State v. Connley

• Decision Date: 14 July 1978
• Docket Number: No. 2,2
• Citation: 295 N.C. 327,245 S.E.2d 663
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ruben Sonny CONNLEY.

Page 663

245 S.E.2d 663

295 N.C. 327

STATE of North Carolina v. Ruben Sonny CONNLEY.

No. 2.

Supreme Court of North Carolina.

July 14, 1978.

Rufus L. Edmisten, Atty. Gen., and Lester V. Chalmers, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Hugh M. Currin and John H. Pike, Oxford, for defendant-appellant.

SHARP, Chief Justice.

The assignments of error which defendant brings forward challenge the admission of certain portions of the State's evidence and the court's instructions to the jury.

We first consider defendant's contention that the trial judge committed prejudicial error by permitting State's witness Victor Holdren, a special agent with the Federal Bureau of Investigation, to testify about statements which defendant made to him in the emergency room at Duke Medical Center between 4:00 and 5:00 a. m. on 15 November 1976. These statements, the substance of which Holdren related to the jury, included defendant's explanation of the circumstances which prompted his trip from Atlanta to Baltimore on 14 November 1976 and the details of his initial encounter with Trooper Fisher. Other statements made by defendant during this interview dealt with his ride from McKenney, Virginia, to the road block in North Carolina. Often quoting defendant verbatim, Agent Holdren recounted the substance of their conversation in his testimony to the jury. His testimony, except when summarized, is quoted below:

After defendant forced Fisher into his patrol car, defendant "told the trooper, 'Drive me to Atlanta, to the Atlanta Police Department and you are free.' " As they drove south defendant "allowed the trooper to use the radio and talk to his headquarters. Connley said he also talked on the radio but wouldn't tell me (Holdren) what the conversation was. He said they continued along Interstate 85 into North Carolina and came to a road block made up of a tractor-trailer across the road. He said he saw a number of people around the tractor-trailer and when the car stopped, the officers began shooting at their car and Trooper Fisher hit his arm and appeared to be trying to get out of the car. He (defendant) stated and I quote: 'I was shooting at the dude on top of the trailer and don't know if I shot the trooper or not.' I questioned him how many times he had fired his gun. He didn't recall but he said that he fired the guns he had in his possession which included his gun, a .38 caliber revolver and the trooper's gun. He told me that his gun held 5 rounds of ammunition. He said everything went off pow, pow, pow, pow. At this point I was trying to determine if he had in fact shot Officer Fisher. I asked him if he had been allowed to continue to Atlanta, Georgia, would he have shot Fisher and he replied quote 'No, I wouldn't have. I'm sorry, no.' Mr. Connley said that during the drive from Virginia to the road block he and Trooper Fisher talked about life in general." At that point defendant terminated the conversation.

For reasons hereafter stated, defendant's assignment of error based upon his exceptions to the foregoing testimony must be sustained and a new trial granted.

When Special Agent Holdren was called as a witness and asked to recount his conversation with defendant, the court, ex mero motu, conducted a voir dire to determine the competency of that testimony. Only Agent Holdren testified; defendant offered no evidence. Upon completion of the voir dire the trial judge entered findings of fact upon which he concluded (1) that defendant waived his right to an attorney and his other constitutional rights as explained by Officer Holdren; (2) that defendant "knowingly, understandingly, and voluntarily . . . intelligently and intentionally answered" Holdren's questions; (3) that his statements were "made with a full understanding" of his constitutional rights; and (4) that these statements should be admitted into evidence against him.

On voir dire Holdren testified that he in no way coerced, or attempted to coerce, defendant into giving a statement; and that he made no threat or promise nor offered defendant any hope of reward. He "observed that Mr. Connley was alert and responded to questions in a normal, rational way." Holdren also told the court that before interviewing defendant he had spoken with Dr. W. R. Belts, one of defendant's attending physicians. Whereupon the State's attorney who was examining Agent Holdren propounded this question, "And what advice was given to you by Dr. Belts?"

