Petitioners Brief — North Carolina v. Butler

IN THE

Supreme Court of the United States

DECEMBER TERM, 1978

No. 78—354

STATE OF NORTH CAROLINA,

Petitioner,

Vv.

WILLIE THOMAS BUTLER,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

BRIEF FOR THE PETITIONER

RUFUS L. EDMISTEN

Attorney General of North Carolina

LESTER V. CHALMERS, JR.

Special Deputy Attorney General

DONALD W. STEPHENS

Assistant Attorney General

THOMAS F. MOFFITT

Assistant Attorney General

ATTORNEYS FOR PETITIONER

North Carolina Department

of Justice

P.O. BOX 629

Raleigh, North Carolina 27602

a a Tae a ee er eS a

DI CESARE - PRINTING / WASHINGTON, DC / (202) 331-8101

“omar

TABLE OF CONTENTS

Page

Re ee eR ov ccdione opin sncchns> venrecusesinneeh ii

CONSTITUTIONAL AND STATUTORY

Pe ey MTOR OUEE co nwincecndvsce devneescdeencs sGena 1

PE csnsahinwubatansdctehsipeonedanssececuincs 2

eee PUNE ioc ve wewvecrecnwcboestpeveuteses 2

PERE EEOE GI BME GUE Sind ive decen ices cbdbasceccweces 3

MANNER IN WHICH THE FEDERAL QUESTION

WAS RAISED AND DECIDED BELOW ..............ccceceee 7

te ck, a ee ee 11

ek ae ce dekecetdcicdane ee knwewe 15

I]. IN INTERPRETING AND APPLYING THE MIRANDA

DECISION, LOWER FEDERAL COURTS HAVE

APPLIED A TOTALITY OF CIRCUMSTANCES TEST IN

DETERMINING IMPLIED WAIVER OF COUNSEL,

REJECTING FURTHER EXTENSION AND EXPANSION

iS cchned aka owen seks etcbtwacne wens ee 19

Il]. CERTAIN PORTIONS OF THE MIRANDA DECISION

LEAD TO THE INTERPRETATION AND CONCLUSION

OF THE FEDERALCIRCUIT COURTS OF APPEAL AND

THE OTHER COURTS CITED ABOVE THAT A

PROPERLY WARNED CRIMINAL SUSPECT DOES

NOT EXERCISE HIS RIGHT TO SILENCE UNDER

MIRANDA UNLESS HE STANDS MUTE OR

OTHERWISE CLEARLY EXPRESSES HIS DESIRE NOT

TO SPEAK, AND THAT ANY OTHER CONDUCT MAY

IMPLY A WAIVER OF RIGHTS TO SILENCE AND

i eer t hee he 66S kshnee Teas oda be eew ees 24

il

IV.THE POLICY CONSIDERATIONS UNDERLYING

MIRANDA AS DISCUSSED BY THIS COURT IN THAT

DECISION AND IN ITS SUBSEQUENT DECISIONS

SUPPORT A RULE OF LAW WHICH ALLOWS A

FINDING OF IMPLIED WAIVER OF COUNSEL FROM

THE TOTALITY OF THE CIRCUMSTANCES,

BALANCING THE INTERESTS OF SOCIETY AND OF

Ee IE gina ds CA ba See dn cbeve¥suind Fre seca snes 28

V. IN SUBSEQUENT DECISIONS THIS COURT “HAS

BEEN CONSISTENTLY RELUCTANT TO EXTEND

MIRANDA OR TO EXTEND IN ANY WAY ITS

STRICTURES ON LAW ENFORCEMENT AGENCIES‘. .35

TT SSA shigteten vows Ove 5 o6 ees cbossuecncees 38

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Constitutional Provisions

Page

United States Constitution, Amendment V ............. 1

United States Constitution, Amendment XIV,

eu sareksceare ss sa beise secon ass’ 1

Statutes |

m0 Untied States Code, $2257 (5)... wos scccccceccwsses 2

Ser NE: SE ROM ioc cdo bincs dceed vee ctnsesesase 3

