State v. Young , 33 N.C. App. 689 ( 1977 )

236 S.E.2d 309 (1977) 33 N.C. App. 689

STATE of North Carolina
v.
Roy Edward YOUNG.

No. 772SC180.

Court of Appeals of North Carolina.

July 20, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Joan H. Byers, Raleigh, for the State.

Stephen A. Graves, Washington, for defendant-appellee.

CLARK, Judge.

The first question upon appeal is whether any promises were made to induce the confession so as to render it involuntary.

An involuntary confession is not admissible to establish the guilt of the defendant. State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968). A statement is involuntary when it is induced by some suggestion of hope or fear made by the interrogating officer. State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968).

Defendant contends that this case is controlled by State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68 (1967), where the court held involuntary a confession made subsequent to the officer's statement that if a confession were made he "would be able to testify that he (the defendant) talked to me and was cooperative." (Emphasis added.) We think the present case is clearly distinguishable. In Fuqua the statement by the officer about his ability to testify was said to arouse a hope for lighter punishment. In the present case, as findings 6 and 10 make clear, the only statement relied upon by the judge to support his conclusion that the confession was involuntary was the statement by Agent Young that "if he (the defendant) said anything he (Agent Young) would tell the Solicitor." The judge specifically found that Agent Young "did not tell the defendant that it would be any easier on him." We conclude that this statement by the officer could not have aroused in the defendant any hope of easier treatment. Any suspect should expect that in accordance with normal police procedure, the interrogating officer will make a report of the substance of the suspect's statements, and that this report will be conveyed to the district attorney. The statement made by Agent Young in no way intimated that defendant could expect easier or preferred treatment in exchange for his confession. The absence of such intimation distinguishes this case from Fuqua and the line of cases in which it falls, and we must therefore conclude that the judge erred in concluding that the statement was involuntary by reason of the statement made by Agent Young.

The second issue upon appeal is whether defendant affirmatively waived his right to counsel.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) required that prior to custodial interrogation a suspect must be warned of his right to have counsel present, and further placed upon the prosecution a heavy burden to show an affirmative waiver of this right in the event that a statement were made without an attorney present. In State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), Miranda was interpreted to require that the affirmative waiver must be by an express statement. The recent cases of State v. Siler, 292 N.C. 543, 234 S.E.2d 733 (1977), and State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976) have modified this interpretation of Miranda. In Siler the court stated that,

". . . Although failure to request an attorney after the Miranda warnings have been given does not ordinarily constitute a waiver, we believe a waiver by silence can be inferred where subsequent comments of the defendant indicate that he intended his silence as a waiver of his right to an attorney during interrogation." 292 N.C. at 550, 234 S.E.2d at 738. See also State v. Rives, 31 N.C.App. 682, 230 S.E.2d 583 (1976).

In the present case the judge found as a fact that "the defendant said he would talk to the officers, without a lawyer present." Defendant contends that the judge's conclusion that there had been no affirmative waiver was correct because the statement related only to the presence of the lawyer, Mr. LeRoy Scott, of whom defendant had spoken to Agent Young. This interpretation is supported by neither the judge's finding nor the evidence offered by Agent Young. The statement by defendant that he "would talk to the officers without an attorney present" constitutes an affirmative waiver. State v. White, 288 N.C. 44, 215 S.E.2d ``557 (1975) (valid waiver where defendant stated he would proceed without an attorney); State v. Smith, 26 N.C.App. 283, 215 S.E.2d 830 (1975). Therefore we hold that it was error for the judge, based upon a finding that such statement had been made, to conclude that defendant had not affirmatively waived his right to counsel.

Reversed.

MORRIS and PARKER, JJ., concur.