STATE of North Carolina
v.
Andrew Thomas CARTER, Sr.
No. 70.
Supreme Court of North Carolina.
January 4, 1979.*267 Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. James Peeler Smith, Raleigh, for the State.
R. Hayes Hofler, III, Durham, for defendant.
BRITT, Justice.
Defendant has brought forward a single assignment of error. By it he contends that the court erroneously admitted into evidence statements made to the police by him during the course of custodial interrogation. He argues that one cannot knowingly, intelligently, and voluntarily waive his rights under Miranda when he has not been informed of the charges which the police are investigating.
Counsel for defendant has ably urged that we adopt the rule set forth in Schenk v. Ellsworth, 293 F. Supp. 26 (D.Mont.1968). There the court held that a person being interrogated must be informed of the crime which he is suspected of having committed before he can knowingly and intelligently waive his right to counsel. As additional support for his position, defendant cites a line of cases from the state courts in Pennsylvania: Commonwealth v. Dixon, 475 Pa. 17, 379 A.2d 553 (1977); Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974); Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969). The Pennsylvania rule is that "the suspect need not have knowledge of the `technicalities' of the criminal offense involved; rather, it is necessary only that he be aware of the `transaction' involved." Dixon, supra, 379 A.2d at 556.
The approach to Miranda taken in the cases cited by defendant does not appear to have been followed in other jurisdictions, and we likewise refuse to follow this minority rule.
Miranda does not explicitly require that a person in custody be informed of the charges which the police are investigating. In Collins v. Brierly, 492 F.2d 735 (3rd Cir., 1974), cert. denied, 419 U.S. 877, 95 S. Ct. 140, 42 L. Ed. 2d 116 (1974), the defendant was the alleged driver of the getaway car used in a robbery perpetrated by him and three others. One of the four went into a lunchroom alone while the others waited in the car. The lone individual shot and killed the proprietor of the lunchroom. The others fled when they heard the shots. Later that same day, police went to defendant's home and asked him to accompany them to the police station for questioning. He agreed to do so voluntarily. At the station, prior to being told that the investigation concerned a homicide, defendant signed a waiver of rights form. He then made statements which implicated him in the robbery and ultimately in the homicide by virtue of the application of the felony-murder rule. At trial the defendant argued that his statements were not admissible as he had not knowingly, intelligently and voluntarily waived his rights under Miranda. In response to this argument the court said:
"We have serious reservations about an interpretation of Miranda v. Arizona, supra, which would require that before custodial interrogation begins, in addition to the mandated declarations, a statement must be made by the police as to the nature of the crime under investigation. That landmark decision was painstakingly specific in listing the basic constitutional rights which the police must propound to a suspect before he is questioned. Nowhere is there the slightest *268 indication that there must be included a warning about the nature of the crime which has led to the interrogation conference, what the penalty is for the offense, what the elements of the offense consist of, and similar matters. That these might be requisites for the entry of a valid guilty plea in open court is not relevant to the standards applicable to the custodial interrogation stage of a prosecution. In a sense, all of these elements might conceivably enter into an `intelligent and understanding' rejection of an offer for the assistance of counsel, but the simple answer is that Miranda does not by its terms go so far. It requires that the accused be advised of his rights so that he may make a rational decision, not necessarily the best one or one that would be reached only after long and painstaking deliberation. Indeed, it may be argued forcefully that a choice by a defendant to forego the presence of counsel at a police interrogation is almost invariably an unintelligent course of action. It is not in the sense of shrewdness that Miranda speaks of `intelligent' waiver but rather in the tenor that the individual must know of his available options before deciding what he thinks best suits his particular situation. In this context intelligence is not equated with wisdom.. . ."
