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State v. Peterson7/31/1996
2. A voir dire was held on the defendant's motion out of the presence of the jury.
Richard G. Miller, an attorney practicing in New Hanover County, testified that in September 1992 he was appointed to represent the defendant, who was in jail on a charge of rape, which was not related to the charge in this case. He testified that the standard procedure he follows in all serious cases, and he was sure he did it in this case, was to advise the defendant not to speak to anyone unless he, Mr. Miller, was present. He also informed the jailer not to let the defendant be interviewed by anyone unless the attorney was informed prior to the interview.
Officers of the City of Wilmington Police Department testified that they interviewed the defendant on the rape charge on 21 September 1992 and that he did not request an attorney at this time. They interviewed him again on 4 November 1992 in regard to the murder involved in this case. They testified that they fully advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and that he waived them. The officers testified that the defendant made an inculpatory statement and then requested an attorney. They ceased the interview at that time.
The defendant testified that he asked for an attorney and his mother at the 21 September 1992 interview. He testified that at the interrogation on 4 November 1992, he told the officers he did not want to talk to them. They said that if he did not talk to them, his mother would be charged with a crime. At that time, he made a statement. Although the trial court concluded that the defendant voluntarily, knowingly, and intelligently waived his rights, the court failed to make any findings of fact concerning whether the defendant had invoked his Fifth Amendment rights at the 21 September 1992 interrogation and whether any subsequent waiver was voluntary. If the defendant had invoked his right to counsel, the detectives would not have been permitted to reinitiate conversation with him about the rape or any other crime without his attorney present. Arizona v. Roberson, 486 U.S. 675, 683-84, 100 L. Ed. 2d 704, 715, 108 S. Ct. 2093 (1988); State v. Pope, 333 N.C. 106, 112, 423 S.E.2d 740, 743-44 (1992). Because we cannot say that admission of the statements was harmless beyond a reasonable doubt, we remand to the trial court for findings of fact that would resolve the conflict in the evidence regarding whether the defendant invoked his rights at the earlier interrogation. See State v. Booker, 306 N.C. 302, 312-13, 293 S.E.2d 78, 84 (1982).
The defendant also says that his Fifth Amendment right to counsel was invoked when his attorney, Mr. Miller, demanded that he be present during any interrogation of the defendant and that the court did not make findings of fact sufficient to resolve this issue. We have held that a defendant's right to counsel is personal to him. He may waive this right although his attorney has instructed the investigating officers not to talk to him. State v. Reese, 319 N.C. 110, 135, 353 S.E.2d 352, 366 (1987). Even if the court had found as a fact that Mr. Miller had advised the officers not to talk to the defendant, it would not have made his statement inadmissible in light of the court's findings that supported the Conclusion that the defendant's waiver of his rights was voluntarily, knowingly, and intelligently made. The defendant could waive his rights in spite of his attorney's advice to the contrary. No finding of fact on this feature of the case was necessary. See Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986).
NO ERROR IN PART; REMANDED IN PART.
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