State v. Heavener , 298 N.C. 541 ( 1979 )

259 S.E.2d 227 (1979) 298 N.C. 541

STATE of North Carolina
v.
Michael Lee HEAVENER.

No. 8.

Supreme Court of North Carolina.

November 6, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for the state.

Asst. Public Defender Larry B. Langson, Gastonia, for defendant-appellant.

BRITT, Justice.

Defendant argues two assignments of error. By his first one, he contends that the trial court erred in not suppressing his alleged statements to police. This assignment has no merit.

Before any evidence was presented at trial, defendant moved to suppress the statements he allegedly made to police because he did not fully understand the rights he was entitled to assert as a criminal defendant. The court conducted a voir dire hearing at which the state and defendant presented evidence. Following the voir dire the court made findings of fact, concluded that defendant was fully and completely advised of his constitutional rights, his right against self-incrimination, and his right to have counsel present during interrogation, and denied defendant's motion to suppress the evidence relative to defendant's statements to police.

Defendant argues that this court in State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976), and other cases has set forth the procedure that the trial courts must follow in passing upon the admissibility of evidence relating to incriminating statements; and that the court did not fully comply with that procedure in this case.

The law pertinent to the question raised here is well summarized by Chief Justice Sharp in State v. Biggs, supra, pages 529-531, 223 S.E.2d pages 376-377, as follows:

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. (Citations.)

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 witness 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.

* * * * * *

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.

Defendant insists that he raised an issue at the voir dire as to whether he knowingly and intelligently waived his right to have an attorney present before he answered questions asked by police; that the evidence on that question was conflicting; and that the court did not resolve the dispute by making an express finding as to whether he waived his constitutional right to have an attorney present during questioning.

While we agree with defendant that the trial court did not make an express finding that defendant knowingly and intelligently waived his right to have an attorney present during questioning, we disagree with his argument that he raised an issue on the question.

Defendant testified at the voir dire. He was questioned with respect to each of the Miranda rights and stated that each of them was read to him by the police, that he read them, and that he voluntarily signed the waiver. The only right he equivocated about was the one relating to the appointment of counsel prior to questioning and the presence of counsel at the time of questioning. On that point, he stated on direct examination:

". . . I remember him telling me I had the right to have an attorney present while I was being questioned. I remember him telling me if I couldn't afford a lawyer I had the right to request the Court to appoint one to me at no expense before I answered any questions. I remember him reading that question to me. At the time, I told him that I did understand it . . ."

On cross-examination defendant was questioned again about each of the Miranda rights. He restated that each of the rights was read to him and that he understood each of them except the one relating to the appointment of counsel. He equivocated on that point but the record discloses the following:

THE COURT:—"If you cannot afford a lawyer, one will be appointed for you before questioning if you wish"—that's what Mr. Harrell's language was—and "If you desire to answer questions now without a lawyer present, you can still have the right to stop answering at any time." Did you understand that?

A. Well, at the time—yes, sir.

Certainly it would have been much better if the trial court had made an express finding as to whether defendant knowingly and intelligently waived his right to counsel before answering questions by police. Nevertheless, we hold that defendant did not raise the issue. The crucial question was whether defendant understood his rights at the time he waived them. He testified that he did.

By his other assignment of error, defendant contends that the trial court erred in denying his motion to nonsuit the charge of murder. This assignment has no merit.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69 (1976); State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971).

In passing upon a motion for nonsuit in a criminal action, the courts are required to consider the evidence and all reasonable inferences arising therefrom in the light most favorable to the state, and contradictions and discrepancies, even in the state's evidence, are for the jury to resolve. 4 Strong's N.C. Index 3d, Criminal Law § 104. When the evidence in the case at hand is considered in conformity with these principles, we hold that it was sufficient to withstand the motion for nonsuit.

Defendant argues that the state substantially relied upon statements he allegedly made to the police and to the witnesses Drum and Michaels; that many of those statements were exculpatory; and that the state was bound by them.

It is true that the evidence reveals that defendant made many conflicting statements including a statement that Tim was shot in his head by one of the three persons defendant and Tim met "on the drug deal"; that the shot which defendant fired into Tim's back was an accident; that defendant and Tim were friends; and that he had no reason or motive for killing Tim.

Even so, there was evidence presented by the state tending to show that the shot which defendant admitted firing could not have been accidental; and that while defendant told witnesses he cut Tim "to pieces", there were no knife wounds on Tim's body. Defendant told witnesses that he "thought" he killed Tim, and he definitely stated that he covered Tim with grass or bushes. In talking with his friends Drum and Michaels about what he had done to Tim, defendant did not mention any other persons being with the two of them. In determining defendant's guilt, the jury was not required to find that Tim died from knife wounds rather than the gunshot wound to which the pathologist testified.

As to defendant's motive, the evidence tended to show: that defendant was mad at Tim for entering his apartment and taking his t. v. and stereo; that defendant wanted Tim's Volkswagen; and that he took the car away from Tim, forcing him to sign a "receipt" for it. Although proof of motive is not required to establish guilt of first-degree murder, State v. Hammonds, 216 N.C. 67, 3 S.E.2d 439 (1939), the state presented evidence which tended to show defendant's motive in this case.

We conclude that defendant received a fair trial, free from prejudicial error.

No error.

BROCK, J., took no part in the consideration or decision of this case.