State v. Lynch

• Decision Date: 10 June 1971
• Docket Number: No. 42,42
• Citation: 279 N.C. 1,181 S.E.2d 561
• Parties: STATE of North Carolina v. Elmore LYNCH, Jr.
• Court: North Carolina Supreme Court

Page 561

181 S.E.2d 561

279 N.C. 1

STATE of North Carolina v. Elmore LYNCH, Jr.

No. 42.

Supreme Court of North Carolina.

June 10, 1971.

Atty. Gen. Robert Morgan; Deputy Atty. Gen. R. Bruce White; Staff Atty. Howard P. Satisky, Paleigh, for the State.

Robert C. Powell, Gastonia, for defendant-appellant.

SHARP, Justice:

Defendant brings forward seven assignments of error, three of which require consideration. We first examine the assignment which presents the question whether the judge prejudiced defendant's trial by failing to rule upon 38 objections made by defense counsel after having instructed the court reporter to 'put an overruled after every time he says objection.'

Every person charged with crime has the right to the assistance of counsel at a trial 'before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.' State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10. In every trial the judge and the defendant's counsel share the twofold responsibility of enforcing a defendant's right to a fair trial and of keeping the trial moving at a reasonable speed. The judge however, is in charge of proceedings.

In this day of congested criminal dockets and overcrowded calendars, a lawyer's objections and exceptions frequently harass the judge. However, it is a lawyer's duty to represent his client. State v. Mansell, 192 N.C. 20, 133 S.E. 190. In doing so he is required 'to present everything admissible that favors his client and to scrutinize by cross-examination everything unfavorable. The inevitable result in that the lawyer usually feels that he is unfairly prodded by the judge, while the judge feels the lawyer obstinately drags his feet.' Annot., 62 A.L.R.2d 166, 237 (1958). This conflict tests the mettle of both as officers of the court. The trial judge, who occupies 'an exalted position,' must abstain from conduct or language which tends to discredit the defendant or his cause in the eyes of the jury. State v. Carter, Supra; Withers v. Lane, 144 N.C. 184, 56 S.E. 855. An attorney must, upon all occasions, manifest 'a marked respect for the court in which he practices, and for the judge thereof. * * * In return, he is entitled to similar treatment from the trial judge, and most certainly to the extent that the interest of his client will not be prejudiced.' Dennison v. State, 17 Ala.App. 674, 676, 88 So. 211, 213.

Under our law a judge is forbidden to express an opinion upon the credibility of the evidence. 'Regardless of how unreasonable or improbable the defendant's story, the court must maintain the 'cold neutrality of an impartial judge. " State v. Taylor, 243 N.C. 688, 91 S.E.2d 924, 925. In his manner of ruling upon objections, 'the judge must exercise the same caution as at other stages of the trial not to express an opinion as to the credibility of the witness or the merits of the case.' Stansbury, N.C. Evidence § 28 (2d ed. 1963). If, at any time, during the trial, the judge 'uses language which tends to bring an attorney into contempt before the jury * * * he commits an error of law, which would, of necessity, effect a reversal of the judgment and a remandment of the cause.' Dennison v. State, Supra, 17 Ala.App. at 676, 88 So. at 213. In Dennison, a new trial was awarded for the failure of the court to allow defense counsel to make the objections and motions he deemed the interest of his client to require.

In State v. Phillips, 59 Wash. 252, 109 P. 1047, following a heated colloquy, the judge told defendant's counsel to take an exception every time the court spoke and every time he batted his eye. In awarding a new trial because of this 'challenge,' the court said:

'* * * The aid of counsel is guaranteed by the Constitution to every person accused of crime, and this is universally recognized as one of the surest safeguards against injustice and oppression. Any conduct or statement on the part of the court that tends to impair the influence or destroy the usefulness of counsel is palpable and manifest error.' Id. at 259, 109 P. at 1050.

In State v. Lee, 166 N.C. 250, 80 S.E. 977, after defense counsel had argued from the testimony of the prosecuting witness that the prosecution was motivated by jealousy, the trial judge told the jury there was no evidence of this; that counsel was not sworn; and they should 'pay (no) attention to anything that he has said about this.' This Court granted a new trial, saying:

'* * * The relation between courts and counsel should always be courteous. Should counsel forget their duty in this respect, the presiding judge has authority to enforce respect by proceedings in contempt. Judges should therefore be careful to observe the respect which is due from them to counsel, for when this is not done there is not only no remedy except by appeal to this court, but the cause which the counsel is advocating may be seriously damaged in the estimation of the jury, as was very probably the case in this instance.' Id. at 255, 80 S.E. at 978.

