STATE of North Carolina
v.
Harold WILLIAMS.
No. 14.
Supreme Court of North Carolina.
November 10, 1971.*286 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Thomas B. Wood, for the State.
H. Glenn Davis, Winston-Salem, for defendant.
LAKE, Justice.
The defendant assigns as error a portion of the court's final instruction to the jury, asserting that therein the court expressed an opinion as to the facts of the case in violation of G.S. § 1-180. Earlier in the charge, the court stated correctly the elements of the crime of assault with intent to commit rape and those of the lesser included offense, assault on a female, and reviewed the evidence. In the portion in question, the court restated, correctly, what the jury must find from the evidence, beyond a reasonable doubt, in order to convict the defendant of the respective offenses and stated the contentions of the State and of the defendant as to what verdict the jury should render. Immediately thereafter, the court instructed the jury that if they were not so satisfied from the evidence, beyond a reasonable doubt, they would return a verdict of not guilty, the burden being upon the State so to satisfy them.
Quite obviously, the court expressed no opinion as to the sufficiency of the evidence to prove any fact, or as to the verdict which the jury should return. The defendant does not specify wherein the instructions to which he excepts stated any opinion of the court. We are unable to see any misstatement by the court, either of the law applicable to the offenses in question or of any contention of the defendant. It is well settled that any misstatement of the contentions of the parties must be called to the attention of the court at the time, so as to permit a correction, or such misstatement will be deemed waived. State v. Britt, 225 N.C. 364, 34 S.E.2d 408; State v. Smith, 225 N.C. 78, 33 S.E.2d 472. There is no merit in this assignment of error.
The defendant next contends that the sentence imposed was cruel and unusual. It is the maximum sentence authorized by G.S. § 14-22 for the offense of which the defendant has been convicted. This Court has repeatedly held that a sentence which does not exceed the maximum authorized by the statute cannot be deemed cruel and unusual. State v. Bruce, 268 N. C. 174, 150 S.E.2d 216, and cases there cited. This assignment of error is also without merit.
After the defendant had been fully advised of his constitutional rights and of the nature of the matter concerning which the police officers wished to interrogate him, he waived in writing his right to counsel and stated his willingness to answer questions. After answering a number of questions by the interrogating officer, the defendant said, "Before I go any further I want to talk to a lawyer." The officer immediately offered to assist him in procuring any lawyer he wished to have. The *287 defendant then said he wanted his parents present instead of a lawyer.
There is nothing in the record to indicate that any further question was propounded to him, or that any statement was made by him, until after both of his parents had arrived at the police station and conferred privately with the defendant. Upon the return of the officer to the interrogation room, the parents advised the defendant to tell the officer the truth about the matter. There was no further suggestion that he or his parents desired the presence of a lawyer prior to resumption of the interrogation. The officer testified to these facts on the voir dire examination. Neither the defendant nor his parents testified.
In Miranda v. Arizona, 384 U.S. 436, 473-475, 86 S. Ct. 1602, 1627, 1628, 16 L. Ed. 2d 694, 723-724, the Supreme Court of the United States said concerning custodial interrogation:
"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. * * * If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. * * *
"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."
In State v. Fox, 274 N.C. 277, 295, 163 S.E.2d 492, 505, this Court said upon that subject:
"If Roy [Fox] voluntarily made the statement (S-42), or the earlier one which was not transcribed, and thereafter requested counsel for the first time, he was not deprived of his Sixth Amendment right to counsel. If, however, after he had requested an attorney, and before he was given an opportunity to confer with him, officers continued to interrogate Roy, any incriminating statement thus elicited cannot be received in evidence against him."
In the present case, the defendant was not placed under arrest until after he confessed orally to his participation in the offense of which he has been convicted. He came to the police station voluntarily in response to a request from the police officer, which request was relayed to him by his mother. After he stated a desire for counsel, the officer stopped interrogating him with reference to his activities and his connection with the offense under investigation, inquiring only as to which attorney the defendant desired to consult, offering assistance in getting the attorney of the defendant's choice to come to the station. Without anything further, the defendant informed the officer that he had changed his mind and wanted to confer with his parents instead of an attorney. Nothing in the record indicates any further interrogation by the officer or statement by the defendant until after the arrival of his parents and his conference with them. Both parents were present throughout the remaining interrogation.
