{ "id": 2393800, "name": "STATE OF NORTH CAROLINA v. FREDERICK WAYNE THOMAS", "name_abbreviation": "State v. Thomas", "decision_date": "1984-03-06", "docket_number": "No. 308A83", "first_page": "369", "last_page": "384", "citations": [ { "type": "official", "cite": "310 N.C. 369" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "446 U.S. 291", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182222 ], "year": 1980, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/us/446/0291-01" ] }, { "cite": "302 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "170" }, { "page": "281" }, { "page": "170" }, { "page": "170" } ], "opinion_index": 0 }, { "cite": "308 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707923 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "280" }, { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0272-01" ] }, { "cite": "308 S.E. 2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765436 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0512-01" ] }, { "cite": "304 S.E. 2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "308 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707105 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0682-01" ] }, { "cite": "311 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1984, "pin_cites": [ { "page": "544-45" }, { "page": "545" } ], "opinion_index": 0 }, { "cite": "310 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401728 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0040-01" ] }, { "cite": "285 S.E. 2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570458 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0680-01" ] }, { "cite": "212 S.E. 2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "286 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568818 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0442-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 3, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "236 A. 2d 888", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1967, "opinion_index": 0 }, { "cite": "98 N.J. Super. 252", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 519378 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nj-super/98/0252-01" ] }, { "cite": "193 S.E. 2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565178 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0357-01" ] }, { "cite": "241 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 418", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573313 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0418-01" ] }, { "cite": "287 S.E. 2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567260 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0213-01" ] }, { "cite": "278 S.E. 2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572900 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0299-01" ] }, { "cite": "305 S.E. 2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "545" }, { "page": "545" }, { "page": "546" } ], "opinion_index": 0 }, { "cite": "309 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4768569 ], "weight": 4, "year": 1983, "pin_cites": [ { "page": "106-107" }, { "page": "106" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0102-01" ] }, { "cite": "90 S.E. 408", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "172 N.C. 905", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11256242 ], "opinion_index": 0, "case_paths": [ "/nc/172/0905-01" ] }, { "cite": "115 S.E. 176", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272207 ], "opinion_index": 0, "case_paths": [ "/nc/184/0730-01" ] }, { "cite": "53 S.E. 2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630568 ], "opinion_index": 0, "case_paths": [ "/nc/230/0470-01" ] }, { "cite": "191 S.C. 212", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2071644 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/sc/191/0212-01" ] }, { "cite": "88 P. 2d 385", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "198 Wash. 268", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 1308356 ], "opinion_index": 0, "case_paths": [ "/wash/198/0268-01" ] }, { "cite": "182 A. 221", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "120 Conn. 624", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1586715 ], "opinion_index": 0, "case_paths": [ "/conn/120/0624-01" ] }, { "cite": "62 L.R.A. 193", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "61 N.E. 286", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "168 N.Y. 264", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2299526 ], "opinion_index": 0, "case_paths": [ "/ny/168/0264-01" ] }, { "cite": "72 Pa. 60", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 434742 ], "opinion_index": 0, "case_paths": [ "/pa/72/0060-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1954, "pin_cites": [ { "page": "365" }, { "page": "365-66" }, { "page": "367" }, { "page": "367" }, { "page": "367" }, { "page": "367" } ], "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "weight": 4, "year": 1954, "pin_cites": [ { "page": "173" }, { "page": "175" }, { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "297 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "550", "parenthetical": "promise made one day; confession given the following day; held, connection between promise and confession was \"so attenuated\" that promise did not render confession involuntary" } ], "opinion_index": 1 }, { "cite": "307 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561131 ], "year": 1982, "pin_cites": [ { "page": "146", "parenthetical": "promise made one day; confession given the following day; held, connection between promise and confession was \"so attenuated\" that promise did not render confession involuntary" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0130-01" ] }, { "cite": "245 S.E. 2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "765" } ], "opinion_index": 1 }, { "cite": "295 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563021 ], "year": 1978, "pin_cites": [ { "page": "326" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0309-01" ] }, { "cite": "147 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "35" } ], "opinion_index": 1 }, { "cite": "266 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562559 ], "year": 1966, "pin_cites": [ { "page": "666" } ], "opinion_index": 1, "case_paths": [ "/nc/266/0663-01" ] }, { "cite": "18 S.E. 166", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1893, "pin_cites": [ { "page": "167", "parenthetical": "confession made within hours after arresting officer told defendant it might be easier on him if he made an honest confession; held, confession inadmissible" } ], "opinion_index": 1 }, { "cite": "113 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "year": 1893, "pin_cites": [ { "page": "628", "parenthetical": "confession made within hours after arresting officer told defendant it might be easier on him if he made an honest confession; held, confession inadmissible" } ], "opinion_index": 1 }, { "cite": "311 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "eighteen hours elapsed between promise of leniency and confession; held, confession not induced by promise" } ], "opinion_index": 1 }, { "cite": "310 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2401728 ], "year": 1984, "pin_cites": [ { "parenthetical": "eighteen hours elapsed between promise of leniency and confession; held, confession not induced by promise" } ], "opinion_index": 1, "case_paths": [ "/nc/310/0040-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/us/451/0477-01" ] } ], "analysis": { "cardinality": 1245, "char_count": 35115, "ocr_confidence": 0.812, "pagerank": { "raw": 2.495478525637354e-07, "percentile": 0.8089629935953795 }, "sha256": "28b68f5b568cf5c05564c05c242af83e9d67cb837e515f13d4cc67ae13e06b73", "simhash": "1:b648946a356f0856", "word_count": 5889 }, "last_updated": "2023-07-14T22:57:26.657763+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. FREDERICK WAYNE THOMAS" ], "opinions": [ { "text": "BRANCH, Chief Justice.\nDefendant first assigns as error the admission into evidence of the testimony of Jerry Makas tending to show the defendant\u2019s commission of a separate offense. Jerry Makas, testifying on behalf of the State, was permitted to relate an encounter between the defendant and him on 4 August 1982, just over two months after the alleged assault on Marc Pruitt. According to Makas, he was walking to a convenience store on Country Club Road at about 11:15 p.m. when he first saw defendant. Defendant was in a van and drove past Makas several times. Defendant parked the van in front of the convenience store and he and Makas nodded to each other as Makas entered the store. After making his purchase Makas walked back down the hill on Country Club Road. According to Makas, he then heard defendant \u201cjogging up behind [him].\u201d Defendant said, \u201cThat\u2019s a good way to break your ankle,\u201d referring to Makas\u2019 walking along the curb. They continued walking until they reached the \u201cbottom of Country Club where the creek is.\u201d Makas\u2019 account of the ensuing assault was as follows:\nA. ... he grabbed me and had his hands on my pants, and I grabbed his arms and started kicking him and said, \u201cLet me go,\u201d about three or four times. And he said, \u201cAll right. You go this way and I\u2019ll go that way.\u201d\nAt trial, Makas was shown some pictures depicting his physical condition just after the assault. After he identified the pictures, he was asked how the scratches that appeared on his buttocks were caused. He responded: \u201cHe was trying to get my pants down . . . .\u201d Makas also testified that, during the struggle, defendant said to him: \u201c \u2018Be quiet. Stay still, and I won\u2019t hurt you.\u2019 \u201d Makas testified that defendant did not strike him or try to hit him in any way. He testified that, other than scratching his buttocks and pulling him down the hill, the defendant \u201cwas just trying to pull [his] pants down.\u201d\nDefendant contends that the admission of this evidence was error under our well-settled rule that evidence of the commission of another, distinct crime is generally not admissible in a criminal trial. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). \u201cThis is true even though the other offense is of the same nature as the crime charged.\u201d State v. McClain, 240 N.C. at 173, 81 S.E. 2d at 365. The rule, as we recognized it in State v. McClain, is based on the following cogent reasons:\n(1) \u201cLogically, the commission of an independent offense is not proof in itself of the commission of another crime.