{ "id": 8527183, "name": "STATE OF NORTH CAROLINA v. JULIUS LEE CASS", "name_abbreviation": "State v. Cass", "decision_date": "1982-01-05", "docket_number": "No. 8123SC251", "first_page": "291", "last_page": "304", "citations": [ { "type": "official", "cite": "55 N.C. App. 291" } ], "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": "114 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "101", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "252 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622960 ], "year": 1960, "pin_cites": [ { "page": "458", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0457-01" ] }, { "cite": "184 S.E. 2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "279 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571231 ], "year": 1971, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0573-01" ] }, { "cite": "269 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "131" } ], "opinion_index": 0 }, { "cite": "301 N.C. 18", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561039 ], "year": 1980, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0018-01" ] }, { "cite": "204 S.E. 2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "285 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563902 ], "year": 1974, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0238-01" ] }, { "cite": "265 S.E. 2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "182" } ], "opinion_index": 0 }, { "cite": "300 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559714 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0001-01" ] }, { "cite": "251 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567620 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0454-01" ] }, { "cite": "161 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "566" } ], "opinion_index": 0 }, { "cite": "274 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559380 ], "year": 1968, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0062-01" ] }, { "cite": "220 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "334" }, { "page": "334" } ], "opinion_index": 0 }, { "cite": "288 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570361 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "592" }, { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0582-01" ] }, { "cite": "200 S.E. 2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "284 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560586 ], "year": 1973, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0137-01" ] }, { "cite": "206 S.E. 2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "285 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565214 ], "year": 1974, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0482-01" ] }, { "cite": "227 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "113" } ], "opinion_index": 0 }, { "cite": "290 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561887 ], "year": 1976, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0511-01" ] }, { "cite": "210 S.E. 2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566243, 8566276, 8566310, 8566348, 8566382 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0339-01", "/nc/286/0339-02", "/nc/286/0339-03", "/nc/286/0339-04", "/nc/286/0339-05" ] }, { "cite": "208 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547675 ], "year": 1974, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0052-01" ] }, { "cite": "441 U.S. 369", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1780286 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "373" }, { "page": "292" }, { "page": "1757" } ], "opinion_index": 0, "case_paths": [ "/us/441/0369-01" ] }, { "cite": "239 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566830 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0646-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "444" }, { "page": "706" }, { "page": "1612" }, { "page": "444" }, { "page": "706-707" }, { "page": "1612" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "378 U.S. 478", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166688 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0478-01" ] }, { "cite": "372 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "378 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164855 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0001-01" ] }, { "cite": "252 S.E. 2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570136 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0703-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 8, "year": 1968, "pin_cites": [ { "page": "16" }, { "page": "903" }, { "page": "1877" }, { "page": "22" }, { "page": "906-907" }, { "page": "1880" }, { "page": "22" }, { "page": "1880" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "420 