STATE of North Carolina
v.
Leonard Roger TOMS.
No. 7529SC689.
Court of Appeals of North Carolina.
January 21, 1976.*95 Atty. Gen. Rufus L. Edmisten by Associate Attorney William H. Guy, Raleigh, for the State.
Chambers, Stein, Ferguson & Becton by James E. Ferguson, II, Charlotte, for the defendant.
BROCK, Chief Judge.
Defendant argues that it was error to admit into evidence before the jury his incustody statements to the sheriff. Defendant asserts that the statements were made during an interrogation that continued after defendant had advised the sheriff that he wished to remain silent and not answer questions. Defendant makes no contention that he was not fully advised of his Miranda rights. He cites the familiar Miranda rule that declares: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In this case the interrogation overstepped the above-quoted basic restriction imposed by Miranda. When the prosecutor initially asked the sheriff what, if anything, the defendant Leonard Toms told him concerning the robbery, the sheriff replied: "At the beginning he didn't tell me anything; he refused to talk. I questioned him and Johnny Mack Thompson, oh, 45 minutes I guess30 to 45 minutes and finally Johnny Mack Thompson said, `We's in it, we might *96 as well tell.'" At this point, upon objection by defendant, the jury was sent from the courtroom, and a voir dire was conducted to determine the admissibility of any statement defendant Leonard Toms may have made. Under questioning by the prosecutor on voir dire, the sheriff stated: "Johnny Mack Thompson is the one that told me how it happened, what led up to it, and all about it, and Leonard said, `This is how it happened.' I asked him if this was the way it happened and he said, `That is the way it happened.'" The following was elicited from the sheriff on cross-examination:
"Q. Now, whenever you got him to sign that, I ask you if he didn't tell you at that time that he didn't know anything about his rights?
"A. No, sir, he didn't. He said he didn't want to talk.
"Q. So that you took him out and away and brought the other man in?
"A. No, sir. They were sitting within two feet of each other at that time. He told me that he did not want to talk at that time.
"Q. Sometime later you started in on Thompson?
"A. I started in on both of them all together. I questioned the combination of the two, thirty to forty-five minutes.
"Q. Now, when this man told you he did not want to talk, did you take him and lock him up then or did you keep him sitting there?
"A. He sat right in the office. I never got but that one original waiver of his rights. As I recall, that was the only one. At the time he gave me that he said he didn't have anything to say to me. It was about 30 to 45 minutes after that that I say that he said, `That is right'."
We do not believe that Miranda holds that a defendant may never again be questioned once he indicates that he wishes to remain silent. In fact, in the case of Michigan v. Mosley, ___ U.S. ___, 96 S. Ct. 321, 46 L. Ed. 2d 313, decided 9 December 1975, the U.S. Supreme Court, in discussing the rule above stated, said: "Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent." However, it seems clear under Miranda that when a defendant indicates that he wishes to remain silent, the then current interrogation must cease. The length of the cessation or the conditions under which interrogation might be resumed are not involved here. In this case the interrogation did not even pause. By his own statement the sheriff, immediately after defendant said he did not want to talk, "started in on both of them all together." He "questioned the combination of the two, thirty to forty-five minutes" before defendant made an incriminating statement.
The interrogation procedure in this case constituted a violation of defendant's right to remain silent. It was prejudicial error to admit defendant's incriminating statement into evidence before the jury.
New trial.
BRITT and MORRIS, JJ., concur.