STATE of North Carolina
v.
Johnny James BLACKMON.
No. 87.
Supreme Court of North Carolina.
December 15, 1971.*125 Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody, for the State.
Elton S. Hudson, Hopkins & Hudson, Albemarle, for defendant appellant.
MOORE, Justice.
Defendant first assigns as error the trial court's failure to allow defendant's motion for a change in venue or in the alternative for a special venire. In support of this motion defendant and his counsel filed affidavits. The affidavit of defendant's counsel stated that he had asked 47 individuals if they had seen or heard pre-trial publicity concerning the case. Of those interviewed 89.4% had seen or heard the publicity. Of the 42 persons who had seen or heard the publicity, 34 expressed the opinion that the defendant was guilty and stated that they thought it was the general feeling in Stanly County that the defendant was guilty. The names of those interviewed were not disclosed and none of them filed affidavits. The affidavit of defendant stated that the Stanly News and Press is the only newspaper published in Stanly County and is widely read and circulated in the County. Attached to the motion were various articles concerning the crime in question which had been published in this newspaper. The newspaper articles did not discuss the details of any evidence against the defendant but only that Mr. Howell was killed and that a shotgun was used in the killing, and the fact that defendant and Craven Turner had been arrested and charged with the crime. The State examined seven witnessestwo law-enforcement officers and five who had been in various businesses in Stanly County for many yearsall of whom expressed the opinion that the defendant could get a fair trial in that County.
Prospective jurors were examined concerning whether or not they had been influenced by any articles in the newspaper. This examination showed that several jurors had not read about the case at all and that some had read about it when it first happened. There was no evidence to show that any juror had been unduly influenced by these articles or that there had been any inflammatory press reports. *126 A motion for change of venue or a special venire is addressed to the sound discretion of the trial judge, and an abuse of discretion must be shown before there is any error. Here, no such abuse is shown. State v. Ray, 274 N.C. 556, 164 S.E.2d 457 (1968); State v. Brown, 271 N.C. 250, 156 S.E.2d 272 (1967); State v. Porth, 269 N.C. 329, 153 S.E.2d 10 (1967); State v. Childs, 269 N.C. 307, 152 S.E.2d 453 (1967); State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967).
Defendant next assigns as error the trial court's denial of defendant's motion for a continuance. Defendant was arrested and a warrant charging him with the murder of James Alexander Howell was served on him on 19 February 1971. Defendant was indicted at the 22 February 1971 Session of the Superior Court of Stanly County, and Elton S. Hudson was appointed as attorney for defendant on 24 February 1971. Defendant's trial began on 29 March 1971. Counsel for defendant had one month and four days in which to prepare for the defense of his client. Defendant's motion for continuance is based on allegations that counsel had not seen certain reports which he requested in a motion for a bill of particulars. In an answer to the motion for the bill of particulars, the solicitor stated that defendant's counsel had been furnished 32 photographs, four reports made by agents of the State Bureau of Investigation, and a list of 20 prospective witnesses for the State, and that he had no knowledge of other evidence. A motion for continuance is ordinarily addressed to the sound discretion of the trial court and its ruling thereon is not subject to review on appeal absent an abuse of discretion. No abuse is shown in this case. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970); State v. Ferebee, 266 N.C. 606, 146 S.E.2d 666 (1966); State v. Kirkman, 252 N.C. 781, 114 S.E.2d 633 (1960); State v. Flowers, 244 N.C. 77, 92 S.E.2d 447 (1956); 6 N.C.Digest, Criminal Law § 586.
Defendant next assigns as error the admission of defendant's statement in the nature of a confession in evidence against him. This assignment presents a serious question. A warrant charging defendant with the first degree murder of Howell was issued on 18 February 1971. On the morning of 19 February 1971 about 6:05 a.m., this warrant was served on defendant who was then in custody in the Stanly County jail. Defendant was advised of his constitutional rights as required under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and was then questioned by Sheriff Ralph McSwain about the murder. Defendant stated that he knew nothing about it. The sheriff then left, but defendant was kept in custody for some four hours thereafter during which time other officers questioned him. Sheriff McSwain returned about 10 a.m. and again questioned defendant who, after being confronted with his accomplice Craven Turner, made a detailed statement concerning his participation in planning the robbery and in the shooting of Mr. Howell, and later that same day accompanied the officers to the Howell home where he reenacted the crime for the officers.