er > GR ee ee ren Sere 3

OE Ce, SASSO) oh iddc ccc ccc conwececceseess 3

ill

Cases Cited

Page

Federal

Beckwith v. United States, 425 U.S. 341

48 L. ta. 24 1; 96.5: CE 1GI2 (2976). ........<ccckcn 38

Blackmon v. Blackledge, 541 F. 2d 1070

Ce sa APE bt eel tele ae cteas 2 dewietas 19, 22

Blackmon v. Blackledge, 396 F. Supp. 296

FOr RR ALE, LN cca ds hoo bet xk Soles owen 19

Bond v. United States, 397 F. 2d 162 (10th Cir.)

cert. denied 393 U.S. 1035, 21 L. Ed 2d 579,

ee A ee Ue ik iick oan Oe bo akakckln ek 21

Brewer v. Willians, 430 U.S. 387, 51 L. Ed. 2d

6 ee Be Ree De) 9 2 ee and me as 27

Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91,

Ue: ahs Se PE oon oo hh oka oxy ceo cs 27

Fare v. Michael! C.,, U.S

20h. oe. 20 8390 & C2 3S (976)... occ occs. 32, 3

Harris v. New York, 401 U.S. 222, 28 L.

ee Oe he Ge ee, WE LEAD So koc'c dé beens os 30, 37

Hughes v. Swenson, 452 F. 2d 866

Se aes PET cn clacuvetoncks boveudsse me Sk, 22

Michigan v. Mosley, 423 U.S. 96, 46 L.

be. 26 313, 96 5S. GE 32) (1978) oc5. oi 0'k a's 31, 34, 38

Michigan v. Tucker, 417 U.S. 433, 41

L. Ed. 2d 182, 94 S. Ct. 2357 (1974) ...... 29, 30, 33

lV

Mincey v. Arizona, 1. Se

57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) ...... 30, 37

Miranda v. Arizona, 384 U.S. 436 (1966)........ passim

Mitchell v. United States, 434 F. 2d 483

(D.C. Cir.) cert. denied 400 U.S. 867 (1970)....... 21

Oregon v. Hass, 420 U.S. 714, 43 L. Ed.

aa S7Q; 95:3: CA. R2ED CEP is vk oe ot wae eee 37

Oregon v. Mathiason, 429 U.S. 492, 50

L. Bd 2a 734, 97 5S... Fis (2S) kon cnccoeee 37

United States v. Boston, 508 F. 2d 1171

Oded Che. ISTE) 65k soon ck ccesss ene ee 22

United States v. Ganter, 436 F. 2d

364 (CTs Coe: BRA vik in dee hei ennenseee a0. 23

United States v. Hilliken, 436 F. 2d

101 (9th Cir. (1970), cert. denied 401 U.S.

958, 28 L. Ed. 2d 242, 91 S. Ct. 987 (1971)....... 21

United States v. Marchildon, 519 F. 2d

337 Gt Cop. 1979) oan i ceecseceeesdveeeeee 22

United States v. McNeil 433 F. 2d

1108 GC. Che: BOGB bk indecvcseusazess eee 21

United States v. Montos, 421 F. 2d

215, (Sth Cir.) cert. denied 397 U.S.

1022, 25 L. Ed. 2d 532, 90 S. Ct.

L2G2 (1970). ona ce ccks scans ceeaueeeeean ee 21

United States v. Moreno-Lopez,466 F.2d

1205 @th Cie 1978). oa sasndeedee ese 21

United States v. Ruth, 394 F. 2d 134

(3rd Cir.) cert. denied, 393 U.S. 888

CESGS) cnn kivccckccntccsenceuedsnuseeellee 21

United States v. Speaks, 453 F. 2d

I Es aac hin ni bce os cs sed eanes 21

United States v. Stuckey, 441 F. 2d

1104 (3rd Cir.), cert. denied, 404

EL 5 cg EIS er 21

United Siates v. Thompson, 417 F. 2d 196

(4th Cir.), cert. denied, 396 U.S. 1047

ee eae ce Vekabenes css obeeees 21

United States v. Washington, 431 U.S. 181, 52 L.

