State v. Biggs , 289 N.C. 522 ( 1976 )

223 S.E.2d 371 (1976) 289 N.C. 522

STATE of North Carolina
v.
James Junior BIGGS.

No. 43.

Supreme Court of North Carolina.

April 6, 1976.

Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. Charles J. Murray, Raleigh, for the State.

W. T. Culpepper, III, Edenton, for defendant-appellant.

SHARP, Chief Justice:

At the outset we consider and dispose of defendant's contention that the evidence of premeditation and deliberation was not "substantial enough" to warrant submitting the case to the jury on the charge of first degree murder. The assignment is feckless. The familiar rule is that a motion to nonsuit "requires the trial court to consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom." State v. Goines, 273 N.C. 509, 513, 160 S.E.2d 469, 472 (1968). Furthermore, all admitted evidence which is favorable to the State, whether competent or incompetent, must be taken into account and so considered by the court when ruling upon the motion. State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971); State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).

When tested by the foregoing rule, the testimony of Antoinette Ferebee, an eyewitness; that of SBI Agent Godley, who related defendant's own account of the manner in which he killed Mrs. Ferebee and his reasons for killing her; and the testimony of the pathologist who described the stab wounds in the heart and abdomen which caused her death was superabundant to establish an unlawful killing done with premeditation, deliberation, and actual malice, and thus to sustain the verdict of murder in the first degree. See State v. Van Landingham, 283 N.C. 589, 197 S.E.2d 539 (1973); State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970); State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969).

Notwithstanding, there must be a new trial because Judge Webb, without first finding that defendant had waived his right to the presence of counsel, admitted into evidence, over the objection of defendant, the testimony of Sheriff Toppin and SBI Agent Godley as to in-custody, inculpatory statements which defendant made in response to their interrogation.

As indicated in the preliminary statement of facts the trial court conducted voir dire hearings to determine whether defendant had been informed of his constitutional rights in accordance with Miranda and whether he had knowingly and voluntarily waived his right to counsel before making the challenged admissions. The testimony of both Sheriff Toppin and Agent Godley tended to show that each had explained to defendant in detail all his rights as defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). With reference to his right to counsel he was told "you have the right to talk to a lawyer before we ask you any questions, and to have him or someone else present during questioning. If you cannot afford to hire a lawyer, one will be appointed for you before any questioning if you wish one." He was also told that if he decided to answer any questions without a lawyer he had the right to stop answering them at any time. In response to each officer's inquiry defendant said he understood his rights and, "having these rights in mind," he wanted to answer their questions then without having a lawyer present.

As heretofore noted, however, on voir dire, defendant testified that neither Sheriff Toppin nor Agent Godley informed him of his right to the appointment of an attorney; that he did not understand he had the right to consult with an attorney either before or during police interrogation; and that he had never agreed to answer any questions without the presence and advice of an attorney.

Upon this conflicting evidence the trial judge in each instance made only brief findings of fact. At the conclusion of the voir dire relative to defendant's statements to Sheriff Toppin, Judge Webb made the following entry: "Let the record show then that the court finds as a fact that after the voir dire hearing that Sheriff Troy Toppin, at the time when (sic) the arrest of the defendant, fully advised him of his right to remain silent, and of his right to have an attorney represent him, and of his right to stop answering questions at any time during the interrogation, and that the defendant freely, voluntarily, and understandingly waived his right to remain silent, and that any statements he made to Sheriff Toppin may be introduced in evidence in this case."

The judge's findings relative to defendant's confession made to Agent Godley are as follows: "Let the record show that at the end of the voir dire the court finds as a fact the SBI Agent William Godley fully informed defendant of his right to remain silent, of his right to have an attorney, and that any statements he made could and would be used against him; and that the defendant knowingly, understandingly and voluntarily waived his right to remain silent, and that any statements he made to Mr. Godley may be introduced in evidence in this case."

As defendant points out, it is obvious that in both post voir dire findings, the trial judge failed to find that defendant had affirmatively waived his right to counsel or to make any findings of fact with reference to waiver of counsel. Since the voir dire evidence concerning defendant's waiver of counsel was conflicting, defendant argues that the admission of the inculpatory incustody statements without an express finding that defendant had knowingly and intelligently waived his right to counsel violated the holding of Miranda v. Arizona, supra, as that case has been interpreted and applied in 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); and State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971). We are constrained to agree.

In this jurisdiction, when a defendant challenges the admissibility of an in-custody confession, the trial judge must conduct a voir dire hearing to determine whether the confession was voluntarily made and whether the requirements of the Miranda decision have been met. See State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969). When the trial judge concludes a voir dire hearing, the general rule is that he should make findings of fact to show the bases of his ruling. See State v. Silver, 286 N.C. 709, 213 S.E.2d 247 (1975). However, when there is no conflict in the evidence on voir dire, we have held it is not error to admit a confession without making specific findings. Yet, at the same time, we have emphasized that it is always the better practice for the court to find the facts upon which the admissibility of the evidence depends. State v. Whitley, 288 N.C. 106, 215 S.E.2d 568 (1975); State v. Simmons, 286 N.C. 681, 213 S.E.2d 280 (1975); State v. Lynch, 279 N.C. 1, 181 S.E.2d 561 (1971).

When there is no conflict in the testimony the necessary findings are implied from the court's admission of the confession into evidence. However, when the voir dire evidence is conflicting and contradictory, it is incumbent upon the trial judge to weigh the credibility of the witnesses, resolve the crucial conflicts, and make appropriate findings of fact. State v. Smith, 278 N.C. 36, 178 S.E.2d 597 (1970). Because of his superior opportunity to observe the demeanor of the witnesses and to ferret out the truth, the trial judge is given the responsibility for resolving the factual disputes which govern the admissibility of challenged evidence. For the same reason, the trial judge's findings are conclusive on appeal if they are supported by competent evidence. State v. Smith, supra.

In State v. Blackmon, supra, the defendant was convicted of murder, partially upon the basis of his in-custody confession. Upon the voir dire to determine the competency of the confession the evidence as to whether the defendant had intelligently waived his right to the presence of counsel was conflicting. The trial judge made no findings of fact in this regard; but he did find that the defendant had been given the full Miranda warnings, that he understood his rights, and that the defendant had not requested the presence of an attorney. In granting the defendant a new trial, this Court said: "Although the evidence at the voir dire is ample to support a finding that the defendant made the statements in question freely and voluntarily, having been fully advised of and having full understanding of his right to have an attorney present, the plain language of the Miranda decision. . . in addition requires a waiver of right to counsel knowingly and intelligently made by defendant. ``. . . [F]ailure to ask for a lawyer does not constitute a waiver.'" State v. Blackmon, supra, 280 N.C. at 49-50, 185 S.E.2d at 128.

Subsequent opinions of this Court make it clear 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.

In the present case the police officers testified that defendant waived his right to presence of counsel. Defendant testified that he did not. 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 defendant's inculpatory statements to Sheriff Toppin and Agent Godley erroneous. See State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972). Upon this record we cannot say that the error complained of was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Therefore, there must be a

New Trial.