The opinion
Judge MARTIN (Harry C.)
dissenting.
I respectfully dissent. Before turning to the legal question raised on this appeal, there are several statements in the majority opinion (not in the recitation of facts) I feel must be mentioned. They are:
1. “The defendant was questioned on two separate occasions over a period of hours from 1:00 a.m. until after 3:00 a.m.” The record shows the officers received a call at approximately 1:05 a.m. to go to the scene. Defendant made her first statement to the officers about 1:10 a.m., some seven to ten minutes after they arrived. This statement was exculpatory. These officers then left to go to the hospital. Although other officers remained at the scene, there is no evidence that anyone other than Barrow and Perry talked with defendant. They returned at approximately 3:10 a.m., when they took the second statement from defendant. So the evidence indicates the officers talked to defendant for a few minutes about 1:10 a.m. and a few minutes about 3:10 a.m. and not “over a period of hours.”
2. “[T]hat the officers persisted in their questioning until the defendant made the incriminating statements sometime after 3:00 a.m.” The defendant on voir dire testified the police asked her, “Who shot Nate? ... I told them that I shot Nate. They didn’t ask me any more questions after that.” This is all the evidence found in the voir dire record concerning the question asked defendant and her reply. Surely this cannot properly be categorized as “persistent” questioning.
3. “Even if the defendant had wanted to leave her home at that hour, she likely had nowhere to go.” That the defendant had “nowhere to go” is irrelevant to the question of whether she was in custody at that time.
4. “[T]he police officers had undertaken to give the defendant her Miranda warnings . . .. Clearly the officers felt that their in *159 terrogation . . . was custodial . . The majority seeks to show that Miranda warnings were required by showing they were attempted to be given. This is putting the cart before the pony. The giving of Miranda warnings does not sustain the conclusion that the interrogation was custodial. It is the custodial interrogation that requires the officers to comply with Miranda.
5. “It is clear that suspicion had focused on the defendant at the time of the second interrogation.” The voir dire evidence discloses that at the time of the second questioning, 3:10 a.m., all the officers’ information indicated Turner had shot Evans. No one had given them information that defendant had shot Evans prior to their taking defendant’s second statement. It is submitted that the voir dire record does not sustain the majority’s statement.
The legal question involved in this appeal is whether the court erred in denying defendant’s motion to suppress her in-culpatory statement. Two witnesses testified at the voir dire hearing on this motion, the defendant and Officer Barrow. Their testimony is short, and the portions essential to this appeal may be summarized as follows:
Detective Barrow:
I did not have a suspect in mind before I talked to defendant. She was not under arrest or in custody. I gave her the Miranda warnings. [1:10 a.m.] She said Turner shot Evans. She said Turner had left. We had answered a call about a domestic disturbance at defendant’s home. The first statement was taken about 1:10 a.m., some seven to ten minutes after we arrived.
We [Barrow and Perry] went to the hospital and returned about 3:10 a.m. We did not advise her of Miranda at that time. She was not under arrest or in custody or being detained in any way. She was never threatened or coerced into giving a statement or promised anything.
There were police officers at the house at all times from 1:10 a.m. to 3:10 a.m. Two other officers stayed there when we went to the hospital. Defendant did not leave during that time. I guess she could have left if she had wanted to. I later talked to Turner about 3:50 a.m. We had no information defendant had shot Evans before the 3:10 statement. We did not tell her not to leave when we went to the hospital.
*160 Defendant Clay:
Two cars of police came to the house. John Henry Clapp was in the dining room with me. The police [at 3:10 a.m.] asked me, “Who shot Nate?” I told them I shot Nate. They didn’t ask any more questions after that. I left the house after I made the [3:10 a.m.] statement. Day was breaking when I left home. I did not ask them if I could leave. My car was blocked in by the police cars, but they said I could walk out.
I feel I could have left the house before I made the statement if I had wanted to go, and I don’t think they would have tried to stop me.
I was not arrested at my house that night. I was not threatened to get me to answer questions. I knew I did not have to talk to the police and that I could have a lawyer.
I had been beaten up and was upset, mad and nervous. But not because of the police. I felt safe then.
I was arrested about 7:00 a.m. that morning.
Based upon the voir dire evidence, the court made findings of fact and conclusions of law. The court concluded as a matter of law that the statements given by defendant were the result of an on-the-scene investigation by the officers, rather than custodial interrogation, and denied the motion to suppress.