\u201d Shaffner v. Commonwealth, 72 Pa. 60, 13 Am. R. 649; People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193. (2) Evidence of the commission by the accused of crimes unconnected with that for which he is being tried, when offered by the State in chief, violates the rule which forbids the State initially to attack the character of the accused, and also the rule that bad character may not be proved by particular acts, and is, therefore, inadmissible for that purpose. State v. Simborski, 120 Conn. 624, 182 A. 221; State v. Barton, 198 Wash. 268, 88 P. 2d 385. (3) \u201cProof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution\u2019s theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner guilty, and thus effectually to strip him of the presumption of innocence.\u201d State v. Gregory, 191 S.C. 212, 4 S.E. 2d 1. (4) \u201cFurthermore, it is clear that evidence of other crimes compels the defendant to meet charges of which the indictment gives him no information, confuses him in his defense, raises a variety of issues, and thus diverts the attention of the jury from the charge immediately before it. The rule may be said to be an application of the principle that the evidence must be confined to the point in issue in the case on trial.\u201d 20 Am. Jur., Evidence, section 309. See, also, in this connection these North Carolina cases: S. v. Fowler, 230 N.C. 470, 53 S.E. 2d 853; S. v. Beam, 184 N.C. 730, 115 S.E. 176; S. v. Fowler, 172 N.C. 905, 90 S.E. 408.\nId. at 173-74, 81 S.E. 2d at 365-66.\nThere are, however, several exceptions to the general rule, and one of them, the one relied upon by the State in the instant case, permits evidence of other crimes to be admitted when relevant to identify defendant as \u201cthe perpetrator of the crime charged.\u201d Id. at 175, 81 S.E. 2d at 367. As stated in McClain:\nWhere the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged.\nId. at 175, 81 S.E. 2d at 367.\nNotably, before evidence of other distinct crimes may be admitted under the exception, two requirements must be met. First, the identity of the defendant must be an issue in the case. Thus, when the defendant relies upon the defense of alibi, his identity and presence at the scene of the crime are facts which, along with other elements of the crime, must be proved by the State beyond a reasonable doubt. However, the mere fact that defendant committed another crime, even a similar one, does not ipso facto tend to identify him as the perpetrator of the crime charged. The second prong of the exception therefore requires that the circumstances of the two crimes be such as to \u201ctend to show that the crime charged and another offense were committed by the same person.\u201d State v. McClain, 240 N.C. at 175, 81 S.E. 2d at 367 (1983). As stated by Justice Mitchell in the recent case of State v. Moore:\n[BJefore this exception can be applied, there must be \u00bfhown some unusual facts present in both crimes or particularly similar acts which would indicate that the same person committed both crimes. [Citations omitted.] To allow the admission of evidence of other crimes without such a showing of similarities would defeat the purpose of the general rule of exclusion.\n309 N.C. 102, 106-107, 305 S.E. 2d 542, 545 (1983).\nIn the instant case, defendant relied upon a defense of alibi, thus putting his identity in issue. State v. Freeman, 303 N.C. 299, 278 S.E. 2d 207 (1981). The first test having been met, then, the only question remaining is whether the circumstances of the two offenses were so similar as to \u201ctend to show that the crime charged and another offense were committed by the same person.\u201d State v. McClain, 240 N.C. at 175, 81 S.E. 2d at 367; State v. Moore, 309 N.C. at 106, 305 S.E. 2d at 545.\nWe find that the two offenses in the instant case are sufficiently similar as to \u201cprovide a reasonable inference that the same person committed both offenses.\u201d State v. Moore, 309 N.C. at 108, 305 S.E. 2d at 546. In both cases, the victim was a young boy travelling alone and on foot. In both cases the assault took place during non-daylight hours. The assailant in each case first casually greeted his victim prior to forcing himself upon the victim. Both attacks took place on a grassy bank; and during the course of both attacks, the assailant said to each victim something to the effect of \u201cBe quiet and I won\u2019t hurt you.\u201d Marc Pruitt described his assailant as a \u201cjogger.\u201d Jerry Makas testified that he heard defendant \u201cjogging up behind him.\u201d The attack on Pruitt was decidedly sexual in nature, and, given Makas\u2019 testimony that defendant was trying to pull his pants off, there is at least a reasonable inference that, had Makas not fought back, the encounter would have culminated in a sexual assault. In both cases, the assailant did not attempt to hit or strike his victim; and in both cases, the assailant left his victim by running \u201cback up\u201d the street.\nIn the light of the numerous similarities between these two offenses, we hold that the trial court did not err in admitting the testimony of Jerry Makas concerning defendant\u2019s assault upon him. See State v. Leggett, 305 N.C. 213, 287 S.E. 2d 832 (1982); State v. Freeman, 303 N.C. 299, 278 S.E. 2d 207 (1981); State v. Greene, 294 N.C. 418, 241 S.E. 2d 662 (1978); State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972). Cf. State v. Moore, 309 N.C. 102, 305 S.E. 2d 542. This assignment is overruled.