{ "id": 2673346, "name": "STATE OF NORTH CAROLINA v. JOHNELL PORTER and KEITH EMERSON ROSS", "name_abbreviation": "State v. Porter", "decision_date": "1981-02-17", "docket_number": "No. 8026SC698", "first_page": "568", "last_page": "579", "citations": [ { "type": "official", "cite": "50 N.C. App. 568" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "241 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548474 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0250-01" ] }, { "cite": "252 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548892 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0072-01" ] }, { "cite": "203 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 209", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562949 ], "year": 1974, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0209-01" ] }, { "cite": "239 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572628 ], "year": 1978, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0288-01" ] }, { "cite": "352 U.S. 232", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6160420 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/352/0232-01" ] }, { "cite": "199 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559828 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0001-01" ] }, { "cite": "200 S.E. 2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560795 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0212-01" ] }, { "cite": "495 F. 2d 835", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 188307 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/495/0835-01" ] }, { "cite": "190 S.E. 2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "281 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576347 ], "year": 1972, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0675-01" ] }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "219 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569555 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0417-01" ] }, { "cite": "100 S.Ct. 1682", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6182222 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/us/446/0291-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "375 U.S. 85", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11717703 ], "weight": 2, "year": 1963, "opinion_index": 1, "case_paths": [ "/us/375/0085-01" ] }, { "cite": "225 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "29 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556528 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/nc-app/29/0534-01" ] }, { "cite": "163 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 1 }, { "cite": "274 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559994 ], "year": 1968, "opinion_index": 1, "case_paths": [ "/nc/274/0277-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "135-36" }, { "page": "485", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/us/391/0123-01" ] } ], "analysis": { "cardinality": 918, "char_count": 25281, "ocr_confidence": 0.828, "pagerank": { "raw": 4.938129727108177e-08, "percentile": 0.3097452785857399 }, "sha256": "8e73fe945ed770f050ed14a30b6e81a176be6a57c9f12ccfb85f61a754b004fe", "simhash": "1:633b7063706508da", "word_count": 4197 }, "last_updated": "2023-07-14T22:39:05.008611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Webb concurs.", "Judge MARTIN (Harry C.) dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHNELL PORTER and KEITH EMERSON ROSS" ], "opinions": [ { "text": "HILL, Judge.\nWe first discuss the assignments of error brought forth by both defendants regarding Patrolman Wilson\u2019s testimony as to the statements made by defendant Porter immediately after the two defendants\u2019 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.\nThe State contends Porter\u2019s statements were spontaneous utterances and were so found by the superior court judge, which finding 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\u2019s statement did not implicate defendant Ross and he may not complain.\nWe deal first with Porter\u2019s 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.\nThe issue then becomes whether the next question posed by Patrolman Wilson converts his conversation with Porter into a \u201ccustodial interrogation,\u201d thus rendering Porter\u2019s next statement inadmissible. We conclude that it does not.\nPatrolman 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 \u2014 and, in our opinion, not to be construed as custodial interrogation \u2014 to ask in response to Porter\u2019s volunteered statement, \u201cWhat bank bag?\u201d\nPorter contends that when the question was put \u2014 however innocently \u2014 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.\n\u201cA 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.\u201d Rhode Island v. Innis, _U.S__, 100 S.Ct. 1682, 64 L.Ed.2d 297, 308 (1980).\nThis case boils down to whether, in the brief conversation between 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\u2019s emphasis on the brevity and \u201coff-hand\u201d nature of the policeman\u2019s remarks.\nAlthough 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.