State v. Lynch

181 S.E.2d 561 (1971)

279 N.C. 1

STATE of North Carolina v. Elmore LYNCH, Jr.

No. 42.

Supreme Court of North Carolina.

June 10, 1971.

*567 Atty. Gen. Robert Morgan; Deputy Atty. Gen. R. Bruce White; Staff Atty. Howard P. Satisky, Raleigh, for the State.

Robert C. Powell, Gastonia, for defendant-appellant.

SHARP, Justice:

Defendant brings forward seven assignments of error, three of which require consideration. We first examine the assignment which presents the question whether the judge prejudiced defendant's trial by failing to rule upon 38 objections made by defense counsel after having instructed the court reporter to "put an overruled after every time he says objection."

Every person charged with crime has the right to the assistance of counsel at a trial "before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm." State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10. In every trial the judge and the defendant's counsel share the twofold responsibility of enforcing a defendant's right to a fair trial and of keeping the trial moving at a reasonable speed. The judge however, is in charge of proceedings.

In this day of congested criminal dockets and overcrowded calendars, a lawyer's objections and exceptions frequently harass the judge. However, it is a lawyer's duty to represent his client. State v. Mansell, 192 N.C. 20, 133 S.E. 190. In doing so he is required "to present everything admissible that favors his client and to scrutinize by cross-examination everything unfavorable. The inevitable result is that the lawyer usually feels that he is unfairly prodded by the judge, while the judge feels the lawyer obstinately drags his feet." Annot., 62 A.L.R.2d 166, 237 (1958). This conflict tests the mettle of both as officers of the court. The trial judge, who occupies "an exalted position," must abstain from conduct or language which tends to discredit the defendant or his cause in the eyes of the jury. State v. Carter, supra; Withers v. Lane, 144 N.C. 184, 56 S.E. 855. An attorney must, upon all occasions, manifest "a marked respect for the court in which he practices, and for the judge thereof. * * * In return, he is entitled to similar treatment from the trial judge, and most certainly to the extent that the interest of his client will not be prejudiced." Dennison v. State, 17 Ala.App. 674, 676, 88 So. 211, 213.

Under our law a judge is forbidden to express an opinion upon the credibility of the evidence. "Regardless of how unreasonable or improbable the defendant's story, the court must maintain the `cold neutrality of an impartial judge.'" State v. Taylor, 243 N.C. 688, 91 S.E.2d 924, 925. In his manner of ruling upon objections, "the judge must exercise the same caution as at other stages of the trial not to express an opinion as to the credibility of the witness or the merits of the case." Stansbury, N.C. Evidence § 28 (2d ed. 1963). If, at any time, during the trial, the judge "uses language which tends to bring an attorney into contempt before the jury * * he commits an error of law, which would, of necessity, effect a reversal of the judgment and a remandment of the cause." Dennison v. State, supra, 17 Ala.App. at 676, 88 So. at 213. In Dennison, a new trial was awarded for the failure of the court to allow defense counsel to make the objections and motions he deemed the interest of his client to require.

In State v. Phillips, 59 Wash. 252, 109 P. 1047, following a heated colloquy, the *568 judge told defendant's counsel to take an exception every time the court spoke and every time he batted his eye. In awarding a new trial because of this "challenge," the court said:

"* * * The aid of counsel is guaranteed by the Constitution to every person accused of crime, and this is universally recognized as one of the surest safeguards against injustice and oppression. Any conduct or statement on the part of the court that tends to impair the influence or destroy the usefulness of counsel is palpable and manifest error." Id. at 259, 109 P. at 1050.

In State v. Lee, 166 N.C. 250, 80 S.E. 977, after defense counsel had argued from the testimony of the prosecuting witness that the prosecution was motivated by jealousy, the trial judge told the jury there was no evidence of this; that counsel was not sworn; and they should "pay [no] attention to anything that he has said about this." This Court granted a new trial, saying:

"* * * The relation between courts and counsel should always be courteous. Should counsel forget their duty in this respect, the presiding judge has authority to enforce respect by proceedings in contempt. Judges should therefore be careful to observe the respect which is due from them to counsel, for when this is not done there is not only no remedy except by appeal to this court, but the cause which the counsel is advocating may be seriously damaged in the estimation of the jury, as was very probably the case in this instance." Id. at 255, 80 S.E. at 978.

