State v. Blackmon

• Decision Date: 10 October 1973
• Docket Number: No. 2,2
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Johnny James BLACKMON.

Page 431

199 S.E.2d 431

284 N.C. 1

STATE of North Carolina v. Johnny James BLACKMON.

No. 2.

Supreme Court of North Carolina.

Oct. 10, 1973.

Robert Morgan, Atty. Gen., Andrew A. Vanore, Jr., Deputy Atty. Gen., Edwin M. Speas, Jr., Associate Atty., Raleigh, for the State of North Carolina.

Elton S. Hudson of Hopkins & Hudson, Albemarle, for defendant appellant.

Norman B. Smith, Greensboro, and Daniel H. Pollitt, Chapel Hill, for the North Carolina Civil Liberties Union Legal Foundation, Inc., amicus curiae.

HUSKINS, Justice:

Defendant assigns as error the admission of his inculpatory statements made while in custody and without benefit of counsel. He contends the incriminating statements are inadmissible because he was indigent at the time, charged with a capital offense, and had not waived his constitutional right to the presence and assistance of counsel. He relies on G.S. § 7A--457(a) as interpreted and applied in State v. Lynch, 279 N.C. 1, 181 S.W.2d 561 (1971), and on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as interpreted and applied by this Court in State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971).

The trial court found as a fact on voir dire that defendant was twice advised of his constitutional rights as required by Miranda, initially about 6 a.m. following his arrest and again at approximately 10 a.m. on 19 February 1971. Each time defendant said he fully understood those rights. The trial court further found that following the second Miranda warning at 10 a.m., Sheriff McSwain told defendant that his co-defendant Craven Turner, Jr. would be brought into the room and would make a statement, and advised defendant that he did not have to say anything during or after Turner made his statement. Defendant indicated that he understood. Co-defendant Turner was then brought into the room and in the presence of defendant Blackmon, the sheriff, and two other law enforcement officers, made a statement to Blackmon to the effect that he and Blackmon had gone to the Howell residence and that Blackmon had shot Howell. In response to that statement defendant Blackmon said to Turner, 'You say I shot him? I say you shot him. You got the gun out of the car.' Co-defendant Turner was then taken from the room and immediately thereafter Sheriff McSwain said to defendant Blackmon, 'Do you care to make any further statement?' Defendant then said, 'I'll just tell you how it was.' Defendant then made a detailed statement concerning the events at the James Howell home on 5 January 1971. This statement was a continuous narration, punctuated only by questions from Sheriff McSwain to help keep matters in chronological order. Based on these findings at the conclusion of an extensive voir dire, and in light of the total circumstances, the court concluded '(t)hat the defendant, Johnny James Blackmon, by his words and by his deeds expressly waived these rights on this occasion; that his waiver thereof was freely, understandingly and voluntarily made and that it was done without undue influence, compulsion, duress and without any promise of leniency.'

The findings of fact are supported by competent evidence and 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, it is established that defendant was fully advised and understood that he had the right to remain silent; that anything he said could and would be used against him in a court of law; that he had the right to have a lawyer present during interrogation and to confer with counsel before any questioning if he so desired; that if he could not hire his own attorney the State would appoint and pay a lawyer to represent him; and that if he chose to answer questions or make a statement he could stop talking at any time. The findings further establish that defendant never requested the presence of counsel but never said he did not want a lawyer. Finally, the findings establish that his later statement was not coerced but was freely and voluntarily made. These facts, however, are not sufficient to constitute a waiver of counsel. There is neither evidence nor findings of fact to show that defendant expressly waived his right to counsel, either in writing or orally, within the meaning of Miranda on which our decision in State v. Blackmon, 280 N.C. 42, 185 S.E.2d 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. Silence and waiver are not synonymous. 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). We said as much on defendant's previous appeal. State v. Blackmon, supra (280 N.C. 42, 185 S.E.2d 123 (1971)).

Although our previous decision in this case negates effective waiver of counsel, other jurisdictions have held somewhat similar factual circumstances to constitute waiver. See, e.g. Mitchell v. United States, 140 U.S.App.D.C. 209, 434 F.2d 483 (D.C.Cir.), cert. denied, 400 U.S. 867, 91 S.Ct. 109, 27 L.Ed.2d 106 (1970); United States v. Hilliker, 436 F.2d 101 (9th Cir. 1970), cert. denied, 401 U.S. 958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971); United States v. Hayes, 385 F.2d 375 (4th Cir. 1967), cert. denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968); People v. Johnson, 70 Cal.2d 541, 75 Cal.Rptr. 401, 450 P.2d 865, cert. denied, 395 U.S. 969, 89 S.Ct. 2120, 23 L.Ed.2d 758 (1969); People v. Higgins, 50 Ill.2d 221, 278 N.E.2d 68, cert. denied, 409 U.S. 855, 93 S.Ct. 195, 34 L.Ed.2d 100 (1972); State v. Kremens, 52 N.J. 303, 245 A.2d 313 (1968); State v. Alewine, 474 S.W.2d 848 (Mo. 1971); See generally Waiver of Rights in Police Interrogations: Miranda in the Lower Courts, 36 U.Chi.L.Rev. 413, 421--430 (1969).

Even so, Miranda warnings and waiver of counsel are only required where defendant is being subjected to custodial interrogation. A volunteered confession is admissible by constitutional standards even in the absence of warning or waiver of rights. Miranda v. Arizona, supra; State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968); State v. Haddock, 281 N.C. 675, 190 S.E.2d 208 (1972). While clearly defendant was in custody at the time he made the incriminating statements, his statements were not made in response to police 'interrogation,' as that word is defined in Miranda, but were more in the nature of volunteered assertions and narrations.

The United States Supreme Court said in Miranda:

'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. . . . Any statement given freely and voluntarily without any compelling influence, is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

Measured by Miranda standards, we hold that defendant's initial response to co-defendant Turner's statement was spontaneous and volunteered and was not elicited by police interrogation. Defendant's further narrative was in response to a neutral question by Sheriff McSwain. As we said in State v. Haddock, supra:

'Volunteered statements are competent evidence, and their admission is not barred under any theory of the law, state or federal. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972); State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971); Miranda v. Arizona, supra. And a voluntary in-custody statement does not become the product of an 'in-custody interrogation' simply because an officer, in the course of defendant's narration, asks defendant to explain or clarify something he has already said voluntarily.'

In Howell v. State, 5 Md.App. 337, 247 A.2d 291 (1968), cert. denied, 396 U.S. 907, 90 S.Ct. 224, 24 L.Ed.2d 183 (1969), after defendant had been given the Miranda warnings, he stated that he did not wish to be questioned. Approximately an hour and a half later, while being 'processed' at the police station, he was told in narrative form certain incriminating statements that his accomplice had made about him. Defendant immediately responded with a statement which was offered in evidence at his trial. It was held that the statement did not result from an 'interrogation' but was more in the nature of volunteered information.

In State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971), the police took the robbery victim, Myers, into defendant's jail cell where a conversation ensued. Myers was allowed to testify at trial: 'I asked St. Arnold what did they have against me to rob me; he answered, 'We have nothing against you. We were broke and needed some money. " This Court held that the statement made to Myers by St. Arnold was not the result of police custodial interrogation and was properly admitted in evidence despite the absence of Miranda warnings.

So it is here. There is no evidence in this record of any interrogation or other police procedure tending to overbear the will of the accused in a manner condemned by Miranda. Defendant spoke in the voluntary exercise of his own will and...