Under these circumstances, we find nothing in Miranda v. Arizona, supra, State v. Fox, supra, or in G.S. § 7A, Art. 36, which precludes the police officer from relying upon the previously written waiver of counsel, resuming the interrogation and taking the defendant's statement voluntarily made. Insofar as any right to counsel is conferred upon an indigent person by G.S. § 7A, Art. 36, in addition to his constitutional right, it is to be observed that G.S. § 7A-451(b) provides that such right "begins * * * after the indigent is taken *288 into custody or service is made upon him of the charge, petition, notice or other initiating process." (Emphasis added.)
The undisputed evidence on the voir dire examination fully supports the findings by the trial court to the effect that the defendant voluntarily went to the police station, waived in writing his right to counsel and his right to remain silent, voluntarily, with full understanding of his rights and while not under arrest, made, in the presence of his parents, the oral confession, which was subsequently reduced to writing, and voluntarily signed the written statement of it. Under these circumstances, there was no error in the admission in evidence of either the written confession or the written waiver. The defendant's Assignments of Error 2, 4, 9 and 10 are overruled.
Without objection, Officer Benbow testified that while the defendant was not under arrest he agreed to take a polygraph test. Thereupon, the defendant objected "to any reference to the polygraph test." (Emphasis added.) The court overruled this objection. Thereupon, the solicitor asked the witness if a polygraph test was administered and the witness replied affirmatively. The defendant interposed an objection after the answer was given. The well settled general rule is that objections, interposed after the witness has testified, come too late to form the basis for the award of a new trial. Stansbury, North Carolina Evidence, 2d Ed., § 27; Strong, North Carolina Index, 2d Ed, Trial, § 15. There was no evidence, before the jury, as to the nature of the test, the questions propounded, the answers given, or the result of the test. Upon the voir dire examination of Officer Benbow, in the absence of the jury, and at no other stage of the trial, it was developed upon cross examination that after the test was given, the defendant was informed that the test showed that he was not telling the truth about the matter. The voir dire examination makes it abundantly clear that the defendant consented to take the test after he signed the written waiver of counsel and of his right to remain silent. There is no merit in this assignment of error.
The defendant further contends that the in-court identification of the defendant by the girl's escort was tainted by this witness having previously observed the defendant walking in the hallway of the police station in the presence of a police officer, at which time the defendant was without counsel. The record clearly indicates that this observation of the defendant by the witness occurred on the day of the defendant's interrogation by the police officers above discussed, that the witness was then at the police station in response to an invitation from the police and that his observation of the defendant occurred after the defendant had waived counsel and prior to his arrest. It does not appear that the defendant was then aware that he was being observed, or was to be observed, by a potential witness against him or that he consented to such observation. There was no lineup and there is no indication that any other Negro male was in the hallway at the time. At trial, the witness testified that on the occasion of this observation of the defendant, he informed the officers that the defendant resembled one of the participants in the offense "very much" and the witness "would like to study him some more."
The State offered no evidence of this out-of-court observation of the defendant by the witness. All of the foregoing facts concerning it were developed by the defendant on cross examination of this witness. He did not request a voir dire examination in the absence of the jury with reference to this matter. The defendant, having introduced the evidence through cross examination, cannot and does not assign its admission as error. His contention is that these facts, so developed by him, made the in-court identification by this witness incompetent and, consequently, the court erred in overruling his motion to strike the testimony concerning such in-court identification. *289 He relies upon United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178. These cases do not support his contention.
In the Wade case, supra, the Supreme Court of the United States said:
"Where, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. * * *
"We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441, 455, `"[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt, 221 (1959).' * * * Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. * * *
"On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. * * * We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the incourt identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, and for the District Court to reinstate the conviction or order a new trial, as may be proper."
It is abundantly clear, upon this record, that this witness had ample opportunity to observe this defendant on a clear moonlight night when the defendant twice stepped immediately in front of him and blocked his passage and then twice forcibly separated the witness from the girl he was escorting, during which time he talked to the witness and demanded that the witness give him and his companions a ride to the airport. The witness' in-court identification of this defendant was positive. Obviously, it had an origin independent of and prior to his observation of the defendant at the police station.
The defendant does not question the competency of the positive, unequivocal, in-court identification of the defendant by the girl, who testified that the defendant sat upon her chest, strangling her with one hand and beating her with the other while his companion was attempting to rape her.
The defendant's Assignments of Error 3, 6 and 7, relating to the in-court identification of the defendant by the girl's escort, are without merit.
No error.