State v. Franklin

304 S.E.2d 579, 308 N.C. 682, 1983 N.C. LEXIS 1292

• Court: Supreme Court of North Carolina
• Decided: July 7, 1983
• Docket: 446A82
• Status: Published

Opinions

MEYER, Justice.

Defendant contends that his written and recorded confessions were obtained in violation of his fifth amendment right against self-incrimination and his sixth amendment right to counsel. He bases his argument on the following facts:

In March 1981, defendant had been represented by Assistant Public Defender Lyle Yurko on a plea to a charge of indecent exposure. At that time, defendant was also a suspect in the Mecklenburg County murders of Amanda Ray and Nealy Smith, two young children. The Charlotte police department contacted Mr. Yurko subsequent to defendant’s sentencing on the charge of indecent exposure. It was the intent of Charlotte police officers Kirshner and Parker to question defendant concerning the Ray and Smith murders. Presumably pursuant to G.S. § 7A-452(a), Mr. Yurko undertook to represent defendant with respect to police efforts to question defendant concerning these murders. Defendant invoked his right to counsel and the Charlotte police were so informed by Mr. Yurko orally and by letter to the district attorney dated 28 April 1981.

On 8 October 1981, defendant was arrested on yet another unrelated matter in Mecklenburg County. He was charged with rape, kidnapping and robbery and apparently confessed to those crimes. In light of these developments, Charlotte Police Officer Styron determined to renew efforts to question the defendant concerning the Ray and Smith murders. This was the purpose of the 9 October meeting with the defendant. Officer Styron met with defendant at the Mecklenburg County Jail. Prior to any discussion, defendant waived his constitutional rights and indicated that he would answer questions without the presence of an attorney. Officer Styron was not aware that defendant had earlier requested the presence of counsel during questioning on the Ray and Smith murders. He began the conversation on a sympathetic note, acknowledging defendant’s “predicament” arising out of the rape/robbery arrest, his problems with sexual violations involving young children, and his need for psychological treatment. No mention was made of the Ray or Smith murders. Defendant then requested that he be taken “downtown.” Officer Styron asked defendant if he wanted “to talk about these cases,” and defendant answered yes. At the Law Enforcement Center, defendant was again advised of his rights by Officer Price. When asked what he wanted to talk about, defendant began discussing not the Ray and Smith murders, but rather the murder of Michelle Moody in Lenoir.

With respect to his fifth amendment right, defendant argues that

once he formally invoked his right to be free from interrogation on the Smith and Ray cases without the presence of counsel, he could not lawfully be interrogated on those matters again in a police initiated encounter. When Officer Styron initiated the encounter on October 9, he violated the defendant’s Fifth Amendment right to counsel and the confession in the Moody case that resulted was inadmissible. All of the subsequent confessions obtained from the defendant by officers of the Lenoir Police Department and the SBI agent were fruits of the poisoned tree of the first confession.

It is true that under Edwards v. Arizona, 451 U.S. 477, 68 L.Ed. 2d 378 (1981), once a suspected criminal invokes his right to counsel, he may not be questioned further until counsel is provided unless the suspected criminal himself initiates the dialogue at which time he may waive his right to have an attorney present. However, in the case sub judice, defendant had never invoked his right to counsel with respect to the Moody murder. He specifically stated, prior to any questioning, that he just wanted “to go ahead and get this over with. I do not want a lawyer.” Officer Price further testified on voir dire that he told defendant for his best interest he ought to obtain a lawyer before trial.

We do not decide whether Officers Styron and Price, in good faith, might properly have initiated questioning concerning the Ray and Smith murders in light of defendant’s earlier request that he have an attorney present during questioning on these cases; nor do we decide whether the officers might properly have initiated questioning concerning the Moody murder.¹ These issues aside, we are left with defendant’s completely unsolicited confession to a murder about which there had never been any intention to question him.

Prior to the 9 October questioning, defendant was fully advised of his constitutional rights to remain silent and to have counsel present during questioning. We attach no significance to the fact that the officers “did not expand on the defendant’s rights or explain them beyond what appeared on the standard Miranda rights card that he read from.” Nor do we find it significant that the defendant was questioned in a “small, windowless interrogation room.” There is no evidence that there were promises given, threats made, or that the confession was coerced or in any way improperly induced. The defendant simply waived his rights and chose to cooperate with the law enforcement authorities. This the law permitted him to do.

It is not the purpose of the fifth amendment constitutional protections to discourage confessions, nor to impede the authorized role of our law enforcement agencies to bring criminals to justice. As Chief Justice Warren stated in Miranda, “[confessions remain a proper element in law enforcement.” Miranda v. Arizona, 384 U.S. at 478, 16 L.Ed. 2d at 726. We therefore hold that under the facts of this case, defendant’s confessions were voluntarily and understandingly made after he had been fully advised of his constitutional rights and had specifically, knowingly, and intelligently waived his right to remain silent and to have counsel present during questioning.