The court overruled defendant's objection to the question and Holdren answered: "I was concerned about whether he (defendant) would be able to talk to me. He (Dr. Belts) described Mr. Connley as having been treated for a gunshot wound in the left chest area and the right hand and apparently what he thought was a bullet crease across his left knee. He said that Connley was in a stable condition; that he had received no medication to sedate him at all, and that he was alert and entirely capable of talking to me about this."

The admission of this testimony from Agent Holdren was, of course, error. It was unmistakable hearsay which was not within any exception to the general rule rendering hearsay incompetent and inadmissible evidence. Patently, this testimony was the only basis for the court's finding that "FBI Agent Victor Holdren went to the hospital and talked with one of Connley's attending physicians; that at this time, he was advised by the doctor that Connley was not under medication and sedation, and that he could be talked with concerning the matters that occurred at the previous evening and early morning hours." It is equally obvious that the incompetent hearsay also supported the court's finding that defendant's answers to Holdren's questions were " knowingly, understandingly, voluntarily . . . willingly and intelligently and intentionally" made. The only other evidence tending to support that finding was Holdren's testimony that Connley "was alert and responded to the questions in a normal, rational way" when the agent talked to him.

"Unquestionably it is the rule in this jurisdiction that a judge's findings of fact will be reversed where it affirmatively appears they are based in whole or in part upon incompetent evidence. . . . However, 'in the absence of words or conduct indicating otherwise, the presumption is that the judge disregarded incompetent evidence in making his decision.' " State v. Davis, 290 N.C. 511, 541-42, 227 S.E.2d 97 115 (1976). However, "this presumption is weakened when, over objection, the judge admits clearly incompetent evidence." Ibid. Defendant argues that the admission of this testimony requires a new trial. Because the record in this case reveals other error requiring a new trial, we need not determine whether the court's finding as to what Dr. Belts told Holdren with reference to defendant's condition constituted prejudicial error. See State v. Patterson, 288 N.C. 553, 566-67, 220 S.E.2d 600, 610 (1975).

The trial court's conclusion that defendant waived his right to counsel was based upon the following factual findings:

"(T)hat while the defendant did not specifically make the affirmative statement that he did not have a desire, that he did not desire to have an attorney present, he nevertheless fully was advised of his rights to have an attorney present and knew and understood his right to have an attorney present and knew and understood his right to have an attorney present before he answered any questions put to him by Officer Holdren.

"And the Court finds as a fact from the totality of these surrounding circumstances that he did in fact waive his right to an attorney and his other constitutional rights. . . ."

On voir dire Holdren had testified that he approached defendant in the emergency room and asked him if he would talk. Defendant said he would, and Holdren informed defendant of his constitutional rights, reading the Miranda warning from a form entitled "Interrogation and Advice of Rights." This form also contained a "waiver of rights" section, under which was a line for defendant's signature. Additionally Holdren gave defendant a copy of the form and told him to read it for himself. The agent then asked defendant if he understood his constitutional rights and defendant replied, "I know what it says and I understand, but I'm not going to sign it." The record discloses no further statement by defendant bearing upon his rights. He did not sign the form.

Although a trial judge's findings of fact are binding upon appellate courts when supported by competent evidence, whether such evidence supports the findings and whether the findings themselves support the court's conclusions are questions of law reviewable on appeal. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975); State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975). The findings in this case, quoted above, are insufficient to support the conclusion that defendant waived his right to counsel. Defendant unequivocally refused to sign a waiver, and Holdren's testimony on voir dire fails to show a specific oral waiver. As this Court said in a recent case involving similar findings:

"Measured by Miranda standards it is apparent that the findings of fact are not supported by the voir dire testimony of Agent Martinez. Failure to request counsel is not synonymous with waiver. Nor is silence. . . . The trial judge erred in holding that since defendant had been fully informed and understood his right to the presence of counsel at the in-custody interrogation and did not request a lawyer, his act in making the statement amounted to a waiver of counsel." State v. Butler, 295 N.C. 250, ---, 244 S.E.2d 410, 413 (1978).

As we have frequently noted, the Supreme Court said in Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694, 721 (1966), that a waiver must be explicit and cannot be presumed from silence:

"An individual need not make a pre-interrogation request for a lawyer. While such...