Defendant was tried upon a bill of indictment charging him with the armed robbery of Mrs. Jean Prince, manager of the Zip Mart located at 653 Castle Hayne Road in New Hanover County.
The State's evidence tends to show that a black male, later identified as Joseph Bethea, entered the Zip Mart at 653 Castle Hayne Road about 2 p.m. on 30 June 1977, approached the manager Jean Prince and demanded money. The robber was wearing a stocking over his face and a paper bag over his hand. The manager gave him in excess of $100 cash and he fled the scene.
Mrs. Betty Herman lived one-fourth mile from the Zip Mart. At approximately 2 p.m. she saw a blue two-door Ford pull into her front yard with two black men in it who said they were out of gas. Mrs. Herman obtained a can and walked with the driver to the gas station across the road where he purchased gas and returned to the car. Upon their return, the second man in the car had left on foot and was walking down the street. The driver poured the gas in his tank, got in his car and drove away.
The New Hanover County Sheriff's Department received a call that a robbery had occurred at the Zip Mart at 2:15 p.m., and Deputy Sheriff Guy arrived on the scene at 2:20 p.m. Mrs. Prince told him about the robbery and furnished a description of the robber. Within a few minutes Officer Guy received a call by radio from his supervisor demanding immediate back-up at the 7-Eleven Store about one block south of the Zip Mart. He drove to the 7-Eleven Store immediately and observed a black male walking from the front door and getting into a two-door late model blue Ford Torino. There was no one else in the car. The man who entered the car was defendant Willie Steptoe. He was arrested and Detective Causey took him to the sheriff's office in Wilmington.
Approximately two hours later Detective Causey gave defendant the Miranda warnings, interrogated him, and obtained the following incriminating statement:
At a pretrial voir dire hearing on defendant's motion to suppress his incriminating statement, Detective S. A. Causey was the only witness examined. He testified in pertinent part as follows:
Based on Officer Causey's testimony the trial court found as a fact that Officer Causey interviewed defendant on 30 June 1977 and fully advised him "of his right to remain silent, of his right to have an attorney, and of his right to have the State provide an attorney for him if he could not afford one. That the defendant first told Mr. Causey that he would not waive his right to an attorney. That Mr. Causey then stated to the defendant that the court would have to provide an attorney for him and that he could not, that is, Mr. Causey could not do it. Mr. Causey then asked the defendant to talk to him, and the defendant said, `all right. I'll give you a statement.' That the defendant fully understood his rights, that he knowingly, understandingly and voluntarily waived his right to remain silent and waived his right to have an attorney present at any questioning. The statement that he made to Sid Causey at that time is admissible in evidence. The defendant's motion to suppress is overruled."
Officer Causey was permitted, over objection, to relate defendant's incriminating statement to the jury.
Defendant did not testify and offered no evidence. The jury returned a verdict of guilty as charged, and defendant was sentenced to prison for thirty years. On appeal, the Court of Appeals found no error, and defendant appealed to this Court on constitutional grounds discussed in the opinion.
HUSKINS, Justice.
Defendant challenges the competency of his incriminating statement on the ground that it was obtained in violation of his constitutional rights delineated in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966). We first examine the governing principles enunciated in that case.
[ 1-3] As a constitutional prerequisite to the admissibility of statements obtained from an accused during custodial interrogation, Miranda requires that the suspect be advised in unequivocal terms (1) that he has a right to remain silent; (2) that anything he says can and will be used against him in court; (3) that he has a right to consult with a lawyer and to have a lawyer present during interrogation; and (4) that if he is indigent and unable to employ a lawyer, counsel will be appointed to represent him. After having been so advised, an accused may waive the privilege against self-incrimination these warnings are designed to protect provided the waiver is made voluntarily, knowingly, and intelligently. ". . . [A]ny evidence that the accused was threatened tricked, or cajoled into a waiver, will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation." Miranda v. Arizona, supra. If the accused indicates in any manner and at any stage of the interrogation process that he wishes to consult with an attorney before speaking, there can be no questioning.
The admission of an incriminating statement is rendered incompetent by any circumstance indicating coercion of involuntary action. State v. Guffey, 261 N.C. 322, 134 S.E.2d 619 (1964). The totality of circumstances under which the statement is made should be considered when passing on admissibility. State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620 (1965). See State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968).
