189 S.E.2d 145 (N.C. 1972), 112, State v. Thacker

Docket Nº:112.
Citation:189 S.E.2d 145, 281 N.C. 447
Party Name:STATE of North Carolina v. Robert Lee THACKER.
Case Date:June 16, 1972
Court:Supreme Court of North Carolina

Page 145

189 S.E.2d 145 (N.C. 1972)

281 N.C. 447

STATE of North Carolina


Robert Lee THACKER.

No. 112.

Supreme Court of North Carolina.

June 16, 1972

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Boyce, Mitchell, Burns & Smith, by Robert E. Smith, Raleigh, Attorneys for Defendant Appellant.

Robert Morgan, Atty. Gen., and Benjamin H. Baxter, Jr., Associate Atty. Gen., for the State of North Carolina.

[281 N.C. 453] HUSKINS, Justice:

Defendant assigns as error the admission of his inculpatory statement made during an in-custody interrogation without benefit of counsel. He contends the statement was tainted and inadmissible because he had not waived his right to counsel in

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writing. Admission of the statement over objection constitutes his first assignment of error.

The record discloses that defendant was twice advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), first by Officer Pegram at the H & H Tire Company shortly after his arrest and again by Officer Benson in the interrogation room at the Municipal Building. Each time defendant stated that he understood his rights. At no time did defendant request counsel according to the voir dire testimony of the officers; but according to defendant's testimony on voir dire he requested an attorney after he was taken to the police station and went to the interrogation room. Defendant further swore that his statements were coerced, while all the officers swore to the contrary. At the conclusion of the voir dire the court found facts as follows:

'The Court finds from the evidence presented on Voir dire that on the morning of March 10, 1971, while the defendant was in custody of the Raleigh Police he was questioned by Police Officer F. L. Benson at the Raleigh Police Station; that before any questions were asked the defendant was fully advised of his constitutional rights first by Police Officer James W. Pegram and again by Police Officer F. L. Benson. Each of these officers fully advised the defendant of his constitutional rights including his right to remain silent; that anything he said could be used in court against him; that he had a right to have a lawyer present during the interrogation; that he had a right to have counsel appointed if he could not hire a lawyer and that he could quit answering questions any time he desired to do so; that the defendant stated that he understood his rights and did not request counsel; that the defendant did in fact fully understand his rights; that the defendant had suffered some minor injuries earlier the same day for which he had been offered treatment at Wake Memorial Hospital and refused to accept treatment for said injury; [281 N.C. 454] that the defendant was not under the influence of any intoxicant, was not in any severe pain or great discomfort, was in full and complete control of his mental and physical faculties and answered all questions freely, voluntarily and intelligently; that the defendant's statements were reduced to writing and the defendant read and signed the written statement freely and voluntarily; that neither Sergeant F. I. Denton nor any of the other police officers made any threats, assaults, or threatened assaults against the defendant and none of said officers made any promises to the defendant.

'The Court finds and concludes that the defendant's said written statement was in fact freely, voluntarily and understandingly made without any promise or threats and without any undue influence, compulsion or duress and that said statement is admissible in evidence.'

The trial court's findings of fact, supported by competent evidence, are conclusive on appeal. State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). Consequently, we take it as established by those findings that defendant was given the full Miranda warning, that he understood his right to counsel, that he did not request the presence of an attorney during the interrogation, and that his statement was not coerced but was freely and voluntarily made. This, however, is not sufficient to render his statement admissible in evidence. Admission of his inculpatory incustody statement to Officer Denton, which was reduced to writing and signed by defendant, was erroneous because there is neither evidence nor findings to show that defendant waived his right to counsel, either in writing as provided by G.S. § 7A--457 (1969) on which State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), is based, or orally as provided by Miranda on which State v. Blackmon, 280 N.C. 42, 185 S.E.2d

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123 (1971), is based. 'An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.' Miranda v. Arizona, supra. The erroneous admission of this in-custody incriminating statement requires a new trial unless its admission[281 N.C. 455] can be treated as harmless error. We now explore that alternative.

Proof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill. Such intent must be found by the jury as a fact from the evidence. State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964). An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances. State v. Revels, 227 N.C. 34, 40 S.E.2d 474 (1946). An intent to kill is a matter for the State to prove, State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923), and is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred. State v. Cauley, 244...

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