State v. Silver
213 S.E.2d 247
N.C.
1975
Check Treatment
BRANCH, Justice.

The principal question presented by this appeal is whether the trial judge erred in admitting into evidence defendant’s custodial confession.

This record clearly discloses that the trial judge based his conclusions of law upon facts found on the basis of evidence related solely to events which took place on 22 December 1973. If we were restricted to consideration of evidence elicited solely on voir dire, the trial judge’s findings would be adequately supported by the evidence and therefore would be binding on this Court. Further, such findings would support the conclusions of law entered by Judge Rouse, and his conclusions of law would, in turn, support his ruling. State v. Barber, 278 N.C. 268, 179 S.E. 2d 404; State v. Fox, 277 N.C. 1, 175 S.E. 2d 561; State v. McRae, 276 N.C. 308, 172 S.E. 2d 37; State v. Barber, 270 N.C. 222, 154 S.E. 2d 104; State v. Childs, 269 N.C. 307, 152 S.E. 2d 453; State v. Hammonds, 229 N.C. 108, 47 S.E. 2d 704; State v. Vann, 82 N.C. 631. However, in determining the admissibility of a confession, we must look to the entire record, *718 not merely to the evidence presented on a voir dire hearing. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed. 2d 895; Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed. 2d 242; State v. McCloud, 276 N.C. 518, 173 S.E. 2d 753. The conflicting holding of this Court in State v. Rogers, 233 N.C. 390, 64 S.E. 2d 572, can no longer be considered authoritative.

It is well settled “that where a confession has been obtained under circumstances rendering it involuntary, a presumption arises which imputes the same prior influence to any subsequent confession, and this presumption must be overcome before the subsequent confession can be received in evidence.” State v. Moore, 210 N.C. 686, 188 S.E. 421. The burden is upon the State to overcome this presumption by clear and convincing evidence. State v. Fox, 274 N.C. 277, 163 S.E. 2d 492; State v. Woodruff, 259 N.C. 333, 130 S.E. 2d 641; State v. Hamer, 240 N.C. 85, 81 S.E. 2d 193; State v. Gibson, 216 N.C. 535, 5 S.E. 2d 717; State v. Drake, 113 N.C. 625, 18 S.E. 166; State v. Drake, 82 N.C. 592; State v. Lowhorne, 66 N.C. 638; State v. Roberts, 12 N.C. 259.

The trial judge’s findings of fact, conclusions of law, and ruling concerning defendant’s confession were made without any consideration of statements made prior to 22 December. In fact, very little appears in the record concerning defendant’s statements to officers on 20 December; nevertheless, a contextual reading of the record points unerringly to the conclusion that defendant made an inculpatory statement on that date. The record reveals that before Sheriff Womble talked to defendant on 20 December, he did not know that he was going to talk with him “about a murder matter” but was “simply trying to find out who made a telephone call.” Although we can glean little concerning either defendant’s statements of 20 December or the circumstances under which they were made, the record does show that after the officers talked with defendant, his alleged accomplice, Ernest Simmons, was arrested on that same day and charged with the murder of Mrs. Mary C. Powell. In this connection, the Sheriff stated: “I didn’t know I wanted Simmons until Silver told me.” According to Sheriff Womble, defendant was not suspected of murdering Mrs. Powell when he was invited to the courthouse; yet, defendant was arrested and charged with her murder after his conversation with the officers on 20 December. Further, according to Sheriff Womble’s voir *719 dire testimony and the testimony of SBI Agent Dowdy before the jury, they took defendant on that same day to the home of Ernest Richardson at Hollister, where they obtained the pistol later identified as being the property of the deceased. At that time Richardson stated that defendant sold the pistol to him on Friday, 14 December, the day after Mrs. Powell’s death. Thus, we are unable to escape the conclusion that defendant made incriminatory statements to the officers while in custody on 20 December.

