State v. Lightsey

171 S.E.2d 27 (1969)

6 N.C. App. 745

STATE of North Carolina v. Randy LIGHTSEY.

No. 6910SC534.

Court of Appeals of North Carolina.

December 17, 1969.

*29 Atty. Gen. Robert Morgan, Deputy Atty. Gen. Jean A. Benoy and Special Asst. Maurice W. Horne, for the State.

Ralph McDonald, Raleigh, for defendant appellant.

CAMPBELL, Judge.

The defendant on this appeal presents four questions for decision. The first question is, were the findings and order of the trial court, prior to the admission of the defendant's confession, sufficient and supported by the evidence? We find that the evidence was sufficient to sustain the findings *30 and order of the trial court. The order itself was adequate. The defendant asserts that in order to be adequate the order should specifically provide that the confession was "uninfluenced by fear or hope of reward." The order of the trial court found "that the defendant knowingly, freely and voluntarily made a statement." This order negated any possibility that the defendant was influenced by fear or hope of reward and was sufficient and adequate.

The second question is, was the defendant sufficiently informed that he had a right to an attorney before he made any statement to the arresting officers and did he waive the right to an attorney? The defendant relies upon State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171 (1968). We think the Thorpe case is readily distinguishable from the instant case.

In the Thorpe case the Court held that counsel had not been "intelligently waived." It was pointed out in the Thorpe case

"At this stage of the proceeding the officers had in custody a dull, retarded, uneducated, indigent boy 20 years old who had left school before he completed the third grade. In giving the advice with respect to counsel, the officers did not explain to him that he was entitled to counsel during the interrogation. To his inexperienced mind, in all probability, he understood the officers to mean that counsel would be made available at his trial. Counsel at in-custody questioning upon arrest was something relatively new at that time. His failure to request counsel at the interrogation is understandable. The failure to make the request under these circumstances was not a waiver of the right to legal representation during the questioning."

In the instant case after having been advised by the officers as to his rights, the defendant was asked if he understood his rights, and he replied "that he had been in trouble enough to know his rights." We think this was sufficient to indicate that the defendant "intelligently waived" his right to counsel at his in-custody interrogation and justified the finding of the trial court that he had. State v. Bines, 263 N.C. 48, 138 S.E.2d 797 (1964).

The third question is, was error committed by the trial court by expressing an opinion as to the sufficiency of the proof on behalf of the State in a supplemental charge? No exceptions were taken to the original charge. After the jury had deliberated for an hour and twenty minutes, the jury returned to the courtroom and advised the court that the jury stood divided. The foreman announced that some members of the jury thought another police officer should testify. The trial judge then instructed the jury as follows:

"I told you on Monday, then I told you again on yesterday during the trial of this case that the solicitor has the duty and responsibility to prosecute those criminal cases that come into the Superior Court; that he must exercise his discretion about what evidence to introduce during the trial of the case. When the solicitor announced that he rests his casethat the State rests, I advised you of that and you heard him announce that the State rests its case and I told you that then the State had introduced all of the evidence that it intended to introduce. So it is now too late to reopen and introduce additional evidence. Neither the jury nor the presiding judge determines what witnesses are to testify. You are to find your verdict from the evidence you have heard. Now can I offer you any additional advice or instructions? I can say this to you, ladies and gentlemen, I am certain that none of you will depart from any conscientious beliefs and feelings that you have regarding the issue that you have under consideration. I am certain that you are reasonable people and that you have only deliberated for *31 a matter of about an hour and 20 minutes. So I am going to suggest to you that you return to your jury room and continue your deliberation and see if you can't come to an agreement. If you find there are some further instructions regarding the law in this case that you would like for me to comment upon, if you will come back and let me know that I will be glad to render you any assistance I can in that connection. I cannot assist you in finding your verdict, that is your responsibility. Incidentally, if you find that you would like to take a recess during your deliberation we normally recess about mid-morning, about halfway between 9:30 and 1:00 o'clock, if you find that you would like to take a recess during your deliberations and let me know about it, I will be glad for you to do so."

The supplementary instructions do not constitute an expression of an opinion within the prohibition of G.S. § 1-180. The additional admonition with regard to their continued deliberation was in keeping with rules previously approved by our Appellate Court. State v. Fuller, 2 N.C.App. 204, 162 S.E.2d 517 (1968).

The fourth question is, was the starting date of the sentence imposed so indefinite that it ran concurrently with any other sentences being served by the defendant?

We think that the sentence in this case clearly indicates the intent of the trial judge that the sentences of the defendant are to be served consecutively, and this sufficiently appears without resort to evidence aliunde. In re Smith, 235 N.C. 169, 69 S.E.2d 174 (1952).

In the trial and sentence of the defendant we find

No Error.

FRANK M. PARKER and GRAHAM, JJ., concur.