\nDefendant\u2019s second assignment of error challenges the trial court\u2019s denial of defense counsel\u2019s motion to withdraw. The attorney for defendant moved to withdraw on the grounds that he had represented one of the State\u2019s potential witnesses, William Edward Russell, in an unrelated matter. Furthermore, defense counsel had advised Russell\u2019s mother concerning the very incident about which he was to testify at trial, an incident involving a sexual encounter between the witness and the defendant. After a hearing in chambers, Judge William Z. Wood found as a fact, inter alia, that defense counsel had advised defendant of the prior representation. He therefore concluded that \u201cMr. Gofer\u2019s prior representation of a potential State\u2019s witness does not create a conflict of interest as a matter of law.\u201d\nWe note at the outset that a motion to withdraw is ordinarily a matter left to the sound discretion of the trial judge and his ruling will not be disturbed absent a showing of abuse. Jacobs v. Pendel, 98 N.J. Super. 252, 236 A. 2d 888 (1967).\nWe do not reach the question of whether the denial of the motion to withdraw constituted an abuse of discretion, since defendant has failed to demonstrate that the ruling resulted in prejudice to him. This assignment is overruled.\nDefendant next assigns as error the denial of his motion to suppress a written statement made by him to investigating officers. Defendant essentially makes two arguments in support of his assertion of error. First, defendant contends that he was subjected to further questioning after he had invoked his right to counsel, in violation of Edwards v. Arizona, 451 U.S. 477 (1981). Second, he contends that his statement was induced by suggestions of hope or fear growing out of a statement made to him by one of the officers to \u201cbe sure and tell your attorney that you had the opportunity to help yourself and didn\u2019t.\u201d In support of the second contention, defendant relies upon our case of State v. Pruitt, 286 N.C. 442, 212 S.E. 2d 92 (1975).\nAfter conducting a voir dire hearing as to the admissibility of defendant\u2019s confession, the trial judge found facts which may be summarized as follows:\nDefendant was taken into custody on 5 August. 1982 and arrested in connection with another incident. At that time he was read his rights and indicated he understood them. Sometime after noon on 6 August 1982, Detective Randy Weavil and Officer J. I. Dalton went to the Forsyth County jail, and escorted defendant to City Hall. After advising defendant of his rights, both orally and in writing, the officers proceeded to question defendant in very general terms, informing him in the process that he was being investigated in connection with another case involving a sexual assault on a minor. When the discussion turned to the particulars of the Marc Pruitt case, defendant indicated that he did not want to talk further and that he wanted an attorney. Questioning ceased and the officers transported defendant to the office of the Clerk of Superior Court. While defendant waited nearby, the officers proceeded to obtain a warrant from the Clerk. As Officer Dalton filled out the arrest warrant, he said to defendant, \u201cBe sure to tell your attorney that you had the opportunity to help yourself and didn\u2019t.\u201d Approximately five minutes later, defendant asked Officer Dalton if he still wanted a statement, to which the officer replied that it was \u201cup to him,\u201d and they would take his statement if he wanted to make one. Defendant indicated that he would like to make a statement. The officers escorted defendant back to City Hall, advised defendant of his rights once again, and, after defendant again waived his right to counsel, proceeded to take his statement. The entire process from the officers\u2019 initial questioning to the giving of the statement lasted slightly more than an hour.\nThe trial court specifically found that at the time of questioning, \u201cthe officers observed no odor of alcohol about the person of the defendant, nor did they observe or perceive any noticeable impairment either of the mental or physical faculties of the defendant from any source.\u201d The court also found that the confession was not induced by Officer Dalton\u2019s statement to defendant and that the confession was not made in response to any questioning by the officers. The court concluded that the \u201cstatement made by the defendant to Officer Dalton on 6 August 1982 was made freely, voluntarily, and understanding^.\u201d\nThe findings of fact by the trial court are binding upon us if supported by competent evidence in the record. State v. Johnson, 304 N.C. 680, 285 S.E. 2d 792 (1982). In the instant case, the pertinent findings are supported by ample evidence and we are therefore bound by them. The court\u2019s conclusions of law, however, do not bind this Court and we may fully review them to determine if they are supported by the finding of facts. State v. Corley, 310 N.C. 40, 311 S.E. 2d 540 (1984).\nDefendant first argues that his confession should have been excluded under the rule of Edwards v. Arizona, 451 U.S. 477 (1981), that \u201conce a suspected criminal invokes his right to counsel, he may not be questioned further until counsel is provided unless the suspected criminal himself initiates the dialogue at which time he may waive his right to have an attorney present.