ee eee, See oe ee BLS (E977) 2. ac cee cccees 27

State

Fare v. Michael C., 21 Cal. 3rd 471

ee ale peed éeetcecce 32, 35

State v. Blackmon, 280 N.C. 42, 185

Re So eS Se re 6, 16, 18

State v. Blackmon, 284 N.C. 1, 199 S.E.

ES a 16, 18, 19

State v. Connley, 295 N.C. 327___

S.E. 2d i ee awh kee eka's Xs 16

State v. Siler, 292 N.C. 543, 234

SE 6

IN THE

Supreme Court of the Mnited States

DECEMBER TERM, 1978

No. 78—354

STATE OF NORTH CAROLINA,

Petitioner,

¥.

WILLIE THOMAS BUTLER,

Respondent.

BRIEF FOR PETITIONER

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment V of the Constitution of the United

States provides:

"No person...shall be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law. . .”

Amendment XIV, Section 1 of the Constitution of

the United States provides:

” ..{N] or shall any State deprive any person of

life, liberty, or property, without due process of

law...”

JURISDICTION

From a final judgment of the Supreme Court of

North Carolina entered in this case on June 6, 1978

(reported at 295 N.C. 250, 244 SE. 2d 410 (1978))

ordering for the defendant a new trial, the State of North

Carolina petitioned this Court on August 30, 1978 for

Writ of Certiorari, pursuant to Rule 22(1) invoking this

Court's jurisdiction under 28 U.S.C. §1257(3). Such

petition for Certiorari was allowed by this Court on 11

December 1978.

QUESTION PRESENTED!

INTERPRETING THIS COURT'S DECISION IN

MIRANDA v. ARIZONA, 384 U.S. 436 (1966), IN

1The Question Presented in the State of North Carolina's

Petition for Certiorari, which has been simplified aid generalized

above for the purposes, of this brief, was as follows:

“QUESTION PRESENTED

Interpreting this Court's decision in Miranda v.

Arizona, 384 U.S. 436 (1966), after being fully advised of

his rights and acknowledging an understanding of such

rights, in the absence of a specific affirmative oral or

written waiver of counsel by a suspect under arrest and

being questioned, does federal law prohibit a state trial

court from finding an implied waiver of counsel from the

THE ABSENCE OF AN EXPRESS ORAL OR

EXPRESS WRITTEN WAIVER OF RIGHT TO

COUNSEL PRIOR TO QUESTIONING, DOES

MIRANDA ALLOW A FINDING OF AN JMPLIED

WAIVER OF RIGHT TO COUNSEL FROM THE

TOTALITY OF THE SURROUNDING FACTS AND

CIRCUMSTANCES OF THE CASE WHERE THE

SUSPECT HAS BEEN FULLY ADVISED OF HIS

CONSTITUTIONAL RIGHTS BEFORE MAKING

VOLUNTARY INCRIMINATING STATEMENTS IN

RESPONSE TO QUESTIONING?

STATEMENT OF THE CASE

Willie Thomas Butler was convicted upon trial by

jury in Wayne County Superior Court, North Carolina

for the offenses of Kidnapping [N.C. Gen. Stat. §14-39],

Armed Robbery [N.C. Gen. Stat. §14-87], and Felonious

Assault (N.C. Gen. Stat. §14-32(a)]. From a judgment

surrounding facts and circumstances of the case, under

the Fifth Amendment, as applicable to the State through

the Fourteenth Amendment, thereby prohibiting the use

by the prosecution as evidence in a state court an

incriminating statement by the criminal defendant

made to an agent of the FBI when arrested in another

state on a fugitive warrant after the defendant had been

fully advised of his constitutional rights as required by

Miranda and then had replied to such advising FBI

Agent that he understood his rights, that he “didn’t want

to sign anything” and that he would “talk to you but 1am

not signing any form’, when defendant thereafter spoke

freely and voluntarily in answering the agent's

questions without ever requesting the presence of

counsel?”

