State v. Steptoe

*716 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. 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 *717 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, under standingly 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 *718 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 *719 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.