State v. Williams
| Decision Date | 10 November 1971 |
| Docket Number | No. 14,14 |
| Citation | 279 N.C. 515,184 S.E.2d 282 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Harold WILLIAMS. |
Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas B. Wood, for the State.
H. Glenn Davis, Winston-Salem, for defendant.
The defendant assigns as error a portion of the court's final instruction to the jury, asserting that therein the court expressed an opinion as to the facts of the case in violation of G.S. § 1--180. Earlier in the charge, the court stated correctly the elements of the crime of assault with intent to commit rape and those of the lesser included offense, assault on a female, and reviewed the evidence. In the portion in question, the court restated, correctly, what the jury must find from the evidence, beyond a reasonable doubt, in order to convict the defendant of the respective offenses and stated the contentions of the State and of the defendant as to what verdict the jury should render. Immediately thereafter, the court instructed the jury that if they were not so satisfied from the evidence, beyond a reasonable doubt, they would return a verdict of not guilty, the burden being upon the State so to satisfy them.
Quite obviously, the court expressed no opinion as to the sufficiency of the evidence to prove any fact, or as to the verdict which the jury should return. The defendant does not specify wherein the instructions to which he excepts stated any opinion of the court. We are unable to see any misstatement by the court, either of the law applicable to the offenses in question or of any contention of the defendant. It is well settled that any misstatement of the contentions of the parties must be called to the attention of the court at the time, so as to permit a correction, or such misstatement will be deemed waived. State v. Britt, 225 N.C. 364, 34 S.E.2d 408; State v. Smith, 225 N.C. 78, 33 S.E.2d 472. There is no merit in this assignment of error.
The defendant next contends that the sentence imposed was cruel and unusual. It is the maximum sentence authorized by G.S. § 14--22 for the offense of which the defendant has been convicted. This Court has repeatedly held that a sentence which does not exceed the maximum authorized by the statute cannot be deemed cruel and unusual. State v. Bruce, 268 N.C. 174, 150 S.E.2d 216, and cases there cited. This assignment of error is also without merit.
After the defendant had been fully advised of his constitutional rights and of the nature of the matter concerning which the police officers wished to interrogate him, he waived in writing his right to counsel and stated his willingness to answer questions. After answering a number of questions by the interrogating officer, the defendant said, 'Before I go any further I want to talk to a lawyer.' The officer immediately offered to assist him in procuring any lawyer he wished to have. The defendant then said he wanted his parents present instead of a lawyer.
There is nothing in the record to indicate that any further question was propounded to him, or that any statement was made by him, until after both of his parents had arrived at the police station and conferred privately with the defendant. Upon the return of the officer to the interrogation room, the parents advised the defendant to tell the officer the truth about the matter. There was no further suggestion that he or his parents desired the presence of a lawyer prior to resumption of the interrogation. The officer testified to these facts on the voir dire examination. Neither the defendant nor his parents testified.
In Miranda v. Arizona, 384 U.S. 436, 473--475, 86 S.Ct. 1602, 1627, 1628, 16 L.Ed.2d 694, 723--724, the Supreme Court of the United States said concerning custodial interrogation:
* * *
'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.'
In State v. Fox, 274 N.C. 277, 295, 163 S.E.2d 492, 505, this Court said upon that subject:
In the present case, the defendant was not placed under arrest until after he confessed orally to his participation in the offense of which he has been convicted. He came to the police station voluntarily in response to a request from the police officer, which request was relayed to him by his mother. After he stated a desire for counsel, the officer stopped interrogating him with reference to his activities and his connection with the offense under investigation, inquiring only as to which attorney the defendant desired to consult, offering assistance in getting the attorney of the defendant's choice to come to the station. Without anything further, the defendant informed the officer that he had changed his mind and wanted to confer with his parents instead of an attorney. Nothing in the record indicates any further interrogation by the officer or statement by the defendant until after the arrival of his parents and his conference with them. Both parents were present throughout the remaining interrogation.
Under these circumstances, we find nothing in Miranda v. Arizona, supra, State v. Fox, supra, or in G.S. § 7A, Art. 36, which precludes the police officer from relying upon the previously written waiver of counsel, resuming the interrogation and taking the defendant's statement voluntarily made. Insofar as any right to counsel is conferred upon an indigent person by G.S. § 7A, Art. 36, in addition to his constitutional right, it is to be observed that G.S. § 7A--451(b) provides that such right 'begins * * * after the indigent is taken into custody or service is made upon him of the charge, petition, notice or other initiating process.' (Emphasis added.)
The undisputed evidence on the voir dire examination fully supports the findings by the trial court to the effect that the defendant voluntarily went to the police station, waived in writing his right to counsel and his right to remain silent, voluntarily, with full understanding of his rights and...
To continue reading
Request your trial
-
State v. Abernathy
...and will not be considered on appeal. State v. Thomas, supra; State v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971); State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (1971). No such objection was made in this case. Defendant failed to bring to the court's attention its failure to instruct on hi......
-
State v. Carey
...by indirection. (Citations omitted.)' Id. at 709, 120 S.E.2d at 172. Defendant's reliance on Foye is misplaced. In State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (171), this Court, in an opinion by Justice Lake, held that, under the circumstances there presented, there was no prejudicial e......
-
State v. LaStair
...Here, the results of the test were not in evidence. See People v. Sammons, 17 Ill.2d 316, 161 N.E.2d 322 (1959); State v. Williams, 279 N.C. 515, 184 S.E.2d 282 (1971). Further, the jurors were specifically instructed that results are not admissible and that they should not speculate as to ......
-
State v. Montgomery
...N.C. 704, 120 S.E.2d 169. However, every reference to a polygraph test does not necessarily result in prejudicial error. State v. Williams, 279 N.C. 515, 184 S.E.2d 282. In Foye, the State offered evidence of the results of a polygraph examination given to defendant Foye which indicated tha......