State v. Siler

• Citation: 292 N.C. 543,234 S.E.2d 733
• Decision Date: 10 May 1977
• Docket Number: No. 49,49
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Anthony Payne SILER.

Page 733

234 S.E.2d 733

292 N.C. 543

STATE of North Carolina v. Anthony Payne SILER.

No. 49.

Supreme Court of North Carolina.

May 10, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David S. Crump, Raleigh, for the State.

Robert L. Gunn and Paul S. Messick, Jr., Pittsboro, for defendant-appellant.

COPELAND, Justice.

Defendant assigns as error the court's failure to suppress two inculpatory statements made by him during in-custody interrogation in the absence of counsel and the subsequent admission of these statements into evidence over objection. Defendant claims there was no effective waiver of his constitutional right to counsel prior to interrogation.

Upon defendant's motions to suppress, two pre-trial hearings were held to consider the admissibility of these confessions. Judge Edwin S. Preston, Jr., presided at both the 17 February 1976 and the 18 May 1976 hearings.

The State's evidence at both suppression hearings indicated that the defendant was not interrogated until after he was taken to the Siler City Police Station and advised of his constitutional rights on 14 September 1975. The defendant read but refused to sign the written waiver of rights form. He informed the investigating officer, Sergeant Randall Stevens, that he (defendant) knew his rights better than the officer did.

Under questioning, the defendant admitted going to the hospital and robbing a woman and tying her up with pantyhose because "he needed money to get back to Philly on. . . ." When asked about beating and raping the woman, defendant allegedly said, "I told you I robbed her and tied her up with her pantyhose, but I did not rape or beat her. If you are going to try to put something on me I didn't do, I want a lawyer." At that point, the questioning halted and the officers tried unsuccessfully to find an attorney for the defendant. Defendant was charged in a warrant with armed robbery and assault on a female and removed to the Chatham County Jail in Pittsboro.

The next day after visiting the victim in the hospital, Sergeant Stevens obtained a warrant for the defendant charging him with first degree rape. Two days after the arrest, Sergeant Stevens served the rape warrant on the defendant in the Chatham County Jail. No attorney was present at the time and the defendant was not readvised of his Miranda rights. The officer read the rape warrant to the defendant without asking any questions. The defendant responded "I told you I didn't rape her. I robbed her and tied her up. I didn't rape her. What are you trying to do to me?"

"(W)hen the State seeks to offer in evidence a defendant's in-custody statements, made in response to police interrogation and in the absence of counsel, the State must affirmatively show not only that the defendant was fully informed of his rights but also that he knowingly and intelligently waived his right to counsel." State v. Biggs, 289 N.C. 522, 531, 223 S.E.2d 371, 377 (1976); accord, State v. White, 288 N.C. 44, 215 S.E.2d 557 (1975); State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971). "(U)nless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966).

Both of defendant's alleged statements were made while he was in custody and the first statement was undeniably made during police interrogation. Thus, before the first incriminating statement can be admissible at trial, the State must demonstrate (1) that the full Miranda warnings were given and (2) that defendant effectively waived both his right to remain silent and his right to counsel after receiving the warnings.

On this appeal defendant contests only the waiver of his right to counsel. Judge Preston found as a fact at the first suppression hearing that the defendant did not waive his right to counsel in writing. There were no findings at either hearing that the defendant orally waived his right to counsel.

As a general rule, the trial judge should at the conclusion of the voir dire hearing make findings of fact to show the bases of his ruling. State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976). State v. Biggs, supra. When there is a material conflict in the evidence on voir dire, the court must make findings resolving the crucial conflicts. State v. Riddick, supra; State v. Biggs, supra; State v. Smith, 278 N.C. 36, 178 S.E.2d 597 (1971), cert. denied, 402 U.S. 934, 91 S.Ct. 2266, 29 L.Ed.2d 715. When no material conflict in the evidence on voir dire exists, it is not error to admit a confession without making specific findings of fact, although the better practice is always to find all facts upon which the admissibility of the evidence depends. State v. Riddick, supra; State v. Biggs, supra; State v. Whitley, 288 N.C. 106, 215 S.E.2d 568 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Lynch,279 N.C. 1, 181 S.E.2d 561 (1971). In such a case, the necessary findings are implied from the admission of the confession into evidence. State v. Riddick, supra; State v. Biggs, supra; State v. Whitley, supra. But where there is neither evidence nor findings to show that the defendant waived his right to counsel, the admission of an inculpatory statement made during in-custody interrogation is error. State v. White, supra; State v. Thacker, supra; State v. Turner, 281 N.C. 118, 187 S.E.2d 750 (1972).

The uncontradicted evidence and findings by the court at the first hearing (defendant did not testify at the first hearing) showed that defendant was given the full Miranda warnings prior to questioning; that he understood his rights; that no promises or threats were made to induce his statement, and that he did not request an attorney until after he had confessed to the robbery. These facts standing alone are insufficient evidence of a waiver of the right to counsel. We have held repeatedly that a defendant's failure to request an attorney is not an effective waiver. "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." Miranda v. Arizona, supra, 384 U.S. at 470, 86 S.Ct. at 1626, 16 L.Ed.2d at 721; accord, State v Thacker,supra; State v. Blackmon, supra. "(A) valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. . . . '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.' " Miranda v. Arizona, supra at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724; accord, State v. White, supra; State v. Blackmon,supra.

Sergeant Stevens testified at the first suppression hearing that prior to questioning, defendant was asked if he was willing to answer a few questions. Defendant reportedly answered, "Ask them, then I'll tell you whether I'll answer them or not." While we may interpret this statement by defendant as an implied waiver of the right to remain silent, we do not construe it additionally as an implied waiver of the right to counsel.

The State's evidence at both hearings indicates that the defendant, upon being questioned about the rape, stated "If you are going to try to put something on me I didn't do, I want a lawyer." According to Sergeant Stevens, the defendant had not mentioned an attorney previously and had talked freely about the robbery. Although failure to request an attorney after the Miranda warnings have been given does not ordinarily constitute a waiver, we believe a waiver by silence can be inferred where subsequent comments of the defendant indicate that he intended his silence as a waiver of his right to an attorney during interrogation. However, on this appeal, we find that this interpretation of the facts is not open to us. In determining the admissibility of a confession, we are required to look to the entire record. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975); State v. McCloud, 276 N.C. 518, 173 S.E.2d 753 (1970). The State's version of defendant's request for counsel does not stand uncontradicted at both hearings. In the instant case the defendant testified at the second suppression hearing that he asked for an attorney immediately after being informed of his rights and that Sergeant Stevens nevertheless continued to interrogate him. Judge Preston did not make findings resolving this material conflict in the evidence, as he was required to do under State v. Biggs, supra. Under these circumstances, we are constrained to find that the admission of the first incriminating statement was erroneous.

At the time the second inculpatory statement was made, two days after his arrest, defendant had requested an attorney but no attorney had been appointed. This fact, however, does not necessarily render the statement inadmissible. The United States Supreme Court has indicated that its decision in Miranda set forth rules of police procedure applicable to "custodial interrogation" which it defined as "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." (Emphasis supplied.) Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706; accord, Oregon v. Mathiason, --- U.S. ---, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); cf. Brewer v. Williams, --- U.S. ---, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). "Volunteered statements of any kind...