State v. Swann

• Decision Date: 19 November 1969
• Docket Number: No. 26,26
• Citation: 275 N.C. 644,170 S.E.2d 611
• Parties: STATE of North Carolina v. Willie SWANN.
• Court: North Carolina Supreme Court

Page 611

170 S.E.2d 611

275 N.C. 644

STATE of North Carolina v. Willie SWANN.

No. 26.

Supreme Court of North Carolina.

Nov. 19, 1969.

Atty. Gen. Robert Morgan and Staff Attorney Andrew A. Vanore, Raleigh, for the State.

Jerry L. Jarvis, Durham, for defendant appellant.

BOBBITT, Chief Justice.

Bee James, a colored male, aged 70, was killed in his rural home-store on Wednesday, May 20, 1964. Severe blows to his head caused immediate unconsciousness and death within a few minutes. When discovered, his lifeless body was lying on the porch. The body and building were partially burned by the perpetrator in an apparent effort to conceal the crime.

The circumstantial evidence offered to identify defendant, a colored male, aged 26, as the person who killed James, was substantially the same as that offered when defendant was tried and convicted before Carr, J., at February 1967 Criminal Session. This evidence was reviewed in detail by Parker, C.J., in State v. Swann, 272 N.C. 215, 158 S.E.2d 80. The basis of decision on this appeal renders unnecessary a review of this circumstantial evidence.

On evidence as to statements made by defendant was admitted in the trial at February 1967 Criminal Session. The State's case was submitted solely on circumstantial evidence.

In the trial now under review, Leary was permitted to testify, over objections, as to incriminating statements made to him by defendant on Friday, May 22, 1964, and on Saturday, May 23, 1964. These include statements by defendant that he had obtained hams from James on Wednesday, May 20, 1964; that, following argument as to price, James ordered him to leave; that he picked up a piece of iron and struck James when he thought James was going to get a gun; that he poured oil on the mattress in the bedroom and tried to set fire to it; and that, when he left, James was lying on the porch. They also include statements as to the names and addresses of persons to whom he had sold hams during the afternoon of May 20, 1964. The statements attributed to defendant in Leary's testimony are fully and precisely corroborated by and are in accordance with the circumstantial evidence.

The admissibility of Leary's said testimony was the subject of a Voir dire examination in the absence of the jury. After hearing the evidence, Judge Burgwyn found that defendant's statements to Leary 'were freely, voluntarily, knowingly, and intelligently made, without any threat, inducement, reward, or hope of reward to the defendant, and after he had been advised of his constitutional rights as they then existed with reference to any statement he might make being used against him.'

On appeal, defendant does not challenge the sufficiency of the evidence to support Judge Burgwyn's findings or the sufficiency of the findings to establish that, before obtaining defendant's confession, the law enforcement officers had complied with and relied upon the constitutional standards declared and in force when the confession was made. He bases his appeal solely on the ground that Leary's testimony as to defendant's confession was inadmissible because the warnings given defendant with reference to his constitutional rights fell short of certain of the requirements established and set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, decided June 13, 1966. Specifically, defendant was not warned that he had a right to the presence of a retained or appointed attorney, if he so desired, prior to interrogation relating to the alleged crime.

The confession under consideration was on May 23, 1964, more than two years prior to the decision in Miranda. Clearly, if defendant had been tried on a plea of not guilty prior to June 13, 1966, the confession of May 23, 1964, would have been admissible. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. If a new trial in such case had been ordered, on constitutional grounds or for error in other respects, the confession of May 23, 1964, would have been admissible in a retrial conducted subsequent to June 13, 1966. Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253.

In State v. Lewis, 274 N.C. 438, 164 S.E.2d 177, this Court, after consideration in depth of the decisions and texts relating to the extent Miranda was to be applied retroactively, reached this conclusion: 'In our view, Miranda should not and does not apply to confessions obtained prior to that decision, when offered at trials or retrials beginning thereafter, where law enforcement officers relied upon and complied with constitutional standards applicable at the time the confessions were made. We perceive a trend towards this conclusion in decisions of the Supreme Court of the United States discussed herein.'

In the present case, the ruling of Judge Burgwyn and the decision of the Court of Appeals are in accord with our decision in State v. Lewis, supra.

When State v. Lewis, supra, was under consideration, decisions in other jurisdictions, based largely upon the stress placed upon particular words and phrases in the opinion of Mr. Chief Justice Warren in Johnson v. New Jersey, supra, were in sharp conflict. The greater number held that a defendant's in-custody confession was not admissible in the absence of full compliance with Miranda when offered in trials or retrials begun after June 13, 1966. We took the view, expressed later by Mr. Chief Justice Warren in Jenkins v. Delaware, supra, that the question whether evidence as to confessions prior to June 13, 1966, absent full compliance with the Miranda warnings, would be applicable in retrials after June 13, 1966, of cases originally tried prior to June 13, 1966, was not considered in Johnson.

In Jenkins, Mr. Chief Justice Warren calls attention to the fact that in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and in Desist v....