State v. Gladden

184 S.E.2d 249 (1971)

279 N.C. 566

STATE of North Carolina v. Geraldine GLADDEN.

No. 94.

Supreme Court of North Carolina.

November 10, 1971.

*251 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Claude W. Harris, and Trial Atty. H. A. Cole, Jr., for the State.

Bell, Ogburn & Redding by John N. Ogburn, Jr., and J. Howard Redding, Asheboro, for defendant appellant.

BOBBITT, Chief Justice.

Defendant excepted to the findings of fact and conclusions of law made by Judge Collier at the conclusion of a voir dire hearing that was held to determine the admissibility of Cockerham's testimony about statements made to him by defendant. Defendant assigns error on the ground the evidence did not support the court's findings and conclusions.

On voir dire Cockerham testified that before he permitted defendant to tell what had occurred, he advised her in detail of each of her constitutional rights in the manner required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966), as a prerequisite to an in-custody interrogation. Defendant did not testify at voir dire or at trial. Judge Collier made findings of fact and conclusions of law to the effect that defendant had been fully advised as to her *252 constitutional rights and that any statement she made was freely and voluntarily made without any threats against her or any promise of reward. Cockerham's testimony on voir dire provided ample evidence to support the court's findings of fact and conclusions of law.

If considered an in-custody interrogation, Cockerham's testimony as to statements made by defendant was competent. However, under the circumstances of this case, we are of opinion and hold that the conversation of defendant with Cockerham in defendant's own home was not an incustody interrogation. Apparently, having called the police, defendant wanted an opportunity to explain what had happened. Defendant had known Cockerham as an officer for at least fifteen years; and, upon his arrival, she invited him into her home where the conversation occurred. Nothing in the record indicates defendant was in custody or otherwise deprived of her freedom of action prior to or during her conversation with Cockerham. Nor is there any indication that defendant at that time had been charged with any criminal offense.

Miranda involved custodial interrogations. The majority opinion, delivered by Mr. Chief Justice Warren, states: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706, 10 A.L.R.3d at 993. The opinion states further: "Our decision is not intended to hamper the traditional function of police officers in investigating crime. * * * Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement.

In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present." Id. at 477-478, 86 S. Ct. at 1629-1630, 16 L. Ed. 2d at 725-726, 10 A.L.R.3d at 1013. The opinion also states: "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Id. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726, 10 A.L.R.3d at 1014. See State v. Meadows, 272 N.C. 327, 336, 158 S.E.2d 638, 644 (1968).

In our view, the requirements of Miranda prerequisite to an in-custody interrogation do not apply to the present factual situation. Thus, Cockerham's testimony about what defendant said was competent for two separate reasons: compliance with Miranda and inapplicability of Miranda.

Defendant assigns as error the denial of her motion at the conclusion of all the evidence for judgment as in cause of nonsuit. Her contention is based on the asserted incompetency of Cockerham's testimony as to her statements. Absent this testimony, she contends the evidence shows she acted in self-defense. Since Cockerham's testimony was competent, we need not consider whether the evidence offered by defendant, if accepted by the jury, was sufficient to exonerate her on the ground of self-defense.

Defendant excepted to the following portion of the court's charge, viz.: "Now, I charge you, Members of the Jury, for you to find the Defendant guilty of murder in the second degree, the State must prove two things beyond a reasonable doubt; first, that the Defendant shot Aaron Robert Colston with a deadly weapon, and I instruct you that a firearm is a deadly weapon; and, second, that the deceased, excuse me, Aaron Robert Colston's death was a natural and probable result of the Defendant's act. Now, to find the Defendant guilty of murder in the second degree, the State must prove beyond a reasonable doubt that the Defendant intentionally shot Aaron Robert Colston with a deadly weapon and that Aaron Robert Colston's *253 death was a natural and probable result of the Defendant's act. The law then presumes that the killing was unlawful and done with malice which, nothing else appearing, constitutes murder in the second degree."

Defendant concedes that the second and third sentences of this excerpt from the charge are in accord with our decisions. See State v. Barrow, 276 N.C. 381, 390, 172 S.E.2d 512, 518 (1970), and cases cited; State v. Winford, 279 N.C. 58, 65, 181 S.E.2d 423, 427-428 (1971); State v. Duboise, 279 N.C. 73, 81-82, 181 S.E.2d 393, 398 (1971). With reference to the phrase "natural and probable result," see State v. Woods, 278 N.C. 210, 219, 179 S.E.2d 358, 363-364 (1971).

Defendant assigns as error the first sentence of the instruction on the ground the word "intentionally" was omitted. Subsequent to the portion of the charge assigned as error, the court used the word "intentionally" in every instance in which a substantially similar instruction was given. Moreover, near the end of the charge, the court instructed the jury as follows: "If the State has failed to prove from the evidence and beyond a reasonable doubt that she intentionally shot him or that his death was a natural and probable result of Geraldine Gladden's act, it would be your duty to find the Defendant not guilty." (Our italics.) In our view, the inadvertent omission of the word "intentionally" in a single instance could not have misled or confused the jury, especially when there is no suggestion that the firing of the pistol by defendant was unintentional.

Defendant assigns as error the court's instructions relating to self-defense. As defendant correctly contends, the right of self-defense rests upon necessity, real or apparent; and, in the exercise of his lawful right of self-defense, a person may use such force as is necessary or apparently necessary to protect him from death or great bodily harm. State v. Jennings, 276 N.C. 157, 164-165, 171 S.E.2d 447, 452-453 (1970), and cases cited. In this connection, the full significance of the phrase "apparently necessary" is that a person may kill even though to kill is not actually necessary to avoid death or great bodily harm, if he believes it to be necessary and has a reasonable ground for that belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to him at the time of the killing. State v. Kirby, 273 N.C. 306, 160 S.E.2d 24 (1968), and cases cited.

Defendant contends the court failed to instruct properly with reference to apparent necessity. While neither "apparent" nor "apparently" appears in the court's instructions, the court did charge the jury that defendant, in the lawful exercise of her right of self-defense, could stand her ground in her own home, without retreating, "and use whatever force she reasonably believed to be necessary to save herself from death or great bodily harm" and that it was for the jury "to determine the reasonableness of the Defendant's belief, from the circumstances as they appeared to her at the time." In our view, the instructions were substantially in accord with our decisions. Defendant's contention relates more to semantics than to substance.

We deem it unnecessary to discuss assignments of error directed to other excerpts from the charge. None discloses prejudicial error.

It is noted: The indictment charges the murder of "Arron Robert Golston." Deceased is referred to in the evidence and in the court's charge by the name of "Aaron Robert Colston." The evidence offered by the State and by defendant as to the circumstances under which the deceased was shot and killed by defendant dispels doubt as to the identity of the deceased. No question has been or *254 is raised by defendant on account of the discrepancy.

Accordingly, the verdict and judgment of the court below will not be disturbed.

No error.