State v. Torres

• Decision Date: 10 January 1992
• Docket Number: No. 316A90,316A90
• Citation: 412 S.E.2d 20,330 N.C. 517
• Parties: STATE of North Carolina v. Georgia Jackson TORRES.
• Court: North Carolina Supreme Court

Page 20

412 S.E.2d 20

330 N.C. 517

STATE of North Carolina v. Georgia Jackson TORRES.

No. 316A90.

Supreme Court of North Carolina.

Jan. 10, 1992.

Appeal by defendant pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 99 N.C.App. 364, 393 S.E.2d 535 (1990), finding no error in defendant's conviction of murder in the second degree before Strickland, J., at the 10 October 1988 Criminal Session of Superior Court, Beaufort County. Discretionary review as to additional issues allowed by the Supreme Court 5 December 1990. Heard in the Supreme Court 9 September 1991.

Lacy H. Thornburg, Atty. Gen., by Steven R. Bryant, Sp. Deputy Atty. Gen., Raleigh for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, for defendant-appellant.

Michelle F. Robertson, for amicus curiae N.C. Ass'n of Women Attys.

FRYE, Justice.

While in police custody awaiting questioning about the shooting death of her twenty-nine-year-old husband, defendant asked sheriff officials whether she needed an attorney. She was told she did not. A short time later, defendant was read her Miranda rights and agreed to make a statement. The statement, in which defendant confessed to shooting her husband, was introduced at trial over defendant's objection. Defendant now petitions this Court for a new trial, arguing that the trial court erred by admitting the statement.

The issue presented is whether defendant invoked her right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, thus triggering the prophylactic rules enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We hold that defendant did invoke her right to counsel and that her statement was improperly admitted into evidence. We therefore reverse the Court of Appeals' decision and remand for a new trial.

I.

Defendant was indicted on 14 March 1988 by a Beaufort County Grand Jury for the murder of her husband, Florentino "Tino" Torres. At the beginning of the trial, the State announced it was proceeding on a charge of second-degree murder.

Undisputed evidence presented at defendant's trial and sentencing hearing demonstrates that Georgia Jackson Torres, a thirty-nine-year-old nursing home dietician, was an abused and battered spouse. According to testimony from psychiatrist Sharon Willingham, defendant had been stabbed, slapped, choked, kicked, thrown against furniture, and threatened--both physically and verbally--during her sixteen-month marriage to Tino Torres. All episodes of abuse occurred when Mr. Torres was intoxicated. Dr. Willingham, Medical Director of the Craven County Regional Medical Center Psychiatric Unit, testified that defendant "meets all the qualifications for the battered spouse syndrome," a clinically recognized syndrome in which the victim is subjected to numerous episodes of abuse by the victim's spouse.

Defendant's statement to police, the backbone of the State's case, was read to the jury by State Bureau of Investigation Agent Lewis Young. According to the statement:

Defendant and Mr. Torres had an argument on the evening of 27 February 1988. He slept away from home and called the next morning, telling defendant that he would drop by their house later that day to pick up his clothes. Mr. Torres had been drinking when he arrived at their house in rural Beaufort County in the early evening on 28 February 1988. He became abusive, kicking a box of clothes, pouring cologne on a dresser and pushing defendant against the dresser and the wall. Defendant's three children were watching from another room, and at one point Mr. Torres pushed defendant's daughter Lisa. A few moments later, when it appeared that Mr. Torres was again moving toward Lisa, defendant picked up a metal baseball bat and swung it at Mr. Torres, who snatched the bat from her hands. Defendant told her husband that she could not take any more abuse and wanted him to leave. He stepped toward her and she retreated into her son's room. She then picked up a semi-automatic .22-caliber rifle which her daughter had brought to the house that morning. Defendant told her husband that she was afraid he was going to beat her; she begged him to leave, but he only laughed and continued toward her. He reached over the rifle and swung at her with his right fist. Defendant fired one shot, hitting Mr. Torres. He kept coming at her, and she fired two more shots.

In other testimony, Dr. Stan Harris testified that there were five gunshot wounds. Dr. Harris, who performed the autopsy, said the fatal bullet entered about three inches to the left of the middle of the victim's back below the rib cage. Dr. Harris testified that it was possible this wound might have been inflicted while Mr. Torres was lying on the floor. Dr. Harris also testified that, judging from the amount of alcohol in his blood, Mr. Torres was intoxicated at the time of his death.

