State v. Connley

• Court: North Carolina Supreme Court
• Writing for the Court: SHARP; Having previously adjudged defendant's remaining assignments of error to be without merit, we now find no error in defendant's trial before Thornburg
• Citation: State v. Connley, 256 S.E.2d 234, 297 N.C. 584 (N.C. 1979)
• Decision Date: 12 July 1979
• Docket Number: No. 124,124
• Parties: STATE of North Carolina v. Ruben Sonny CONNLEY.

Page 234

256 S.E.2d 234

297 N.C. 584

STATE of North Carolina v. Ruben Sonny CONNLEY.

No. 124.

Supreme Court of North Carolina.

July 12, 1979.

John H. Pike, Hugh M. Currin, Oxford, for appellant.

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

ORDER ON REMAND

This case is before us on remand from the Supreme Court of the United States "for further consideration in light of North Carolina v. Butler, 441 U.S. ----, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)." North Carolina v. Connley, 441 U.S. ----, 99 S.Ct. 2046, 60 L.Ed.2d 657 (1979).

SHARP, Chief Justice.

Defendant Connley was indicted under N.C.Gen.Stat. § 15-144 (1978) for the murder of Garland W. Fisher, a Virginia State patrolman, at a roadblock on Interstate Highway No. 85 on 15 November 1976. At the 14 March 1977 special criminal session of Granville the jury returned a verdict of guilty of first degree murder and defendant was sentenced to life imprisonment.

Upon defendant's appeal to this Court we ordered a new trial on the ground that defendant's incriminating statements, made during his in-custody interrogation on the night of the homicide, were improperly admitted in evidence because he had not Specifically waived his right to have counsel present. State v. Connley, 295 N.C. 327, 245 S.E.2d 663 (1978), Judg't vacated and case remanded, 441 U.S. ----, 99 S.Ct. 2046, 60 L.Ed.2d 657 (1979).

This Court's ruling in Connley was based upon our interpretation of the following pronouncement which Chief Justice Warren made in the majority opinion in Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694, 721 (1966): "(H)is (the accused's) 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." (Emphasis ours.)

We interpreted the foregoing statement as requiring an express waiver of counsel prior to police interrogation and thereafter ordered a new trial in any case in which the State, without having first shown defendant's clear-cut waiver of counsel, was permitted to introduce in evidence the defendant's incriminating statements made during an in-custody interrogation. ¹ State v. Butler and the instant case were among those in which we granted new trials. State v. Butler, 295 N.C. 250, 244 S.E.2d 410 (1978), Judg't vacated and case remanded, 441 U.S. ----, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). In both Butler and Connley the State of North Carolina petitioned the Supreme Court for certiorari. In each case, the Supreme Court granted the petitions and vacated our judgment awarding a new trial. It then directed reconsideration of both cases in light of its opinion in Butler.

The Supreme Court said in Butler That we had erred in our reading of the Miranda opinion and that "the Court did not hold that such an express statement is indispensable to a finding of waiver (of counsel)." In further explanation, Mr. Justice Stewart, speaking for the majority, said:

"An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." North Carolina v. Butler, 441 U.S. ----, ----, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979).

As directed, we now proceed to reconsider Connley's case in light of the preceding pronouncement and to determine de novo whether defendant's actions and words preceding and during his interrogation clearly implied a waiver of his right to counsel and to remain silent.

At the trial Victor Holdren, Special Agent of the Federal Bureau of Investigation, testified as follows:

"I had occasion to talk with Ruben Sonny Connley at approximately 4:00 or 5:00 a. m. on November 15, 1976, in the emergency room at Duke Medical Center in Durham. I asked him if he would talk to me and he said he would. I furnished him an Advice of Rights form. He held up his right hand, which was bandaged; so I held the form for him and gave him time to read the statement. Thereafter I read it to him and asked him if he understood what his rights were under the constitution and he stated to me, 'I know what it says and I understand, but I'm not going to sign it.' "

At that point in Holdren's testimony defendant objected to the admission in evidence of his statements to the FBI agent, and the judge conducted a voir dire to determine their admissibility. In pertinent part, Agent Holdren's additional testimony is summarized or quoted below. Defendant offered no evidence on voir dire.

Before attempting to talk with Connley, Holdren had consulted Dr. W. R. Belts, one of defendant's attending physicians, to determine whether defendant would be able to talk to him. Holdren testified, "He (Dr. Belts) 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. I observed that Mr. Connley was alert and responded to the questions in a normal, rational way.

". . . The defendant appeared to be coherent. At times he would close his eyes, but would continue to respond to the questions. . . . (O)n a few occasions during the interview when I asked him a question he would not say anything. I did not offer him any threat or promises or hope of reward of any type. I did not attempt to coerce him to give me any statement.

". . . He appeared to be alert because he responded to the questions I asked him. I was with him 18 minutes. I based my opinion as to whether he was alert on what the doctor had said to me outside and the fact that he responded."

After having stated that he understood his constitutional rights but that he would not sign the "Advice of Rights" form, defendant proceeded, forthwith, to tell his story in appropriate answers to Holdren's questions. The narrative began with his departure from Atlanta, Georgia, on 14 November 1976 for Baltimore, Maryland, and continued through his activities during his stay in Baltimore and his encounter with Virginia State Trooper Fisher as he was driving back to Atlanta. Defendant told how he kidnapped Trooper Fisher and commandeered his patrol car, and he recounted some of their conversation up to the time they arrived at the roadblock in North Carolina. At that point, Holdren testified, "He (Connley) said he would like to talk with his mouthpiece, and I took that to mean his attorney and we terminated the interview."

The trial judge found the facts to be in accordance with Holdren's testimony. Based upon that testimony he found and concluded, inter alia:

"(T)hat while the defendant did not specifically make the affirmative statement . . . 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 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 as explained by Officer Holdren.

". . . (T)hat defendant did knowingly, understandingly, voluntarily and without threat, promises, coercion of any kind, willingly, intelligently and intentionally answer questions asked him by Officer Holdren, and that the statement . . . the defendant (made) to Officer Holdren was knowingly (and) voluntarily . . . made with a full understanding of his . . . constitutional rights . . . and that the statements made by defendant to the officer should . . . be admitted in evidence against him."

In light of North Carolina v. Butler, supra, we now hold that the trial judge's conclusion that Connley "did in fact waive his right to an attorney and his other constitutional rights" is fully supported by the evidence. Although Connley did not expressly waive his rights, "waiver can clearly be inferred from (his) actions and words." Equally applicable to defendant Connley is the statement which Mr. Justice Stewart made with reference to defendant Butler: "There is no doubt that this respondent was adequately and effectively apprised of his rights." 441 U.S. at ----, 99 S.Ct. at 1758, 60 L.Ed.2d at 293. There can also be no doubt that Connley, after refusing to sign the waiver form, freely and voluntarily chose to talk with the agent; that he ignored the questions he did not want to answer and that Holdren exerted no pressure to make him answer. As soon as defendant said he wanted to talk to his lawyer, all questioning ceased.

We therefore reverse our holding that defendant's statements to Agent Holdren were erroneously admitted and...