State v. Silver

• Decision Date: 14 April 1975
• Docket Number: No. 35,35
• Parties: STATE of North Carolina v. Frank James SILVER.
• Court: North Carolina Supreme Court

Page 247

213 S.E.2d 247

286 N.C. 709

STATE of North Carolina v. Frank James SILVER.

No. 35.

Supreme Court of North Carolina.

April 14, 1975.

Atty. Gen. Rufus L. Edmisten by Asst. Attys. Gen. William W. Melvin and William B. Ray, Raleigh, for the State.

Lawrence G. Diedrick, Rocky Mount, for defendant.

BRANCH, Justice.

The principal question presented by this appeal is whether the trial judge erred in admitting into evidence defendant's custodial confession.

This record clearly discloses that the trial judge based his conclusions of law upon facts found on the basis of evidence related solely to events which took place on 22 December 1973. If we were restricted to consideration of evidence elicited solely on Voir dire, the trial judge's findings would be adequately supported by the evidence and therefore would be binding on this Court. Further, such findings would support the conclusions of law entered by Judge Rouse, and his conclusions of law would, in turn, support his ruling. State v. Barber, 278 N.C. 268, 179 S.E.2d 404; State v. Fox, 277 N.C. 1, 175 S.E.2d 561; State v. McRae, 276 N.C. 308, 172 S.E.2d 37; State v. Barber, 270 N.C. 222, 154 S.E.2d 104; State v. Childs, 269 N.C. 307, 152 S.E.2d 453; State v. Hammonds, 229 N.C. 108, 47 S.E.2d 704; State v. Vann, 82 N.C. 631. However, in determining the admissibility of a confession, we must look to the entire record, not merely to the evidence presented on a Voir dire hearing. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895; Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242; State v. McCloud, 276 N.C. 518, 173 S.E.2d 753. The conflicting holding of this Court in State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, can no longer be considered authoritative.

It is well settled 'that where a confession has been obtained under circumstances rendering it involuntary, a presumption arises which imputes the same prior influence to any subsequent confession, and this presumption must be overcome before the subsequent confession can be received in evidence.' State v. Moore, 210 N.C. 686, 188 S.E. 421. The burden is upon the State to overcome this presumption by clear and convincing evidence. State v. Fox, 274 N.C. 277, 163 S.E.2d 492; State v. Woodruff, 259 N.C. 333, 130 S.E.2d 641; State v. Hamer, 240 N.C. 85, 81 S.E.2d 193; State v. Gibson, 216 N.C. 535, 5 S.E.2d 717; State v. Drake, 113 N.C. 625, 18 S.E. 166; State v. Drake, 82 N.C. 592; State v. Lowhorne, 66 N.C. 638; State v. Roberts, 12 N.C. 259.

The trial judge's findings of fact, conclusions of law, and ruling concerning defendant's confession were made without any consideration of statements made prior to 22 December. In fact, very little appears in the record concerning defendant's statements to officers on 20 December; nevertheless, a contextual reading of the record points unerringly to the conclusion that defendant made an inculpatory statement on that date. The record reveals that before Sheriff Womble talked to defendant on 20 December, he did not know that he was going to talk with him 'about a murder matter' but was 'simply trying to find out who made a telephone call.' Although we can glean little concerning either defendant's statements of 20 December or the circumstances under which they were made, the record does show that after the officers talked with defendant, his alleged accomplice, Ernest Simmons, was arrested on that same day and charged with the murder of Mrs. Mary C. Powell. In this connection, the Sheriff stated: 'I didn't know I wanted Simmons until Silver told me.' According to Sheriff Womble, defendant was not suspected of murdering Mrs. Powell when he was invited to the courthouse; yet, defendant was arrested and charged with her murder After his conversation with the officers on 20 December. Further, according to Sheriff Womble's Voir dire testimony and the testimony of S.B.I. Agent Dowdy before the jury, they took defendant on that same day to the home of Ernest Richardson at Hollister, where they obtained the pistol later identified as being the property of the deceased. At that time Richardson stated that defendant sold the pistol to him on Friday, 14 December, the day after Mrs. Powell's death. Thus, we are unable to escape the conclusion that defendant made incriminatory statements to the officers while in custody on 20 December.

The general rule is that when the trial judge concludes a Voir dire hearing concerning the admissibility of a confession, he should make findings of fact to show the bases of his rulings. State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Conyers, 267 N.C. 618, 148 S.E.2d 569. In State v. Barnes, 264 N.C. 517, 142 S.E.2d 344, vacated and remanded on other grounds, 375 U.S. 28, 84 S.Ct. 137, 11 L.Ed.2d 45, this Court considered the requirements of a Voir dire hearing as related to admissibility of a confession. There Justice Higgins, for the Court, wrote:

'. . . Under present procedure it is essential not only that a full investigation be made and the evidence recorded, but the facts must be found which disclose the circumstances and conditions surrounding the making of the incriminating admissions. . . .'

We dealt with a similar question in State v. Williford, 275 N.C. 575, 169 S.E.2d 851. There the arresting officer testified that he placed defendant, who was wounded and bleeding profusely at the time, under arrest and carried him to the hospital. He further stated that he fully warned defendant of his Miranda rights and subsequently talked with him in the emergency room of the hospital. While he was still in great pain and receiving treatment in the emergency room, defendant made inculpatory statements in response to the questions of police officers. At the conclusion of the Voir dire hearing, the court found that the officers had properly warned defendant of his rights although it made no finding as to defendant's mental or physical condition and as to the immediate circumstances...