981 Criminal Session of Buncombe Superior Court. Judgment was entered 6 March 1981.
The defendant assigns error in the admission of his inculpatory statement to police, and in the refusal of the trial court to submit to the jury the possible verdict of felony murder in the second degree. For the reasons enunciated herein, we find that the defendant received a fair trial, free of prejudicial error.
The evidence for the State at trial tended to show that the body of Mrs. Myrtle Wilder was found in her home at approximately 6:00 p.m. on 16 August 1980. The deceased was found on her bed fully clothed but with her underpants around her knees. An initial examination of the body revealed seven or eight stab wounds, bruise marks at the base of the neck, slashed wrists and hemorrhages under the eyelids.
A later autopsy revealed that Mrs. Wilder had suffered eight stab wounds to the abdominal area, some as deep as five inches. The area around her neck was bruised with bruising and hemorrhaging into some of the organs around the neck and larynx. Her face was bruised and scraped, her wrists slashed and her neck broken.
Dr. John D. Butts, Senior Associate Chief Medical Examiner for the State of North Carolina and a forensic pathologist, testified that the hemorrhages under Mrs. Wilder's eyelids were consistent with death by asphyxiation through smothering or strangling. In his opinion, her broken neck would not have caused this condition, nor would strangulation ordinarily cause a broken neck. The manner in which Mrs. Wilder's neck had been broken was more consistent with a whiplash type injury. In Dr. Butts' opinion, the victim was alive when all of the injuries described were inflicted upon her. Due to the advanced age of the deceased and the condition of the body, Dr. Butts could not give an approximate estimate as to the time of her death. The examination of the deceased revealed no evidence of a sexual assault.
An investigation of the crime scene revealed a towel containing a portion of screen wire immediately outside the home. One of the windows in the home showed evidence of forced entry or exit. The screen had been torn off and the sliding window was open.
Mrs. Wilder's purse was found in the home but contained no money. The body was found on Saturday, 16 August 1980. Mrs. Wilder's daughter testified that she went grocery shopping with Mrs. Wilder every Sunday, and Mrs. Wilder customarily paid for her groceries in cash. She usually spent from $20.00 to $25.00 on such occasions. such occasions. When Mrs. Wilder's body was found, she was still wearing her rings.
A diary written and kept by the deceased was found in the home. The diary contained an entry in her hand indicating that she made the entry on the morning of 16 August 1980. Friends and relatives tried to contact Mrs. Wilder after 9:00 a.m. on that morning and received no response. Her body was discovered at approximately 6:00 p.m.
Sometime on or before 2 September 1980, Detective Lee Warren of the Asheville Police Department received information leading him to consider the defendant as a possible suspect in the murder of Mrs. Wilder. He left a note at the home of the defendant's grandmother on 2 September 1980 and indicated that he would like to talk to the defendant. The defendant's grandmother lived two houses away from Mrs. Wilder's home.
Sometime prior to 5:55 p.m. on 4 September 1980, the defendant came into the Asheville Police Department and asked for Detective Warren. Detective Warren was contacted by radio and came into the detective offices of the police department to talk to the defendant. Having given the defendant the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), Detective Warren questioned him about the murder of Mrs. Wilder. The defendant claimed no knowledge of the crime. The defendant agreed to take a polygraph examination but, once inside the polygraph room and informed of the questions to be asked, declined to take the test.
Detective Warren offered the defendant a ride home at approximately 8:00 p.m. which the defendant accepted. Detective
Warren asked the defendant if he would return to the police station at 10:00 p.m. The defendant indicated that he would.