Measured by Miranda standards we hold that the findings of fact are not supported by the voir dire testimony of Officer Causey. Rather, the officer's testimony, when fairly considered in light of Miranda requirements, shows that defendant (1) wanted a lawyer; (2) did not know a lawyer to call and wanted the court to appoint one; (3) refused to sign what Officer Causey had written down; (4) was told that appointment of counsel was done through the court, that neither Officer Causey nor the Sheriff's Department could appoint him a lawyer, that he would be brought before a judge and if the judge saw fit to appoint him a lawyer he would be assigned one. Defendant was then asked whether he would talk to Officer Causey without a lawyer. Defendant replied that he would, and Officer Causey continued to question him.
The foregoing scenario woefully fails to demonstrate the use of "procedural safeguards effective to secure the privilege against self-incrimination" as mandated by Miranda. Instead, it tends to show that Officer Causey, in obvious contradiction to the warnings previously read to defendant from the "standard rights form," discouraged the appointment of counsel by telling defendant he would be brought before a judge and "if the judge saw fit to appoint him a lawyer that is where his lawyer would come from." Only after this statement did defendant agree to talk without benefit of counsel. Essentially, the officer advised defendant of his rights and then quite effectively blocked their assertion by emphasizing the difficulties involved in obtaining them. Thus the officer's testimony on voir dire is insufficient to support the finding that defendant was fully informed of his rights and knowingly, understandingly and voluntarily waived his right to counsel. The holding in Miranda, as interpreted and applied by this Court in numerous decisions, provides that waiver of the right to counsel during custodial interrogation will not be recognized unless the accused has been fully informed of his constitutional rights and the right to counsel has been voluntarily, knowingly and intelligently waived. See, e.g., State v. Connley, 295 N.C. 327, 245 S.E.2d 663 (1978), petition for cert. filed, 47 U.S.L.W. 3351 (U.S. Oct. 6, 1978) (No. 78-583); State v. Butler, 295 N.C. 250, 244 S.E.2d 410, cert. granted, 99 S.Ct. 720 (1978); State v. Siler, 292 N.C. 543, 234 S.E.2d 733 (1977); State v. Biggs, 289 N.C. 522, 223 S.E.2d 371 (1976); State v. White, 288 N.C. 44, 215 S.E.2d 557 (1975); State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971). 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." Miranda v. Arizona, supra.
Since the evidence offered on voir dire in this case is insufficient to support the crucial findings, it necessarily follows that defendant's incriminating statement to Officer Causey was erroneously admitted. This entitles defendant to a new trial because we cannot say that there was no reasonable possibility that the evidence complained of contributed to defendant's conviction so as to render its admission harmless. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967); State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).
Cases cited and relied on by the Court of Appeals are factually distinguishable. In State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976), defendant stated he would not answer further questions and wanted to consult a lawyer which request was scrupulously honored. Thereafter, defendant reflected upon the incredibility of his original story in light of the evidence against him, decided to change his statement to the officers to make it more plausible, and invited them to listen while he related his revised version. This statement was held to be competent and rightly so.
In State v. Jones, 278 N.C. 88, 178 S.E.2d 820 (1971), defendant stated when arrested that "he would rather not talk about it right now." Nothing indicates that the officers attempted to question him further at that time. Thereafter defendant, after having been fully advised of his constitutional rights, not only freely consented but invited the police officer to resume talks with him. His statement was held to be competent and rightly so.
In State v. Bishop, et al., 272 N.C. 283, 158 S.E.2d 511 (1968), the evidence on voir dire was to the effect that defendants were informed of their rights prior to interrogation on their first day in custody but made no statements at that time. One defendant expressly declined to talk until he consulted a lawyer. On the following day, after again being informed of their rights, defendants made inculpatory statements to the police. Held: The fact that defendants declined to make any statements in their first interrogation did not render incompetent any subsequent statements made to police officers, it affirmatively appearing that defendants were adequately advised of their constitutional rights at each interrogation and that their statements were in fact freely and understandingly made.
Michigan v. Mosley, 423 U.S. 96, 46 L.Ed.2d 313, 96 S.Ct. 321 (1975), holds that the decision in Miranda establishes standards to protect the constitutional privilege against compulsory self-incrimination during police interrogation but does not establish a requirement that once a person has indicated a desire to remain silent, questioning may be resumed only when counsel is present. Mosley recognizes that the Miranda rule does not bar a subsequent statement by a defendant who, after having been fully advised of his constitutional rights, freely and voluntarily waives his right to remain silent and his right to counsel and invites the officer to resume talks with him.
For reasons stated, defendant's motion to suppress his incriminating statement should have been allowed. The decision of the Court of Appeals is therefore reversed and defendant is awarded a
New trial.