State v. Franklin, 446A82

• Decision Date: 07 July 1983
• Docket Number: No. 446A82,446A82
• Citation: 308 N.C. 682,304 S.E.2d 579
• Parties: STATE of North Carolina v. Joseph Ralph FRANKLIN.
• Court: North Carolina Supreme Court

Page 579

304 S.E.2d 579

308 N.C. 682

STATE of North Carolina v. Joseph Ralph FRANKLIN.

No. 446A82.

Supreme Court of North Carolina.

July 7, 1983.

Rufus L. Edmisten, Atty. Gen. by Myron C. Banks, Sp. Deputy Atty. Gen., Raleigh, for the State.

Ann B. Petersen, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant contends that his written and recorded confessions were obtained in violation of his fifth amendment right against self-incrimination and his sixth amendment right to counsel. He bases his argument on the following facts:

In March 1981, defendant had been represented by Assistant Public Defender Lyle Yurko on a plea to a charge of indecent exposure. At that time, defendant was also a suspect in the Mecklenburg County murders of Amanda Ray and Nealy Smith, two young children. The Charlotte police department contacted Mr. Yurko subsequent to defendant's sentencing on the charge of indecent exposure. It was the intent of Charlotte police officers Kirshner and Parker to question defendant concerning the Ray and Smith murders. Presumably pursuant to G.S. § 7A-452(a), Mr. Yurko undertook to represent defendant with respect to police efforts to question defendant concerning these murders. Defendant invoked his right to counsel and the Charlotte police were so informed by Mr. Yurko orally and by letter to the district attorney dated 28 April 1981.

On 8 October 1981, defendant was arrested on yet another unrelated matter in Mecklenburg County. He was charged with rape, kidnapping and robbery and apparently confessed to those crimes. In light of these developments, Charlotte Police Officer Styron determined to renew efforts to question the defendant concerning the Ray and Smith murders. This was the purpose of the 9 October meeting with the defendant. Officer Styron met with defendant at the Mecklenburg County Jail. Prior to any discussion, defendant waived his constitutional rights and indicated that he would answer questions without the presence of an attorney. Officer Styron was not aware that defendant had earlier requested the presence of counsel during questioning on the Ray and Smith murders. He began the conversation on a sympathetic note, acknowledging defendant's "predicament" arising out of the rape/robbery arrest, his problems with sexual violations involving young children, and his need for psychological treatment. No mention was made of the Ray or Smith murders. Defendant then requested that he be taken "downtown." Officer Styron asked defendant if he wanted "to talk about these cases," and defendant answered yes. At the Law Enforcement Center, defendant was again advised of his rights by Officer Price. When asked what he wanted to talk about, defendant began discussing not the Ray and Smith murders, but rather the murder of Michelle Moody in Lenoir.

With respect to his fifth amendment right, defendant argues that

once he formally invoked his right to be free from interrogation on the Smith and Ray cases without the presence of counsel, he could not lawfully be interrogated on those matters again in a police initiated encounter. When Officer Styron initiated the encounter on October 9, he violated the defendant's Fifth Amendment right to counsel and the confession in the Moody case that resulted was inadmissible. All of the subsequent confessions obtained from the defendant by officers of the Lenoir Police Department and the SBI agent were fruits of the poisoned tree of the first confession.

It is true that under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), once a suspected criminal invokes his right to counsel, he may not be questioned further until counsel is provided unless the suspected criminal himself initiates the dialogue at which time he may waive his right to have an attorney present. However, in the case sub judice, defendant had never invoked his right to counsel with respect to the Moody murder. He specifically stated, prior to any questioning, that he just wanted "to go ahead and get this over with. I do not want a lawyer." Officer Price further testified on voir dire that he told defendant for his best interest he ought to obtain a lawyer before trial.

We do not decide whether Officers Styron and Price, in good faith, might properly have initiated questioning concerning the Ray and Smith murders in light of defendant's earlier request that he have an attorney present during questioning on these cases; nor do we decide whether the officers might properly have initiated questioning concerning the Moody murder. ¹ These issues aside, we are left with defendant's completely unsolicited confession to a murder about which there had never been any intention to question him.

