State v. Brown

Judge GREENE

dissenting.

I agree with the majority that the trial court did not err in refusing to instruct the jury on the lesser included offense of attempted rape. I disagree, however, that the trial court’s findings of fact are sufficient to support the conclusion that defendant knowingly, intelligently, and voluntarily waived his Miranda rights.

The State is “prohibited from using any statements resulting from a custodial interrogation of a defendant unless, prior to questioning, the defendant had been advised of his .. . [Miranda rights].” State v. Simpson, 314 N.C. 359, 367 , 334 S.E.2d 53, 58-59 (1985). The defendant may “waive effectuation of these rights by a voluntary, knowing, and intelligent waiver.” Id. at 367 , 334 S.E.2d at 59 . To be knowing and intelligent, the “waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 , 89 L. Ed. 2d 410, 421 (1986).

If the defendant is a person of “less than normal intelligence [and] does not have the capacity to understand the meaning and *399 effect of his confession, and such lack of capacity is shown by evidence at the suppression hearing, it is error for the trial judge not to suppress the confession.” State v. Parsons, 381 S.E.2d 246, 249 (W.Va. 1989); see 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.9, at 526 (1984) (“unlikely” that waiver by “seriously mentally retarded” defendant will be found valid). If, however,

the defendant’s lower than normal intelligence is not shown clearly to be such as would impair his capacity to understand the meaning and effect of his confession, said lower than normal intelligence is but one factor to be considered by the trial judge in weighing the totality of the circumstances surrounding the challenged confession.

Parsons, 381 S.E.2d at 249 ; see State v. Fincher, 309 N.C. 1, 8 , 305 S.E.2d 685, 690 (1983) (“subnormal mental capacity is a factor to be considered”); 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.9, at 526 (1984) (“low IQ can contribute to a finding of an ineffective waiver”).

In this case the trial court found that defendant had an “I.Q. . . . between 49 and 65.” The court also found that defendant responded to each Miranda warning by stating either “Yes” or “Yes, sir.” The trial court made no finding that this mentally retarded fifteen-year-old defendant had the capacity to understand the Miranda warnings, only that defendant answered affirmatively that he “understood such rights.” This express written waiver executed by the defendant “is not inevitably sufficient to establish a valid waiver.” Simpson, 314 N.C. at 367 , 334 S.E.2d at 59 . The ultimate question remains whether defendant did “in fact” knowingly waive his Miranda rights. North Carolina v. Butler, 441 U.S. 369, 373 , 60 L. Ed. 2d 286, 292 (1979); Cooper v. Griffin, 455 F.2d 1142, 1146 (5th Cir. 1972) (fact that “waiver obtained does not bar the courts from scrutinizing the circumstances of the confession”). Because there is no finding in this record that defendant did in fact knowingly and intelligently waive his Miranda rights, the motion to suppress should have been allowed. This is consistent with Fincher , relied on by the majority, in that in Fincher the trial court specifically found as a fact in concluding that defendant knowingly waived his rights, that the defendant did in fact “understand” his rights. I therefore would award the defendant a new trial.