State v. Head , 28 N.C. App. 189 ( 1975 )

ARNOLD, Judge.

In his first assignment of error defendant challenges the admissibility of the testimony of Officer Pressley concerning statements made to him by defendant. Defendant contends that the court’s findings of fact are not supported by the evidence in that there was no testimony that he expressly waived counsel.

In State v. Blackmon, 284 N.C. 1, 9, 199 S.E. 2d 431 (1973), Huskins, J., speaking for the court, said:

“Consequently, it is established that defendant was fully advised and understood that he had the right to remain silent; that anything he said could and would be used against him in a court of law; that he had the right to have a lawyer present during interrogation and to confer with counsel before any questioning if he so desired; that if he could not hire his own attorney the State would appoint and pay a lawyer to represent him; and that if he chose to answer questions or make a statement he could stop talking at any time. The findings further establish that defendant never requested the presence of counsel but never said he did not want a lawyer. Finally, the findings establish that his later statement was not coerced but was freely and voluntarily made. These facts, however, are not sufficient to constitute a waiver of counsel. There is neither evidence nor findings of fact to show that defendant expressly waived his right to counsel, either in writing or orally, within the meaning of Miranda on which our decision in State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971), is based.”

We cannot distinguish Blackmon, supra, from this case where it is undisputed that defendant was fully advised of his constitutional rights and that he understood these rights. However, there is no evidence or finding of fact to support a conclusion that defendant expressly waived his right to counsel. The defendant did not orally, or in writing, expressly state that he waived his right to counsel. See State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971) ; State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972) ; State v. Harris, 27 N.C. App. 412, 219 S.E. 2d 266 (1975).

In view of the fact that our Supreme Court has held that there is no waiver of counsel in factual situations similar to this case, defendant is entitled to a new trial. We find it unnecessary to discuss defendant’s remaining assignments of error.

New trial.

Judges Morris and Hedrick concur.