State v. Wilson, No. 7726SC686

• Citation: 241 S.E.2d 720,35 N.C.App. 551
• Decision Date: 07 March 1978
• Docket Number: No. 7726SC686
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Samuel WILSON, III.

Page 720

241 S.E.2d 720

35 N.C.App. 551

STATE of North Carolina v. Samuel WILSON, III.

No. 7726SC686.

Court of Appeals of North Carolina.

March 7, 1978.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. William Woodward Webb, Raleigh, for the State.

Paul J. Williams, Charlotte, for defendant.

BROCK, Chief Judge.

By his first assignment of error defendant challenges the admissibility of the testimony of Officer Frye concerning the statement made to Frye by the defendant. Defendant contends that the only evidence presented at voir dire as to defendant's waiver of counsel indicated that he had requested the presence of counsel and therefore had failed to waive his right to counsel. Thus, argues defendant, the trial court erred in finding that his statement was freely and voluntarily given.

Defendant's assignment of error is sustained for the reason that the trial judge failed to make a finding of fact that defendant had waived his right to the presence of counsel before admitting Officer Frye's testimony. The recent case of State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976) is directly on point. In that case, as in the instant case, the trial judge found that the defendant had been fully informed of his Miranda rights. However, in Biggs, as in the instant case, the trial judge had failed to make any findings of fact with respect to waiver of counsel. Due to conflicting evidence on voir dire, such failure was held to constitute prejudicial error. In the language of our Supreme Court,

" . . . when the State seeks to offer in evidence a defendant's in-custody statements, made in response to police interrogation and in the absence of counsel, the State must affirmatively show not only that the defendant was fully informed of his rights but also that he knowingly and intelligently waived his right to counsel. State v. White, 288 N.C. 44, 215 S.E.2d 557 (1975); State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972). When the voir dire evidence regarding waiver of counsel is in conflict, the trial judge must resolve the dispute and make an express finding as to whether the defendant waived his constitutional right to have an attorney present during questioning." 289 N.C. at 531, 223 S.E.2d at 377.

In the present case, Officer Frye testified that he read defendant his Miranda rights, and that defendant affirmatively indicated that he understood his rights and that he was willing to talk to Officer Frye. There was no other evidence that defendant had made an oral or written waiver of his right to counsel. Defendant, on the other hand, testified that he had refused to talk and had requested that he be allowed to see his attorney. "Under these circumstances it was incumbent upon the judge to make an express finding in this regard, and his failure to do so rendered the admission of the defendant's inculpatory statements . . . erroneous." State v. Biggs, id. In view of the record in this case, we cannot say that the error as noted herein was harmless beyond a reasonable doubt. Therefore we find prejudicial error in the failure of the trial judge to find facts sufficient to resolve the controverted issue of whether defendant voluntarily waived his right to counsel during the interrogation by Officer Frye. However, we do not find it necessary to order a new trial because the question of the waiver or non-waiver of counsel can be determined by the trial...