State v. Johnson , 28 N.C. App. 265 ( 1976 )

BRITT, Judge.

By his first assignment of error, defendant contends the trial court erred in admitting into evidence statements made by defendant while in custody. We find no merit in the assignment.

Defendant argues that the evidence was inadmissible for the reasons that he was not properly advised of his right to counsel prior to being questioned, his statements were triggered by the use of illegally obtained evidence, and he was intoxicated at the time he allegedly made the statements.

Before admitting the evidence, the court conducted a voir dire in the absence of the jury. The detective who questioned defendant testified that before asking defendant any questions he advised him of his Miranda rights by reading from two cards or documents. From one of the documents, defendant was informed, among other things, that the police had no way of providing him with a lawyer, but if he wanted a lawyer, one would be appointed if and when he went to court. From the other document, he was informed that if he could not afford to employ a lawyer and wanted one, one would be appointed to represent him before questioning. The detective testified that after each document was read to defendant, he stated that he understood his rights and would answer questions without an attorney. Testimony was also presented with respect to defendant’s state of intoxication and that he was informed that a pistol had been found under his mattress. Defendant did not testify on voir dire.

Following the voir dire, the court found, among other things, that after each document was read to defendant, he stated he understood his rights and was willing to answer questions without a lawyer being present; that although defendant was under the influence of intoxicants at the time he was questioned, he was not drunk. The court concluded, among other things, that the circumstances surrounding defendant’s detention at the time he was questioned and prior to his arrest were neither oppressive nor coercive; that although defendant at the time of questioning was under the influence of intoxicants, had he sufficient control of his mental faculties to understand his circumstances and his rights “to silence and to representation by counsel”; that the statements made by defendant to police were freely, understandingly, and voluntarily made, therefore, were admissible in evidence.

On the question of defendant’s having been properly advised of his rights, defendant relies on State v. Robbins, 4 N.C. App. 463, 167 S.E. 2d 16 (1969). The State relies on State v. Wright, 274 N.C. 84, 161 S.E. 2d 581 (1968). See also, Wright v. North Carolina, 483 F. 2d 405 (4th Cir. 1973). If there is a conflict between Robbins and Wright, obviously Wright is the controlling authority. However, we think the instant case is distinguishable from Robbins. In this case, not only did the detective read to defendant the statement of rights which we said in Robbins, was inadequate, he also read the statement which has been approved in many previous decisions. The evidence discloses, and the court found as a fact, that after each statement was read to defendant, he said he understood his rights and was willing to answer questions without a lawyer being present.

We find unconvincing defendant’s argument that his incriminating statements were inadmissible for the reason that they were triggered by police telling him that a pistol had been found under his mattress. As to the extent of defendant’s intoxication at the time he made the statements, this presented a question for the trial judge to determine and his findings and conclusions are supported by competent testimony.

The findings of fact by the trial judge following a voir dire as to the voluntariness of a confession or admission are conclusive if the findings are supported by competent evidence in the record, and the reviewing court may not set aside or modify the findings if they are supported by competent evidence. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), cert. denied, 386 U.S. 911, 17 L.Ed. 2d 784, 87 S.Ct. 860 (1967).

Defendant assigns as error the court’s instructions to the jury that if the evidence proved beyond a reasonable doubt that defendant intentionally inflicted a wound on Nesbitt with a deadly weapon that proximately caused his death, the law raises presumptions that the killing was unlawful and was done with malice. Defendant argues that while the instructions were consistent with well settled case law in this State, they were invalidated by Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508, 95 S.Ct. 1881 (1975).

The assignment has no merit. Our State Supreme Court in State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975), held that Mullaney does not apply to the presumption of malice created when the State proves beyond a reasonable doubt that the accused intentionally inflicted a wound with a deadly weapon proximately causing death.

Defendant assigns as error the court’s instructions to the jury which had the effect of placing on defendant the burden of showing (1) absence of malice or heat of passion on sudden provocation that would reduce the offense to manslaughter, or (2) that would entitle him to a verdict of not guilty on the ground of self-defense. Defendant argues that while these instructions were consistent with North Carolina case law, they were invalidated by Mullaney, supra. The question raised by this assignment was answered by our State Supreme Court in State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575, (1975). The court held that while the instructions are invalidated, Mullaney will not be given retroactive effect in North Carolina and will apply only to trials conducted on or after 9 June 1975. The case at bar was tried in March of 1975.

We have considered all of the assignments of error brought forward and argued in defendant’s brief but find all of them without merit.

No error.

Judges Vaughn and Arnold concur.