On 13 October 1988, the jury returned a verdict of guilty of second-degree murder. After finding aggravating and mitigating factors, Judge Strickland sentenced defendant to thirty years in prison, double the fifteen-year presumptive sentence. The Court of Appeals, by a 2-1 vote, upheld the conviction and sentence. State v. Torres, 99 N.C.App. 364, 393 S.E.2d 535 (1990) (Parker, J., concurring in result and Greene, J., dissenting). Defendant appeals to this Court as of right based on Judge Greene's dissent. We also allowed discretionary review of three issues relating to defendant's sentence.

II.

Prior to the admission of defendant's statement, the trial judge held an extensive voir dire hearing. Much of the testimony was contradictory. Following the hearing, Judge Strickland made twenty-three findings of fact. The following five findings are particularly pertinent to our inquiry 4. That on the evening of February 28th, 1988, the defendant, Georgia Jackson Torres, was at her residence, this being after the death of one Florentine [sic] Conteras Torress [sic], and that several deputy sheriffs had arrived at said premises; Deputy Sheriff Sykes made inquiry about what happened the night before and that subsequently Deputy Sheriff Joe Sykes transported the defendant, Georgin [sic] Ann Torres, along with defendant's close friend, Brenda Purser, to the Sheriff's Department in the City of Washington.

7. That before the interview of the defendant by S.B.I. Agent Lewis Young and Deputy Sheriff Donald Deese, the defendant was in the conference room of the Sheriff's Department in the company of Deputy Sheriff Sykes and was subsequently in the office of Sheriff Sheppard.

8. That her children were in and out and at the point where the defendant made inquiry about an attorney she was advised that she did not need one at that time.

9. That the defendant had not been placed under arrest during any such inquiry.

12. That while the defendant was in Sheriff Sheppard's office she was advised that Officer Donald Deese and S.B.I. Agent Lewis Young would question her and she asked if somebody could be with her stating that she wanted Charlie Purser and Brenda Purser to be with her and that was arranged; that thereafter S.B.I. Agent Lewis Young and Deputy Sheriff Donald Deese went to Sheriff Sheppard's office to begin the interview with the defendant....

A trial court's findings of fact following a voir dire hearing on the voluntariness of a confession are conclusive on appeal if supported by competent evidence in the record. State v. Massey, 316 N.C. 558, 573, 342 S.E.2d 811, 820 (1986). This is so even though the evidence is conflicting. Id. (citing State v. Jackson, 308 N.C. 549, 569, 304 S.E.2d 134, 145 (1983)).

We hold that there is competent evidence in the record to support each of the preceding findings of fact. Specifically, as to the key finding that defendant "made inquiry about an attorney," there was testimony by two witnesses that defendant asked Sheriff Sheppard whether she needed an attorney and testimony by one witness that defendant also asked the same question of Deputy Sykes.

Defendant's friend, Brenda Purser, testified: "Georgianna asked [Sheriff] Nelson [Sheppard] did she need a lawyer and he told her no that it was best right now to cooperate and tell the truth and that they had been friends for a long time." Mrs. Purser further testified that defendant even asked Sheriff Sheppard about a specific attorney by name, James R. Vosburgh of Washington, N.C. Mrs. Purser's husband, Charlie, also testified that he was present when defendant asked the sheriff whether she needed an attorney. Mr. Purser testified that the sheriff said, "she didn't need a lawyer right then."

Mrs. Purser also testified that while she and defendant were in the conference room with Deputy Sykes, defendant asked Deputy Sykes whether she needed an attorney. In fact, according to Mrs. Purser's testimony, Deputy Sykes gave Mrs. Purser a telephone book to look up attorney Vosburgh's telephone number. Mrs. Purser never made the telephone call, however. "I went to pick up the phone," testified Mrs. Purser, "and that's when he [Deputy Sykes] told her she didn't need a lawyer right now."

III.

The United States Supreme Court, in one of its more recent explorations of Fifth Amendment jurisprudence, noted that the landmark case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, "established a number of prophylactic rights designed to counteract the 'inherently compelling pressures' of custodial interrogation, including the right to have counsel present." McNeil v. Wisconsin, --- U.S. ----, ----, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158, 167 (1991). See also, Minnick v. Mississippi, 498 U.S. 146, ----, 111 S.Ct. 486, 487, 112 L.Ed.2d 489, 494 (1990) ("To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held...