\u201d State v. Franklin, 308 N.C. 682, 686, 304 S.E. 2d 579, 582 (1983). The question presented on the facts before us, then, is whether or not defendant\u2019s confession was the result of questioning or conversation initiated by the officers after defendant had invoked his right to have counsel present, or whether defendant himself voluntarily initiated the dialogue leading to his confession. Edwards v. Arizona, 451 U.S. 477 (1981); State v. Lang, 309 N.C. 512, 308 S.E. 2d 317 (1983); State v. Franklin, 308 N.C. 682, 304 S.E. 2d 579. The trial court found as a fact in this case that Officer Dalton remarked to the defendant that he should be sure and tell his attorney he had a chance to help himself and did not do so. Such a remark, however, did not amount to interrogation of defendant. Furthermore, five minutes passed before defendant \u201cinquired of the officers as to whether they still wanted him to make a statement.\u201d Officer Dalton replied that it was up to defendant, and defendant stated he would like to give one. The trial court found that the defendant made this inquiry \u201cof his own volition and not in response to any question asked by officers.\u201d We agree, and hold that under the circumstances surrounding the giving of defendant\u2019s statement, no violation of defendant\u2019s Sixth Amendment right to couns\u00e9l occurred.\nWe have recognized that \u201cinterrogation is not limited to express questioning by the police,\u201d State v. Ladd, 308 N.C. 272, 280, 302 S.E. 2d 164, 170 (1983), and that the term also refers to \u201c \u2018any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. \u2019 \u201d Id. at 281, 302 S.E. 2d at 170 (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980) and defining \u201cinterrogation\u201d under Miranda:) (emphasis supplied by the Ladd Court). Under the circumstances of this case, however, we are unable to conclude that Officer Dalton should have known that his \u201coffhand\u201d remark was reasonably likely to provoke defendant into making an incriminating statement. See State v. Ladd, 308 N.C. at 281, 302 S.E. 2d at 170 (1983). We therefore hold that defendant\u2019s confession was not made in response to interrogation by Officer Dalton, and the \u201cprophylactic rule\u201d of Edwards v. Arizona has not been violated. See State v. Lang, 309 N.C. 512, 308 S.E. 2d 317 (1983).\nDefendant argues as a second ground for this assignment that the confession was involuntary under our rule set forth in State v. Pruitt, 286 N.C. 442, 212 S.E. 2d 92 (1975). Defendant contends that his statement was not freely and voluntarily made, but was induced by the suggestion of hope or fear implanted in his mind by Officer Dalton\u2019s statement to him.\nIn Pruitt, we held that the defendant\u2019s statement was rendered involuntary when induced by an officer\u2019s statement that it would be harder on the defendant if he did not cooperate. Id. However, as we noted in our recent case of State v. Corley, \u201cwe specifically pointed out that the statement by the officer that it would be harder on the defendant if he did not cooperate was preceded by other circumstances which tended to provoke fright in the defendant and overbear his will.\u201d Id. at 47, 311 S.E. 2d at 544-45. In Corley, we rejected the notion that Pruitt stands for any per se rule of exclusion. A majority of the Court in Corley, speaking through Justice Mitchell, stated:\nAn absolute rule requiring exclusion of statements to law enforcement officers by a defendant in custody and who did not assert his right to counsel has been applied only in those cases in which the officers failed to comply with procedural safeguards required by Miranda, In cases in which the requirements of Miranda have been met and the defendant has not asserted the right to have counsel present during questioning, no single circumstance may be viewed in isolation as rendering a confession the product of improperly induced hope or fear and, therefore, involuntary. In those cases the court must proceed to determine whether the statement made by the defendant was in fact voluntarily and understanding^ made, which is the ultimate test of the admissibility of a confession. In determining whether a defendant\u2019s statement was in fact voluntarily and understandingly made, the court must consider the totality of the circumstances of the case and may not rely upon any one circumstance standing alone and in isolation.\nId. at 48, 311 S.E. 2d at 545. (Emphasis in original.)\nApplying the \u201ctotality of the circumstances\u201d test to the facts before us, we cannot say that the circumstances leading up to and surrounding defendant\u2019s confession were such as to overbear his will. In Pruitt, unlike the case before us, the police \u201crepeatedly told defendant that they knew that he had committed the crime and that his story had too many holes in it; that he was \u2018lying\u2019 and that they did not want to \u2018fool around.\u2019 \u201d State v. Pruitt, 286 N.C. at 458, 212 S.E. 2d at 102. In addition, the officers told defendant in that case that \u201cit would simply be harder on him if he didn\u2019t go ahead and cooperate.\u201d Id. In the instant case, none of the findings supports a claim that the officers threatened defendant or otherwise attempted to frighten or coerce him into confession. All there is in this case is the sole, offhand statement of an officer, which is at best ambiguous. We therefore conclude that the trial court did not err in finding defendant\u2019s statement to be voluntary and admissible. This assignment is overruled.\nDefendant\u2019s remaining assignments are either repetitious, cumulative, or are conceded by him and it is therefore not necessary to address them.\nDefendant received a fair trial, free from prejudicial error.\nNo error.", "type": "majority", "author": "BRANCH, Chief Justice." }, { "text": "Justice ExuM\ndissenting.