U.S. 103", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11642843 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "111-112" }, { "page": "64" }, { "page": "862" } ], "opinion_index": 0, "case_paths": [ "/us/420/0103-01" ] }, { "cite": "394 U.S. 721", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179734 ], "weight": 9, "year": 1969, "pin_cites": [ { "page": "726" }, { "page": "680" }, { "page": "1397" }, { "page": "681" }, { "page": "1397" } ], "opinion_index": 0, "case_paths": [ "/us/394/0721-01" ] }, { "cite": "422 U.S. 590", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9639 ], "weight": 3, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/422/0590-01" ] }, { "cite": "442 U.S. 200", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1531819 ], "weight": 6, "year": 1979, "pin_cites": [ { "page": "214" }, { "page": "837" }, { "page": "2257" } ], "opinion_index": 0, "case_paths": [ "/us/442/0200-01" ] }, { "cite": "367 U.S. 643", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785580 ], "weight": 3, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/367/0643-01" ] } ], "analysis": { "cardinality": 1100, "char_count": 30821, "ocr_confidence": 0.796, "pagerank": { "raw": 2.318462040462949e-07, "percentile": 0.7897197867520461 }, "sha256": "8fea39d88a392c9bde5231601841a3ab73708710c5a93d098aeed72a0d379f4d", "simhash": "1:3a819fa8161bbf56", "word_count": 4972 }, "last_updated": "2023-07-14T17:04:47.759339+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Hill concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JULIUS LEE CASS" ], "opinions": [ { "text": "WHICHARD, Judge.\nAdmissibility Of Defendant\u2019s Statements\nDefendant challenges the admissibility of three inculpatory statements which he made, one in the late evening of 7 December 1979 prior to his formal arrest, and two the following morning subsequent to his arrest and while he was in custody. He contends (1) his statements were the product of a seizure which violated his fourth amendment rights, and (2) he lacked the mental capacity to waive his fifth and sixth amendment rights.\nThe following facts surrounding the making of the statements: Deputy Sheriff Nick Nixon arrived at decedent\u2019s residence at approximately 4:00 p.m. on 7 December 1979. After observing the scene briefly he drove to defendant\u2019s residence. Nixon \u201casked defendant whether he would go have a seat in the patrol car,\u201d and defendant agreed to do so. Nixon identified himself as a detective with the sheriff\u2019s department, explained that defendant\u2019s wife had been found dead in her house, and told defendant he needed to talk to him with reference to his wife. Nixon advised defendant of his Miranda rights, explained them to him, and began to question defendant in the patrol car. After a brief period of questioning Nixon \u201cgot [defendant] out of the car\u201d and requested permission to search the house. Defendant consented to the search, which produced a .22 caliber pistol found between the mattress and springs of a bed.\nDefendant, still not under arrest, agreed to accompany Deputy Nixon to the jail. When they arrived at the jail at approximately 5:45 p.m., Nixon again advised defendant of his constitutional rights. Beginning at 5:45 p.m. Nixon and two other officers questioned defendant for approximately an hour in the jail area. They then moved defendant to the Sheriff\u2019s office and continued questioning him until approximately 10:00 p.m. when defendant made an inculpatory statement. Defendant was formally arrested and served with a warrant shortly after 10:00 p.m.\nThe following morning at approximately 9:43 a.m. State Bureau of Investigation Agent Steve Cabe and Sheriff Kyle Gentry again questioned defendant who was then in custody. Before beginning their questioning Cabe and Gentry advised defendant of his Miranda rights. After Cabe and Gentry questioned defendant, defendant repeated the statement he had made the previous night. Cabe then left the room, and Gentry continued the questioning. Defendant made a further statement to Gentry.\n1. Fourth Amendment\n\u201cThe right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . . .