Justice EXUM dissenting in part and concurring in part.

Claiming a violation of both his fifth and sixth amendment rights to counsel, defendant assigns as error the admission of his confession into evidence. Claiming that there was no evidence of the corpus delicti of the first degree sexual offense, defendant contends that the evidence was insufficient as a matter of law to prove this offense, and therefore, to prove the offense of first degree felony murder. We reject defendant's claims and affirm his conviction.

On 11 June 1980, the body of Michelle Moody, a fifteen year old girl, was discovered in a small clearing in a wooded area behind the Lenoir Shopping Mall. She was fully dressed. She had been stabbed twenty-three times. Approximately sixteen months later, on 9 October 1981, after being advised of his rights, the defendant gave the following statement to law enforcement officers:

About June or July 1980 I met Michelle Moody at about 7:30 P.M. at the Lenoir Mall — this was at the rear of the mall. I had never met this girl before. I ask her if she wanted to smoke a joint. She said yes — we walked down into some nearby woods — when we got down to the woods we smoked a joint — I pulled my knife out, put my left arm around her throat and placed the knife which was in my right hand, against her stomach — I was behind her as we walked further down into the woods — we walked for about a 100 yards and stopped. It was my intentions to rape Michelle. I took her upper clothing off first and played around with her breast. I then took the rest of her clothes off — I started to enter her with my penis but Michelle kept talking to me about not coming in her; that she had enough problems as it was and she didn't want to get pregnant. This was when I told her to give me a blow job — She gave me a blow job and I reached a climax in her mouth — I put my clothes on first I told her to put her clothes on. She put her clothes back on — I was thinking about running at this time — We heard some children or something walking in the woods — I did see (2) young boys walking nearby earlier as Michelle was giving me a blow job — I didn't see them this 2nd time but I heard them — Michelle screamed and I grabbed her and started stabbing her several times. She was standing up when I first stabbed her and I stabbed her some more after she fell — I stabbed her until she quit moving — I looked around to see if I was leaving anything. I lost my cigarette lighter at this time — I used my hunting knife to stab her — I took my knife to Donald Maxon and he cleaned my knife for me. I wiped some of the blood off and, what blood was left on the knife looked like rust. I was going to take the knife to work and press it into some boards, but I lost it somewhere prior to doing this. I got some blood on my overalls and I took a cigarette and burned holes in my clothes where the blood was — Lenoir took the overalls from me — the above is the truth to the best of my knowledge —

Defendant was again questioned on 10 October 1981. He was fully advised of his constitutional rights and signed a written waiver. The result of this questioning was a second confession, consistent with the first although in more detail. On 13 October 1981 defendant gave a third statement which was recorded, again consistent with the others and with additional detail and again following a waiver of his rights. Finally, on 14 October 1981, defendant was taken to the Lenoir Mall to stage a videotaped reenactment of the crime. He was again advised of his constitutional rights and signed another written waiver. He was orally advised that he could refuse to participate in the videotaped reenactment.

Evidence at trial tending to corroborate defendant's confessions included the following: (1) Virginia Burgess testified that she saw the defendant running from the Lenoir Mall about 8:45 or 9:00 p.m. on the night of the murder. (2) Donald Maxon testified that defendant had asked him to clean a knife which had rust-like stains on it. (3) A cigarette lighter was found near the victim's body. The victim's stepfather testified that he knew the defendant from their employment at the same company. Sometime after 11 June 1980, defendant called to say that because the police had found his cigarette lighter behind the mall, they were trying to charge him with Michelle's murder. (4) It also appears that the State had possession of defendant's overalls on which there remained a stain that had not been burned. However, there was no direct testimony to this effect at trial.

MEYER, Justice.

Defendant contends that his written and recorded confessions were obtained in violation of his fifth amendment right against self-incrimination and his sixth amendment right to counsel. He bases his argument on the following facts:

In March 1981, defendant had been represented by Assistant Public Defender Lyle Yurko on a plea to a charge of indecent exposure. At that time, defendant was also a suspect in the Mecklenburg County murders of Amanda Ray and Nealy Smith, two young children. The Charlotte police department contacted Mr. Yurko subsequent to defendant's sentencing on the charge of indecent exposure. It was the intent of Charlotte police officers Kirshner and Parker to question defendant concerning the Ray and Smith murders. Presumably pursuant to G.S. 7A-452 (a), Mr. Yurko undertook to represent defendant with respect to police efforts to question defendant concerning these murders. Defendant invoked his right to counsel and the Charlotte police were so informed by Mr. Yurko orally and by letter to the district attorney dated 28 April 1981.