\nIn holding that evidence regarding the Makas incident is admissible, the majority applies an exception to the general rule that evidence of other criminal acts is inadmissible. Specifically, the majority relies upon the exception which allows the use of \u201cother crimes\u201d evidence to help establish defendant\u2019s identity through a common modus operandi in both incidents. The majority properly states this exception but, in my view, misapplies it on the facts before us.\nThe majority refers to a number of similarities between the two incidents, including the time when each attack occurred, that the perpetrator in each incident was a \u201cjogger,\u201d that both attacks occurred in a grassy area, and that the perpetrator made similar statements to both victims. A closer review of the record dispels the first two of these alleged similarities, and the remaining ones do not support admission of the evidence.\nThe majority describes the time of both attacks as being similar since they took place during \u201cnon-daylight hours.\u201d Actually the incident involving Makas occurred at approximately 11:15 p.m. The incident involving Pruitt occurred between 5:30 and 5:45 a.m. Pruitt testified that it was beginning to get light when defendant attacked him. I conclude the two attacks did not occur at similar times.\nThe majority also relies upon each victim\u2019s identification of the perpetrator as a \u201cjogger.\u201d Pruitt testified that he first saw defendant when defendant came jogging up the street. Pruitt stated defendant was wearing a T-shirt and cut-off shorts and had a towel around his neck, which defendant used to wipe his forehead as he stopped near Pruitt. Pruitt\u2019s testimony clearly identifies the person who attacked him as having been jogging immediately before the attack.\nOn the other hand, Makas testified that as he was walking along the street toward a convenience store, defendant drove past him in a van. Makas indicated defendant\u2019s van passed him three or four times. When Makas approached the convenience store, he noticed defendant sitting in the van in the parking lot. After Makas left the convenience store and began walking back down the road, he heard defendant \u201cjogging\u201d up behind him. When defendant came alongside Makas, they began to walk together along the street. Although Makas used the word \u201cjogging\u201d in describing how he heard defendant approach him, his testimony suggests that defendant merely ran from the van at the convenience store in an effort to catch up with Makas, rather than that defendant was actually jogging at the time. Makas did not indicate how defendant was dressed. Officer Hogan, who apprehended defendant shortly after the incident involving Makas, testified that he did not remember how defendant was clothed that night. It seems reasonable to believe that had defendant been dressed for jogging at almost midnight, Officer Hogan might have had a clearer recollection of how he was clothed.\nThe majority\u2019s conclusion that the perpetrator of each incident was a jogger rests, I believe, on unwarranted and unjustifiable extrapolations from the testimony offered below.\nFinally, the majority suggests that there were similarities in the place where the two attacks occurred and in the statements made by the perpetrator to each victim. The majority notes that each attack took place in a grassy area. This \u201csimilarity\u201d essentially boils down to a recognition that both attacks occurred outside. This fact adds nothing unique to the attacks which suggests that the perpetrator of one is likely to be the perpetrator of the other. Quite simply, the fact that each perpetrator placed his victim in the grass as opposed to the sidewalk or street adds little, if any, support to the contention that the same person committed both offenses.\nLikewise, the fact that both victims were told to be quiet and that they would not be hurt does not establish a unique, or even unusual, pattern, or modus operandi, of a sex offender. Victims are frequently given such orders both to prevent the perpetrator\u2019s detection and to encourage their submission.\nThe majority, I fear, strains at the facts to make these two incidents seem similar, when the incidents actually are quite dissimilar. Makas described the attack on him as \u201cviolent.\u201d He said defendant \u201cgrabbed him,\u201d they struggled and defendant tried to pull his pants down. Makas said, \u201cLet me go,\u201d several times and defendant said, \u201cAll right. You go this way and I\u2019ll go that way.\u201d Pruitt, on the other hand, indicated that defendant was not violent toward him, but merely placed a towel around his mouth and carried him to the place where he was sexually abused. I recognize that Pruitt was younger and smaller than Makas. But these facts together with the manner of the assailant\u2019s approach and nature of his attacks nevertheless emphasize the dissimilarities, rather than the similarities, of the two incidents.\nIn short, the two incidents were not sufficiently similar to allow introduction of the evidence of the second incident to identify defendant, by a common modus operandi as the perpetrator of the other incident. Unless the similarities are more striking than they are here, one incident has no probative value on the issue of the perpetrator\u2019s identity in the other incident. I believe admission of the Makas incident was error requiring a new trial.