State v. Thorpe, 247

• Decision Date: 20 November 1968
• Docket Number: No. 247,247
• Citation: State v. Thorpe, 164 S.E.2d 171, 274 N.C. 457 (N.C. 1968)
• Parties: STATE of North Carolina v. Leroy THORPE, Defendant.
• Court: North Carolina Supreme Court

Page 171

164 S.E.2d 171

274 N.C. 457

STATE of North Carolina v. Leroy THORPE, Defendant.

No. 247.

Supreme Court of North Carolina.

Nov. 20, 1968.

T. W. Bruton, Atty. Gen., Andrew A. Vanore, Jr., Raleigh, Staff Atty., for the State.

W. O. Rosser, Whitakers, for defendant.

HIGGINS, Justice.

The first assignment of error involves the admissibility of the defendant's confession. Before permitting the investigating officers to relate to the jury the defendant's incriminating admissions, the Court conducted a voir dire examination in the jury's absence. The evidence disclosed the officers first talked with Mrs. Mullen, who had observed and recognized the defendant as the intruder in her home at about midnight. On the basis of her identifying statements, they arrested Leroy Thorpe. The in-custody interrogation, therefore, was not for the purpose of making an arrest, but for the purpose of buttressing the proof of the burglary charge against the defendant. The officers testified that before the interrogation, they gave the defendant warnings as to his rights, including the statement that they 'would hire a lawyer for him if he could not afford one'. The officers testified: 'He did not request any lawyer'.

At this stage of the proceeding the officers had in custody a dull, retarded, uneducated, indigent boy 20 years old who had left school before he completed the third grade. In giving the advice with respect to counsel, the officers did not explain to him that he was entitled to counsel during the interrogation. To his inexperienced mind, in all probability, he understood the officers to mean that counsel would be made available at his trial. Counsel at incustody questioning upon arrest was something relatively new at that time. His failure to request counsel at the interrogation is understandable. The failure to make the request under these circumstances was not a waiver of the right to legal representation during the questioning.

The Court, at the conclusion of the voir dire examination, did not make any findings with respect to counsel. The evidence before the Court was not sufficient to justify a finding that counsel at the interrogation was offered, or the defendant's right thereto was understandably waived. In concluding the defendant was entitled to have counsel at his interrogation, and the right was not waived, we are no longer permitted to rely on the presumption that a confession is deemed to be voluntary until and unless the contrary is shown. Our rules to that effect have been discussed and applied in many decisions. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Davis, 253 N.C. 86, 116 S.E.2d 365; State v. Bines, 263 N.C. 48, 138 S.E.2d 797; State v. Goff, 263 N.C. 515, 139 S.E.2d 695; State v. Hines, 266 N.C. 1, 145 S.E.2d 363.

Recent decisions of the United States Supreme Court, however, have forced us to re-examine our trial court practice with respect to counsel in cases in which constitutional rights against self-incrimination are involved. Not only is the accused entitled to representation at the trial, but under certain circumstances, he is entitled to counsel at his in-custody interrogation. If the accused is without counsel, and is indigent, counsel must be provided by the authorities, or intelligently waived. The prohibition is not against interrogation without counsel. It is against the use of the admissions as evidence against the accused at his trial. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided June 13, 1966, the Court said:

'* * * We have concluded that without proper safeguards the process of incustody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. * * *'

In Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, the Court held:

'* * * 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. * * *'

The Carnley quotation is approved in Miranda, which adds the following:

'If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. * * * This Court has always set high standards of proof for the waiver of constitutional rights * * *.'

The high court in Washington calls the shots with respect to Fifth Amendment rights. We mark the targets according to the calls. The recent pronouncements force us to conclude the record before us in this case does not show that this dull, uneducated, retarded boy waived his right to counsel at the interrogation. That interrogation produced enough admissions to make out one, perhaps two, capital charges against him. At the same time, we recognize that the evidence of the State, independently of the defendant's admissions, was sufficient to go to the jury, and to sustain a verdict of burglary in the first degree. We conclude, however, under the rules which we must enforce, a proper foundation was not laid for admitting the confession. The defendant, by proper exception and assignment of error, directly challenged the admissibility of the confession. In our opinion the challenge should have been sustained.

Moreover there are two other objections which, though debated in the brief, are...