The record discloses very little, if any, merit in the objections which the court ignored, but it also discloses that defense counsel at all times accorded the presiding judge the high degree of courtesy and respect to which the court is entitled. Judge Falls' blanket instruction to the court reporter to overrule any objection which defendant's counsel might make necessarily belittled both defendant's cause and his attorney in the eyes of the jury. The clear implication was that there could be no merit in any objection defendant's counsel might make or that defendant was so obviously guilty his objections were a waste of the court's time. Because the court's language and conduct tended to prejudice defendant's cause with the jury there must be a new trial.

Since there must be a new trial, we deem it necessary to discuss the two assignments of error relating to defendant's confession and the taped recording of the interrogation which followed it. Defendant contends that both were improperly admitted in evidence because (1) he was an indigent minor, without counsel at the time it was made; (2) he did not voluntarily and understandingly waive his right to counsel; (3) he did not waive counsel in writing as required by G. S. 7A-450; (4) the trial judge made no findings on voir dire that he had waived counsel; and (5) the evidence before the court would not support a finding that he waived counsel in the manner provided by statute. With reference to the recording defendant makes additional contentions which will be noted later.

In this jurisdiction a confession is not inadmissible merely because the person making it is a minor. A minor who has arrived at the age of accountability for crime may waive counsel in the manner provided by law and make a voluntary confession without the presence of either counsel or an adult member of his family provided he fully understands his constitutional rights and the meaning and consequences of his statement. State v. Murry, 277 N.C. 197, 176 S.E.2d 738; State v. Hill, 276 N.C. 1, 170 S.E.2d 885.

In determining whether a minor's in-custody confession was voluntarily and understandingly made the judge will consider not only his age but his intelligence, education, experience, the fact that he was in custody, and any other factor bearing *569 upon the question. In other words, "the `totality of circumstances' rule for the admission of out-of-court confessions applies to the confessions of minors as well as adults." State v. Dawson, 278 N.C. 351, 180 S.E.2d 140. In State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171, we held the in-custody confession of a minor who was without counsel to have been improperly admitted in evidence; in State v. Murry, supra, and State v. Hill, supra, the confessions of minors made in the absence of counsel were held admissible.

The rule is that one may waive counsel if he does so freely and voluntarily and with full understanding that he has the right to be represented by an attorney. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694; State v. Williams, 274 N.C. 328, 163 S.E.2d 353. Prior to the enactment of G.S. 7A-450 et seq., effective 1 July 1969, there was no difference in the requirements for a waiver of counsel by indigents and nonindigents. Each could waive the right either orally or in writing. State v. Williams, supra; State v. McNeil, 263 N.C. 260, 139 S.E.2d 667. This remains the rule in the federal courts. Miranda v. Arizona, supra; United States v. Hayes, 385 F.2d 375 (4th Cir. 1967); Klingler v. United States, 409 F.2d 299 (8th Cir. 1969); Bond v. United States, 397 F.2d 162 (10th Cir. 1968).

Article 36 of N.C.Gen.Stats. ch. 7A, which is applicable to indigents only, provides, inter alia, that an indigent charged with a felony or a misdemeanor for which the punishment exceeds six months' imprisonment or a fine of $500.00 is entitled to an attorney as soon as feasible after his arrest. Such entitlement continues through any critical stage of the proceeding, including an in-custody interrogation. G.S. 7A-451. An indigent person is defined as one "financially unable to secure legal representation and to provide all other necessary expenses of representation" in defending the criminal action against him. G.S. 7A-450(a).

An indigent who has been informed of his right to counsel under Article 36 may, in writing, waive this right, "if the court finds of record that at the time of the waiver the indigent person acted with full awareness of his rights and of the consequences of a waiver." G.S. 7A-457. In imposing the requirement that an indigent's waiver of counsel must be in writing, the North Carolina General Assembly imposed a more stringent requirement than the federal courts have done.