\nAs we said in State v. Haddock, 281 N.C. 675, 682, 190 S.E. 2d 208, 212 (1972), \u2018[a] voluntary in-custody statement does not become the product of an \u201cin-custody interrogation\u201d simply because an officer, in the course of appellant\u2019s narration, asks defendant to explain or clarify something he has already said voluntarily.\u2019 Since there is no evidence here that defendant\u2019s 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).\nPatrolman Wilson was still getting the big picture when he asked \u201cWhat bank bag?\u201d There was no \u201cfocus on the accused,\u201d and the officer was not motivated \u201cto elicit a confession.\u201d Porter\u2019s assignment of error is without merit and overruled.\nNext, we deal with the State\u2019s contention that defendant Porter\u2019s extrajudicial statements did not implicate defendant Ross.\nPatrolman Wilson was prepared to testify that when he asked Porter \u201cWhat bank bag?\u201d, Porter said, \u201cThe bag we got from the robbery,\u201d (Emphasis added.) This statement was edited by the trial judge on voir dire so that Wilson testified before the jury that Porter said, \u201cThe bag from the robbery.\u201d We do not believe this editing so sanitized the statement that it did not implicate Ross.\nThe two defendants were arrested after being chased by a bloodhound 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.\nAlthough we hold that the statement implicated Ross, we do not believe it necessarily follows that the statement should have been excluded as to him.\nContrary to defendant Ross\u2019s contention, the rule set forth in the Bruton case cited would not apply to the case sub judice if Porter\u2019s 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\u2019s rights granted by the Confrontation Clause.\nIn the case sub judice, if defendant Porter\u2019s exclamations can be characterized as spontaneous utterances, they would not constitute inadmissible hearsay as to codefendant Ross. The Bruton rule would not apply. For the reasons stated above, if we find that defendant Porter\u2019s statements can be characterized as spontaneous utterances, Ross would have no constitutional rights under Bruton to cross-examine Porter.\nWe must determine whether Porter\u2019s statements were spontaneous utterances. A spontaneous utterance is a statement which is considered reliable because of its spontaneity. It is considered that if a statement is made in immediate reaction to the stimulus of an occurrence and without opportunity to reflect, it is unlikely that the statement would be fabricated. See 1 Stansbury\u2019s N.C. Evidence, \u00a7 164, p. 554 (Brandis rev. 1973). It does not matter that the statement is in response to a question. See State v. Johnson, 294 N.C. 288, 291, 239 S.E.2d 829 (1978); State v. Deck, 285 N.C. 209, 214, 203 S.E.2d 830 (1974).\nIn the case sub judice, there is evidence that both defendants had just been involved in a high speed automobile chase; they had been tracked on foot for approximately one mile by officers with a bloodhound; and they had been brought from under a bridge at gunpoint and handcuffed. At that time a voice on the radio asked Patrolman Wilson whether the officers had found a bank bag. In immediate response to the stimulus of this question, defendant Porter exclaimed that the bag was in the car. When Officer Wilson asked, \u201cWhat bag?\u201d, Porter responded, \u201cThe bag from the robbery.\u201d\nDefendant Porter was undergoing a traumatic experience. In the excitement of all that was surrounding him, we find that Porter\u2019s statements were spontaneous to the extent he was unlikely to have fabricated them. Therefore, for the reasons stated above, we hold Porter\u2019s spontaneous utterances were admissible against defendant Ross and that the rule established in Bruton predicating admission of extrajudicial statements on the right of a codefendant to cross-examine his codefendant-declarant does not apply and was not violated. Ross\u2019s assignment of error as to the admissibility of Porter\u2019s statements is overruled.\nBoth defendants assign as error the denial of their motions to dismiss. The motions to dismiss should have been denied as to each defendant if there was, as to each, substantial evidence of all material elements of the offense. It does not matter whether the evidence is direct or circumstantial. See State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979). In the case sub judice, there was evidence that Hal B. Martin was robbed at gunpoint by more than one person; that the robbers fled from the scene of the robbery in a red Dodge Aspen; that at least one person left the red Dodge Aspen as it was being pursued by a policeman; that officers used a bloodhound to follow the trail of those leaving the red Dodge Aspen for approximately one mile until they found both defendants under a bridge; that a .32 caliber revolver was found under the bridge; and that one of the defendants referred to a bag taken in the robbery. We hold that this is substantial evidence from which the jury could find that both defendants participated in the robbery. See State v. Collins, 35 N.C. App. 250, 241 S.E.2d 98 (1978). These assignments of error are overruled.\nWe have examined the other assignments of error brought forward by the defendants and find them to be without merit.\nNo error.\nJudge Webb concurs.