State v. Hill ( 1971 )

SHARP, Justice.

Defendant assigns as error the court’s denial of his pretrial motions. At the voir dire which Judge Johnston conducted upon these motions the evidence for the State tended to show: Officer Tierney, who arrested defendant at the scene of the collision, did not at any time see him drive his automobile. Defendant was taken to jail, filmed, and given the breathalyzer test before a warrant charging him with drunken driving was served upon him. While the film was being made, and during the breathalyzer test, only police officers and employees of the police department were present. As soon as these procedures had been accomplished Tierney permitted defendant to telephone his attorney, and he was present when defendant made the phone call.

Defendant testified: He was arrested about 10:30 p.m. and after his arrest he requested counsel. At no time did he say he did not want an attorney. He was “finally permitted to call a lawyer a little after midnight. . . . They only offered (him) the right to make a telephone call one time.” He immediately called his attorney, William T. Graham, “and he was supposed to come down.” Mr. Graham is defendant’s brother-in-law and has represented him for the past eight years.

Mr. Graham testified that he received a telephone call from defendant a few minutes after midnight, and he talked to both him and Officer Tierney. The officer told Graham that defendant had been charged with drunken driving, and he could take him home if he would come to the jail. Mr. Graham went immediately to the jail, arranged defendant’s bond, and requested the jailer, Deputy Sheriff Weldon Keyser, to release his client to him. The jailer refused because of “the four-hour rule.” In response to Graham’s request for an explanation of that rule, Keyser said, “Well we can’t let the man out until he has been locked up for four hours.” The attorney protested that defendant’s bond had been posted and that the arresting officer had told him he could take defendant home. The jailer’s reply was, “Well, I am running this jail and you are not going to get him out of here until the four hours are up.” After Graham’s further efforts, which included a call to Winston-Salem’s Chief of Police, had failed to secure defendant’s release on bond, he requested permission to see his client. The jailer’s response was, “The son of a bitch is so drunk he can’t stand up. ... You are not going to see him, git.” Graham “got, and that was the end of it.” Defendant was released about 7:00 a.m. the following morning.

At the conclusion of the voir dire, Judge Johnston denied defendant’s motion upon findings (a) that defendant was arrested without a warrant by an officer who had not seen him operating a motor vehicle on the occasion in question; (b) that defendant was not “arrested falsely”; (c) that defendant voluntarily submitted to the breathalyzer test and “was photographed by the police officers at that point”; and (d) that defendant was not at any time denied the right to counsel. Judge Johnston’s finding that defendant was not “arrested falsely” was clearly intended to be a ruling that he was not illegally arrested. As such it was erroneous.

N. C. Gen. Stats. § 15-41 provides: “A peace officer may without warrant arrest a person:

“ (1) When the person to be arrested has committed a felony or misdemeanor in the presence of the officer, or when the officer has reasonable ground to believe that the person to be arrested has committed a felony or misdemeanor in his presence.” (Emphasis added.)

All the State’s evidence tends to show that when Officer Tierney arrived at the scene he had reasonable grounds to believe that defendant had committed the offense of operating a motor vehicle on a public highway while under the influence of an intoxicant. Notwithstanding, under G.S. 15-41 the arrest was illegal because defendant had not operated the vehicle in the officer’s presence. “[T]he rule is that where the right and power of arrest without warrant is regulated by statute, an arrest without warrant except as authorized by statute is illegal.” State v. Mobley, 240 N.C. 476, 480, 83 S.E. 2d 100, 103. That defendant might have been legally arrested without a warrant for public drunkenness is beside the point; he was not arrested for that offense.

The Attorney General concedes that defendant’s arrest was illegal. However, citing State v. Moore, 275 N.C. 141, 166 S.E. 2d 53, he contends that the illegal arrest did not ipso facto render the questioned evidence incompetent, since there were no oppressive circumstances surrounding the arrest. He argues that defendant voluntarily consented to the breathalyzer test and did not object to being photographed, and — since the sound motion picture was not made a part of the case on appeal — that the exception to its admission in evidence is not presented. These contentions are not without merit. However, because we base our decision upon the denial of defendant’s motion to dismiss, we will not discuss further the motion to suppress evidence.

Both the state and federal constitutions declare that in all criminal prosecutions an accused has the right to have counsel for his defense and to obtain witnesses in his behalf. U. S. Const, amend. VI; N. C. Const, art. I § 23. In pertinent part the specific language of the North Carolina Constitution is that “every person charged with crime has the right... to confront the accusers and witnesses with other testimony and to have counsel for defense. ...” To implement these constitutional rights the General Assembly enacted G.S. 15-47, which provides in pertinent part: “Upon the arrest, detention, or deprivation of the liberties of any person by an officer in this State with or without warrant, it shall be the duty of the officer making the arrest ... to permit the person so arrested to communicate with counsel and friends immediately, and the right of such person to communicate with counsel and friends shall not be denied.’’

Under these constitutional and statutory provisions a defendant’s communication and contacts with the outside world are not limited to receiving professional advice from his attorney. He is, of course, entitled to counsel at every critical stage of the proceedings against him. Gasque v. State, 271 N.C. 323, 156 S.E. 2d 740. He is also entitled to consult with friends and relatives and to have them make observations of his person. The right to communicate with counsel and friends necessarily includes the right of access to them.

Justice Higgins called attention to the provisions of G.S. 15-47, in State v. Wheeler, 249 N.C. 187, 192-193, 105 S.E. 2d 615, 620. He said: “The rights of communication go with the man into the jail, and reasonable opportunity to exercise them must be afforded by the restraining authorities. . . . The denial of an opportunity to exercise a right is a denial of the right.” One who is detained by police officers under a charge of driving while under the influence of an intoxicant has the same constitutional and statutory rights as any other accused. State v. Morris, 275 N.C. 50, 165 S.E. 2d 245.