Under Article 36 it is the duty of the authority having charge of a person who is without counsel for more than forty-eight hours after being taken into custody to so inform the clerk of the superior court. The clerk, after making a preliminary determination of the person's entitlement to counsel, shall so inform any district or superior court judge holding court in the county. The judge so informed may assign counsel. G.S. 7A-453(b). If a defendant upon being taken into custody, states that he is indigent and desires counsel, the authority having custody shall immediately inform the clerk who shall immediately inform the judge. G.S. 7A-453(c).

At the hearing which Judge Falls conducted for the purpose of determining the competency of defendant's in-custody statements, only Detectives Auten and Hovis testified to the circumstances under which they were made. Defendant himself did not testify. There was no conflict in the testimony of the two officers. It tended to show that defendant, after having been brought to the sheriff's office at his request, said he "wanted to tell the truth about the thing, what he knew about it, and what part each one of them had in it"; that prior thereto no officer had interrogated him; that he was not permitted to talk until after he had been clearly and repeatedly warned of his constitutional rights as required by the Miranda decision; that after being fully apprised of his right to have counsel present when he made a statement, and after being told that the State would provide him with a lawyer if he was unable to *570 employ one, defendant said he did not want counsel; and that he then gave an account of the burning of the Welch residence which implicated him in the crime.

At the conclusion of the voir dire Judge Falls, without making any findings of fact as to the voluntariness of defendant's confession, permitted Captain Auten to testify to the narrative summarized above, which the offices said he volunteered. If, on voir dire, there is conflicting testimony bearing on the admissibility of a confession, it is error for the judge to admit it upon a mere statement of his conclusion that the confession was freely and voluntarily made. In such a situation the judge must make specific findings so that the appellate court can determine whether the facts found will support his conclusions. State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Barber, 268 N.C. 509, 151 S.E.2d 51; State v. Conyers, 267 N.C. 618, 148 S.E.2d 569; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344. When, as in this case, no conflicting testimony is offered on voir dire, it is not error for the judge to admit the confession without making specific findings. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Keith, 266 N.C. 263, 145 S.E.2d 841. Clearly, however, it is always the better practice for the court to find the facts upon which it concludes any confession is admissible.

Accepting the credibility of the uncontradicted testimony adduced on voir dire, as Judge Falls obviously did since he admitted the evidence, defendant's narrative statement was not the result of an in-custody interrogation. Thus, even though his indigency be assumed, the presence of counsel was not required at that time. As the Supreme Court said in Miranda v. Arizona, supra: "The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Id. 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726 (Emphasis added).

On this record, we hold that the admission of defendant's narrative confession was not error. The question and answer period which followed that narration, however, was an in-custody interrogation at which defendant gave incriminating information not included in his previous statement. The admissibility of the sound recording of defendant's interrogation, therefore, involves additional considerations not pertinent to the volunteered confession. The first is whether defendant was an indigent at the time of the interrogation. As to this, Judge Falls made no finding. Indeed, the only "finding" which the voir dire produced was his conclusion "that this defendant knowingly, understandingly, and voluntarily made whatever statement the tape indicates."

At his preliminary hearing on 16 October 1969 defendant was represented by privately employed counsel. It was not until 24 November 1969 that defendant executed an affidavit of indigency and counsel was appointed to represent him at his trial. Upon the voir dire neither court nor counsel made any inquiry whether defendant was indigent on 20 September 1969, the day of the interrogation. If he was indigent, he was entitled to the services of counsel at the interrogation and, under G.S. 7A-457, he could waive that right only in writing. The evidence on voir dire was plenary and uncontradicted that, after his right to counsel had been fully explained to him, defendant said he did not want a lawyer. However, there is no evidence in the record that defendant signed a written waiver of counsel and no evidence bearing upon whether he was an indigent on 20 September 1969. Upon the retrial the question of defendant's indigency must be inquired into on voir dire and findings made of record as provided by G.S. 7A-457. If, at the time of his incustody *571 interrogation, defendant was indigent and had not signed a written waiver of counsel, Article 36 renders the statements made on interrogation inadmissible; and this is true whether the evidence offered to prove them be the testimony of a witness who was present or a sound recording of the interrogation itself.