\u201d U.S. Const, amend. IV [applicable to the states through the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684 (1961) ]. Statements obtained during an unreasonable seizure of the person are not admissible. Dunaway v. New York, 442 U.S. 200, 60 L.Ed. 2d 824, 99 S.Ct. 2248 (1979); Brown v. Illinois, 422 U.S. 590, 45 L.Ed. 2d 416, 95 S.Ct. 2254 (1975); Davis v. Mississippi, 394 U.S. 721, 22 L.Ed. 2d 676, 89 S.Ct. 1394 (1969). The fourth amendment reasonableness requirement prohibits formal arrests except upon probable cause. See Gerstein v. Pugh, 420 U.S. 103, 111-112, 43 L.Ed. 2d 54, 64, 95 S.Ct. 854, 862 (1975). The reasonableness requirement applies to investigatory seizures, as well as to the more intrusive technical arrest. The United States Supreme Court has stated that \u201cto argue that the Fourth Amendment does not \u00a1apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment.\u201d Davis, 394 U.S. at 726, 22 L.Ed. 2d at 680, 89 S.Ct. at 1397. \u201c[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has \u2018seized\u2019 that person.\u201d Terry v. Ohio, 392 U.S. 1, 16, 20 L.Ed. 2d 889, 903, 88 S.Ct. 1868, 1877 (1968). With the limited exception of a brief \u201cstop and frisk\u201d based upon reasonable suspicion of criminal conduct supported by ar-ticulable and objective facts, any \u201cseizure,\u201d whether it bears the cloak of a formal arrest or merely amounts to an investigatory detention, must be founded upon probable cause. Dunaway, 442 U.S. at 214, 60 L.Ed. 2d at 837, 99 S.Ct. at 2257.\nThe Constitution does not, however, prevent law enforcement officers from questioning anyone willing voluntarily to answer. The governmental interest in effective crime control permits officers in appropriate circumstances and in an appropriate manner to direct questions to citizens even though they have no probable cause for an arrest. Terry, 392 U.S. at 22, 20 L.Ed. 2d at 906-907, 88 S.Ct. at 1880. But, \u201cwhile the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes[,] they have no right to compel them to answer.\u201d Davis, 394 U.S. at 727 n. 6, 22 L.Ed. 2d at 681, 89 S.Ct. at 1397.\nThe issue for determination here, pursuant to the foregoing fourth amendment principles, is whether defendant\u2019s inculpatory statements were the product of an unreasonable seizure. The case does not fall within the limited exception to the probable cause requirement espoused in Terry v. Ohio, because the investigation was neither brief nor a mere \u201cstop and frisk.\u201d In addition, Deputy Nixon admittedly began his investigatory interrogation of defendant without probable cause to arrest. The Davis, Brown, and Dunaway line of cases does not require exclusion of defendant\u2019s statements, however, because defendant was never \u201cseized\u201d within the meaning of the fourth amendment.\nThe trial court found the following facts: Defendant sat in the patrol car at Nixon\u2019s request and agreed to go to the jail with Nixon. Prior to seven o\u2019clock defendant voluntarily participated in the investigation of his wife\u2019s death when he submitted to interrogation. He would have been permitted to leave at any time had he expressed a desire to do so.\nThese findings are supported by Deputy Nixon\u2019s voir dire testimony and therefore are conclusive on appeal. State v. Thompson, 296 N.C. 703, 252 S.E. 2d 776 (1979). On these facts, no seizure of defendant occurred between approximately 4:00 p.m. when Nixon first contacted defendant at his home and 7:00 p.m. that evening. Terry, 392 U.S. at 22, 20/L.Ed. 2d at 906-907, 88 S.Ct. at 1880.\nThe State presented conflicting evidence concerning the period between 7:00 p.m. and 10:00 p.m. During the initial voir dire on the motion to suppress defendant\u2019s first inculpatory statement, Nixon stated that from the time he took defendant to the jail, defendant was not free to leave, and that only when defendant gave his statement did Nixon obtain sufficient evidence to secure an arrest warrant. Following a recess, when counsel for the State and the defendant indicated they had no further questions of Nixon on voir dire, the State requested and received permission to recall Nixon for additional voir dire. During the second portion of the voir dire, Nixon stated that at 7:00 p.m., based on defendant\u2019s responses to interrogation and information obtained from an investigator who had questioned decedent\u2019s friends, he had obtained evidence which he \u201cfelt\u201d gave him probable cause to arrest defendant for the murder. Nixon stated that until 7:00 p.m. had defendant asked to leave he would have been permitted to do so, but that after 7:00 he would not have been allowed to leave.