The record discloses very little, if any, merit in the objections which the court ignored, but it also discloses that defense counsel at all times accorded the presiding judge the high degree of courtesy and respect to which the court is entitled. Judge Falls' blanket instruction to the court reporter to overrule Any objection which defendant's counsel might make necessarily belittled both defendant's cause and his attorney in the eyes of the jury. The clear implication was that there could be no merit in any objection defendant's counsel might make or that defendant was so obviously guilty his objections were a waste of the court's time. Because the court's language and conduct tended to prejudice defendant's cause with the jury there must be a new trial.

Since there must be a new trial, we deem it necessary to discuss the two assignments of error relating to defendant's confession and the taped recording of the interrogation which followed it. Defendant contends that both were improperly admitted in evidence because (1) he was an indigent minor, without counsel at the time it was made; (2) he did not voluntarily and understandingly waive his right to counsel; (3) he did not waive counsel in writing as required by G.S. 7A--450; (4) the trial judge made no findings on Voir dire that he had waived counsel; and (5) the evidence before the court would not support a finding that he waived counsel in the manner provided by statute. With reference to the recording defendant makes additional contentions which will be noted later.

In this jurisdiction a confession is not inadmissible merely because the person making it is a minor. A minor who has arrived at the age of accountability for crime may waive counsel in the manner provided by law and make a voluntary confession without the presence of either counsel or an adult member of his family provided he fully understands his constitutional rights and the meaning and consequences of his statement. State v. Murry, 277 N.C. 197, 176 S.E.2d 738; State v. Hill, 276 N.C. 1, 170 S.E.2d 885.

In determining whether a minor's in-custody confession was voluntarily and understandingly made the judge will consider not only his age but his intelligence, education, experience, the fact that he was in custody, and any other factor bearing upon the question. In other words, 'the 'totality of circumstances' rule for the admission of out-of-court confessions applies to the confessions of minors as well as adults.' State v. Dawson, 278 N.C. 351, 180 S.E.2d 140. In State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171, we held the in-custody confession of a minor who was without counsel to have been improperly admitted in evidence; in State v. Murry, Supra, and State v. Hill, Supra, the confessions of minors made in the absence of counsel were held admissible.

The rule is that one may waive counsel if he does so freely and voluntarily and with full understanding that he has the right to be represented by an attorney. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; State v. Williams, 274 N.C. 328, 163 S.E.2d 353. Prior to the enactment of G.S. 7A--450 et seq., effective 1 July 1969, there was no difference in the requirements for a waiver of counsel by indigents and nonindigents. Each could waive the right either orally or in writing. State v. Williams, Supra; State v. McNeil, 263 N.C. 260, 139 S.E.2d 667. This remains the rule in the federal courts. Miranda v. Arizona, Supra; United States v. Hayes, 385 F.2d 375 (4th Cir. 1967); Klingler v. United States, 409 F.2d 299 (8th Cir. 1969); Bond v. United States, 397 F.2d 162 (10th Cir. 1968).

Article 36 of N.C.Gen.Stats. ch. 7A, Which is applicable to indigents only, provides, Inter alia, that an indigent charged with a felony or a misdemeanor for which the punishment exceeds six months' imprisonment or a fine of $500.00 is entitled to an attorney as soon as feasible after his arrest. Such entitlement continues through any critical stage of the proceeding, including an in-custody interrogation. G.S. 7A--451. An indigent person is defined as one 'financially unable to secure legal representation and to provide all other necessary expenses of representation' in defending the criminal action against him. G.S. 7A--450(a).

An indigent who has been informed of his right to counsel under Article 36 may, In writing, waive this right, 'if the court finds of record that at the time of the waiver the indigent person acted with full awareness of his rights and of the consequences of a waiver.' G.S. 7A--457. In imposing the requirement that an Indigent's waiver of counsel must be in writing, the North Carolina General Assembly imposed a more stringent requirement than the federal courts have done.

Under Article 36 it is the duty of the authority having charge of a person who is without counsel for more than forty-eight hours after being taken into custody to so inform the clerk of the superior court. The clerk, after making a...