On 8 October 1981, defendant was arrested on yet another unrelated matter in Mecklenburg County. He was charged with rape, kidnapping and robbery and apparently confessed to those crimes. In light of these developments, Charlotte Police Officer Styron determined to renew efforts to question the defendant concerning the Ray and Smith murders. This was the purpose of the 9 October meeting with the defendant. Officer Styron met with defendant at the Mecklenburg County Jail. Prior to any discussion, defendant waived his constitutional rights and indicated that he would answer questions without the presence of an attorney. Officer Styron was not aware that defendant had earlier requested the presence of counsel during questioning on the Ray and Smith murders. He began the conversation on a sympathetic note, acknowledging defendant's "predicament" arising out of the rape/robbery arrest, his problems with sexual violations involving young children, and his need for psychological treatment. No mention was made of the Ray or Smith murders. Defendant then requested that he be taken "downtown." Officer Styron asked defendant if he wanted "to talk about these cases," and defendant answered yes. At the Law Enforcement Center, defendant was again advised of his rights by Officer Price. When asked what he wanted to talk about, defendant began discussing not the Ray and Smith murders, but rather the murder of Michelle Moody in Lenoir.

With respect to his fifth amendment right, defendant argues that

once he formally invoked his right to be free from interrogation on the Smith and Ray cases without the presence of counsel, he could not lawfully be interrogated on those matters again in a police initiated encounter. When Officer Styron initiated the encounter on October 9, he violated the defendant's Fifth Amendment right to counsel and the confession in the Moody case that resulted was inadmissible. All of the subsequent confessions obtained from the defendant by officers of the Lenoir Police Department and the SBI agent were fruits of the poisoned tree of the first confession.

It is true that under Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378 (1981), once 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. However, in the case sub judice, defendant had never invoked his right to counsel with respect to the Moody murder. He specifically stated, prior to any questioning, that he just wanted "to go ahead and get this over with. I do not want a lawyer." Officer Price further testified on voir dire that he told defendant for his best interest he ought to obtain a lawyer before trial.

We do not decide whether Officers Styron and Price, in good faith, might properly have initiated questioning concerning the Ray and Smith murders in light of defendant's earlier request that he have an attorney present during questioning on these cases; nor do we decide whether the officers might properly have initiated questioning concerning the Moody murder. These issues aside, we are left with defendant's completely unsolicited confession to a murder about which there had never been any intention to question him.

Prior to the 9 October questioning, defendant was fully advised of his constitutional rights to remain silent and to have counsel present during questioning. We attach no significance to the fact that the officers "did not expand on the defendant's rights or explain them beyond what appeared on the standard Miranda rights card that he read from." Nor do we find it significant that the defendant was questioned in a "small, windowless interrogation room." There is no evidence that there were promises given, threats made, or that the confession was coerced or in any way improperly induced. The defendant simply waived his rights and chose to cooperate with the law enforcement authorities. This the law permitted him to do.

It is not the purpose of the fifth amendment constitutional protections to discourage confessions, nor to impede the authorized role of our law enforcement agencies to bring criminals to justice. As Chief Justice Warren stated in Miranda, "[c]onfessions remain a proper element in law enforcement." Miranda v. Arizona, 384 U.S. at 478, 16 L.Ed.2d at 726. We therefore hold that under the facts of this case, defendant's confessions were voluntarily and understandingly made after he had been fully advised of his constitutional rights and had specifically, knowingly, and intelligently waived his right to remain silent and to have counsel present during questioning.

Defendant's sixth amendment argument presumes that his "Sixth Amendment right to counsel arose prior to the 9 October statement" because defendant was in custody on an unrelated robbery/rape charge. With respect to the robbery/rape charge, the record does not disclose, nor do we find it relevant, whether formal charges had been instituted in this case. At issue is whether defendant's sixth amendment right to counsel in the Moody murder had attached. We hold that it had not. Prior to the 9 October statement, defendant was no more than a suspect in the Moody murder. Investigation had not yet reached the accusatory stage and had certainly not reached the point where adversary judicial proceedings had been initiated in that case. See Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411 (1972).