Defendant's other contentions are that the recording of his interrogation was erroneously admitted over his objection because (1) the judge did not conduct a voir dire to ascertain whether it met the requirements of admissibility and whether it contained incompetent testimony; and (2) he did not instruct the jury that they should consider it only as it tended to corroborate the testimony of the detectives.

If a defendant's statement is inadmissible because impermissibly obtained a fortiori, a recording of it is equally inadmissible in evidence. However, "it is now almost universally held that sound recordings, if relating to otherwise competent evidence, are admissible providing a proper foundation is laid for their admission." Annot, Sound Recordings in Evidence, 58 A.L.R.2d 1024, 1027 (1958); 29 Am.Jur.2d Evidence § 534 (1967). Such recordings were received in evidence in State v. Godwin, 267 N.C. 216, 147 S.E.2d 890; State v. Walker, 251 N.C. 465, 482-483, 112 S.E.2d 61, 74-75. See State v. Fox, 277 N. C. 1, 175 S.E.2d 561.

A taped recording of an accused's statement is only one method of perpetuating it. When properly authenticated, a recorded confessionif voluntary and otherwise lawful"is admissible the same as if it had been in (defendant's) own handwriting, transcribed by a reporter who had taken notes, or oral testimony of one who heard the statements." Thomas v. Davis, 249 F.2d 232, 235 (10th Cir. 1957). In other words a recorded confession, like any other form of confession, is substantive evidence. Indeed "it has been said that a sound recording of a confession is of more value to the court than one in writing, especially where an issue has been raised as to whether it was voluntary." 29 Am. Jur.2d Evidence § 534 (1967); 58 A.L.R.2d 1024, § 13.

To lay a proper foundation for the admission of a defendant's recorded confession or incriminating statement, courts are in general agreement that the State must show to the trial court's satisfaction (1) that the recorded testimony was legally obtained and otherwise competent; (2) that the mechanical device was capable of recording testimony and that it was operating properly at the time the statement was recorded; (3) that the operator was competent and operated the machine properly; (4) the identity of the recorded voices; (5) the accuracy and authenticity of the recording; (6) that defendant's entire statement was recorded and no changes, additions, or deletions have since been made; and (7) the custody and manner in which the recording has been preserved since it was made. Annot., 58 A.L.R.2d 1024, §§ 4 and 8 and cases therein cited; 29 Am.Jur.2d Evidence § 436 (1967).

Upon an objection to the introduction of a recorded statement, in order to ascertain if it meets the foregoing requirements, the trial judge must necessarily conduct a voir dire and listen to the recording in the absence of the jury. "In this way he can decide whether it is sufficiently audible, intelligible, not obviously fragmented, and, also of considerable importance, whether it contains any improper and prejudicial matter which ought to be deleted." State v. Driver, 38 N.J. 255, 288, 183 A.2d 655, 672. This procedure affords counsel the opportunity to object to any portions of the recording which he deems incompetent and permits incompetent matter to be kept from the jury in some appropriate manner. In State v. Strickland, 276 N.C. 253, 173 S.E.2d 129, we prescribed analogous procedure for the preview of sound moving pictures taken of a defendant, who had been arrested for operating an automobile upon the public highway *572 while under the influence of an intoxicant. Accord, Sanders v. State, 237 Miss. 772, 115 So. 2d 145; Wright v. State, 38 Ala.App. 64, 79 So. 2d 66; 58 A.L.R.2d 1024, §§ 4 and 8.

If, on the next trial, the State offers defendant's recorded statement in evidence, and defendant objects to its introduction, the judge must conduct a voir dire to determine (1) whether defendant's interrogation without counsel was proper; (2) if so, whether the recording meets the tests for admissibility specified herein. If he holds the recording to be admissible, in the absence of the jury, he must also hear and pass upon any objections which defendant desires to make to specific statements contained in it. On this record, defendant's motion to strike the references to the Black Panther organization should have been allowed. This prejudicial testimony was irrelevant to the issue of defendant's guilt of the crime charged. Although not the subject of a specific objection the testimony as to information which defendant gave the officers in 1968 with reference to burnings during that year was likewise incompetent and prejudicial.

New Trial.

LAKE, J., concurs in result.