State v. Reynolds

Justice Exum dissenting in part.

The majority opinion has tried mightily to distinguish this case from Dunaway v. New York, 99 S.Ct. 2248 , 60 L.Ed. 2d 824 (1979), decided after the trial proceedings in the instant case had occurred and while it was on direct appeal. 1 1 believe the attempt is unsuccessful and that Dunaway is not distinguishable from the case before us. I respectfully dissent from that portion of the opinion dealing with the Dunaway issue.

The majority argues defendant was not in custody of the sheriff at the time he made his confession and, even if he was, the sheriff had probable cause to arrest him prior to that time. The state concedes that defendant was in custody and there was no probable cause to arrest him before he made his confession. We, of course, are not necessarily bound by these concessions; but, in the context of a fully adversarial proceeding as this is, they are entitled to some weight.

The majority says defendant was not in custody because (1) he voluntarily accompanied the deputy sheriffs when they were sent “to pick him up”; (2) no law officer testified that defendant would not have been allowed to leave had he attempted to do so; (3) defendant himself initiated the contact with the sheriffs office; and (4) Judge Kivett found that defendant was free to leave the sheriff’s office “up until the time that Sheriff Poteat and the two SBI agents . . . began their interview." (Emphasis supplied.)

That defendant voluntarily accompanied the deputies and initiated contact with the sheriff’s office in no way detracts from the crucial fact that he was taken into custody by the deputies at the direction of the sheriff for questioning. Judge Kivett found as a fact that defendant “had been picked up by [the deputies] ... at the request of the sheriff so that they might possibly secure additional information from him” and that “he was not considered a suspect at the time.” That no law officer testified defendant *404 would not have been allowed to leave had he attempted to do so is immaterial. Neither did any officer testify that defendant would have been allowed to leave. Such testimony would at most have been the witness’ opinion of the circumstances. As this Court decided today in State v. Perry, 298 N.C. 502 , 259 S.E. 2d 496 (1979), determination of whether a suspect is in custody is made objectively by focusing on the actions of law officers. It is not based on whether defendant subjectively believed himself to be detained against his will or whether any particular officer might have so opined.

There can be no doubt that defendant here was taken into custody by the sheriff for the purpose of questioning and remained in such custody until he made his incriminating statements. Even if he had been somehow free to leave prior to the time the questioning began (and I find nothing in the record which supports this conclusion), Judge Kivett’s findings establish by clear implication that at the time questioning itself began defendant would not have been free to leave. If, consequently, at that point there was no probable cause to detain defendant, his subsequent incriminating statements are rendered inadmissible by Dunaway .

I disagree also with the majority’s alternative conclusion that the sheriff had probable cause to arrest defendant prior to the time interrogation began. The facts relied on by the majority to link defendant to the crime are consistent merely with defendant’s initial admissions that he visited the crime scene and entered the victim’s residence by breaking in a window. They are, in themselves, insufficient to constitute probable cause that defendant himself committed the crimes. After the investigation at the victim’s residence had been completed and defendant was being taken by deputies to the sheriff’s office, Judge Kivett found that defendant asked the deputies whether they suspected him. They replied, “No, they did not suspect him but they guessed that the sheriff might want to talk to him.” Again the state concedes the absence of probable cause prior to defendant’s making his incriminating statements.

I fully agree with the remainder of the majority opinion including its conclusion that defendant waived his Fourth Amendment rights by entering a negotiated guilty plea without notice *405 that he was pleading guilty conditionally under G.S. 15A-979(b). The legislature did not intend a defendant to have it both ways. The state is entitled to rely on a negotiated plea, nothing else appearing, as being a full and final settlement of the entire matter. The sentencing judge should know whether defendant’s plea will finally dispose of the matter or whether there is the immediate prospect of a new proceeding and a new sentence. Where a defendant negotiates a plea with the state and enters it without notice to the state or the court that he intends after all to seek a new trial, he waives the procedure made available to him by G.S. 15A-979.

. The majority assumes that Dunaway is sufficiently retroactive to apply to this case. An argument could be mounted that it is not. Johnson v. New Jersey, 384 U.S. 719 (1966) (held, Miranda v. Arizona, 384 U.S. 436 (1966) applicable only to trials begun after the date of its decision); see also Jenkins v. Delaware, 395 U.S. 213 (1969). The argument would probably fail, however, because of Linkletter v. Walker, 381 U.S. 618 (1965) (held, Mapp v. Ohio, 367 U.S. 643 (1961) applies to cases in which appeals were not final on date of decision.)