Appeal by defendant from Rousseau, Judge. Judgment entered 18 March 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 10 November 1981.
Vaughn, Judge. Judges Hill and Whichard concur.
At the outset, we overrule defendant's exception to the denial of his motion for nonsuit based on insufficient evidence to support a charge of felony larceny. There was evidence from which a jury could reasonably infer defendant had stolen manhole covers valued in excess of $400.00.
Defendant also argues the court committed reversible error by its inadequate findings on voir dire. Defendant argues that conflicting evidence was presented on voir dire as to whether he
requested an attorney during the interrogation prior to his confession. The judge made no finding addressing the conflicting evidence. Defendant contends that the absence of such a finding nullifies any conclusion by the court that his statement was freely, voluntarily, and understandingly given. We agree.
When the admissibility of an in-custody confession is contested, the court must conduct a voir dire to determine whether the procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have been met. State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977); State v. Waddell, 34 N.C. App. 188, 237 S.E.2d 558 (1977). At the conclusion of the voir dire, the judge should make findings of fact to indicate the bases of his ruling. If there is conflicting evidence, however, to a material fact, the judge must make specific findings in order to resolve the conflict. State v. Siler, 292 N.C. 543, 548-49, 234 S.E.2d 733, 737 (1977).
Whether defendant requested an attorney before giving his statement is unquestionably a material fact under Miranda : if defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. In the present cause, there was conflicting evidence to that issue. The court, however, failed to include any finding of fact as to whether defendant made such a request.
This case is very similar to the situation in State v. Waddell, 34 N.C. App. 188, 237 S.E.2d 558 (1977). The defendant in that action had also signed a waiver of rights form. There was conflicting evidence, however, as to whether after signing the waiver, he had requested an attorney before making his statement. As in the present case, the court found that defendant had been advised of his rights, that he had understood his rights and had signed a waiver form, and that the written waiver of rights stated defendant did not want an attorney and agreed to make a statement. The court's finding, however, omitted any reference as to whether defendant had requested an attorney before making his confession. Emphasizing that the existence or nonexistence of a request was a material consideration, this Court held the failure of the judge to make a finding as to whether defendant requested counsel during interrogation was error entitling defendant to a new trial.
In the present cause, the State argues that the court sufficiently addressed the conflicting evidence by its finding that "the waiver of rights was read to the defendant and in the waiver of rights, the defendant said he did not want an attorney." It cites State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979), cert. denied. 446 U.S. 941, 100 S. Ct. 2164, 64 L. Ed. 2d 795 (1980), as holding that where a mention of counsel appears in the court's findings, there is no error.
The State is mistaken in its analysis of State v. Reynolds. The Supreme Court held that waiver of counsel, not mention of counsel, is the essential finding which must be made. 298 N.C. at 400, 259 S.E.2d at 855. In Reynolds, the defendant signed a waiver form and then verbally reiterated that he did not want an attorney present. Such evidence supported the court's finding that defendant "freely and voluntarily and understandingly waived his right to have an attorney present . . . and that he freely and voluntarily gave his statement to the interrogating officer." (Emphasis added.)
In this cause, however, the court's finding is that defendant signed a waiver form. Such a finding is not equivalent to the finding that defendant in fact waived his right to an attorney upon request. We point out that defendant testified he signed the waiver form under the belief that he could not receive legal assistance until he was appointed an attorney in court. The Supreme Court in State v. Steptoe, 296 N.C. 711, 717, 252 S.E.2d 707, 711 (1979), held that such discouragement would not support a ...