Dеfendánt Connley was indicted under N.C. Gen. Stat. § 15-144 (1978) for the murder of Garland W. Fisher, a Virginia State patrolman, at a roadblock on Interstate Highway No. 85 on 15 November 1976. At the 14 March 1977 special criminal session of GRANVILLE the jury returned á verdict of guilty of first degree murder, and dеfendant was sentenced to life imprisonment.
Upon defendant’s appeal to this Court we ordered a new trial on the ground that defendant’s incriminating statements, made during his in-custody interrogation on the night of the homicide, were improperly admitted in evidence because he had not
specifically
waived his right to have counsel present.
State v. Connley,
This "Court’s ruling in
Connley
was based upon our interpretation of the. following pronouncement which Chief Justice Warren-made-in the majority opinion in
Miranda v. Arizona,
We interpreted’ the foregoing statement as requiring аn express waiver of counsel prior to police interrogation and thereafter ordered a new trial in any case in which the State, without having first shown defendant’s clear-cut waiver of counsel, was permittéd to introduce in evidence the defendant’s incriminating statements made during an in-custody interrogation.
1
State v. Butler,
and the instant case were among those in which we granted new trials.
State v. Butler,
The Supreme Court said in Butler that we had erred in our reading of the Miranda opinion and that “the Court did not hold that such an express statement is indispensable tо a finding of waiver [of counsel].” In further explanation, Mr. Justice Stewart, speaking for the majority, said:
“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights dilineated in the
Miranda
case. As was unequivocally said in
Miranda,
mere silence is not enough. That does not mean that the defendant’s silеnce, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is greаt; but in at least some cases waiver can be clearly inferred from the actions and words of the persons interrogated.”
North Carolina v. Butler,
441 U.S. - - -, - - -,
As directed, we now proceed to reconsider Connley’s case in light of the preceding pronouncement and to determine de novo whether defendant’s actions and words preceding and during his interrogation clearly implied a waiver of his right to counsel and to remain silent.
At the trial Victor Holdren, Special Agent of the Federal Bureau оf Investigation, testified as follows:
“I had occasion to talk with Ruben Sonny Connley at approximately 4:00 and 5:00 a.m. on November 15, 1976, in the emergency room at Duke Medical Center in Durham. I asked him if he would talk to me and he said he would. I furnished him an Advice of Rights form. He held up his right hand, which was bandaged; *587 so I held the form for him and gave him time to read the statement. Thereafter I read it to him and asked him if he understood what his rights were under the constitution and he stated to me, T know what it says and I understand, but I’m not going to sign it."
At that рoint in Holdren’s testimony defendant objected to the admission in evidence of his statements to the FBI agent, and the judge conducted a voir dire to determine their admissibility. In pertinent part, Agent Holdren’s additional testimony is summarized or quoted below. Dеfendant offered no evidence on voir dire.
Before attempting to talk with Connley, Holdren had consulted Dr. W. R. Belts, one of defendant’s attending physicians, to determine whether defendant would be able to talk to him. Holdren testified, “He [Dr. Belts] said thаt Connley was in a stable condition; that he had received no medication to sedate him at all, and that he was alert and entirely capable of talking to me about this. I observed that Mr. Connley was alert and responded to the questions in a normal, rational way.
. . The defendant appeared to be coherent. At times he would close his eyes, but would continue to respond to the questions.. . . [0]n a few occasions during the interview when I asked him a question he would not say anything. I did nоt offer him any threat or promises or hope of reward of any type. I did not attempt to coerce him to give me any statement.
“. . . He appeared to be alert because he responded to the questions I asked him. I was with him 18 minutes. I based my opinion as to whether he was alert on what the doctor had said to me outside and the fact that he responded.”
After having stated that he understood his constitutional rights but that he would not sign the “Advice of Rights” form, defendant proceеded, forthwith, to tell his story in appropriate answers to Holdren’s questions. The narrative began with his departure from Atlanta, Georgia, on 14 November 1976 for Baltimore, Maryland, and continued through his activities during his stay in Baltimore and his encounter with Virginia Statе Trooper Fisher as he was driving back to Atlanta. Defendant told how he kidnapped Trooper Fisher and commandeered his patrol *588 car, and he recounted some-of their' conversation up to theytime they arrived at the rоadblock in North Carolina. At that point', Holdren testifiéd, “He [Connley.] said he would" like, to talk with his mouthpiece, and I took that to mean his attorriéy and w.e-terminated the interview.”