Agent Richardson took notes on the statement made by defendant and was called to testify as to this statement. On objection by defendant, a voir dire was held.
Each of the three officers present at the interrogation testified on voir dire that after the defendant was taken into custody upon another charge, a warrant charging him with this murder was served upon him, and thereafter, prior to his making any statement, he was twice given the full Miranda warning. Each officer testified that the defendant "did not request that an attorney be present," that no threats were made to the defendant, that no promise or inducement was made to get him to make any statement, and that the defendant did not appear to be confused and stated that he understood his rights.
*127 The defendant testified upon the voir dire that he was not advised by any law enforcement officer that he had the right to have an attorney present during the interrogation, that he told the officers he wanted to talk to a lawyer and that they replied that it was too early in the morning to get a lawyer.
At the conclusion of the voir dire, the court found as facts that the defendant was taken into custody on a worthless check charge, that within a few moments thereafter the sheriff read to the defendant a warrant charging him with this murder and advised the defendant of his rights by giving him the full Miranda warning, including his right to have an attorney present during the interrogation and his right to have such attorney appointed before any questioning if he could not afford to employ one. The court further found that the defendant "did not request. . . the presence of an attorney," that he "stated that he understood his rights," that in the course of the interrogation he made certain statements which were reduced to writing by Agent Richardson, and that such statements were made "freely and voluntarily by him, understandably, and without promise of reward, without duress, without coercion, and without pressure."
Upon these findings of fact the court concluded that the statements by the defendant were made freely, voluntarily and understandably, without promise or hope of reward and without duress, pressure or coercion, and that they "were made understandably, with full knowledge of his right to remain silent, of his right to talk to an attorney, and to have an attorney present at the time; and his right to have a State appointed attorney, if he could not afford one of his own." The court further concluded that the defendant "made such statements in waiver of said rights." The court then denied defendant's motion to suppress evidence of any such statements made by him.
The conflict in the testimony on the voir dire raised a question of credibility of the witnesses, which was for the determination of the trial court. His findings of fact, supported by competent evidence, are conclusive. State v. McRae, 276 N.C. 308, 172 S.E.2d 37 (1970); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). Consequently, we must take it to be established that the defendant was given the full Miranda warning, that he understood his right to counsel and that he did not request the presence of an attorney at the interrogation. This, however, is not sufficient to make the defendant's in-custody statements admissible in evidence. In Miranda v. Arizona, supra, the Supreme Court of the United States said:
"The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end.. . .
* * * * * *
"An individual need not make a preinterrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. . . .
*128 * * * * * *
"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. . . .
* * * * * *
"After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him."
This decision of the Supreme Court of the United States as to the right of the defendant, under the Federal Constitution, to have counsel present at his in-custody interrogation and as to the prerequisites for a waiver of that right is, of course, binding upon the courts of this State. State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171 (1968); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968).
The trial judge erred in holding that, since this defendant had been correctly informed of his right to the presence of counsel at the interrogation and did not request it, the making of the statements by the defendant during the interrogation was a waiver of his right to have counsel present. Although the evidence at the voir dire is ample to support a finding that the defendant made the statements in question freely and voluntarily, having been fully advised of and having full understanding of his right to have an attorney present, the plain language of the Miranda decision above quoted in addition requires a waiver of right to counsel knowingly and intelligently made by defendant. . . . [F]ailure to ask for a lawyer does not constitute a waiver."
The testimony of Agent Richardson of the State Bureau of Investigation concerning statements made by defendant in the course of the in-custody interrogation by Sheriff McSwain was clearly incriminating, and its admission was error which cannot be considered harmless.
The United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), stated: ". . . [B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." The Court also stated that while "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," not all "trial errors which violate the Constitution automatically call for reversal."
Where, as in the present case, a confession made by the defendant is erroneously admitted into evidence, no one can say what weight and credibility the jury gave the confession. Even though there is other evidence sufficient to support a conviction, we cannot say beyond a reasonable doubt that the error in admitting the confession did not materially affect the result of the trial to the prejudice of the defendant or that it was "harmless error." Error in the admission of this evidence requires a new trial.
Since the defendant is entitled to a new trial under Miranda, we do not consider the effect of G.S. § 7A-457, which was amended by the 1971 Adjourned Session of the General Assembly, on the admission of defendant's statement.
For the reasons indicated, there must be a new trial.
New trial.