A number of courts which have examined challenges to the validity of a waiver of Miranda rights where the defendant was not informed of the charges about which he was to be questioned prior to executing the purported waiver have reached the same result as that obtained in Collins. United States v. Anderson, 175 U.S.App.D.C. 75, 533 F.2d 1210 (1976); United States v. Campbell, 431 F.2d 97 (9th Cir., 1970); United States ex rel. Smith v. Fogel, 403 F. Supp. 104 (N.D.Ill., 1975); State v. Allen, 111 Ariz. 546, 535 P.2d 3 (1975); James v. State, 230 Ga. 29, 195 S.E.2d 448 (1973); State v. Russell, 261 N.W.2d 490 (Iowa, 1978); State v. Clough, 259 Iowa 1351, 147 N.W.2d 847 (1967); Commonwealth v. Griswold, 358 N.E.2d 482 (Mass.App., 1977); Commonwealth v. Tatro, 346 N.E.2d 724 (Mass.App., 1976); Commonwealth v. Roy, 2 Mass.App. 14, 307 N.E.2d 851 (1974); People v. MacDonald, 61 A.D.2d 1081, 403 N.Y. S.2d 337 (1978); cf., United States v. Hall, 396 F.2d 841 (4th Cir., 1968) (informing defendant of possible punishment prior to waiver of rights is not essential to make waiver knowing and intelligent).
We believe that Miranda not only lacks an explicit requirement that an individual be informed of the charges about which he is to be questioned prior to waiving his rights but also lacks any implicit requirement that such action be taken by authorities before a valid waiver of rights can be executed by one who is to be interrogated. Miranda "reflects the Supreme Court's concern that an accused might, to his detriment, forfeit rights afforded him by the Constitution simply because he was not aware that the possessed such rights." United States v. Hall, supra at 845; Collins, supra.
In the instant case the court specifically found that defendant was fully and accurately advised of his rights prior to answering any questions. Thus he was clearly aware that he had the right to refrain from answering questions at any time and to insist at that point on the presence of counsel. The language of the form which the defendant signed has been approved by this court. State v. McAllister, 287 N.C. 178, 214 S.E.2d 75 (1975); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968). We also note that defendant had knowledge of his rights and was aware that the investigation concerned a homicide before he made the incriminating statement. Yet, he willingly continued to answer the questions put to him. The record reveals no point at which he expressed a desire for counsel or a desire to terminate the questioning. An individual in police custody must appraise for himself the import of the questions propounded to him and the significance of his answers to those questions. United States v. Anderson, supra; People v. MacDonald, supra.
*269 Finally, we do not rest our holding in this case on mere technical compliance with the requirements of Miranda; standing alone that is insufficient, for the test of admissibility of an in-custody statement is whether from a consideration of the entire record it was knowingly, intelligently, and voluntarily made. State v. White, 291 N.C. 118, 229 S.E.2d 152 (1976). We do not hold that the court need not consider the defendant's awareness of the charges about which he is to be questioned in assessing the validity of a waiver of rights. Rather, that factor is one which must be considered in view of the totality of circumstances. Commonwealth v. Tatro, supra. The court in this case weighed this factor in light of the other facts in the case and concluded that defendant's lack of knowledge of the charges, standing alone, was not sufficient to invalidate his waiver. The court found that the defendant's statement even without this information, was voluntarily made. The findings of fact are supported by competent evidence and cannot, therefore, be disturbed on appeal. State v. White, supra; State v. Childs, 269 N.C. 307, 152 S.W.2d 453 (1967), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971).
In defendant's trial and the judgment appealed from, we find
No error.
BROCK, J., did not participate in this decisions.
EXUM, Justice, dissenting:
The majority sees the issue with respect to the admissibility of defendant's pre-trial statement as being whether a defendant must be informed of the charge under investigation before he can make a knowing and intelligent waiver of his right to counsel and his right to remain silent, recognizing that only a knowing and intelligent waiver will suffice under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), as a prerequisite to the statement's admissibility. Concluding that no such information is required by Miranda or any other authority, the majority finds here that defendant did make the required waivers and holds his statement admissible.