The general rule is that when the trial judge concludes a voir dire hearing concerning the admissibility of a confession, he should make findings of fact to show the bases of his rulings. State v. Moore, 275 N.C. 141, 166 S.E. 2d 53; State v. Bishop, 272 N.C. 283, 153 S.E. 2d 511; State v. Conyers, 267 N.C. 618, 148 S.E. 2d 569. In State v. Barnes, 264 N.C. 517, 142 S.E. 2d 344, vacated and remanded on other grounds, 375 U.S. 28, 84 S.Ct. 137, 11 L.Ed. 2d 45, this Court considered the requirements of a voir dire hearing as related to admissibility of a confession. There Justice Higgins, for the Court, wrote:

“ . . . Under present procedure it is essential not only that a full investigation be made and the evidence recorded, but the facts must be found which disclose the circumstances and conditions surrounding the making of the incriminating admissions. . . .”

We dealt with a similar question in State v. Williford, 275 N.C. 575, 169 S.E. 2d 851. There the arresting officer testified that he placed defendant, who was wounded and bleeding profusely at the time, under arrest and carried him to the hospital. He further stated that he fully warned defendant of his Miranda rights and subsequently talked with him in the emergency room of the hospital. While he was still in great pain and receiving treatment in the emergency room, defendant made incupa-tory statements in response to the questions of police officers. At the conclusion of the voir dire hearing, the court found that the officers had properly warned defendant of his rights although it made no finding as to defendant’s mental or physical condition and as to the immediate circumstances and conditions surrounding the making of the purported confession. This Court unanimously held that the failure to make such findings was prejudicial error:

"... Clearly the evidence in the case sustains the facts found; however, the findings of fact are not sufficient to *720 support the conclusion that the statements made by the defendant ... to [the law enforcement officer] . . . were made voluntarily and with understanding.”

Here the trial judge’s crucial finding of fact is Finding Number 6 which, in part, states:

“6. On December 22, 1973, and before the defendant made any statement to the Sheriff concerning any of the events surrounding the death of Mrs. Mary C. Powell, the Sheriff advised the defendant as follows. That the defendant did not have to make any statements . . . . ”

We do not think that the evidence supports Finding of Fact Number 6. Further, in view of the patently incriminating nature of the statements made on 20 December 1973, we think that it was incumbent upon the trial judge during the voir dire hearing to find facts, to enter proper conclusions, and to rule on the voluntariness of the statements made on 20 December. If such statements were found to be involuntary, he should have determined whether the State had met its burden of overcoming the prior influences which rendered the 20 December statement involuntary. Of course, if the first statements were found to have been voluntarily made, no presumption of involuntariness would have been imputed to the 22 December confessions. We note in passing that the only evidence in the record concerning the propriety of the 20 December statement was the general statement by Sheriff Womble, elicited on cross-examination, that he warned defendant of his rights on 20 December 1973. There is no showing and finding that defendant intelligently and understanding^ rejected an offer of counsel on 20 December, State v. Blackmon, 284 N.C. 1, 199 S.E. 2d 431, or that he understandingly and voluntarily made the inculpatory statement which led to his being charged -with murder.

We express no opinion as to whether the confession of 22 December, admitted into evidence, was voluntary or involuntary. We conclude only that the meager evidence and the lack of findings and proper conclusions as to the 20 December statements make it impossible for us to determine whether the 22 December statement was correctly admitted.

Defendant’s assignment of error concerning the imposition of the death penalty has been answered adversely to him in State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721. Accord: State *721 v. Lampkins, 286 N.C. 497, 212 S.E. 2d 106; State v. Avery, 286 N.C. 459, 212 S.E. 2d 142; State v. Williams, 286 N.C. 422, 212 S.E. 2d 113; State v. Sparks, 285 N.C. 631, 207 S.E. 2d 712; State v. Honeycutt, 285 N.C. 174, 203 S.E. 2d 844; State v. Fowler, 285 N.C. 90, 203 S.E. 2d 803; State v. Dillard, 285 N.C. 72, 203 S.E. 2d 6; State v. Noell, 284 N.C. 670, 202 S.E. 2d 750. This assignment of error is overruled on the authority of the above-cited cases.

We do not deem it necessary to consider the remaining assignments of error since they relate to matters which may not recur at the next trial.

For the reasons stated, there must be a

New trial.