State v. Thacker
Citation | 281 N.C. 447,189 S.E.2d 145 |
Decision Date | 16 June 1972 |
Docket Number | No. 112,112 |
Court | United States State Supreme Court of North Carolina |
Parties | STATE of North Carolina v. Robert Lee THACKER. |
Boyce, Mitchell, Burns & Smith, by Robert E. Smith, Raleigh, Attorneys for Defendant Appellant.
Robert Morgan, Atty. Gen., and Benjamin H. Baxter, Jr., Associate Atty. Gen., for the State of North Carolina.
Defendant assigns as error the admission of his inculpatory statement made during an in-custody interrogation without benefit of counsel. He contends the statement was tainted and inadmissible because he had not waived his right to counsel in writing. Admission of the statement over objection constitutes his first assignment of error.
The record discloses that defendant was twice advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), first by Officer Pegram at the H & H Tire Company shortly after his arrest and again by Officer Benson in the interrogation room at the Municipal Building. Each time defendant stated that he understood his rights. At no time did defendant request counsel according to the voir dire testimony of the officers; but according to defendant's testimony on voir dire he requested an attorney after he was taken to the police station and went to the interrogation room. Defendant further swore that his statements were coerced, while all the officers swore to the contrary. At the conclusion of the voir dire the court found facts as follows:
'The Court finds and concludes that the defendant's said written statement was in fact freely, voluntarily and understandingly made without any promise or threats and without any undue influence, compulsion or duress and that said statement is admissible in evidence.'
The trial court's findings of fact, supported by competent evidence, are conclusive on appeal. State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). Consequently, we take it as established by those findings that defendant was given the full Miranda warning, that he understood his right to counsel, that he did not request the presence of an attorney during the interrogation, and that his statement was not coerced but was freely and voluntarily made. This, however, is not sufficient to render his statement admissible in evidence. Admission of his inculpatory incustody statement to Officer Denton, which was reduced to writing and signed by defendant, was erroneous because there is neither evidence nor findings to show that defendant waived his right to counsel, either in writing as provided by G.S. § 7A--457 (1969) on which State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971), is based, or orally as provided by Miranda on which State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), is based. Miranda v. Arizona, supra. The erroneous admission of this in-custody incriminating statement requires a new trial unless its admission can be treated as harmless error. We now explore that alternative.
Proof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill. Such intent must be found by the jury as a fact from the evidence. State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964). An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances. State v. Revels, 227 N.C. 34, 40 S.E.2d 474 (1946). An intent to kill is a matter for the State to prove, State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923), and is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred. State v. Cauley, 244 N.C. 701, 94 S.E.2d 915 (1956).
There is ample evidence in the record excluding defendant's inculpatory statement, from which a jury may reasonably infer that defendant intended to kill Miss Waddell. Such evidence includes defendant's repeated stabbings of Miss Waddell in vital areas of her body with a six-inch knife blade, first severing an artery in her arm as she attempted to ward off the blows and then plunging the blade four inches deep into her abdomen, completely traversing the abdominal wall and entering the abdominal cavity--done without provocation and to a person who was a complete stranger to him. The viciousness of the assault and the deadly character of the weapon used constitute impelling proof from which defendant's intent to kill may be inferred. Even so, defendant's in-custody inculpatory statement unequivocally expressing his intent to kill the first person he caught alone is so overpowering on the question of intent that its erroneous admission cannot be considered harmless. The test of harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). On the facts before us we think the statement very likely contributed to the finding that defendant possessed the requisite intent to kill. Hence we are unable to declare a belief that its admission was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Error in the admission of this evidence requires a new trial in the Waddell case, No. 71--CR--12806. Defendant's first assignment of error is sustained.
In each of these cases defendant is charged with an assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death, a felony the maximum punishment for which is ten years imprisonment under G.S. § 14--32(a) (1969). In each case the court limited the jury to one of four verdicts: (1) guilty as charged, (2) guilty of assault inflicting serious injury, (3) guilty of assault with a deadly weapon, or (4) not guilty. In the Waddell case (No. 71--CR--12806) the jury found defendant guilty as charged. In the Pierce case (No. 71--CR--12807) the jury found defendant guilty of an assault inflicting serious injury. Defendant contends the court erred in the Waddell case in failing to submit a lesser degree of the crime charged, to wit, assault with a firearm or other deadly weapon Per se inflicting serious injury, a five-year felony under G.S. § 14--32(b) (1969).
It suffices to say that the crime condemned by G.S. § 14--32(b) is a lesser degree of the offense defined in G.S. § 14--32(a), and a defendant is entitled to have the different permissible verdicts Arising on the evidence presented to the jury under proper instructions. State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970). Error in failing to submit the question of a defendant's guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the...
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State v. Williams, 4
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