\nAlthough Nixon testified when recalled that he \u201cfelt like [he] had probable cause to arrest [defendant] at [7:00 p.m.],\u201d he did not arrest defendant at that time; and there has been no judicial determination that probable cause for defendant\u2019s arrest existed at 7:00 p.m. Therefore, the interrogation of defendant between 7:00 and 10:00 cannot be justified as occurring during custody based on probable cause. However, the court\u2019s findings of fact, based upon competent evidence, indicated that defendant began the interrogation as a voluntary participant and at no time became a non-voluntary participant. His initial assent to submit to investigatory questioning and to accompany Nixon to the jail remained unchanged throughout the evening. Defendant, therefore, was at no time prior to making his first inculpatory statement \u201cseized\u201d within the meaning of the fourth amendment. Consequently, the statement was not rendered inadmissible by fourth amendment exclusionary principles. In addition, because the statement was not impermissibly obtained, it was properly considered in determining probable cause for issuance of a warrant for defendant\u2019s arrest.\nDefendant\u2019s subsequent statement to Agent Cabe and Sheriff Gentry, and his further statement to Gentry alone, were made while in custody pursuant to an arrest warrant based on probable cause. Thus they, too, were not made while defendant was illegally seized in violation of the fourth amendment, and were not thereby rendered inadmissible by fourth amendment exclusionary principles.\n2. Fifth and Sixth Amendments\n\u201cNo person . . . shall be compelled in any criminal case to be a witness against himself . . . .\u201d U.S. Const, amend. V [applicable to the states through the fourteenth amendment, Malloy v. Hogan, 378 U.S. 1, 12 L.Ed. 2d 653, 84 S.Ct. 1489 (1964) ]. \u201cIn all criminal prosecutions the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.\u201d U.S. Const, amend. VI [applicable to the states through the fourteenth amendment, Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d 799, 83 S.Ct. 792 (1963)]. The right to the assistance of counsel attaches when a person is subjected to custodial interrogation, Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed. 2d 977, 84 S.Ct. 1758 (1964), and \u201cthe prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination,\u201d Miranda v. Arizona, 384 U.S. 436, 444, 16 L.Ed. 2d 694, 706, 86 S.Ct. 1602, 1612 (1966). The Miranda Court prescribed the following procedural safeguards:\nPrior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.\n384 U.S. at 444, 16 L.Ed. 2d at 706-707, 86 S.Ct. at 1612.\nWe need not determine whether defendant\u2019s statements were the product of \u201ccustodial interrogation,\u201d because the evidence unequivocally shows that several times prior to making the inculpatory statements defendant was fully advised of his Miranda rights. The question presented is whether defendant knowingly and intelligently waived effectuation of these rights. He contends he was not mentally competent to make a knowing and intelligent waiver.\nThe trial court found, with regard to each of defendant\u2019s statements, that the officers fully explained his constitutional rights to him and that he indicated he understood them. The court also found that defendant had understood his rights and voluntarily waived them. The court\u2019s findings are supported by the officers\u2019 testimony on voir dire and, therefore, are conclusive on appeal. State v. Small, 293 N.C. 646, 239 S.E. 2d 429 (1977). The testimony elicited on voir dire that defendant did not sign a waiver form, that the officers did not know whether defendant could read or write, and that defendant jumped from one subject to another during questioning, did not compel a finding that defendant was incompetent to waive his rights voluntarily and knowingly. Determinations of admissibility are the function of the trial court after a hearing out of the presence of the jury. G.S. 15A-977. Competent evidence not presented during the suppression hearings, such as the subsequent testimony before the jury that defendant had a prior history of mental unfitness, was not before the court when it ruled on the admissiblity of defendant\u2019s statements. Although \u201c[t]he courts must presume that a defendant did not waive his rights [and] the prosecution\u2019s burden is great,\u201d North Carolina v. Butler, 441 U.S. 369, 373, 60 L.Ed. 2d 286, 292, 99 S.Ct. 1755, 1757 (1979), we find that the State carried its burden of proving an effective waiver on each inculpatory statement.\nFor the foregoing reasons, the trial court properly admitted defendant\u2019s statements.\nRe-Opening of Voir Dire; Leading Questions\nDefendant assigns error to the court\u2019s allowing reopening of the voir dire examination of Deputy Nixon. \u201cIt is within the discretion of the trial judge to permit, in the interest of justice, the examination of witnesses at any stage of trial. . . . This discretion to determine the order of testimony will not be interfered with unless it is abused.