Whether a statement made by a defendant is competent as evidence is a question to be determined by the trial judge upon evidence presented to him in the absence of the jury. State v. Outing, 255 N.C. 468 , 121 S.E. 2d 847 (1961), cert. denied, 369 U.S. 807 , 7 L.Ed. 2d 555 (1962). Findings of fact made by the trial judge are conclusive if supported by competent evidence in the record. We may not properly set aside or modify those findings if so supported. State v. Barber, 278 N.C. 268 , 179 S.E. 2d 404 (1971). The trial court’s findings of fact are supported by the testimony of Barrow and Clay. These findings support the conclusion that defendant was not in custody when questioned by the officers and such statements by defendant were admissible as evidence. Our Supreme Court has recognized the difference between on-the-scene questioning and custodial interrogation condemned by *161 Miranda. State v. Shedd, 274 N.C. 95 , 161 S.E. 2d 477 (1968). The test for custodial interrogation is whether defendant has been taken into custody or deprived of freedom of action in any significant way. State v. Meadows, 272 N.C. 327 , 158 S.E. 2d 638 (1968).
In applying this test to the evidence received on voir dire, the facts clearly support the court’s conclusion that defendant was not in custody at the time of the 3:10 a.m. statement and that it was made by defendant freely and voluntarily and understanding^, without duress, coercion, or inducement.
In People v. Hazel, 252 Cal. App. 2d 412 , 60 Cal. Rptr. 437 (1967), the court held the custody requirement of Miranda was to be determined by the reasonable belief or intent of the suspect, rather than that of the officer, where suspect has not been arrested or physically deprived of his freedom of action. The voir dire evidence sustains the result that defendant Clay did not reasonably believe that her freedom of action was restricted. All the evidence is to the contrary.
In People v. Glover, 52 Misc. 2d 520 , 276 N.Y.S. 2d 461 (1966), the court held one of the criteria for distinguishing on-the-scene questioning and custodial interrogation depended upon the subjective intent of the officer. Does the officer have a reasonable belief that the person he is questioning is a suspect? If during the questioning the officer forms a reasonable belief that the person is. a suspect, the questioning becomes custodial interrogation. Miranda warnings must be given before questioning may lawfully continue. “But Miranda cannot be tortured to ‘throw back’ to his first fateful answer so as to bring that first answer within the ambit of ‘custodial interrogation’ as defined in Miranda. Nothing in Miranda, suggests that it does!” Id. a 527, 276 N.Y.S. 2d at 467 . The voir dire evidence sustains the conclusion that defendant was not a suspect until after the 3:10 a.m. statement. State v. Martin, 294 N.C. 702 , 242 S.E. 2d 762 (1978).
An investigation that is focused on the defendant as a suspect does not, in itself, require the application of the principles of Miranda. The interrogation must be custodial in nature before the requirements of Miranda are necessary. Beckwith v. United States, 425 U.S. 341 , 48 L.Ed. 2d 1 (1976). (Beckwith was interrogated by I.R.S. officers in a house sometimes occupied by him. The Court held it was not a custodial interrogation and Miranda *162 not required, even though the investigation had focused on Beckwith.) Smith v. Commonwealth, 248 S.E. 2d 135 (1978).
The majority suggests that the presence of police officers in defendant’s home created a “compelling atmosphere” or a coercive environment. Defendant, to the contrary, said the presence of the officers did not make her nervous or afraid and that she felt safe. In Oregon v. Mathiason, 429 U.S. 492 , 50 L.Ed. 2d 714 (1977), the Court concluded that a mere coercive environment, absent any formal arrest or physical restraint of freedom, was not a custodial interrogation within the meaning of Miranda. “ ‘[A]ny interview ... by a police officer will have coercive aspects to it.’ ” Id. at 495 , 50 L.Ed. 2d at 721 .
I find this case within the facts and holding in State v. Meadows, supra. In Meadows , police officers received a call a shooting had occurred and went to the scene to investigate. They found the victim there, wounded. The officer asked defendant what had happened and defendant replied, “I shot him.” Although this testimony was evidently offered to impeach defendant, the Court’s opinion was before Harris v. New York, 401 U.S. 222 , 28 L.Ed. 2d 1 (1971), which approved the use of a confession without Miranda warnings to impeach a defendant. Justice Bobbitt (later Chief Justice) based the Court’s opinion on the conclusion that defendant was not in custody and that although defendant was a suspect, the question was a part of a general investigation by the officers and not an in-custody interrogation. In State v. Martin, supra, the facts are analogous to the case at bar. The Court relied on Mathiason, supra, and held the statements were not a result of custodial interrogation.
I find the evidence on voir dire supports the trial court’s conclusion that the defendant’s inculpatory statement was not the result of custodial interrogation and was voluntary.
From a reading of the entire charge of the court, defendant’s second assignment of error appears to be without merit.
For these reasons, I find no error in the trial.