State v. Silhan

247 S.E.2d 902 (1978)

295 N.C. 636

STATE of North Carolina v. Stephen Karl SILHAN.

No. 30.

Supreme Court of North Carolina.

October 17, 1978.

*904 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Joan H. Byers, Raleigh, for the State.

Public Defender Mary Ann Tally, Fayetteville, for defendant.

COPELAND, Justice.

We have reviewed the State's contention that Judge Clark erred in suppressing from evidence the defendant's oral statements made to Detectives Conerly and Byrd on 14 October 1977. We conclude that the judge was correct in allowing the defendant's motion.

The United States Supreme Court laid down the guidelines for what constitutes waiver of the rights to counsel and to remain silent during in-custody interrogation in the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). It is clear that a defendant does not waive the right to an attorney if he merely fails to request one on his own initiative. Id. at 470, 86 S. Ct. at 1626, 16 L. Ed. 2d at 721. Similarly, the Court stated:

"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70, 77 (1962), quoted in 384 U.S. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724.

On numerous occasions this Court has interpreted and applied the dictates of Miranda. In State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), the defendant was given his full Miranda warnings, he understood his right to counsel, and he did not request an attorney. We held that "[t]his, however, is not sufficient to make the defendant's in-custody statements admissible in evidence." Id. at 48, 185 S.E.2d at 127. Last term we followed the Blackmon decision in State v. Butler, 295 N.C. 250, 244 S.E.2d 410 (1978), and held that a defendant's waiver of counsel must be "specifically made." In other words, there must be some positive indication by the defendant that he does not wish to have an attorney present during the questioning.

In this case the officers asked whether defendant wanted "any individual or person present." Defendant's negative response to this question cannot be deemed a positive and specific waiver of counsel under the circumstances here disclosed. The detectives did not ask the defendant to sign a waiver form before interrogation began. They waited until after "the mule was out of the stable," and the defendant had already made incriminating statements. Furthermore, the defendant crossed out the word "not" in the waiver form so that he signed a paper stating: "I do want a lawyer present." This act is strong evidence negating any waiver of counsel. Thus, we find that defendant did not make an effective waiver of his rights to remain silent and to have an attorney present during the questioning.

*905 The State appealed this case pursuant to G.S. 15A-979(c), which provides:

"An order by the superior court granting a motion to suppress prior to trial is appealable to the appellate division of the General Court of Justice prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case." [Emphasis added.]

We note that this section does not specify whether an appeal lies to the Court of Appeals or to the Supreme Court. General Statute 7A-27(a), however, stipulates that there is an appeal of right to the Supreme Court from a superior court judgment imposing a sentence of death or life imprisonment. When these two statutes are considered together, we determine that it is proper to appeal directly to this Court if the punishment for the charge(s) is either death or life imprisonment.

For the reasons set out above, the order of CLARK, J., is in all respects

AFFIRMED.