\u201d State v. Johnson, 23 N.C. App. 52, 57, 208 S.E. 2d 206, 210, cert. denied 286 N.C. 339, 210 S.E. 2d 59 (1974). We find no abuse of discretion in the re-opening of Deputy Nixon\u2019s voir dire examination.\nDefendant also assigns error to the court\u2019s allowing leading questions to Deputy Nixon upon the re-opened voir dire. \u201c \u2018[I]t is firmly entrenched in the law of this State that it is within the sound discretion of the trial judge to determine whether counsel shall be permitted to ask leading questions, and in the absence of abuse the exercise of such discretion will not be disturbed on appeal.\u2019\u201d State v. Davis, 290 N.C. 511, 536, 227 S.E. 2d 97, 113 (1976), quoting from State v. Greene, 285 N.C. 482, 492, 206 S.E. 2d 229, 235 (1974). We find no abuse of discretion in the allowance of the questions asked of Deputy Nixon on the re-opened voir dire.\nAdmissibility of Pistol\nDefendant challenges the admissibility of the pistol which Deputy Nixon found between the mattress and springs of a bed in defendant\u2019s house. He contends (1) the pistol was the product of an impermissible seizure, and (2) there was insufficient evidence that it was the weapon used in the killing of his wife.\nDeputy Nixon had testified as follows:\nI . . . told [defendant] I would like to search his home for a gun and ask[ed] whether it would be all right if I looked around [,] and he told me to go ahead and look all I wanted to. . . .\nAt the time that I asked him whether I could search his residence, he voluntarily told me to go right ahead and do it. He did not in any way try to prevent me from searching his residence.\nThis testimony was uncontradicted. Nothing in the record compelled a finding that defendant lacked the requisite mental capacity to give a voluntary and knowing consent to search. \u201cConsent to search, freely and intelligently given, renders competent the evidence thus obtained.\u201d State v. Frank, 284 N.C. 137, 143, 200 S.E. 2d 169, 174 (1973). We have held, supra, that defendant was not illegally seized when he gave the consent to search. We thus find without merit defendant\u2019s contention that the pistol was the product of an impermissible seizure.\nWe also find without merit defendant\u2019s contention that there was insufficient evidence that the pistol was the weapon used in the killing of his wife. Deputy Nixon had testified without objection that he found the pistol between the mattress and springs of a bed in defendant\u2019s house on the afternoon decedent was killed. He further testified without objection that defendant had told him that when he went to decedent\u2019s house that afternoon he had carried the pistol with him, and that the pistol was a small caliber weapon, and the wound he had observed on decedent\u2019s body was \u201ca small caliber wound.\u201d Medical testimony had established that decedent died from a single gunshot wound to the neck.\n\u201c[Wjeapons may be admitted where there is evidence tending to show that they were used in the commission of a crime . . . .\u201d State v. Miller, 288 N.C. 582, 592, 220 S.E. 2d 326, 334 (1975). The foregoing evidence clearly tends to show that the pistol admitted was the weapon used to kill decedent. Hence, we hold that it was properly admitted. As in Miller, however, \u201cif it be conceded, arguendo, that [the pistol] had not been sufficiently identified so as to render its admission erroneous,\u201d in view of defendant\u2019s statements and other evidence tending to link him to the crime, its admission was harmless beyond a reasonable doubt. 288 N.C. at 592, 220 S.E. 2d at 334.\nEvidentiary Rulings On Psychiatric Testimony\nDefendant assigns error to five evidentiary rulings during the testimony of Dr. James Groce, an expert in forensic psychiatry who testified as a witness for defendant.\nI.\nDr. Groce testified regarding the result of an I.Q. test administered to defendant at his direction while defendant was hospitalized for evaluation in connection with this case. The court then disallowed his proffered testimony as to the results of other I.Q. tests previously administered to defendant. Neither the disallowed testimony nor the testimony preceding it indicated when the prior tests were administered. The relevance of these tests to defendant\u2019s mental capacity at the time the alleged crime was committed thus was not established, and it was not error to exclude the proffered testimony. See 1 Stansbury\u2019s North Carolina Evidence \u00a7 77 et seq. (Brandis Rev. 1973).\nII.