\nJudge MARTIN (Harry C.) dissents.", "type": "majority", "author": "HILL, Judge." }, { "text": "Judge MARTIN (Harry C.)\ndissenting.\nI must respectfully dissent from the majority opinion. The heart of the case is whether defendants suffered prejudicial error by the admission, over objections, of the incriminating statements of Porter, made after he and Ross were arrested. The pertinent parts of the record are not long and are helpful to an understanding of this issue.\nAfter the facts of the armed robbery were established by the witnesses Martin and Lackey, the state called Joe Wilson, Jr., a Mecklenburg County police officer. He testified he received a radio message about the robbery and headed north looking for a suspect vehicle. He located the vehicle, a red 1976 Aspen, followed it at high speed, and finally had to ditch his car to avoid a collision. The Aspen at that point was backing out of a driveway into the highway. He saw a black male run into the woods, and the red car drove off at high speed. Other officers came; they got a bloodhound and a helicopter. The dog took up the trail and they soon came upon two suspects who had covered themselves with a wooden portion of an old bridge. With drawn weapons, the officers ordered the two defendants out from under the bridge. The defendant Porter was handcuffed and was under arrest and had not been advised as to his constitutional rights pursuant to Miranda. Wilson radioed his superior officer. The following testimony was taken in the absence of the jury:\nPrior to the radio message from Sergeant Burden I had asked Defendant Porter no questions, other than telling the defendants to come out from under the bridge I had no communications with either of them. None of the officers asked them anything else.\nQUESTION BY THE COURT:\nQ. Tell me what the statement was.\nA. \u201cThe bag is in the car\u201d and then I asked \u201cwhat bank bag?\u201d and Defendant Porter replied \u201cthe bag from the robbery.\u201d\nCROSS EXAMINATION by Mr. Pollard for Defendant Porter:\nWe were speaking by walkie-talkie and Sergeant Burden heard the message that we had two suspects in custody. The defendant was handcuffed. Mr. Porter had not been read his rights and he was under arrest. After Defendant Porter responded \u201cIt is in the car\u201d I asked him the question, \u201cwhat bag?\u201d\nThe following testimony was in the presence of the jury:\nSergeant Burden and I were communicating with walkie-talkie radios. After Sergeant Burden asked, \u201cDid you find a bank bag?\u201d defendant Porter replied, as if answering the radio:\n\u201cThe bank bag is in the car.\u201d At that time I said, \u201cWhat bank bag\u201d. I was not aware at that time that a bank bag hg.d been taken in the robbery. Then Defendant Porter responded:\n\u201cThe bag from the robbery\u201d ....\nAfter Mr. Porter made the statements I made radio announcements stating that the suspects said:\n\u201cThat the bank bag was in the car.\u201d\nLater, witness Overcash testified:\nThen a voice came over the radio asking if there was a bank bag found.\nQ. What happened next?\nA. About that time Porter said it was in the car.\nOfficer Wilson then said what bag, turkey?\nQ. What happened after Officer Wilson said, \u201cWhat bag, turkey?\u201d\nA. I believe Officer Wilson radioed back the suspect said it was in the car.\nQ. What, if anything, did you hear said after Officer Wilson said, \u201cWhat bag?\u201d\nA. He said it was the one that was taken at the store.\nQ. Who said, \u201cThe one from the store?\u201d\nA. Porter.\nDuring his charge to the jury, the judge stated:\nThat Wilson talked with Officer Burden by radio and was asked if a bank bag had been found, to which the Defendant Porter said it was in the car, and that upon being asked, \u201cWhat bag?\u201d stated, \u201cThe bag from the robbery.\u201d\nNow, Members of the Jury, there is evidence which tends to show that the Defendant Porter has admitted a fact relating to the crime charged in this case. If you the jury find that the defendant made such an admission, then you should consider all of the circumstances under which it was made in determining whether it was a truthful admission and the weight that you will give to it.\nAt no time during the trial did the trial judge give any cautionary or limiting instruction to the jury concerning how they should consider the testimony of Porter.\nROSS\u2019S APPEAL\nThe statements by Porter allowed into evidence over Ross\u2019s objections are extremely prejudicial to Ross, and their admission is reversible error. The statements admit the very crime charged, even though redacted to some extent. The very effort to \u201csanitize\u201d the statements as to Ross indicates their prejudicial nature.\nPorter, the out-of-court declarant, did not testify in the trial. Ross had no way to cross-examine Porter. Ross\u2019s right of cross-examination, secured by the Confrontation Clause of the sixth amendment of the United States Constitution and section 23 of article I of the Constitution of North Carolina, was violated by the admission of this testimony. Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968); State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968); State v. Johnson, 29 N.C. App. 534, 225 S.E.2d 113 (1976).