The trial judge found ■ the. facts' to be in accordance, with Holdren’s testimony. Bаsed upon that testimony he found and- concluded, inter alia:
“[T]hat while the defendant, did not specifically make “the affirmative statement . . . that he did not desire to have an attorney present, he nevertheless fully was advised of his rights tó have an-attorney present and knew and understood his right to have-an attorney present before he answered any questions put to him by Officer Holdren. And the .Court finds as a fact from the totality, of" these surrounding circumstances that he did in fact waive, his-right to an attorney and his other constitutional rights as explained by Officer Holdren.
“. . . [T]hat defendant did knowingly, understandingly, voluntarily and without threat, promises, coercion of any kind,-willingly, intelligently and intentionally answer questions asked him by. Officer Holdren, and that the statement . . . the defendant [made] to Officer Holdren was knowingly [and] voluntarily . . . made with-a full understanding of his . . . constitutional rights . . . and- that the statements made by defendant to the officer should ... be admitted in evidence against him.” -
In light of
North Carolina v. Butler,
supra, we now hold that the trial judge’s conclusion that Connley “did in fact waive, his right to an attorney and his other constitutional rights”' is fully supported by the evidence. Although Connley did not expressly waive his rights, “waiver can clearly be inferred.from jhis]-actions and words.” Equally applicable to defendant Connley .is thе statement which Mr. Justice Stewart made with reference to defendant Butler: “There is no doubt that this respondent was adequately and effectively apprised of his rights.” 441 U.S. - - -, at
We therefore reverse our holding that’ defendant’s statements to Agent Holdren were erroneously admitted and that defendant is entitled to a new trial because of the admission of these statements.
On defendant’s appeal to this Court his assignment of error No. 2 asserted that the trial judge erred in admitting, over his objection, Special Agent Holdren’s statement on voir dire that Dr. Belts, had “said that Connley was in a stable condition; that he had received no medication to sedate him at all, аnd that he was alert and entirely capable of talking to [Holdren] about this.” •
As we pointed out in our opinion
2
, the admission of this hearsay testimony from Agent Holdren was clearly error. However, because we were ordering a new trial on account of the admission of Cоnnley’s in-custody statements we said, “[W]e need not determine whether the court’s findings as to what Dr. Belts told Holdren with reference to defendant’s condition constituted prejudicial error.
See State v. Patterson,
Since we now hold, in the light of North Carolina v. Butler, supra, that defendant validly waived his Miranda rights, it becomes necessary to determine whether thе error committed by the trial judge in admitting Special Agent Holdren’s testimony constitutes prejudicial error requiring a new trial.
The rules governing appellate review of a voir dire conducted to determine the voluntariness of a confessiоn were well summarized by Justice Branch in
State v. Bishop,
“When a confession of a defendant is offered into evidence, and the defendant objects, the trial judge should then excuse the
*590
jury and in the absence of the jury hear the evidence of both the Statе and defendant upon the question of whether defendant, if he made an admission or confession, voluntarily and understandingly made the admission or confession.
State v. Rogers, supra; State v. Gray, supra; State v. Conyers, 261
N.C. 618,
“The general rule is that after suсh inquiry the trial judge shall make findings of fact to show the basis of his ruling on the admissibility of the evidence offered, and that the facts so found are conclusive on the appellate courts when supported by competent evidence. Nevertheless, the conclusions of law drawn from the facts found are not binding on the appellate courts.
State v. Hines,
Clearly, the trial court’s legal conclusion that defendant’s statements were voluntarily made cannot be upheld on the basis of his factual finding concerning the doctor’s appraisal of defendant’s condition since that finding was based on incompetent hearsay. The general rule, however, is that “[i]n a trial before the court without a jury if there is sufficient competent evidence supporting the judgment or finding, the admission of incompetent evidence does not constitute reversible error.”
Bizzell v. Bizzell,
In addition to his findings of fact concerning the doctor’s comments, the trial judge also determined as a fact: “That the statement made to Officer Holdren was made in respоnse to questions asked, and that the responses were in keeping with the questions asked and. [that] although the defendant from time to time refused to respond, nevertheless, the responses given were appropriate.
*591 “That at no time in thе officer’s presence has anyone threatened the defendant in any way, promised- him anything or held out any hope of reward, and that the defendant was not in any manner coerced.
“That he appeared to the officer to be alert.”
These findings of fact are amply supportеd by competent evidence, which included defendant’s statement that he knew what the Advice of Rights form said and understood it. The judge’s findings are uncontrad'icted by any other evidence in the record and they fully justify his conclusion that defendant’s statements were knowingly, under standingly, and voluntarily made. We therefore overrule defendant’s assignment of error No. 2.
Having previously adjudged defendant’s remaining assignments of error to be without merit, we now find no error in defendant’s trial before Thornburg, J., at the 14 March 1977 special criminal session of Granville, and reverse, our order vacating the verdiet and judgment rendered therein. Our former decision, as reported in
Former opinion modified; case reminded.