\nThe court disallowed Dr. Groce\u2019s proffered opinion that when defendant was admitted to the hospital for evaluation, six days after decedent\u2019s death and approximately eleven months before trial, he was incapable of standing trial. The issue of a defendant\u2019s capacity to stand trial \u201cshould be determined prior to the trial ... for the crime charged in the indictment.\u201d State v. Propst, 274 N.C. 62, 69, 161 S.E. 2d 560, 566 (1968). It was not properly raised during testimony of the last of nineteen witnesses at trial. Even so, the appropriate issue would have been defendant\u2019s capacity to stand trial at the time of trial, not at the time of his hospitalization eleven months earlier. It thus was not error to exclude the proffered testimony.\nIII.\nThe court disallowed Dr. Groce\u2019s proffered testimony as to what defendant had told him regarding his previous hospitalizations \u201cfor mentally related problems.\u201d It was established on voir dire that these hospitalizations occurred during a period commencing in 1958 and terminating in 1967. While an expert psychiatric witness may recount his out-of-court conversations with a defendant in a criminal trial in order to explain his diagnosis to the jury, State v. Wade, 296 N.C. 454, 251 S.E. 2d 407 (1979), such evidence is nevertheless properly excluded if it concerns times too remote to have any relevance to defendant\u2019s mental condition at the time of the crime for which he is charged. State v. Franks, 300 N.C. 1, 265 S.E. 2d 177 (1980). The evidence in question concerned times too remote to have any relevance to defendant\u2019s mental condition at the time of decedent\u2019s death. It therefore was not error to exclude it.\nIV.\nDr. Groce testified that he \u201cwould estimate [that] sixty percent, perhaps seventy percent of the population has a neurosis.\u201d He was then asked: \u201cQ. So, based on that, there are twelve people on the jury. How many have a neurosis?\u201d\nHe answered, over objection: \u201cIt would be difficult to say without my interviewing them. I would say that if they are average citizens, a little over half of them.\u201d Defendant contends this testimony was \u201cirrelevant and inflammatory.\u201d While perhaps it was irrelevant, we do not believe there is a reasonable possibility that a different result would have been reached had this testimony been excluded. Defendant thus has failed to sustain his burden of showing prejudice from its admission. G.S. 15A-1443.\nV.\nThe court allowed Dr. Groce to testify on cross examination that \u201cin the general sense\u201d defendant knew the difference between right and wrong. This testimony was relevant and admissible on the issue of whether defendant was legally insane and thereby exempt from criminal responsibility. See State v. Franks, 300 N.C. 1, 10, 265 S.E. 2d 177, 182 (1980); State v. Potter, 285 N.C. 238, 249, 204 S.E. 2d 649, 656 (1974). There is thus no merit to defendant\u2019s assignment of error to its admission.\nMotions To Dismiss\nDefendant assigns error to the denial of his motions to dismiss. He contends that, without his statements, the evidence was inadequate to sustain the conviction. We have held the statements properly admitted, however; and with the statements in evidence, \u201c \u2018there is substantial evidence to support a finding both that an offense charged in the bill of indictment has been committed and that defendant committed it.\u2019 \u201d State v. Joyner, 301 N.C. 18, 27, 269 S.E. 2d 125, 131 (1980), quoting from State v. Roseman, 279 N.C. 573, 580, 184 S.E. 2d 289, 294 (1971). The motions to dismiss thus were properly denied.\nInstruction On Involuntary Manslaughter\nThe court instructed on the possible verdict of guilty of involuntary manslaughter as follows:\nInvoluntary manslaughter is the unintentional killing of a human being by an unlawful act, not amounting to a felony or by an act done in a criminally negligent way.\nFor you to find the defendant guilty of involuntary manslaughter, the State must prove two things beyond a reasonable doubt. First, that the defendant acted unlawfully and the defendant\u2019s act was unlawful if it was an assault with a deadly weapon. An assault with a deadly weapon is the intentional and unjustified pointing of a deadly weapon or a pistol at one by another. And a .22 caliber pistol is a deadly weapon. Second, the State must prove that this unlawful act proximately caused [decedent\u2019s] death.\n[I]f you do not find the defendant guilty of second degree murder or voluntary manslaughter, but the State has proved beyond a reasonable doubt that the defendant did not act in self defense, then you must determine whether the defendant is guilty of involuntary manslaughter. If you find from the evidence beyond a reasonable doubt that . . . [defendant] assaulted [decedent] with a deadly weapon, thereby proximately causing [her] death, it would be your duty to return a verdict of guilty of involuntary manslaughter.