Defendant’s sixth amendment argument presumes that his “Sixth Amendment right to counsel arose prior to the 9 October statement” because defendant was in custody on an unrelated robbery/rape charge. With respect to the robbery/rape charge, the record does not disclose, nor do we find it relevant, whether formal charges had been instituted in this case. At issue is whether defendant’s sixth amendment right to counsel in the Moody murder had attached. We hold that it had not. Prior to the 9 October statement, defendant was no more than a suspect in the Moody murder. Investigation had not yet reached the accusatory stage and had certainly not reached the point where adversary judicial proceedings had been initiated in that case. See Kirby v. Illinois, 406 U.S. 682, 32 L.Ed. 2d 411 (1972).

In the alternative, defendant claims that his sixth amendment right to counsel arose in the Moody case after his 9 October statement, thus rendering all subsequent statements against him inadmissible. We do not agree.

The record discloses that an arrest warrant was issued in the Moody murder case on 9 October 1981 and was executed on 10 October. Defendant’s first appearance before a judicial officer was on 15 October 1981, the day after he agreed to the videotaped reenactment of the crime. Counsel was appointed at this time and a probable cause hearing was scheduled for 29 October 1981. Defendant was indicted for the first degree murder of Michelle Moody at the 26 October 1981 session of Superior Court, Caldwell County. On 18 January 1982, defendant was indicted on the first degree sex offense charge.

It is well-settled that a criminal defendant’s sixth amendment right to counsel attaches only at such time as adversary judicial proceedings have been instituted “whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” Kirby v. Illinois, 406 U.S. at 689, 32 L.Ed. 2d at 417. In State v. McDowell, 301 N.C. 279, 289, 271 S.E. 2d 286, 293 (1980), cert. denied, 450 U.S. 1025 (1981), reh. denied, 451 U.S. 1012 (1981), this Court, while finding that the ivestigation “had narrowed its focus upon [the defendant], it had not so progressed that the state had committed itself to prosecute. It is only when the defendant finds himself confronted with the prosecutorial resources of the state arrayed against him and immersed in the complexities of a formal criminal prosecution that the sixth amendment right to counsel is triggered as a guarantee.”

In the present case, following the 9 October statement, investigation into the Moody murder had “narrowed its focus” upon the defendant. Investigation continued through 14 October, the date of defendant’s last statement. On 15 October counsel was appointed for the defendant.²

We therefore hold that at no time prior to 15 October, when counsel for defendant was appointed, had the State committed itself to prosecute. See Tarpley v. Estelle, 703 F. 2d 157 (5th Cir. 1983) (neither defendant’s arrest nor appearances before a magistrate triggered the defendant’s sixth amendment right to counsel as no adversary judicial proceedings were commenced prior to the return of the indictment).³

As his second assignment of error, defendant contends that the evidence is insufficient as a matter of law to support his conviction of felony murder. As a basis for this argument he states that apart from his extrajudicial confession, there was no evidence of the corpus delicti of first degree sexual offense, the underlying felony upon which the murder conviction was based.

As recently as State v. Brown, — N.C. —, —, — S.E. 2d —, — (1983), we stated that “[i]n North Carolina, ‘a conviction cannot be sustained upon a naked extrajudicial confession. There must be independent proof, either direct or circumstantial, of the corpus delicti in order for the conviction to be sustained.’ State v. Green, 295 N.C. 244, 248, 244 S.E. 2d 369, 371 (1978); State v. Thompson, 287 N.C. 303, 214 S.E. 2d 742 (1975).” In his treatise on evidence, Wigmore offers the following insights into the corpus delicti rule:

The meaning of the phrase corpus delicti has been the subject of much loose judicial comment, and an apparent sanction has often been given to an unjustifiably broad meaning. It is clear that an analysis of every crime, with reference to this element of it, reveals three component parts, first, the occurrence of the specific kind of injury or loss (as, in homicide, a person deceased; in arson, a house burnt; in larceny, property missing); second, somebody’s criminality (in contrast, e.g., to accident) as the source of the loss — these two together involving the commission of a crime by somebody; and, third, the accused’s identity as the doer of this crime.

7 Wigmore on Evidence, § 2072 (Chadbourn rev. 1978). He notes that “the term corpus delicti seems in its orthodox sense to signify merely the first of these elements,” “[b]ut by most judges the term is made to include the second element also, i.e., somebody’s criminality,” while the third view is “too absurd indeed to be argued with. . . .” Id.