\nI cannot say that the erroneous admission of the testimony was harmless error beyond a reasonable doubt. The evidence against Ross was primarily circumstantial. There is a reasonable possibility that the evidence complained of contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 11 L. Ed. 2d 171 (1963).\nThe majority in effect holds that if the extrajudicial statement is credible and reliable, the non-declarant defendant\u2019s rights to cross-examination have been fulfilled and there is no violation of the Bruton rule. This is the reverse of the purpose of cross-examination. It is the credible witness whom the defendant needs to cross-examine. Where the testimony is so incredible as to be unbelievable by a jury, defendant may well waive his right to cross-examine. At the very least, constitutional rights cannot be made to turn on whether this Court, or any other, is of the opinion that the extrajudicial statement is credible. Further, the opinion implies that Bruton is limited to \u201cconfessions.\u201d Bruton itself states that its rule applies to a context \u201cwhere the powerfully incriminating extrajudicial statements of a codefendant... are deliberately spread before the jury in a joint trial.\u201d 391 U.S. at 135-36, 20 L. Ed. 2d at 485 (emphasis added). A thorn bush by another name is just as prickly. Constitutional rights cannot be determined by the name tag given to the prejudicial extrajudicial statement.\nIn my opinion Bruton is applicable to this case, and Ross is entitled to a new trial.\nPORTER\u2019S APPEAL\nI vote a new trial for Porter because of the vital incriminating question put to him by the officer while in custody and without complying with the Miranda rules. The majority says officer Wilson was \u201cstill getting the big picture\u201d and that there \u201cwas no focus on the accused\u201d when the question was put to defendant. Wilson had knowledge of the armed robbery and some description of the car involved. He had chased the car, saw a man run into the woods, tracked the man with a bloodhound that unerringly identified Porter with its nose, found Porter hiding, and arrested him with drawn weapon. Porter was handcuffed, under arrest and in custody. Surely, Wilson believed that he had handcuffed one of the robbers.\nIt is true that Porter\u2019s first statement, \u201cthe bag is in the car,\u201d apparently was a response to a radio message not directed to him. That statement alone was ambiguous; it could have referred to any type \u201cbag.\u201d Then, however, without any compliance with Miranda, Wilson asked Porter \u201cWhat bank bag?\u201d or \u201cWhat bag, turkey?\u201d and Porter replied, \u201cthe one that was taken at the store\u201d or \u201cthe bag from the robbery.\u201d All the quoted statements were before the jury. Wilson further testified that when he asked Porter the question about the bag, he (Wilson) did not know that a bank bag had been taken in the robbery.\nAlthough the first statement by Porter made in response to the radio transmission was volunteered and can be fairly categorized as spontaneous, and therefore is not protected by Miranda, the subsequent question and answer of defendant certainly violated Porter\u2019s constitutional rights as set out in Miranda. Clearly, all the elements invoking Miranda procedures were present: defendant was in custody, handcuffed; from the circumstances of the chase, tracking and arrest, suspicion was properly focused on Porter. Officer Wilson referred to him as a \u201csuspect\u201d when Porter was arrested. Porter was entitled to be advised of his rights under Miranda before he was asked the question, \u201cWhat bag, turkey?\u201d and made his devastating reply. Officer Wilson reasonably knew that any answer by Porter would be incriminating. That was why he asked the question. According to Wilson, he used the words \u201cWhat bank bag?\u201d He wasn\u2019t inquiring about just any bag but a bank bag in connection with an armed robbery.\nBy the failure to safeguard Porter\u2019s constitutional rights, prejudicial error was committed and he is entitled to a new trial.", "type": "dissent", "author": "Judge MARTIN (Harry C.)" } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Ben G. Irons II, for the State.", "Assistant Public Defender Lyle J. Yurko for defendant appellant Keith Emerson Ross.", "Dozier, Miller & Pollard, by Scott T. Pollard, for defendant appellant Johnell Porter." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNELL PORTER and KEITH EMERSON ROSS\nNo. 8026SC698\n(Filed 17 February 1981)\n1. Criminal Law \u00a7 75.7\u2014 statements not result of custodial interrogation \u2014 Miranda warnings not required\nWhere defendants were tracked by bloodhound and arrested while hiding under a bridge after a robbery, an arresting officer was asked over the police radio whether a bank bag had been found, one defendant stated that the bank bag was in the car, and the officer then asked, \u201cWhat bank bag?\u201d and such defendant replied, \u201cThe bag from the robbery,\u201d such defendant\u2019s statements were not the result of in-custody interrogation and were admissible against him although he had not been given the Miranda warnings since the first statement was volunteered in response to a radio message not directed to him, and the officer did not reasonably know that his question before the second statement would likely elicit an incriminating statement.