\nDefendant contends the court erred by failing to explain the meaning of \u201ccriminal negligence.\u201d The court explained, however, that to find defendant guilty of involuntary manslaughter, the jury must find that defendant\u2019s act was unlawful, and that the act was unlawful if it was an assault with a deadly weapon. \u201cAn intentional, wilful or wanton violation of a statute or ordinance, designed for the protection of life or limb, which proximately results in injury or death, is culpable negligence.\u201d State v. DeWitt, 252 N.C. 457, 458, 114 S.E. 2d 100, 101 (1960) (emphasis supplied). G.S. 14-32, which establishes the offense of assault with a deadly weapon, is a statute designed for the protection of life or limb. The court\u2019s explanation regarding the unlawful act of assault with a deadly weapon thus included, in substance, a definition of culpable negligence. It therefore, while not a model charge, see N.C.P.I. \u2014Crim. 206.30, sufficed to \u201cexplain the law arising on the evidence\u201d in this case. G.S. 15A-1232.\nResult\nWe find that defendant had a fair trial free from prejudicial error.\nNo error.\nJudges Hedrick and Hill concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Sarah C. Young, for the State.", "Paul W. Freeman, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JULIUS LEE CASS\nNo. 8123SC251\n(Filed 5 January 1982)\n1. Criminal Law \u00a7 75.1\u2014 unreasonable seizure of person \u2014 statements inadmissible\nStatements obtained during an unreasonable seizure of the person are not admissible.\n2. Criminal Law \u00a7 75.1\u2014 no seizure of person \u2014 admissibility of incriminating statements\nDefendant was never \u201cseized\u201d within the meaning of the Fourth Amendment to the U.S. Constitution, and his incriminating statement to officers at the sheriffs office prior to his formal arrest was thus not rendered inadmissible by Fourth Amendment exclusionary principles, where an officer first contacted defendant at his home at 4:00 p.m. and told defendant he needed to talk to him with reference to the death of defendant\u2019s wife; defendant sat in the patrol car at the officer\u2019s request and later agreed to accompany the officer to the jail; prior to 7:00 p.m. defendant voluntarily participated in the investigation of his wife\u2019s death when he submitted to interrogation; defendant would have been permitted to leave at any time he expressed a desire to do so; although the officer thought he had probable cause to arrest defendant at 7:00 p.m., he did not arrest defendant at that time; defendant was interrogated between 7:00 p.m. and 10:00 p.m., when he made the incriminating statement; and defendant\u2019s initial assent to submit to investigatory questioning and to accompany the officer to the jail remained unchanged throughout the evening. Furthermore, defendant\u2019s statement was properly considered in determining probable cause for issuance of a warrant for defendant\u2019s arrest, and defendant\u2019s subsequent statements to officers while he was in custody pursuant to an arrest warrant based on probable cause were not rendered inadmissible by Fourth Amendment exclusionary principles.\n3. Criminal Law \u00a7\u00a7 75.11, 75.14\u2014 incriminating statements \u2014 waiver of constitutional rights \u2014competency of defendant\nThe evidence on voir dire supported findings by the trial court, with regard to each of defendant\u2019s incriminating statements, that the officers fully explained his constitutional rights to him, that he indicated he understood them, and that defendant had in fact understood his rights and voluntarily waived them. Testimony elicited on voir dire that defendant did not sign a waiver form, that the officers did not know whether defendant could read or write, and that defendant jumped from one subject to another during questioning did not compel a finding that defendant was incompetent to waive his rights voluntarily and knowingly.\n4. Criminal Law \u00a7 76.4\u2014 reopening of voir dire testimony \u2014 leading questions\nThe trial court did not abuse its discretion in permitting the State to reopen the voir dire examination of a deputy sheriff during a hearing on defendant\u2019s motion to suppress incriminating statements or in allowing leading questions to the deputy upon the reopened voir dire.\n5. Searches and Seizures \u00a7 14\u2014 seizure of pistol \u2014 consent to search\nAn officer lawfully seized a pistol which he found between the mattress and springs of a bed in defendant\u2019s house where uncontradicted evidence showed that defendant knowingly and voluntarily consented to the officer\u2019s search of his house.