\nI also dissent from the majority\u2019s determination that defendant\u2019s confession was admissible.\nAfter defendant had asserted his right to silence and his right to counsel, the officers took defendant to the clerk\u2019s office where they proceeded to obtain an arrest warrant. During this procedure Officer Dalton said to defendant, \u201cBe sure to tell your attorney that you had the opportunity to help yourself and didn\u2019t.\u201d Approximately five minutes later, after a brief exchange between defendant and Officer Dalton, defendant indicated that he would make a statement. His confession followed. Defendant\u2019s confession was clearly on this record the product of Officer Dalton\u2019s statement. There is nothing in the record to indicate that it could have been the product of anything else.\nWhen a confession follows a promise of leniency, the confession is inadmissible unless it can be shown that the influence of the promise had been entirely dissipated so that the promise did not in fact induce the confession. \u201c[I]f promises or threats have been used, it must be made to appear that their influence has been entirely done away with before subsequent confessions can be deemed voluntary, and therefore admissible.\u201d State v. Drake, 113 N.C. 625, 628, 18 S.E. 166, 167 (1893) (confession made within hours after arresting officer told defendant it might be easier on him if he made an honest confession; held, confession inadmissible). \u201cA promise of leniency renders a confession involuntary only if the confession is so connected with the inducement as to be the consequence of it.\u201d State v. Pressley, 266 N.C. 663, 666, 147 S.E. 2d 33, 35 (1966). But \u201cconfessions induced by . . . [aj promise of reward are inadmissible.\u201d State v. Richardson, 295 N.C. 309, 326, 245 S.E. 2d 754, 765 (1978).\nWhere there is evidence in the case that the influence of a promise of leniency has been dissipated, or \u201centirely done away with,\u201d before the confession was made, then the question of whether the confession was a product of the promise is resolved by considering the \u201ctotality of circumstances.\u201d State v. Corley, 310 N.C. 40, 311 S.E. 2d 540 (1984) (eighteen hours elapsed between promise of leniency and confession; held, confession not induced by promise); State v. Chamberlain, 307 N.C. 130, 146, 297 S.E. 2d 540, 550 (1982) (promise made one day; confession given the following day; held, connection between promise and confession was \u201cso attenuated\u201d that promise did not render confession involuntary).\nIn the case at bar, defendant\u2019s willingness to confess followed Officer Dalton\u2019s statement by approximately five minutes. Nothing was shown to have intervened between Dalton\u2019s statement and defendant\u2019s confession. Until Dalton\u2019s statement was made, defendant had insisted on his right to silence and his right to counsel. There is nothing in the case to indicate that the influence of Dalton\u2019s statement had been dissipated or \u201centirely done away with\u201d before defendant\u2019s confession was made. As a matter of law defendant\u2019s confession was the product of Dalton\u2019s statement. No issue arises in this case as to the causal relationship between the statement and the confession. There is no occasion for the application of the \u201ctotality of circumstances\u201d approach used in Corley and Chamberlain.\nDefendant\u2019s confession being the product of Officer Dalton\u2019s statement, the confession is inadmissible if Officer Dalton\u2019s statement constitutes an implied promise of leniency. The majority opinion does not make it clear whether Dalton\u2019s statement is indeed an implied promise of leniency. It refers to it as an \u201coffhand statement . . . which is at best ambiguous.\u201d If, of course, the statement is not an implied promise of leniency, then the result reached by the majority on the voluntariness issue is correct.\nBecause of the remaining analysis of the voluntariness issue contained in the majority opinion, the majority seems to assume that Dalton\u2019s statement is an implied promise of leniency. I agree that the statement is an implied promise that if defendant cooperated with officers and made a statement to them, he would be \u201chelped.\u201d I do not see anything else to which Dalton could have had reference when he mentioned defendant\u2019s \u201copportunity to help\u201d himself.\nWe have, therefore, an implied promise of leniency followed within approximately five minutes by defendant\u2019s willingness to make a statement which was in turn followed by defendant\u2019s confession. Under rules heretofore consistently followed by the Court, the confession must be considered a product of the promise and, therefore, inadmissible as being involuntary.\nBelieving that the confession was the product of Officer Dalton\u2019s statement as a matter of law, I also think this statement initiated the subsequent dialogue with defendant so that the confession is inadmissible under Edwards v. Arizona, 451 U.S. 477 (1981).", "type": "dissent", "author": "Justice ExuM" } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Daniel C. Oakley, Special Deputy Attorney General, for the State.", "William L. Cofer, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FREDERICK WAYNE THOMAS\nNo. 308A83\n(Filed 6 March 1984)\n1. Criminal Law \u00a7 34.5\u2014 evidence of another offense \u2014 properly admitted to show identity of defendant\nIn a prosecution for a first-degree sexual offense in violation of G.S. 14-27.4, the trial court did not err in admitting the testimony of a witness which tended to show the defendant\u2019s commission of a separate offense since (1) defendant relied upon a defense of alibi, thus putting his identity in issue, and (2) the two offenses were sufficiently similar as to \u201cprovide a reasonable inference that the same person committed both offenses.