State v. Porter

274 S.E.2d 860, 50 N.C. App. 568, 1981 N.C. App. LEXIS 2167
CourtCourt of Appeals of North Carolina
DecidedFebruary 17, 1981
Docket8026SC698
StatusPublished
Cited by5 cases

This text of 274 S.E.2d 860 (State v. Porter) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Porter, 274 S.E.2d 860, 50 N.C. App. 568, 1981 N.C. App. LEXIS 2167 (N.C. Ct. App. 1981).

Opinions

HILL, Judge.

We first discuss the assignments of error brought forth by both defendants regarding Patrolman Wilson’s testimony as to the statements made by defendant Porter immediately after the two defendants’ arrest. Defendant Porter contends that as to him, the testimony should have been excluded under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because his statements were made before he was warned of his right to remain silent. Defendant Ross contends that as to him, the testimony should have been excluded under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because the extrajudicial statement of a codefendant was used against him without his having a chance to cross-examine the declarant.

The State contends Porter’s statements were spontaneous utterances and were so found by the superior court judge, which [571]*571finding is binding on this Court. As such, the State contends the statements were not the result of an in-custody interrogation and are admissible against defendant Porter. The State further contends Porter’s statement did not implicate defendant Ross and he may not complain.

We deal first with Porter’s contention. It is clear from the record that defendant Porter made his statements to Patrolman Wilson before Miranda warnings were given and that the defendants were in custody; but, clearly, the first question coming over the radio from the supervisor was addressed to Patrolman Wilson and not to either defendant. Defendant Porter interrupted the conversation between the two officers and volunteered the location of the bank bag. A volunteered confession is admissible even in the absence of warnings or waiver of rights. Miranda, supra.

The issue then becomes whether the next question posed by Patrolman Wilson converts his conversation with Porter into a “custodial interrogation,” thus rendering Porter’s next statement inadmissible. We conclude that it does not.

Patrolman Wilson had not been at the scene of the robbery. There is no evidence that he knew what was taken at the store. Wilson only later came onto the scene when he pursued the Aspen in his car first and later pursued the defendants with the aid of the bloodhound. It was a natural response by Wilson — and, in our opinion, not to be construed as custodial interrogation — to ask in response to Porter’s volunteered statement, “What bank bag?”

Porter contends that when the question was put — however innocently — the police investigation entered into the accusatory stage and that Wilson was required to tell Porter of his right to remain silent. We are not persuaded.

“A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect . . . amounts to interrogation. But since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, _U.S__, 100 S.Ct. 1682, 64 L.Ed.2d 297, 308 (1980).

This case boils down to whether, in the brief conversation [572]*572between defendant Porter and Patrolman Wilson, the officer should have known that the respondent would suddenly be moved to make an incriminating response. We conclude not, particularly in light of Innis’s emphasis on the brevity and “off-hand” nature of the policeman’s remarks.

Although the facts are somewhat different in the case of State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975), modified as to death penalty 428 U.S. 904 (1976), the language of Chief Justice Sharp, on page 433, is helpful in the case sub judice.

As we said in State v. Haddock, 281 N.C. 675, 682, 190 S.E. 2d 208, 212 (1972), ‘[a] voluntary in-custody statement does not become the product of an “in-custody interrogation” simply because an officer, in the course of appellant’s narration, asks defendant to explain or clarify something he has already said voluntarily.’ Since there is no evidence here that defendant’s statements were made in response to overbearing police questioning or other police procedures designed to elicit a statement, we conclude that they were the product of free choice and without the slightest compulsion of in-custody interrogation procedures. Therefore they were properly admissible. See Holloway v. U.S., 495 F. 2d 835 (10th Cir. 1974); State v. Thomas, 284 N.C. 212, 200 S.E. 2d 3 (1973), and cases cited therein; State v. Blackmon, 284 N.C. 1, 199 S.E. 2d 431 (1973).

Patrolman Wilson was still getting the big picture when he asked “What bank bag?” There was no “focus on the accused,” and the officer was not motivated “to elicit a confession.” Porter’s assignment of error is without merit and overruled.

Next, we deal with the State’s contention that defendant Porter’s extrajudicial statements did not implicate defendant Ross.

Patrolman Wilson was prepared to testify that when he asked Porter “What bank bag?”, Porter said, “The bag we got from the robbery,” (Emphasis added.) This statement was edited by the trial judge on voir dire so that Wilson testified before the jury that Porter said, “The bag from the robbery.” We do not believe this editing so sanitized the statement that it did not implicate Ross.

The two defendants were arrested after being chased by a [573]*573bloodhound for approximately one mile. Upon being caught, the two were both handcuffed. When Porter referred to a robbery, we believe the only natural inference the jury could have made at trial is that both men had been involved in the robbery.

Although we hold that the statement implicated Ross, we do not believe it necessarily follows that the statement should have been excluded as to him.

Contrary to defendant Ross’s contention, the rule set forth in the Bruton case cited would not apply to the case sub judice if Porter’s statements constituted spontaneous utterances. In Bruton, the Supreme Court overruled Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), saying that it was no longer permissible for a trial court to instruct a jury that while the confession of a defendant could be introduced as competent evidence against that defendant as an exception to the hearsay rule, that such confession could not be considered by the jury against a codefendant because it was inadmissible hearsay as to the codefendant. The Court held that, as a practical matter, the jury could not be expected to heed the limiting instruction and would consider against the codefendant the incriminating extrajudicial statement of the defendant, even though as to the codefendant the statement was inadmissible hearsay. The result would be a violation of codefendant’s rights granted by the Confrontation Clause.

In the case sub judice,

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State v. Porter
274 S.E.2d 860 (Court of Appeals of North Carolina, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
274 S.E.2d 860, 50 N.C. App. 568, 1981 N.C. App. LEXIS 2167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-porter-ncctapp-1981.