\n6. Homicide \u00a7 20\u2014 identity of pistol as murder weapon\nA pistol was sufficiently identified as the weapon used in the murder of defendant\u2019s wife for its admission into evidence where an officer testified that he found the pistol between the mattress and springs of a bed in defendant\u2019s house on the afternoon decedent was killed, that defendant told him that when he went to decedent\u2019s house that afternoon he had carried the pistol with him, and that the pistol was a small caliber weapon and the wound he observed on decedent\u2019s body was a small caliber wound, and where medical testimony established that decedent died from a single gunshot wound to the neck.\n7. Criminal Law \u00a7 63.1\u2014 prior LQ. tests \u2014 inadmissibility\nThe trial court did not err in refusing to permit a psychiatrist who testified as to the result of an I.Q. test administered to defendant while defendant was being evaluated in connection with this case to give further testimony as to the results of other I.Q. tests previously administered to defendant where there was no evidence indicating when the prior tests were administered, since the relevance of these tests to defendant\u2019s mental capacity at the time the alleged crime was committed thus was not established.\n8. Criminal Law \u00a7 29.1\u2014 mental capacity to stand trial at earlier time\nThe trial court properly excluded testimony by a psychiatrist that defendant was incapable of standing trial when he was admitted to a hospital for evaluation six days after decedent\u2019s death and eleven months before trial since the issue of defendant\u2019s capacity to stand trial should have been determined prior to the trial, and since the appropriate issue would have been defendant\u2019s capacity to stand trial at the time of trial, not at the time of his hospitalization eleven months earlier.\n9. Criminal Law \u00a7 63.1\u2014 prior hospitalizations for mental treatment \u2014 remoteness\nThe trial court properly excluded testimony by an expert psychiatric witness as to what defendant had told him regarding his previous hospitalizations for mentally related problems during a period between 1958 and 1967 since such testimony concerned times too remote to have any relevance to defendant\u2019s mental condition at the time of decedent\u2019s death.\n10. Criminal Law \u00a7\u00a7 33.3, 63.1 \u2014mental competency \u2014 irrelevant testimony \u2014absence of prejudice\nThe defendant in a homicide case was not prejudiced by the testimony of a psychiatrist that sixty to seventy percent of the population has a neurosis and that, if the jurors are average citizens, a little over half of them have a neurosis.\n11. Criminal Law \u00a7 63.1\u2014 insanity at time of crime \u2014 competency of testimony\nTestimony by a psychiatrist that \u201cin the general sense\u201d defendant knew the difference between right and wrong was relevant and admissible on the issue of whether defendant was legally insane and thereby exempt from criminal responsibility.\n12. Homicide \u00a7 21.9\u2014 voluntary manslaughter \u2014sufficiency of evidence\nThe State\u2019s evidence, including incriminating statements made by defendant, was sufficient to support the conviction of defendant for involuntary manslaughter of his wife.\n13. Homicide \u00a7 27.2\u2014 instructions on involuntary manslaughter \u2014 meaning of criminal negligence\nThe trial court did not err in instructing that involuntary manslaughter is the unintentional killing of a human being by an unlawful act not amounting to a felony or by an act done in a criminally negligent way without explaining the meaning of \u201ccriminal negligence\u201d where the court further explained that to find defendant guilty of involuntary manslaughter, the jury must find that defendant\u2019s act was unlawful, and that the act was unlawful if it was an assault with a deadly weapon.\nAPPEAL by defendant from Mills, Judge. Judgment entered 14 November 1980 in Superior Court, WILKES County. Heard in Court of Appeals 15 September 1981.\nOn 7 December 1979 at approximately 2:35 p.m. defendant\u2019s estranged wife (hereinafter decedent) was found in her house dead from a single gunshot wound in the neck. Defendant was charged with murder and was convicted of voluntary manslaughter. From a judgment of imprisonment, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Sarah C. Young, for the State.\nPaul W. Freeman, Jr., for defendant appellant." }, "file_name": "0291-01", "first_page_order": 323, "last_page_order": 336 }