State v. Robbins , 4 N.C. App. 463 ( 1969 )

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167 S.E.2d 16 (1969) 4 N.C. App. 463
STATE of North Carolina
v.
Marion ROBBINS.
No. 6927SC65.
Court of Appeals of North Carolina.
April 30, 1969.
*17 Atty. Gen. Robert Morgan and Staff Attys. Andrew A. Vanore, Jr., and Dale Shepherd, Raleigh, for the State.

Horace M. DuBose, III, Gastonia, for defendant appellant.

BRITT, Judge.

The first question presented by this appeal is whether the defendant was properly advised of his rights prior to questioning by the officers; more particularly, did the warning given by the officers effectively apprise the defendant of the fact that if he was financially unable to employ legal counsel, he was entitled to have counsel appointed to represent him and to confer with his court-appointed counsel before any questioning took place. The answer to this question is no.

"Presuming waiver from a silent record is impermissible. 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. Anything less is not waiver." Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70. This statement was quoted as applicable in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, where the court said: "* * * [I]f police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation." (384 U.S. 474, 86 S. Ct. 1628, 16 L. Ed.2d at 724).

A problem similar to the one in issue was before the court in State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171. There the Supreme Court of North Carolina found that the evidence in that case did not warrant a finding that counsel had *18 been offered at the interrogation or that it had been understandingly waived. In the Thorpe case, there were no findings made with respect to counsel; here, the findings were unsupported by the evidence. Here, as in the Thorpe case, the defendant could easily have understood that he was not entitled to court-appointed counsel prior to the trial. Such is not the law, and the correct law must be made clear to the defendant before questioning, if any statements or evidence resulting from such questioning are to be admissible. We quote the following from the opinion by Higgins, J., in the Thorpe case:

"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." (Citation of and quotations from Miranda v. Arizona, supra.)

Except for minor changes in words, a warning identical to the one used in this case was read to defendant in Wilson v. State, 44 Ala.App. 570, 216 So. 2d 741. The Alabama Court of Appeals held the warning insufficient.

The trial court committed error in permitting the introduction of the incriminating evidence provided by defendant in South Carolina following his arrest, and the error was sufficiently prejudicial to entitle the defendant to a new trial.

We deem it unnecessary to discuss the other assignments of error brought forward and argued in defendant's brief, as the questions raised may not recur upon a retrial of this action.

New trial.

MALLARD, C. J., and FRANK M. PARKER, J., concur.