State v. Thacker
189 S.E.2d 145
N.C.
1972
Check Treatment
*453 HUSKINS, Justice.

Defendant assigns as error the admission of his inculpatory statement made during an in-custody interrogation without benefit of counsel. He contends the statement was tainted and inadmissible because he had not waived his right to counsel in writing. Admission of the statement over objection constitutes his first assignment of error.

The record discloses that defendant was twice advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), first by Officer Pegram at the H & H Tire Company shortly after his arrest and again by Officer Benson in the interrogation room at the Municipal Building. Each time defendant stated that he understood his rights. At no time did defendant request counsel according to the voir dire testimony of the officers; but according to defendant’s testimony on voir dire he requested an attorney after he was taken to the police station and went to the interrogation room. Defendant further swore that his statements were coerced, while all the officers swore to the contrary. At the conclusion of the voir dire the court found facts as follows:

“The Court finds from the evidence presented on voir dire that on the morning of March 10, 1971, while the defendant was in custody of the Raleigh Police he was questioned by Police Officer F. L. Benson at the Raleigh Police Station; that before any questions were asked the defendant was fully advised of his constitutional rights first by Police Officer James W. Pegram and again by Police Officer F. L. Benson. Each of these officers fully advised the defendant of his constitutional rights including his right to remain silent; that anything he said could be used in court against him; that he had a right to have a lawyer present during the interrogation; that he had a right to have counsel appointed if he could not hire a lawyer and that he could quit answering questions any time he desired to do so; that the defendant stated that he understood his rights and did not request counsel; that the defendant did in fact fully understand his rights; that the defendant had suffered some minor injuries earlier the same day for which he had been offered treatment at Wake Memorial Hospital and refused to accept treatment for said injury; *454 that the defendant was not under the Influence of any intoxicant, was not in any severe pain or great discomfort, was in full and complete control of his mental and physical faculties and answered all questions freely, voluntarily and intelligently; that the defendant’s statements were reduced to writing and the defendant read and signed the written statement freely and voluntarily; that neither Sergeant F. I. Denton nor any of the other police officers made any threats, assaults, or threatened assaults against the defendant and none of said officers made any promises to the defendant.
“The Court finds and concludes that the defendant’s said written statement was in fact freely, voluntarily and understandingly made without any promise or threats and without any undue influence, compulsion or duress and that said statement is admissible in evidence.”

The trial court’s findings of fact, supported by competent evidence, are conclusive on appeal. State v. McRae, 276 N.C. 308, 172 S.E. 2d 37 (1970); State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966). Consequently, we take it as established by those findings that defendant was given the full Miranda warning, that he understood his right to counsel, that he did not request the presence of an attorney during the interrogation, and that his statement was not coerced but was freely and voluntarily made. This, however, is not sufficient to render his statement admissible in evidence. Admission of his inculpatory in-custody statement to Officer Denton, which was reduced to writing and signed by defendant, was erroneous because there is neither evidence nor findings to show that defendant waived his right to counsel, either in writing as provided by G.S. 7A-457 (1969) on which State v. Lynch, 279 N.C. 1, 181 S.E. 2d 561 (1971), is based, or orally as provided by Miranda on which State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971), is based. “An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.” Miranda v. Arizona, supra. The erroneous admission of this in-custody incriminating statement requires a new trial unless its admis *455 sion can be treated as harmless error. We now explore that alternative.

Proof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill. Such intent must be found by the jury as a fact from the evidence. State v. Ferguson, 261 N.C. 558, 135 S.E. 2d 626 (1964). An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances. State v. Revels, 227 N.C. 34, 40 S.E. 2d 474 (1946). An intent to kill is a matter for the State to prove, State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923), and is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred. State v. Cauley, 244 N.C. 701, 94 S.E. 2d 915 (1956).

There is ample evidence in the record, excluding defendant’s inculpatory statement, from which a jury may reasonably infer that defendant intended to kill Miss Wad-dell. Such evidence includes defendant’s repeated stabbings of Miss Waddell in vital areas of her body with a six-inch knife blade, first severing an artery in her arm as she attempted to ward off the blows and then plunging the blade four inches deep into her abdomen, completely traversing the abdominal wall and entering the abdominal cavity — done without provocation and to a person who was a complete stranger to him. The viciousness of the assault and the deadly character of the weapon used constitute impelling proof from which defendant’s intent to kill may be inferred. Even so, defendant’s in-custody inculpatory statement unequivocally expressing his intent to kill the first person he caught alone is so overpowering on the question of intent that its erroneous admission cannot be considered harmless. The test of harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963). On the facts before us we think the statement very likely contributed to the finding that defendant possessed the requisite intent to kill. Hence we are unable to declare a belief that its admission was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967). Error in the admission of this evidence requires a new trial in *456 the Waddell case, No. 71-CR-12806. Defendant’s first assignment of error is sustained.

In each of these cases defendant is. charged with an assault with a deadly weapon with intent to kill inflicting serious injury not resulting in death, a felony the maximum punishment for which is ten years imprisonment under G.S. 14-32 (a) (1969). I-n each case the court limited the jury to 'one of four verdicts: (1) guilty as charged, (2) guilty of assault inflicting serious injury, (3) guilty of assault with a deadly weapon, or (4) not guilty. In the Waddell case (No. 71-CR-12806) the jury found defendant guilty as charged. In the Pierce case (No. 71-CR-12807) the jury found defendant guilty of an assault inflicting serious injury. Defendant contends the court erred in the Waddell case in failing to submit a lesser degree of the crime charged, to wit, assault with a firearm or other deadly weapon per se inflicting serious injury, a five-year felony under G.S. 14-32(b) (1969).