In the alternative, defendant claims that his sixth amendment right to counsel arose in the Moody case after his 9 October statement, thus rendering all subsequent statements against him inadmissible. We do not agree.

The record discloses that an arrest warrant was issued in the Moody murder case on 9 October 1981 and was executed on 10 October. Defendant's first appearance before a judicial officer was on 15 October 1981, the day after he agreed to the videotaped reenactment of the crime. Counsel was appointed at this time and a probable cause hearing was scheduled for 29 October 1981. Defendant was indicted for the first degree murder of Michelle Moody at the 26 October 1981 session of Superior Court, Caldwell County. On 18 January 1982, defendant was indicted on the first degree sex offense charge.

It is well-settled that a criminal defendant's sixth amendment right to counsel attaches only at such time as adversary judicial proceedings have been instituted "whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Kirby v. Illinois, 406 U.S. at 689, 32 L.Ed.2d at 417. In State v. McDowell, 301 N.C. 279, 289, 271 S.E.2d 286, 293 (1980), cert. denied, 450 U.S. 1025 (1981), reh. denied, 451 U.S. 1012 (1981), this Court, while finding that the investigation "had narrowed its focus upon [the defendant], it had not so progressed that the state had committed itself to prosecute. It is only when the defendant finds himself confronted with the prosecutorial resources of the state arrayed against him and immersed in the complexities of a formal criminal prosecution that the sixth amendment right to counsel is triggered as a guarantee."

In the present case, following the 9 October statement, investigation into the Moody murder had "narrowed its focus" upon the defendant. Investigation continued through 14 October, the date of defendant's last statement. On 15 October counsel was appointed for the defendant.

We therefore hold that at no time prior to 15 October, when counsel for defendant was appointed, had the State committed itself to prosecute. See Tarpley v. Estelle, 703 F.2d 157 (5th Cir. 1983) (neither defendant's arrest nor appearances before a magistrate triggered the defendant's sixth amendment right to counsel as no adversary judicial proceedings were commenced prior to the return of the indictment).

As his second assignment of error, defendant contends that the evidence is insufficient as a matter of law to support his conviction of felony murder. As a basis for this argument he states that apart from his extrajudicial confession, there was no evidence of the corpus delicti of first degree sexual offense, the underlying felony upon which the murder conviction was based.

As recently as State v. Brown, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (1983), we stated that "[i]n North Carolina, `a conviction cannot be sustained upon a naked extrajudicial confession. There must be independent proof, either direct or circumstantial, of the corpus delicti in order for the conviction to be sustained.' State v. Green, 295 N.C. 244, 248, 244 S.E.2d 369, 371 (1978); State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975)." In his treatise on evidence, Wigmore offers the following insights into the corpus delicti rule:

The meaning of the phrase corpus delicti has been the subject of much loose judicial comment, and an apparent sanction has often been given to an unjustifiably broad meaning. It is clear that an analysis of every crime, with reference to this element of it, reveals three component parts, first, the occurrence of the specific kind of injury or loss (as, in homicide, a person deceased; in arson, a house burnt; in larceny, property missing); second, somebody's criminality (in contrast, e.g., to accident) as the source of the loss — these two together involving the commission of a crime by somebody; and, third, the accused's identity as the doer of this crime.

7 Wigmore on Evidence, 2072 (Chadbourn rev. 1978). He notes that "the term corpus delicti seems in its orthodox sense to signify merely the first of these elements," "[b]ut by most judges the term is made to include the second element also, i.e., somebody's criminality," while the third view is "too absurd indeed to be argued with. . . ." Id.

Although the rule is applied in varying degrees in different jurisdictions, North Carolina has traditionally required corroborative evidence of both the first and second of the components under Wigmore's definition; that is, the occurrence of the specific kind of injury or loss and somebody's criminality as the source of the loss. See State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971).

Debate as to the degee of corroboration necessary to satisfy the requirements of the corpus delicti rule has centered on two questions: whether corroboration is necessary for all elements established by the confession and whether the corroborating facts may be of any sort whatever, provided only that they tend to produce confidence in the truth of the confession. These questions were addressed by the United States Supreme Court in Smith v. United States, 348 U.S. 147, 156, 99 L.Ed. 192, 200-201 (1954), and were answered as follows:

All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense `through' the statements of the accused.

See Opper v. United States, 348 U.S. 84, 99 L.Ed. 101 (1954); see also Landsdown v. United States, 348 F.2d 405 (5th Cir. 1965).

