State v. Morton , 36 N.C. App. 516 ( 1978 )

WEBB, Judge.

The defendant Morton has challenged the court’s findings as to the admissibility of his confessions. We believe this assignment of error has merit. We are faced with the question as to whether if the court makes findings of fact after a voir dire hearing which are not supported by the evidence, this is cured by having another voir dire hearing later in the trial, at which evidence is offered that supports the original findings. We believe that State v. McCloud, 276 N.C. 518, 173 S.E. 2d 753 (1970) stands for the proposition that, if possible, all evidence bearing on the admissibility of a confession should be offered at the voir dire hearing at which the ruling is made.

The evidence adduced at the second voir dire hearing was available to the State and could have been offered at the first hearing. We hold that the findings of fact unsupported by evidence at the first hearing was an error not cured by evidence offered at a second hearing and the admission of evidence as to the defendant Morton’s statement of 2 December 1976 without findings of fact to support it constitutes error requiring a new trial.

The defendant Morton contends there was not sufficient evidence to support the admission of his statements to Mr. Royster. Since this question could arise in a new trial, we shall discuss it.

Mr. Royster testified at the second voir dire hearing that when he questioned defendant Morton on 2 December 1976, defendant Morton first said he did not want an attorney and then began answering questions. This brings forward the question of whether the defendant consciously waived his right to remain silent. State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971) holds that the answering of questions by the defendant during an interrogation does not of itself constitute the waiver of the right to remain silent. In this case we hold that the defendant’s answering of questions during the interrogation of 2 December 1976, coupled with his statement at the 29 November 1976 interrogation, “Well, I’ll tell you” and his statement on 2 December 1976 that he did not want an attorney, is sufficient evidence for the judge conducting the voir dire hearing to conclude that the defendant knowingly and understandingly waived his right to counsel and his right to remain silent on 2 December 1976. For other cases on this subject, see State v. Turner, 281 N.C. 118, 187 S.E. 2d 750 (1972); State v. Thompson, 287 N.C. 303, 214 S.E. 2d 742 (1975); State v. Bock, 288 N.C. 145, 217 S.E. 2d 513 (1975); State v. Lightsey, 6 N.C. App. 745, 171 S.E. 2d 27 (1969); State v. Smith, 26 N.C. App. 283, 215 S.E. 2d 830 (1975); State v. Fuller, 27 N.C. App. 249, 218 S.E. 2d 515 (1975), and State v. Harris, 27 N.C. App. 412, 219 S.E. 2d 266 (1975).

Defendant Morton contends that he could not have made a valid confession on 29 November 1976 for the following reasons, among others: He was a minor; when Mr. Royster explained the defendant’s rights to him, Mr. Royster said, “those . . . may be written a little bit different on paper, but it’s the same thing”; Mr. Royster refused to tell the defendant how much time he could get; three of the defendant’s friends were in the room with him who were crying and telling the defendant to tell the truth, and Mr. Royster did not call the defendant’s parents or his grandfather, with whom he was living. For cases dealing with these questions raised by the defendant, see State v. Hill, 276 N.C. 1, 170 S.E. 2d 885 (1969); State v. Dawson, 278 N.C. 351, 180 S.E. 2d 140 (1971); State v. Justice, 3 N.C. App. 363, 165 S.E. 2d 47 (1968). We do not believe these factors relied on by the defendant taken singly or together vitiate the results of either interrogation.

The defendant was seventeen years of age at the time of the interrogations and had completed the eighth grade. He should have had the intelligence to understand his rights as explained to him by Mr. Royster. We see nothing wrong with Mr. Royster’s statement, “those . . . may be written a little bit different on the paper, but it’s the same thing.” We believe that according to Mr. Royster’s testimony, he gave the defendant a very good verbal explanation of his rights and his statement as to its being the “same thing” was only telling the defendant the truth. It was not Mr. Royster’s province to tell the defendant how much time he would receive. In view of the stringent requirements the courts have placed on officers not to offer any threat or hope of reward at the time of interrogation, we can understand why Mr. Royster was careful not to tell the defendant what his sentence might be. We concede it may be more likely that the defendant would have waived his rights if he had his good friends in the room with him asking him to tell the truth. The question is whether the defendant waived his rights knowingly, voluntarily and understandingly without coercion or hope of reward. We do not believe the advice of friends “to tell the truth” would be a threat or a promise sufficient to vitiate the confession of the defendant in this case.

We hold there was sufficient evidence at the two voir dire hearings that the court could find that the statements of the defendant on 29 November 1976 and 2 December 1976 were made freely, voluntarily and understandingly.

The defendant has also raised a question as to the validity of the bill of indictment. Since we have ordered a new trial on other grounds, we do not pass on this question. Suffice it to say the district attorney might be well advised to seek a new bill of indictment which would comport with the objection made to the present bill.

Reversed and remanded.

Judges Britt and Hedrick concur.