To me the issue presented by these facts is whether an intelligent and knowing waiver can be made when the suspect sought to be questioned is misled by police officers to believe that the crime under investigation is different from and much less serious than the crime which is in fact being investigated. The answer to this issue must surely be "No."
Here on voir dire investigator Simmons testified unequivocally that he "was interviewing [defendant] in relation to a homicide, the murder of Miss Irene Alley of Stewart Drive." Simmons then testified as follows:
"Q. Did you tell him what you wanted to talk to him about?
A. Yes, I asked him did he know why he was there.
Q. And what did he respond?
A. He stated that it was with reference to a possible break-in."
Earlier investigative supervisor Sarvis had testified on voir dire:
"Right at the beginning after I entered the room we explained to Mr. Carter why he was there, what had happened on Stewart Drive. We told him there had been a homicide and a possible break-in. I am fairly certain that I said homicide and a break-in. But I am not really sure. I do not recall whether the word homicide had been mentioned before that or not. I was not present when the statement was taken by Detective Simmons."
Defendant on voir dire testified that the investigators told him "they were investigating a break-in that had happened over the weekend" and that he, defendant, told Simmons "that they told me when they picked me up that it was for a possible break-in that happened over the weekend." After this conversation between Simmons and defendant, Simmons advised defendant of his rights and took his written waiver. On this voir dire evidence the trial court found as facts:
"That at police headquarters Mr. Simmons questioned the defendant and asked *270 if he knew why he was there and that he responded that he understood it was in relation to possible breaking and enterings.. . . That at the time of the execution of the waiver the defendant had not been informed that the investigation included a homicide but had been informed that the investigation related to breakings and enterings."
Practically all the evidence in the record supports these findings.
Thus defendant at the time he made his written waiver was led by the officers to believe that they wanted to question him with regard to a breaking when, in fact, they were investigating a homicide. The statement he made exculpates him from any involvement in a breaking but implicates him in a homicide.
I am unwilling to say under these circumstances that defendant made knowing and intelligent waivers when he signed the waiver form. It is understandable why he would have no hesitancy to respond to questions about a possible breaking nor feel the need for counsel if this was the purpose of the inquiry. Not only was he clearly innocent of such an offense, but also it is a felony which carries a maximum punishment of 10 years imprisonment. First degree murder, on the other hand, is punishable by death and, in this case, defendant had knowledge of facts which seriously implicated him in such a crime. Whether defendant was entitled to be informed of the murder investigation before he could make valid waivers is a question upon which courts, as noted in the majority opinion, are divided. Clearly, however, he could not make valid waivers when the investigators had misled him to believe (1) that the matter to which his waivers would pertain was far less serious than in fact it was and (2) that it was a matter in which he was not at all implicated when in fact it was a matter in which he was seriously involved. In this case the misinformation given defendant by the investigators precluded him from making valid waivers at least until he was correctly informed of the true reason for his interrogation.
The majority relies in part on the fact that defendant was aware that the investigation concerned a homicide "before he made the incriminating statement. Yet, he willingly continued to answer the questions put to him." The majority, however, does not, nor could it under our cases, hold that by merely making statements in response to questions at that point in the interrogation defendant waived his right to counsel. This Court has consistently 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." State v. Silhan, 295 N.C. 636, 639, 247 S.E.2d 902, 904 (1978). (Emphasis original.) "Failure to request counsel is not synonymous with waiver. Nor is silence. State v. Butler, 295 N.C. 250, 255, 244 S.E.2d 410, 413 (1978). The United States Supreme Court said in Miranda v. Arizona, supra, 384 U.S. at 470, 475, 86 S. Ct. at 1626, 1628:
"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.
.....
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."
Since defendant could not have made a knowing and intelligent waiver of his rights when he signed the written form and did not make a waiver of counsel during the interrogation itself I conclude that his pre-trial statement was not admissible. For this reason I vote for a new trial.