In the present case, defendant argues that because the State allegedly failed to produce sufficient corroborative evidence of the corpus delicti of the underlying felony, a first degree sexual offense, the evidence was insufficient as a matter of law to support his conviction of felony murder. Thus presented, the question is one of first impression in our State and depends for its resolution on an analysis of the corpus delicti rule including the underlying purposes and policies of the rule, as it applies to our statutory definition of first degree murder under G.S. 14-17. That statute provides in pertinent part:

A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, . . . .

Thus, G.S. 14-17 separates first degree murder into four distinct classes as determined by the proof. See State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983). Whether the murder involves lying in wait, premeditation, rape, arson or the other felonies specified is not the determinative factor in applying the corpus delicti rule. The corpus delicti is established by evidence of the death of a human being by criminal means independent of the confession from which inferences may be drawn that it was feloniously done, without evidence independent of the confession as to the specific class of murder.

We find support for our position in numerous federal court cases which, as noted earlier, permit merely corroborating evidence independent of the confession to be sufficient, if it tends to establish the trustworthiness of the confession. In the present case, defendant does not question the corpus delicti of the murder. Here the corroborating evidence establishes that the victim was found stabbed to death in a wooded area near the Lenoir Mall on 11 June 1982; she was last seen about 8:20 or 8:30 p.m. at the mall on 10 June; a cigarette lighter was found near her body; a witness saw defendant running from the mall between 8:45 and 9:00 p.m. on the night of the murder; and defendant asked another witness to clean his knife which had rust-like stains on it. Thus, the corpus delicti of the murder was shown here by evidence aliunde the confession.

The corpus delicti rule is based on the hesitancy of the law to accept, without adequate corroboration, the extrajudicial confession of a defendant and to avoid convicting a person, solely out of his own mouth, of a crime that was never committed or was committed by someone else. Where there is proof of facts and circumstances which add credibility to the confession and generate a belief in its trustworthiness, and where there is independent proof of death, injury, or damage, as the case may require, by criminal means, these concerns vanish and the rule has served its purpose. Elements of the offense may then be proved through the statements of the accused.

Further support for our position comes from other jurisdictions which have addressed this issue. In State v. Johnson, 31 N.J. 489, 158 A.2d 11 (1960), cert. denied, 368 U.S. 933, the court held that the state was required to prove only the element of death and could rely on the confession of the defendant to prove the underlying felony of attempted robbery. The court wrote that:

In a prosecution for felony-murder, proof of the felony replaces proof of the mental elements necessary for conviction of willful, deliberate and premeditated killing. In a prosecution for premeditated murder, the State is not required independently to prove those mental elements if the defendant has given a confession that admits them. By the same token, independent proof of the felony in a felony-murder prosecution is not necessary if proof of the felony can be gathered from a corroborated confession. In our view the State satisfied the burden placed upon it by independently proving the fact of death, and by producing corroborative evidence tending to establish that when the defendants confessed that they participated in the holdup and killing they were telling the truth. We therefore find that the confessions were properly received in evidence and were amply corroborated.

Id. at 505, 158 A.2d at 19-20. See Gentry v. State, 416 So.2d 650 (Miss. 1982); Rhone v. State, 254 So.2d 750 (Miss. 1971); see also Jones v. State, 253 Ind. 235, 252 N.E.2d 572 (1969), cert. denied, 431 U.S. 971 (1977).

We therefore hold that independent proof of the underlying felony in a felony murder prosecution is not necessary where a confession, otherwise corroborated as to the murder, includes sufficient facts to support the existence of the felony. It was proper to show solely by defendant's confession that the homicide was murder in the first degree by showing that the murder was committed in the perpetration of another felony.

Finally, defendant argues that the court erred in permitting the State to ask prospective jurors death qualifying questions, thereby violating his right to an impartial jury and a fair trial. Defendant concedes that this Court decided the issue against him in State v. Avery, 299 N.C. 126, 261 S.E.2d 803 (1980), and most recently affirmed its decision in State v. Hill, 308 N.C. 382, 302 S.E.2d 202 (1983). Defendant, nevertheless, requests the Court to re-examine its holdings in these cases. As we stated in Hill, "we determine that the prior decisions of this Court previously referred to are sound and should be viewed as binding precedent controlling on the issues raised by the defendant appellant." Id. at ___, 302 S.E.2d at ___.

No error.