Although the rule is applied in varying degrees in different jurisdictions,⁴ North Carolina has traditionally required corroborative evidence of both the first and second of the components under Wigmore’s definition; that is, the occurrence of the specific kind of injury or loss and somebody’s criminality as the source of the loss. See State v. Dawson, 278 N.C. 351, 180 S.E. 2d 140 (1971).⁵

Debate as to the degee of corroboration necessary to satisfy the requirements of the corpus delicti rule has centered on two questions: whether corroboration is necessary for all elements established by the confession and whether the corroborating facts may be of any sort whatever, provided only that they tend to produce confidence in the truth of the confession. These questions were addressed by the United States Supreme Court in Smith v. United States, 348 U.S. 147, 156, 99 L.Ed. 192, 200-201 (1954), and were answered as follows:

All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense ‘through’ the statements of the accused.

See Opper v. United States, 348 U.S. 84, 99 L.Ed. 101 (1954); see also Landsdown v. United States, 348 F. 2d 405 (5th Cir. 1965).

In the present case, defendant argues that because the State allegedly failed to produce sufficient corroborative evidence of the corpus delicti of the underlying felony, a first degree sexual offense, the evidence was insufficient as a matter of law to support his conviction of felony murder. Thus presented, the question is one of first impression in our State and depends for its resolution on an analysis of the corpus delicti rule including the underlying purposes and policies of the rule, as it applies to our statutory definition of first degree murder under G.S. § 14-17. That statute provides in pertinent part:

A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, ....

Thus, G.S. § 14-17 separates first degree murder into four distinct classes as determined by the proof. See State v. Strickland, 307 N.C. 274, 298 S.E. 2d 645 (1983). Whether the murder involves lying in wait, premeditation, rape, arson or the other felonies specified is not the determinative factor in applying the corpus delicti rule. The corpus delicti is established by evidence of the death of a human being by criminal means independent of the confession from which inferences may be drawn that it was feloniously done, without evidence independent of the confession as to the specific class of murder.

We find support for our position in numerous federal court cases which, as noted earlier, permit merely corroborating evidence independent of the confession to be sufficient, if it tends to establish the trustworthiness of the confession. In the present case, defendant does not question the corpus delicti of the murder. Here the corroborating evidence establishes that the victim was found stabbed to death in a wooded area near the Lenoir Mall on 11 June 1982; she was last seen about 8:20 or 8:30 p.m. at the mall on 10 June; a cigarette lighter was found near her body; a witness saw defendant running from the mall between 8:45 and 9:00 p.m. on the night of the murder; and defendant asked another witness to clean his knife which had rust-like stains on it. Thus, the corpus delicti of the murder was shown here by evidence aliunde the confession.

The corpus delicti rule is based on the hesitancy of the law to accept, without adequate corroboration, the extrajudicial confession of a defendant and to avoid convicting a person, solely out of his own mouth, of a crime that was never committed or was committed by someone else. Where there is proof of facts and circumstances which add credibility to the confession and generate a belief in its trustworthiness, and where there is independent proof of death, injury, or damage, as the case may require, by criminal means, these concerns vanish and the rule has served its purpose. Elements of the offense may then be proved through the statements of the accused.

Further support for our position comes from other jurisdictions which have addressed this issue. In State v. Johnson, 31 N.J. 489, 158 A. 2d 11 (1960), cert. denied, 368 U.S. 933, the court held that the state was required to prove only the element of death and could rely on the confession of the defendant to prove the underlying felony of attempted robbery. The court wrote that:

In a prosecution for felony-murder, proof of the felony replaces proof of the mental elements necessary for conviction of willful, deliberate and premeditated killing. In a prosecution for premeditated murder, the State is not required independently to prove those mental elements if the defendant has given a confession that admits them. By the same token, independent proof of the felony in a felony-murder prosecution is not necessary if proof of the felony can be gathered from a corroborated confession. In our view the State satisfied the burden placed upon it by independently proving the fact of death, and by producing corroborative evidence tending to establish that when the defendants confessed that they participated in the holdup and killing they were telling the truth. We therefore find that the confessions were properly received in evidence and were amply corroborated.

Id. at 505, 158 A. 2d at 19-20. See Gentry v. State, 416 So. 2d 650 (Miss. 1982); Rhone v. State, 254 So. 2d 750 (Miss. 1971); see also Jones v. State, 253 Ind. 235, 252 N.E. 2d 572 (1969), cert. denied, 431 U.S. 971 (1977).

We therefore hold that independent proof of the underlying felony in a felony murder prosecution is not necessary where a confession, otherwise corroborated as to the murder, includes sufficient facts to support the existence of the felony. It was proper to show solely by defendant’s confession that the homicide was murder in the first degree by showing that the murder was committed in the perpetration of another felony.