\u201d In both cases, the victim was a young boy traveling alone and on foot; in both cases the assault took place during non-daylight hours; the assailant in each case first casually greeted his victim prior to forcing himself upon the victim; both attacks took place on a grassy bank; and during the course of both attacks, the assailant said to each victim something to the effect of \u201cbe quiet and I won\u2019t hurt you\u201d; the prosecuting witness described his assailant as a \u201cjogger\u201d and the other witness testified that he heard defendant \u201cjogging up behind him\u201d; the attack on the prosecuting witness was decidedly sexual in nature, and given the other witness\u2019s testimony that defendant was trying to pull his pants off, there was at least a reasonable inference that, had the other witness not fought back, the encounter would have culminated in a sexual assault.\n2. Constitutional Law \u00a7 46\u2014 denial of motion to withdraw as counsel \u2014 failure to demonstrate prejudice\nDefendant failed to demonstrate that the denial of defense counsel\u2019s motion to withdraw, on the grounds that he had represented one of the State\u2019s potential witnesses in an unrelated matter and that he had advised the potential witness\u2019s mother concerning the incident about which he was to testify at trial, resulted in prejudice to him.\n3. Criminal Law \u00a7 75.11\u2014 confession \u2014 invoking right to counsel \u2014 subsequent waiver initiated by defendant\nIn a prosecution for a first-degree sexual offense where defendant was questioned, invoked his right to counsel, questioning ceased, and as an officer filled out a warrant for defendant\u2019s arrest, the officer remarked to the defendant that he should be sure and tell his attorney he had a chance to help himself and did not do so, such a remark did not amount to interrogation of defendant making defendant\u2019s subsequent confession in violation of his Sixth Amendment right to counsel. Five minutes passed before defendant subsequently inquired of the officers as to whether they still wanted him to make a statement at which point the officer replied that it was up to the defendant, and the defendant at that point stated that he would like to give one.\n4. Criminal Law \u00a7 75.2\u2014 finding defendant\u2019s confession free and voluntary proper.\nThe trial court did not err in finding defendant\u2019s statement to be voluntary and admissible rather than having been induced by the suggestion of hope or fear implanted in his mind by a statement by an officer that defendant be sure and tell his attorney that he had a chance to help himself but failed to do so.\nJustice Exum dissenting.\nOn appeal by defendant from the judgment of Albright, Judge, entered at the 16 February 1983 Session of FORSYTH County Superior Court.\nDefendant was charged in an indictment, proper in form, with the commission of a first-degree sexual offense in violation of G.S. 14-27.4. He entered a plea of not guilty.\nAt trial, evidence for the State tended to show:\nOn 26 May 1982 at approximately 5:30 a.m., Marc Pruitt, aged ten, was delivering papers on his paper route in the Ardmore section of Winston-Salem when a jogger approached him. The jogger, later identified as defendant, at first greeted Pruitt, but then took his towel and put it over Pruitt\u2019s mouth. Defendant warned Pruitt not to say anything. He then spread the towel down on a grassy bank and made the boy lie down. Defendant pulled down Pruitt\u2019s pants and performed fellatio on him. Defendant made him turn over so that he could lick his buttocks. After a short while, defendant had the boy stand. Defendant said, \u201cThank you. You don\u2019t know how much this has helped me.\u201d Defendant then jogged off up the street.\nPruitt reported the incident to his parents who in turn called the police. Pruitt was shown approximately two hundred photographs but could not pick out his assailant as being among them. Subsequently, on 6 August 1982, he was shown six pictures from which he selected defendant\u2019s picture.\nThe State also offered into evidence, over defendant\u2019s objection, the testimony of Jerry Makas that he had been assaulted by the defendant on 4 August 1982. When that incident occurred, Makas was fourteen years old. Upon defendant\u2019s arrest for the Makas incident, police officers questioned him concerning the Pruitt assault. During the course of that questioning, defendant gave an inculpatory statement to the officers, which was also offered into evidence at trial.\nDefendant elected not to testify, but presented other witnesses whose testimony tended to show that he was at home at the time of the Pruitt assault.\nThe jury returned a verdict of guilty and defendant was sentenced to life imprisonment. He appealed to this Court as a matter of right pursuant to G.S. 7A-27.\nRufus L. Edmisten, Attorney General, by Daniel C. Oakley, Special Deputy Attorney General, for the State.\nWilliam L. Cofer, for defendant appellant." }, "file_name": "0369-01", "first_page_order": 405, "last_page_order": 420 }