That evening the defendant was again given his Miranda warnings in the police station and confessed to the murder of Mrs. Wilder. The facts surrounding this confession will be discussed in greater detail at a later point in this opinion. The defendant stated that he went to his grandmother's home on 16 August 1980. After staying there for a short while, he went to an abandoned house and drank liquor. He returned past Mrs. Wilder's home and decided to break into her house. He knocked at the front and back door and received no answer. He then went to a window of the house, took out the screen and went inside. When he entered Mrs. Wilder's house, her dog began barking and attempted to bite him. He kicked the dog. Mrs. Wilder, who had apparently been in the house all the time, hit the defendant and he hit her back. She fell. The defendant picked Mrs. Wilder up and took her to her bed. He placed her on the bed, then went to the kitchen and got a knife. When he returned to the bedroom, Mrs. Wilder was regaining consciousness. He began stabbing her. After stabbing Mrs. Wilder, the defendant wrapped the knife in a towel and went out the back window. He threw the knife in a garbage can, but later retrieved it and threw it in a river when he saw the police at Mrs. Wilder's home.
Kenneth S. Fritz testified the he lived near the deceased and arrived home at approximately 7:45 p.m. on 16 August 1980. He observed activity around Mrs. Wilder's home at that time and saw and spoke to the defendant. The defendant told him that Mrs. Wilder had been murdered and that she had been stabbed eight times. The defendant told Fritz that he had not discussed the murder with anyone. Mrs. Frances Barbour testified that she also had seen the defendant at the home of the deceased from about 7:15 p.m. to 9:00 p.m.
During the course of the trial, the defendant overpowered a law enforcement officer who was opening his cell door, took the officer's pistol from him and escaped. He was recaptured a short time later.
Based upon the foregoing evidence, the jury found the defendant guilty of premeditated murder in the first degree. During
the sentencing phase, the jury recommended a sentence of life imprisonment. The trial court entered the sentence recommended.
The defendant assigns as error the admission into evidence of his confession to the crime charged. In support of this assignment, he contends that the confession was taken in a manner violative of several of his constitutional rights.
During the trial, and in response to a pretrial motion to suppress by the defendant, the trial court conducted a voir dire hearing on the admissibility of the defendant's confession. At that time the trial court heard the testimony of three police detectives, Lee Warren, Bill Dayton and Walt E. Robertson. Their testimony for the State tended to show that Officer Warren left a business card containing his name and title with the defendant's grandmother at her home on 2 September 1980 and asked her to have the defendant contact him. Two days later, on 4 September 1980, the defendant came into the detective office of the Asheville Police Department. Officer Warren was not present in the office at that time but was informed by radio that someone was waiting in the office to see him. He returned to the office at approximately 5:45 p.m. and found the defendant waiting for him.
At approximately 5:55 p.m. on 4 September 1980 the defendant was given the Miranda warnings and signed a written waiver of his rights. At that time he also indicated orally that he did not wish to have an attorney present during questioning and that he was prepared to answer questions.
The defendant was questioned concerning the murder of Mrs. Wilder and made an exculpatory statement. This interview took place in a carpeted, well-lighted and air conditioned office which was approximately 14' X 14' in size. During the questioning the defendant was given a soft drink on at least one occasion. During this visit to the detective offices, the defendant was given the opportunity to take a polygraph examination. He indicated he would take the examination. He and Detective Warren then went to the polygraph room in the police station, where Detective Warren prepared the machine and formulated the questions to be asked of the defendant. The defendant asked what questions were to be asked of him, and Detective Warren read or showed them to him. The defendant then stated that he was not going to take the polygraph examination. After the defendant declined to take the
polygraph examination, he was offered and given a ride home by the detective a little after 7:00 p.m. The entire time involved in the defendant's first contact with the detectives was from two hours and ten minutes to two and one half hours.
When the officers took the defendant home, they indicated to him that they would like to meet with him again at 10:00 p.m. that evening. The defendant agreed to meet the detectives at the appointed time, and the detectives went to a restaurant for the evening meal. At approximately 10:00 p.m. the detectives were preparing to return to the office and called to determine whether the defendant had arrived there. They were informed that he had not. They drove through the general area of his residence to see if he was already walking toward the detective offices and to offer him a ride if he was. On their way to their offices, the detectives saw the defendant and asked him if he wanted a ride. He got into the car with the three officers at approximately 10:05 p.m. The group then proceeded to the detective offices. During the ride to the offices, Detective Robertson discussed the defendant's "curly kit" or "jelly curl" which is apparently a hairstyle. Detective Robertson complimented the defendant on his hairstyle, said he had been considering having his hair styled similarly and inquired as to who "put it in for him." The two men also discussed mutual friends and made other small talk. The criminal investigation was not mentioned during the ride to the offices.