Finally, defendant argues that the court erred in permitting the State to ask prospective jurors death qualifying questions, thereby violating his right to an impartial jury and a fair trial. Defendant concedes that this Court decided the issue against him in State v. Avery, 299 N.C. 126, 261 S.E. 2d 803 (1980), and most recently affirmed its decision in State v. Hill, — N.C. —, — S.E. 2d — (filed 5/3/1983). Defendant, nevertheless, requests the Court to re-examine its holdings in these cases. As we stated in Hill “we determine that the prior decisions of this Court previously referred to are sound and should be viewed as binding precedent controlling on the issues raised by the defendant appellant.” Id. at —, — S.E. 2d at —.

No error.

1 . The United States Supreme Court has most recently admitted the possibility of a good faith exception to the exclusionary rule in Illinois v. Gates, — U.S. —, — L.Ed. 2d — (1983). North Carolina’s statutory codification of the exclusionary rule would permit such an exception. See G.S. § 15A-974(2)(b) and (c). We also find the case of United States ex rel. Karr v. Wolff, 556 F. Supp. 760 (N.D. Ill., E.D. 1983) inapposite. In that case defendant invoked his right to counsel in one case after which officers initiated questioning concerning an unrelated case.

2 . We further note that even had defendant retained counsel in the face of investigation into the Moody murder, his sixth amendment right to counsel would not have attached until adversary judicial proceedings had been instituted against him. A sixth amendment right to counsel is to be viewed “in the context of whether the claimed violation occurred in a critical stage of a prosecution, . . .” United States v. Craig, 573 F. 2d 455 (7th Cir. 1977), cert. denied, 439 U.S. 820 (1978) n. 14.

3 . See also Kamisar, Brewer v. Williams, Massiah, and Miranda: What is “Interrogation”? When Does It Matter? 67 Geo. L.J. 1 (1978), in which the author notes that “The [United States Supreme] Court has extended the sixth amendment right to counsel, as opposed to the Miranda right, backwards from the trial through the indictment to the initiation of judicial proceedings, presumably the first appearance before a judicial officer” and “the Court is unlikely to extend the right any further.” Id. at 83. The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966), reaffirmed the principle that suspects under interrogation are entitled to the assistance of counsel, earlier enunciated in Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed. 2d 977 (1964). However, Miranda effectively displaced Escobedo's sixth amendment rationale by assigning the privilege to a newly created fifth amendment right to counsel rather than to the right to counsel secured by the sixth amendment. In North Carolina v. Butler, 441 U.S. 369, 60 L.Ed. 2d 286 (1979), the Supreme Court made it clear that a suspect may waive his fifth amendment right to counsel, as did the defendant in the case sub judice, following an express indication of a desire to waive the Miranda rights. It is also interesting to note in a historical context that the Miranda court, in resolving the right to counsel question in the context of custodial interrogation, cited, at page 440 of the opinion, to Enker and Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois, 49 Minn. L. Rev. 47 (1964). In that article, the authors wrote: “[T]he presence of counsel at this point may very well result in the suppression of truth rather than its disclosure. This is because counsel, aware of the significance which an accused’s admissions may have in building the prosecution’s case, would normally tell his client to remain silent as a tactical decision. As a result, not only will coerced confessions be eliminated, but so will voluntary ones which will generally contain the truth. The accused’s power is increased, but at the expense of the search for truth. . . . The right to counsel, then, to the extent that it is more than an expensive prophylactic rule designed to protect against coercion, serves to protect no interest than to make prosecution of the guilty more difficult.” Id. at 66-67. In so creating a fifth amendment right to counsel, the Supreme Court appeared to strike a balance between the need to protect a criminal defendant from the coercive aspects of custodial interrogation and the legitimate interest of the State in pursuing its investigations.

4 . e.g. Corroboration is not necessary in Massachusetts. Commonwealth v. Kimball, 321 Mass. 290, 73 N.E. 2d 468 (1947) (conviction for indecent assault based solely on confession upheld). Florida, on the other extreme, requires independent proof of the accused’s identity as the doer of the crime. Jefferson v. State, 128 So. 2d 132 (Fla. 1961).

5 . Our traditional definition of corpus delicti in a homicide case is (1) the death of a human being (2) by criminal means. As stated by Justice Huskins in Dawson: “(1) There must be a corpse, or circumstantial evidence so strong and cogent that there can be no doubt of the death, State v. Williams, supra [52 N.C. 446, 78 Am. Dec. 248 (1860)]; and (2) the criminal agency must be shown. State v. Minton, 234 N.C. 716, 68 S.E. 2d 844, 31 A.L.R. 2d 682 (1952). ‘The independent evidence must tend to point to some reason for the loss of life other than natural causes, suicide or accident.’ Rollin M. Perkins, The Corpus Delicti of Murder, 48 Va. L. Rev. 173 (1962).”