All the evidence in this case tends to show (1) that defendant was not “permitted” to telephone his attorney until after the breathalyzer testing and photographic procedures were completed and the warrant was served; (2) that he called Mr. Graham, his attorney and brother-in-law, who came to the jail; (3) that Mr. Graham’s request to see his client and relative was peremptorily and categatorically denied; and (4) that from the time defendant was arrested about 11:00 p.m. until he was released about 7:00 a.m. the following morning only law enforcement officers had seen or had access to him.

When one is taken into police custody for an offense of which intoxication is an essential element, time is of the essence. Intoxication does not last. Ordinarily a drunken man will “sleep it off” in a few hours. Thus, if one accused of driving while intoxicated is to have witnesses for his defense, he must have access to his counsel, friends, relatives, or some disinterested person within a relatively short time after his arrest. The statute says he is entitled to communicate with them immediately, and this is true whether he is arrested at 2:00 in the morning or 2:00 in the afternoon.

Defendant’s guilt or innocence depends upon whether he was intoxicated at the time of his arrest. His condition then was the crucial and decisive fact to be proven. Permission to communicate with counsel and friends is of no avail if those who come to the jail in response to a prisoner’s call are not permitted to see for themselves whether he is intoxicated. In this factual situation, the right of a defendant to communicate with counsel and friends implies, at the very least, the right to have them see him, observe and examine him, with reference to his alleged intoxication. The fact that Mr. Graham was defendant’s lawyer, as well as his friend, did not impair his right to observe defendant at this critical time.

The evidence in this case will support no conclusion other than that defendant was denied his constitutional and statutory-right to communicate with both counsel and friends at a time when the denial deprived him of any opportunity to confront the State’s witnesses with other testimony. Under these circumstances, to say that the denial was not prejudicial is to assume that which is incapable of proof. Decisions from other jurisdictions, discussed below, support this conclusion.

City of Tacoma v. Heater, 67 Wash. 2d 733, 409 P. 2d 867, involved a situation practically identical with the one we consider. In that case the defendant was arrested for driving while intoxicated. Upon arrival at the jail he requested permission to telephone his attorney. His repeated requests were refused because police department regulations authorized officers to deny a person charged with an offense involving intoxication the right to use the telephone for four hours. The jury found the defendant guilty as charged.

In reviewing his conviction the Supreme Court of Washington said, “This issue to be determined on this appeal is: Is the denial of a request for permission to contact counsel as soon as a person is charged with a crime involving the element of intoxication, the denial of a constitutional right resulting in irreparable prejudice to his defense?” Id. at 735, 409 P. 2d at 869. In answering the question Yes, the Court said that a critical stage had been reached in the defendant’s case when, immediately after the officers had interrogated the defendant and conducted their test for sobriety, they charged him with the offense. The rationale was that the denial of counsel at this point made it impossible for defendant to have disinterested witnesses observe his condition and to obtain a blood test by a doctor — the only means by which defendant might have proved his innocence. “The evidence of intoxication dissipates with the passage of time. The 4-hour rule imposed by the police regulation recognizes that after 4 hours a person under the influence of intoxicating liquor will have reached a state of sobriety so that he is safe to be released, and may use a telephone. ... It will not do to say that a person who is denied an opportunity to secure the most convincing kind of evidence has been deprived of a constitutional right but that such deprivation did not harm him. ...” Id. at 739, 740, 409 P. 2d at 871. “Under the ‘critical stage’ rule, the denial to the defendant of the assistance of his attorney after the officers had conducted their test and questioning, violated his constitutional right to have counsel and due process, and any conviction obtained thereafter was void.” Id. at 741, 409 P. 2d at 872.

The opinion in City of Tacoma collects the pertinent decisions. We approve the Washington court’s exposition and that of the Supreme Court of Appeals of Virginia in Winston v. Commonwealth, 188 Va. 386, 49 S.E. 2d 611, one of the cases cited in Tacoma. In Winston, the defendant was arrested for driving while intoxicated and jailed for nearly five hours before he was taken before a judicial officer authorized to issue warrants and fix bail. The applicable Virginia statute required that he be taken “forthwith.” In reversing the defendant’s conviction and dismissing the prosecution the Supreme Court of Appeals of Virginia pointed out that as a result of his illegal detention the defendant had been forever deprived of material evidence which might have supported his claim of innocence; that after the lapse of the time during which he was held in jail a physical examination and blood test would have been useless. The court said: “[W]here, as here, the effect of the failure of the arresting officer and of the custodian of the arrested person to perform their respective duties is such as to deprive a person of the constitutional right to call for evidence in his favor, his subsequent conviction lacks the required due process of law and cannot stand.” Id. at 396, 49 S.E. 2d at 616.

Before we could say that defendant was not prejudiced by the refusal of the jailer to permit his attorney to see him we would have to assume both the infallibility and credibility of the State’s witnesses as well as the certitude of their tests. Even if the assumption be true in this case, it will not always be so. However, the rule we now formulate will be uniformly applicable hereafter. It may well be that here “the criminal is to go free because the constable blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587. Notwithstanding, when an officer’s blunder deprives a defendant of his only opportunity to obtain evidence which might prove his innocence, the State will not be heard to say that such evidence did not exist. In re Newbern, 175 Cal. App. 2d 862, 1 Cal. Rptr. 80. Defendant has been deprived of a fundamental right which the constitution guarantees to every person charged with crime. For that reason the prosecution against him must be dismissed.

Reversed.

Justice Moore did not participate in the consideration or decision of this case.