It suffices to say that the crime condemned by G.S. 14-32 (b) is a lesser degree of the offense defined in G.S. 14-32 (a), and a defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Keaton, 206 N.C. 682, 175 S.E. 296 (1934); State v. Riera, 276 N.C. 361, 172 S.E. 2d 535 (1970). Error in failing to submit the question of a defendant’s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the charge. State v. Davis, 242 N.C. 476, 87 S.E. 2d 906 (1955). However, this principle applies when, and only when, there is evidence of the lesser degrees. State v. Smith, 201 N.C. 494, 160 S.E. 577 (1931). “The presence of such evidence is the determinative factor.” State v. Hicks, 241 N.C. 156, 84 S.E. 2d 545 (1954). These principles were recently analyzed and applied in State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971). Compare State v. Freeman, 275 N.C. 662, 170 S.E. 2d 461 (1969).

In limiting the jury to the four verdicts enumerated above, the trial judge committed two errors: (1) He failed to submit defendant’s guilt or innocence of assault on Miss Waddell with a deadly weapon per se inflicting serious injury, a felony *457 punishable by a fine or imprisonment for not more than five years under G.S. 14-32 (b); and (2) he submitted defendant’s guilt or innocence of an assault inflicting serious injury and an assault with a deadly weapon, misdemeanors condemned by G.S. 14-33 the punishment for which is limited to two years. All the evidence tends to show that defendant wielded a knife with a six-inch blade inflicting serious injury on both Miss Waddell and Mr. Pierce. A knife with a six-inch blade is a deadly weapon per se, and there is no evidence showing only the commission of the misdemeanors which were submitted to the jury, and nothing more, because a deadly weapon was used in both assaults and serious injury was inflicted on both victims. Therefore, these offenses are governed by G.S. 14-32 (a) if committed with intent to kill, or by G.S. 14-32 (b) absent such an intent.

These errors may be corrected in the Waddell case at the next trial. They are now history in the Pierce case because defendant cannot be retried for either the ten-year felony with which he was charged or the five-year felony punishable under G.S. 14-32 (b). In legal fiction, if not in fact, the jury has acquitted him on those charges. In the Pierce case, the erroneous submission of the misdemeanor charges in lieu of the felony charge condemned by G.S. 14-32 (b) was favorable to defendant, and he is in no position to complain. His conviction and sentence in that case will not be disturbed.

Finally, defendant contends his in-court identification was tainted by the confrontation at the hospital when he was exhibited to the victims for identification purposes without benefit of counsel. Failure to suppress his in-court identification on that ground constitutes defendant’s third assignment of error.

Confrontation for identification purposes is a critical stage of pretrial proceedings requiring the presence of counsel unless the right to counsel is voluntarily, knowingly and intelligently waived. United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951 (1967). Even so, each victim here testified that the in-court identification of defendant had an independent origin and was not based on the confrontation at the hospital. There was no evidence to the contrary. Thus, the in-court identification was competent regardless of the absence of counsel at the hospital confronta *458 tion. State v. Wright, 274 N.C. 84, 161 S.E. 2d 581 (1968); State v. Rogers, 275 N.C. 411, 168 S.E. 2d 345 (1969). At the next trial, upon objection, the origin of the in-court identification of defendant by each victim should be determined by the trial court on a voir dire examination with appropriate findings of fact and conclusions based thereon. The present record contains no such findings.

In light of the foregoing facts, we do not decide whether defendant’s constitutional rights were violated at the hospital emergency room confrontation. At the time of that confrontation it should be noted that both victims had been stabbed and their chance of survival was uncertain and unknown. Defendant had been immediately apprehended under circumstances strongly indicating guilt. The need for immediate action was apparent, and the police followed the most, and perhaps the only, feasible procedure when they took defendant to the hospital emergency room for immediate identification or exoneration. Under these circumstances defendant’s claimed violation of due process by a “one-man lineup” and his claimed violation of Sixth Amendment rights to counsel at that confrontation are arguable matters, Stovall v. Denno, 388 U.S. 293, 18 L.Ed. 2d 1199, 87 S.Ct. 1967 (1967); State v. McNeil, 277 N.C. 162, 176 S.E. 2d 732 (1970), and resolution of them is not necessary to a decision in these cases.

Inasmuch as the valid judgment of imprisonment for two years in Case No. 71-CR-12807 (Pierce) was specified to begin at the termination of the nine- to ten-year sentence imposed in Case No. 71-CR-12806 (Waddell), which is now vacated, Case No. 71-CR-12807 (Pierce) must be remanded to the Superior Court of Wake County to the end that the judgment may be modified so as to provide that the two-year sentence shall commence on the date defendant began serving the nine-to ten-year sentence in the Waddell case. The effect will be, and it is so intended, that defendant will receive credit in the Pierce case for all time heretofore served on the now vacated nine- to ten-year sentence in the Waddell case. A revised commitment shall issue accordingly. If defendant is again convicted in the Waddell case the sentence imposed therein may run consecutively or concurrently with the time remaining to be served in the Pierce case, as the court in its discretion may determine.

For the reasons stated, these cases are remanded to the Court of Appeals where they will be certified to the Superior *459 Court of Wake County for further proceedings in accord with this opinion.

In Case No. 71-CR-12806 (Waddell) — New trial.

In Case No. 71-CR-12807 (Pierce) — Remanded.