\n2. Criminal Law \u00a7 74.3\u2014 in-custody statements incriminating codefendant \u2014 spontaneous utterances \u2014 competency against codefendant\nWhere defendant and his codefendant were tracked by bloodhound and arrested while hiding under a bridge after a robbery, an arresting officer was asked over the police radio whether a bank bag had been found, defendant stated the bank bag was in the car, and the officer then asked, \u201cWhat bank bag?\u201d and defendant replied, \u201cThe bag from the robbery,\u201d defendant\u2019s statements clearly implicated the codefendant since the only natural inference the jury could have made under the circumstances was that both defendant and the codefendant had been involved in the robbery; however, such statements constituted spontaneous utterances by defendant and were admissible against the eodefendant even though defendant did not testify at the trial and the eodefendant thus had no opportunity to cross-examine him.\n3. Robbery \u00a7 4.6\u2014 armed robbery \u2014 guilt of both defendants \u2014 sufficiency of evidence for jury\nThe State\u2019s evidence was sufficient for the jury to find that both defendants were guilty of armed robbery where it tended to show that a storekeeper was robbed at gunpoint by more than one person; the robbers fled from the scene of the robbery in a red Dodge Aspen; at least one person left the red Dodge Aspen as it was being pursued by a policeman; officers used a bloodhound to follow the trail of those leaving the red Dodge Aspen for approximately one mile until they found both defendants under a bridge; a .32 caliber revolver was found under the bridge; and one of the defendants referred to a bank bag taken in the robbery in statements made to the officers.\nJudge Martin (Harry C.) dissenting.\nAPPEAL by defendants from Ferrell, Judge. J udgment entered 21 January 1980. Heard in the Court of Appeals 3 December 1980.\nThe defendants were each charged with and indicted for armed robbery. Their cases were consolidated for trial over each defendant\u2019s objection.\nState\u2019s evidence showed that on 5 October 1979, Mr. Hal B. Martin, while working as a clerk at a store in Mecklenburg County, was robbed at gunpoint. During the robbery, Martin was struck on the head and rendered unconscious. When Martin regained consciousness, he saw a customer, Mr. William Lackey, lying on the floor also. Money had been taken, and some sandwich labels and cigarettes were missing.\nLackey testified that he came to the store on the dav of the Wilson next heard his supervisor over the radio asking him if the officers had found a bank bag. When defendant Porter heard this question, he exclaimed, \u201cThe bank bag is in the car.\u201d Patrolman Wilson then asked, \u201cWhat bank bag?\u201d; and defendant Porter re-Martin was calling the police.\nLackey described to the police over the phone the car he had seen outside the store. Mr. Joe Wilson, a patrolman for the Mecklenburg County Police Department, testified that as a result of the description and a call from the police dispatcher, he soon after began pursuit of a red Dodge Aspen. Judging by the movement he saw in the vehicle, there appeared to him to be persons in the rear of the vehicle. Patrolman Wilson testified further that after a high speed chase, he ran his vehicle into a ditch to avoid a collision with the red Dodge Aspen. He saw a person leave the Dodge and run into the woods. The Dodge then left the scene.\nA bloodhound was brought to the point at which Patrolman Wilson saw a person run into the woods. County officers followed the bloodhound approximately one mile to a spot where both defendants were found under a bridge. A .32 caliber revolver was also found under the bridge. The officers held both defendants at gunpoint until they were handcuffed. Patrolman Wilson then notified the dispatcher by radio that they were holding two suspects. plied, \u201cThe bag from the robbery.\u201d\nBoth defendants objected to the admission of the statements by defendant Porter referred to above, and a voir dire hearing was held. The court made findings of fact based on the evidence and concluded that the statements were spontaneous utterances, not in response to an in-custody interrogation, and allowed Porter\u2019s statements into evidence against both defendants.\nFurther evidence presented by the State showed that on 5 October 1979 Dennis Sink saw a red Dodge Aspen with three black males in it being pursued by a police vehicle. Sink saw the persons in the Aspen throw paper bags from the automobile during the pursuit. Subsequently, he picked up the bags which contained cigarettes and boxes with food labels in' them.\nBoth defendants were convicted of armed robbery and received prison sentences from which they now appeal.\nAttorney General Edmisten, by Assistant Attorney General Ben G. Irons II, for the State.\nAssistant Public Defender Lyle J. Yurko for defendant appellant Keith Emerson Ross.\nDozier, Miller & Pollard, by Scott T. Pollard, for defendant appellant Johnell Porter." }, "file_name": "0568-01", "first_page_order": 594, "last_page_order": 605 }