State v. Smith

• Citation: 294 N.C. 365,241 S.E.2d 674
• Decision Date: 07 March 1978
• Docket Number: No. 70,70
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Bobby Lee SMITH.

Page 674

241 S.E.2d 674

294 N.C. 365

STATE of North Carolina v. Bobby Lee SMITH.

No. 70.

Supreme Court of North Carolina.

March 7, 1978.

Rufus L. Edmisten, Atty. Gen. and Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

William H. Helms, Monroe, for defendant-appellant.

SHARP, Chief Justice.

Defendant emphasizes most his assignment of error No. 11 challenging the admission in evidence of his confession, made on 19 January 1976 to Sheriff Fowler and Officer Kilgore, that he killed Jud Parker. Defendant contends that at the time he made this admission he was represented by counsel, Mr. Harrington. His attorney's presence, therefore, was a prerequisite to a valid waiver of his right to remain silent and to have counsel present during any custodial interrogation. We reject this contention and overrule assignment No. 11 on two grounds:

(1) On 19 January 1976, the day defendant made his statement to the officers, he was neither charged with murder nor represented by counsel in this case. Uncontradicted testimony tends to show and Judge Fountain found that on Saturday, 17 January 1976, defendant was in jail on charges of forgery and the armed robbery of Oxner. Mr. Harrington represented him in the former charge but not the latter, although defendant had falsely stated to the court at a bail hearing that Harrington represented him in the robbery case also. For reasons variously stated, defendant was determined to get out of mail that weekend in order to see his girl friend. To that end he informed the district attorney he would exchange "valuable information on the Jud Parker case" for his release on bond and a plea bargain in his armed robbery case.

The district attorney was interested in defendant's proposition and, under the misapprehension that Harrington represented defendant on the robbery charge, he requested Harrington to come to the jail and work out the arrangements about defendant's testimony. Although most unwilling, Harrington was finally persuaded to come to the jail. When he talked to defendant he asked him specifically whether he had any part in the murder of Jud Parker. Defendant twice assured Harrington that he had not participated in the attempted robbery which resulted in the murder. He said that on the night Parker was killed "he was at a trailer out in the country, and there were three people at the trailer . . . discussing the killing."

As set out in the preliminary statement of facts the district attorney declined to bargain on defendant's terms. Harrington gave defendant some good advice about plea bargaining and left. Defendant remained in jail over the weekend, and on Monday, January 19th, he requested Sheriff Fowler to come to the jail for the specific purpose of discussing the Jud Parker murder case with him.

From the foregoing evidence it is quite clear that Mr. Harrington never represented defendant in this case.

(2) Even had Harrington "entered this proceeding" on defendant's behalf on or before January 19th which he had not defendant would have retained his right to waive counsel. At defendant's request Sheriff Fowler and Officer Kilgore came to the jail to talk with him. Before they talked to him, however, he specifically, knowingly, understandingly, and voluntarily exercised that right. See State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972); State v. Elliott, 269 N.C. 683, 153 S.E.2d 330 (1967); State v. Davis, 267 N.C. 429, 148 S.E.2d 250 (1966).

Defendant, however, would have this Court adopt the rule first enunciated by the New York Court of Appeals in People v. Arthur, 22 N.Y.2d 325, 329, 292 N.Y.S.2d 663, 666, 239 N.E.2d 537, 539 (1968). This rule was succinctly stated in People v. Hobson, 39 N.Y.2d 479, 481, 384 N.Y.S.2d 419, 420, 348 N.E.2d 894, 896 (1976) as follows: "Once a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer . . .. Any statements elicited by an agent of the State, however subtly, after a purported 'waiver' obtained without the presence or assistance of counsel, are inadmissible."

We also note that in Hobson the court was careful to point out that "the rule of the Arthur case is not an absolute. Thus, the fact that a defendant is represented by counsel in a proceeding unrelated to the charges under investigation is not sufficient to invoke the rule." 39 N.Y.2d at 483, 384 N.Y.S.2d at 422, 348 N.E.2d at 897.

