State v. Chappell , 24 N.C. App. 656 ( 1975 )

MORRIS, Judge.

Because defendant has failed to argue assignments of error Nos. 2, 5, 6, 7, 8 and 9, they are deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.

In his first assignment of error defendant challenges the admissibility of the testimony of the investigating officer concerning statements made to him by the defendant prior to the time defendant was advised of his rights. Defendant maintains that at the time these statements were made, defendant was in custody and being subjected to interrogation without háving been given the warning required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966). We do not agree. The Supreme Court of this State has consistently held that the Miranda warnings are only required when the defendant is being subjected to “custodial interrogation”. E.g., State v. Muse, 280 N.C. 31, 185 S.E. 2d 214 (1971) ; State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E. 2d 405 (1971), and cases cited therein. We find nothing in the record to indicate that the defendant was in custody at the time he made the incriminating statements. Questions asked by the investigating officer were not accusatory in nature, nor is there any evidence the officer even suspected the defendant of having committed a crime at that time. On these facts we feel the case of State v. Gladden, 279 N.C. 566, 570, 184 S.E. 2d 249 (1971), is instructive. There, Chief Justice Bobbitt, quoting extensively from Miranda said:

“Miranda involved custodial interrogations. The majority opinion, delivered by Chief Justice Warren, states : ‘By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ [Citations omitted.] The opinion states further: ‘Our decision is not intended to hamper the traditional function of police officers in investigating crime. . . . Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.’ [Citations omitted.] The opinion also states: ‘Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ [Citations omitted.] ”

Here, defendant obviously was not in custody at the time he made the incriminating statements, and the statements were clearly admissbile. Defendant’s first assignment of error is therefore overruled.

Defendant next contends the trial court erred in overruling his objection to questions asked by the Assistant District Attorney on cross-examination of the defendant concerning statements made by his wife following the shooting. A review of the record reveals that this same evidence was received by stipulation and without objection, as part of a statement made by the defendant to the police. Defendant was not prejudiced by the admission of this testimony in any way, and his assignment of error is therefore overruled.

We have carefully reviewed the defendant’s remaining assignments of error and find them to be without merit. Defendant received a fair trial free from prejudicial error.

No error.

Judges Parker and Hedrick concur.