State v. Turner

187 S.E.2d 750 (1972)

281 N.C. 118

STATE of North Carolina v. Craven TURNER, Jr.

No. 4.

Supreme Court of North Carolina.

April 12, 1972.

*751 Robert Morgan, Atty. Gen., by Ralph Moody, Sp. Counsel to Atty. Gen., and William Lewis Sauls, Associate Atty. Gen., for the State.

Davis, Koontz & Horton by James C. Davis and Clarence E. Horton, Jr., Concord, for defendant appellant.

HIGGINS, Justice.

After the appellant had filed the record of the case on appeal and his brief, the Attorney General filed the State's brief which contained the statement here quoted:

"In view of the decision of this Court in State v. Blackmon (280 N.C. 42 [185 S.E.2d 123]), we do not discuss the Lynch case (279 N.C. 1 [181 S.E.2d 561]). While we do not confess error because the Court may see and observe some features that distinguish this case from the Blackmon case, nevertheless, we are unable to distinguish between the two cases. . . . The critical ruling in the Blackmon case is that the failure to ask for a lawyer does not constitute a waiver under the Miranda case."

The State, however, later requested, and was given permission to file a supplemental brief. In the supplemental brief the Attorney General called attention to the fact the defendant, after the original interrogations, requested that he have the opportunity to make changes in his story. He requested the further interview with the officers "to get it off his brain." He then made the incriminating statements which were admitted in evidence against him. He was still in custody charged with a capital felony. He had not withdrawn his request that he have counsel. He had at first asked for a lawyer and had Attorney Brown called, but Attorney Brown was unable to represent him. He did not waive his right to the presence and advice of an attorney, although he did not make a further demand for counsel. These facts do not constitute a voluntary waiver of counsel as this Court construes the requirement in Miranda v. Arizona, supra. On the voir dire and at the trial, however, the court found facts and concluded the admissions were knowingly and voluntarily made after adequate warnings and were admissible in evidence. However, there is neither evidence nor finding the defendant specifically waived the right to counsel.

At the time the offense here involved was committed (January 5, 1971) and at the time the incriminating admissions were made to the officers (February 19, 1971), the North Carolina statutory requirements as to counsel discussed in State v. Lynch, 279 N.C. 1, 181 S.E.2d 561, were in force. The General Assembly, however, by Chapter 1243, Session Laws of 1971, amended Section 7A-457 of the General Statutes, relaxing the requirement that a waiver of counsel must be in writing. As stated in Blackmon, however, we base decision in this case on the failure to meet the requirement fixed by the Supreme Court of the United States in Miranda v. Arizona, supra. Failure to demand counsel is not a waiver.

We conclude, therefore, the trial court erroneously overruled the defendant's objection to his in-custody admissions. The judgment is vacated, the verdict is set aside and it is ordered that there be a

New trial.