The Arthur 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. See State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977); State v. Davis, 267 N.C. 429, 148 S.E.2d 250 (1966). Further, as the New York Court of Appeals freely conceded in Hobson, 39 N.Y.2d at 483-84, 384 N.Y.S.2d at 422, 348 N.E.2d at 897-98, the rule of Arthur extended a defendant protection under the State constitution beyond that afforded by the Federal Constitution as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Miranda, of course, held that suspects in custody must be expressly warned that they have the right to remain silent during police interrogation as well as the right to consult with counsel before and during any such questioning. In Miranda, however, Mr. Chief Justice Warren was careful to say, "Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." The Chief Justice continued by saying that after an individual in custody had been informed of his constitutional rights in the words of the Miranda warning and been given an opportunity to exercise them, "the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless 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." Id. at 478-79, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

Only a few courts have followed New York in holding that once an attorney has entered the case an accused cannot waive his right to counsel except in the presence of his attorney. State v. Johns, 185 Neb. 590, 177 N.W.2d 580 (1970); United States v. Thomas, 474 F.2d 110 (10th Cir. 1973). Other courts, including Virginia, have expressly rejected the Arthur doctrine. Lamb v. Commonwealth, 217 Va. 307, 227 S.E.2d 737 (1976). Accord, Moore v. Wolff, 495 F.2d 35 (8th Cir. 1974); United States v Durham, 475 F.2d 208 (7th Cir. 1973); Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968); State v. Marks, 113 Ariz. 71, 546 P.2d 807 (1976); Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974); Commonwealth v. Yates, 467 Pa. 362, 357 A.2d 134 (1976).

The case of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) involved the admissibility of a confession made in the absence of Williams' attorney. In affirming the ruling of the District Court and the Court of Appeals that the confession had been erroneously admitted into evidence Mr. Justice Stewart, writing the opinion of the Court, specifically noted: "The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as we do, that he did not." Id. at 405-06, 97 S.Ct. at 1243, 51 L.Ed.2d at 441. In his concurring opinion, Mr. Justice Powell expressed his view that "the opinion of the Court is explicitly clear that the right to assistance of counsel may be waived, after it has attached, without notice to or consultation with counsel. Ante at 405-406, 97 S.Ct. 1232, 51 L.Ed.2d 440." Id. at 413, 97 S.Ct. at 1246, 51 L.Ed.2d at 445.

Thus, we reassert and adhere to our well-established rule 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. State v. Frank, 284 N.C. 137, 200 S.E.2d 169 (1973). Defendant's confession was properly admitted.

After Sheriff Fowler was allowed to read Smith's confession to the jury, defense counsel asked him, if two hours after giving that confession, defendant had not called the statement "a bunch of lies." The district attorney's objection was sustained by the court. Fowler would have answered, "He said it wasn't true." Defendant contends that his repudiation in the afternoon was "part and parcel" of that morning's confession and that therefore it should have been admitted. We do not agree.

Moreover, were we to assume arguendo that labeling a statement "a bunch of lies" two hours after it was given to police was such an integral part of the original statement as to require the admission of the repudiation along with the confession, under the circumstances of this case the court's failure to admit evidence of this repudiation was not prejudicial error. Defendant testified that he had told Officers Fowler and Kilgore after lunch that the statement he had made that morning was a lie. Kilgore also testified that defendant had termed the confession "a bunch of lies." Where evidence of similar import to that which was improperly excluded is admitted at other times in the trial, the exclusion will not be held to be prejudicial error. State v. Gray, 268 N.C. 69, 150 S.E.2d 1, cert. den. 386 U.S. 911, 87 S.Ct. 860, 17 L.Ed.2d 784 (1966), State v. Creech, 229 N.C. 662, 51 S.E.2d 348 (1949). Assignment of error No. 3 is, therefore,...