Prior to the 9 October questioning, defendant was fully advised of his constitutional rights to remain silent and to have counsel present during questioning. We attach no significance to the fact that the officers "did not expand on the defendant's rights or explain them beyond what appeared on the standard Miranda rights card that he read from." Nor do we find it significant that the defendant was questioned in a "small, windowless interrogation room." There is no evidence that there were promises given, threats made, or that the confession was coerced or in any way improperly induced. The defendant simply waived his rights and chose to cooperate with the law enforcement authorities. This the law permitted him to do.

It is not the purpose of the fifth amendment constitutional protections to discourage confessions, nor to impede the authorized role of our law enforcement agencies to bring criminals to justice. As Chief Justice Warren stated in Miranda, "[c]onfessions remain a proper element in law enforcement." Miranda v. Arizona, 384 U.S. 436 at 478, 86 S.Ct. 1602 at 1630, 16 L.Ed.2d 694 at 726. We therefore hold that under the facts of this case, defendant's confessions were voluntarily and understandingly made after he had been fully advised of his constitutional rights and had specifically, knowingly, and intelligently waived his right to remain silent and to have counsel present during questioning.

Defendant's sixth amendment argument presumes that his "Sixth Amendment right to counsel arose prior to the 9 October statement" because defendant was in custody on an unrelated robbery/rape charge. With respect to the robbery/rape charge, the record does not disclose, nor do we find it relevant, whether formal charges had been instituted in this case. At issue is whether defendant's sixth amendment right to counsel in the Moody murder had attached. We hold that it had not. Prior to the 9 October statement, defendant was no more than a suspect in the Moody murder. Investigation had not yet reached the accusatory stage and had certainly not reached the point where adversary judicial proceedings had been initiated in that case. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

In the alternative, defendant claims that his sixth amendment right to counsel arose in the Moody case after his 9 October statement, thus rendering all subsequent statements against him inadmissible. We do not agree.

The record discloses that an arrest warrant was issued in the Moody murder case on 9 October 1981 and was executed on 10 October. Defendant's first appearance before a judicial officer was on 15 October 1981, the day after he agreed to the videotaped re-enactment of the crime. Counsel was appointed at this time and a probable cause hearing was scheduled for 29 October 1981. Defendant was indicted for the first degree murder of Michelle Moody at the 26 October 1981 session of Superior Court, Caldwell County. On 18 January 1982, defendant was indicted on the first degree sex offense charge.

It is well-settled that a criminal defendant's sixth amendment right to counsel attaches only at such time as adversary judicial proceedings have been instituted "whether by way of formal charge, preliminary hearing, indictment, information or arraignment." Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. In State v. McDowell, 301 N.C. 279, 289, 271 S.E.2d 286, 293 (1980), cert. denied, 450 U.S. 1025, 101 S.Ct. 1731, 68 L.Ed.2d 220 (1981), reh. denied, 451 U.S. 1012, 101 S.Ct. 2350, 68 L.Ed.2d 865 (1981), this Court, while finding that the investigation "had narrowed its focus upon [the defendant], it had not so progressed that the state had committed itself to prosecute. It is only when the defendant finds himself confronted with the prosecutorial resources of the state arrayed against him and immersed in the complexities of a formal criminal prosecution that the sixth amendment right to counsel is triggered as a guarantee."

In the present case, following the 9 October statement, investigation into the Moody murder had "narrowed its focus" upon the defendant. Investigation continued through 14 October, the date of defendant's last statement. On 15 October counsel was appointed for the defendant. ² We therefore hold that at no time prior to 15 October, when counsel for defendant was appointed, had the State committed itself to prosecute. See Tarpley v. Estelle, 703 F.2d 157 (5th Cir.1983) (neither defendant's arrest nor appearances before a magistrate triggered the defendant's sixth amendment right to counsel as no adversary judicial proceedings were commenced prior to the return of the indictment). ³

As his second assignment of error, defendant contends that the evidence is insufficient as a matter of law to support his conviction of felony murder. As a basis for this argument he states that apart from his extra-judicial confession, there was no evidence of the corpus delicti of first degree sexual offense, the underlying felony upon which the murder conviction was based.

As recently as State v. Brown, 308 N.C. 181, ---, 301 S.E.2d 89, 90 (1983), we stated that "[i]n North Carolina, 'a conviction cannot be...