Upon reaching the police station, the defendant was taken to a carpeted air conditioned room approximately 24' X 12' in size. He was again advised of his Miranda rights both orally and in writing. He executed a second written waiver of rights at approximately 10:14 p.m. He also affirmatively indicated orally that he wished to proceed to answer questions without an attorney present. One of the officers began to question him about the crime under investigation. Detective Robertson or Detective Warren placed before the defendant several photographs of the crime scene including photographs of the body of the deceased. The defendant indicated he did not wish to discuss the case and stated he could not look at the photographs. He began to cry and turned the photographs near him face down or pushed them away. The defendant asked to go to a bathroom. Detective Robertson took him to a nearby bathroom and they then returned to the conference room.
When they returned the defendant took the same seat at the table. The photographs were still where he had left them. At this time the defendant began to cry and stated that whenever he tried to sleep, all he could see was Mrs. Wilder's face and that he had not been able to sleep since it happened. He stated that, "I need to talk to somebody about this." Detective Robertson then told the defendant, "Well, James, you can talk to us about it." The defendant then made the oral confession previously outlined in this opinion. At some point during this latter exchange the defendant again asked to go to the bathroom and again was taken by Detective Robertson. He was also given a soft drink.
Detective Warren testified that he handed the defendant the Miranda rights waiver he had already signed to read again just before the defendant made his confession. The defendant looked at it and appeared to read it, but did not read the document aloud.
After the defendant gave his oral confession to the detectives, a stenographer was called at her home and came to the detective offices in the police department. The defendant repeated his confession to the stenographer who reduced it to writing. The defendant signed the written confession.
The defendant offered no evidence during the voir dire hearing. At the conclusion of the hearing on voir dire, the trial court made findings of fact and conclusions of law and admitted evidence relating to the defendant's confession.
By his first assignment of error, the defendant contends that his station house confession was coerced and was taken in violation of his right to due process of law and to be free from self-incrimination. The defendant readily concedes that he was twice given the Miranda warnings and signed a waiver of his rights on both occasions. He does not contend that the warnings were either absent or inadequate. Instead, he contends that he was not heeded when he stated that he did not want to talk about the case under investigation and that any statement taken after he expressed this desire to the officers was a product of compulsion and involuntary as a matter of law. In the context of the case before us, we do not agree with the defendant's contention.
In support of this contention the defendant points out the statement in Miranda v. Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627-28 (1966) that:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.
The narrow issue before the Court in Miranda, however, was precisely stated as "the admissibility of statements obtained from an individual who is subjected to custodial police interrogation." Id. at 439, 16 L. Ed. 2d at 704, 86 S. Ct. at 1609; State v. Martin, 294 N.C. 702, 242 S.E.2d 762 (1978). The Court also stated in the opinion that: "The constitutional issue we decide . . . is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 445, 16 L. Ed. 2d at 707, 86 S. Ct. at 1612.
In more recent cases, the Supreme Court of the United States has specifically rejected arguments that the principles of Miranda should be extended to cover interrogation in noncustodial circumstances after a police investigation has focused on the suspect and has stated that such arguments go "far beyond the reasons for that holding and such an extension of the Miranda requirements would cut this Court's holding in that case completely loose from its own explicitly stated rationale." Beckwith v. United States, 425 U.S. 341, 345, 48 L. Ed. 2d 1, 7, 96 S. Ct. 1612, 1615 (1976). The Court in Beckwith rejected the petitioner's argument that he was "interrogated" by Internal Revenue Service agents in surroundings where, as in the case of a subject in custody, the practical compulsion to respond to questions about his tax returns was comparable to the psychological pressures described in Miranda. In ...