State v. Romero

• Citation: 286 S.E.2d 903,56 N.C.App. 48
• Decision Date: 16 February 1982
• Docket Number: No. 818SC632,818SC632
• Parties: STATE of North Carolina v. Charles Elvie ROMERO.
• Court: Court of Appeal of North Carolina (US)

Page 903

286 S.E.2d 903

56 N.C.App. 48

STATE of North Carolina v. Charles Elvie ROMERO.

No. 818SC632.

Court of Appeals of North Carolina.

Feb. 16, 1982.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Assoc. Atty. Gen. John F. Maddrey, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant-appellant.

MORRIS, Chief Judge.

Defendant challenged the admissibility of all three incriminating statements made by him. The trial court conducted voir dire hearings to determine their admissibility and allowed them into evidence. Defendant, on appeal, urges us to require that the state prove beyond a reasonable doubt that an inculpatory statement made by a defendant and introduced as evidence was given freely and voluntarily. His argument is made without authority from this state, however. Indeed, to accede to defendant's request would result in the imposition of a significant procedural innovation on our trial judge's treatment of confessions and other incriminatory statements.

The well-settled rule in North Carolina is, simply, that "(a) trial judges' finding that an accused freely and voluntarily made an inculpatory statement will not be disturbed on appeal when the finding is supported by competent evidence even when there is conflicting evidence." State v. Harris, 290 N.C. 681, 693, 228 S.E.2d 437, 444 (1976); State v. White, 298 N.C. 430, 431, 259 S.E.2d 281 (1979). It appears, based upon the record, that the testimony supporting the voluntariness of defendant's various statements was carefully weighed by the trial judge. After the evidence is admitted, the circumstances under which statements attributed to a defendant were made may be elicited on cross-examination in the presence of the jury. Then "it is for the jury to determine whether the statements referred to in the testimony of the witness were in fact made by the defendant and the weight, if any, to be given such statements...." State v. Walker, 266 N.C. 269, 273, 145 S.E.2d 833, 836 (1966). We hold that the evidence presented at the voir dire hearings fully supports the court's rulings that the statements in question were freely and voluntarily made, that defendant's rights were adequately protected, and that the imposition of the standard of proof advanced by defendant, though utilized in some states, is not required by North Carolina law.

Defendant next assigns error to the trial judge's admission of the three statements into evidence on the ground that the first of those statements resulted from a custodial interrogation of the defendant during which defendant's attorney was not present. He contends specifically that his due process rights were violated because Officer Edmondson interrogated him regarding the charges lodged in Greene County outside the presence of the attorney representing him on related breaking and entering charges in Johnston County, and because he was questioned before he had the opportunity, in general, to consult with counsel. Because his confession to Officer Edmondson was wrongfully obtained, says defendant, his subsequent statements should also be suppressed, pursuant to the presumption enunciated in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968), that where a confession is obtained under circumstances that render it involuntary, subsequent confessions are also presumed to be involuntary.

We agree with defendant that his right to counsel had attached, since the proceedings against him had begun at the time of the interrogation, but we think State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978), is dispositive. There the Supreme Court held that "in determining the admissibility of a confession by a suspect in custody, the crucial question is whether the statement was freely and understandingly made after he had been fully advised of his constitutional rights and had specifically waived his right to remain silent and to have counsel present." Id. at 376, 241 S.E.2d at 681. State v. Smith, based on strikingly similar facts to those in the case before us, clearly sets out this state's law regarding waiver of right to counsel when a defendant is represented by counsel in a proceeding unrelated to the charges under investigation. The record here, just as in Smith, offers no indication that defendant's counsel in the Johnston County matter also represented defendant in this case. Even had that attorney entered the Greene County proceeding on defendant's behalf--which he apparently had not--defendant would have retained his right to waive counsel. Significantly, the trial judge found that defendant waived his right to counsel before making the statement to Edmondson, and that the statement was "freely, knowingly and understandingly made without threats or promises having been made to him."

At this point, it need only be said that the rule "that a defendant in custody who is represented by counsel may not waive his constitutional rights in counsel's absence, is not the law in this State." Id. at 375, 241 S.E.2d at 680. The position taken in defendant's second argument finds authoritative basis only in the laws of a few jurisdictions which have followed People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968). Defendant's argument that interrogations conducted in the absence of counsel violate Disciplinary Rule 7-104 of the North Carolina Code of Professional responsibility is unpersuasive. This Code section proscribes only certain conduct by members of the legal profession during the course of representation and does not...