imposing two concurrent life sentences and a five year

sentence of imprisonment which also ran concurrently,

the defendant appealed to the North Carolina Supreme

Court. That Court reversed such convictions and

ordered a new trial finding defendant's confession,

which was admitted into evidence against him, did not

comply with the North Carolina Supreme Court's

interpretation of Miranda v. Arizona, supra.

The State’s evidence tended to show that Ralph

Burlingame was closing a Kayo service station about

11:00 p.m. on 28 December 1976 in Wayne County,

North Carolina, when two black males came to the door

to buy beer. The two left upon being informed that the

station was closed. Burlingame thereafter locked up

and started to his car, but was accosted by the same two

males with pistols drawn. He was forced into his vehicle

and ordered to drive away at gunpoint. He was

informed that “it was a holdup” and that he would be

killed ai the end of the ride because he was white. Upon

hearing this, Burlingame opened the door and jumped

from the moving vehicle. As he fled, he was shot in the

back, the bullet penetrating his spinal cord and leaving

his legs paralyzed. He”played dead” when the

assailants stopped the car and returned to take $30.00

from his wallet and to shoot him twice more. The police

found Burlingame lying in the road shortly afterwards.

Two bullets, each of a different caliber, were removed

from his body atthe hospital. He survived, but remained

paralyzed. He identified defendant's photograph along

with that of the accomplice in a twelve-photograph

display a short time later. In court he was positive that

the defendant was the man who shot him. [R. pp. 48 -

69}

After these offenses, defendant fled the State and

on May 2, 1977 he was arrested in New York as a

fugitive by FBI Agent David C. Martinez. Defendant was

given the Miranda warnings by Agent Martinez at the

time of his arrest and again back at the Agent's office,

where Butler was asked to execute an “Advice of Rights

Form”. After reading the form he acknowledged that he

understood what it said but he indicated that he didn’t

want to sign the form and he didn’t want to sign

anything. In response to the Agent's subsequent

guestion of whether or not he would be willing to talk to

them, defendant stated: "I will talk to you but I am not

signing any form.” Defendant thereafter made no

express statement that he did not wanta lawyer present,

but he never requested a lawyer either. [R. pp. 6-19] His

subsequent incriminating statement to the FBI Agents

was held admissible by the trial judge who found that

such statement was freely and voluntarily made after a

proper Miranda warning and the defendant had

“effectively waived his rights, including the right to

have an attorney present during the questioning by his

indication that he was willing to answer questions,”

since he had read the rights form together with the

2The reference to 'R.pp.” throughout this brief refers to pages

from the official certified record of this case on appeal before the

North Carolina Supreme Court. The above summarized facts are

located from pages 48 through 69 of the record.

waiver of rights, acknowledged his understanding of it,

and chose to speak thereafter. This was assigned as

error and it was this assigned error for which the North

Carolina Supreme Court reversed defendant's

convictions, ordering a new trial.3 The North Carolina

Supreme Court interprets Miranda v. Arizona, supra, as

requiring either an express written or an express oral

waiver of counsel. Citing its own prior opinions, State v.

Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971) and

State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977) the

Court held that a correct interpretation of Miranda

requires that “waiver of the right to counsel during

interrogation will not be recognized unless such waiver

is ‘specifically made’ after the Miranda warnings have

been given.”* Thus, inclusion of defendant's

incriminating statement in which he admitted drinking

with a black male named Elmer Lee on 28 December

19:76, agreeing with Lee to rob the Kayo gas station,

accompanying Lee, who was armed, to the station, and

participating in the robbery at the time Burlingame was

shot, was prejudicial error requiring a new trial the

Court held.

3The opinion of the North Carolina Supreme Court reported in

295 N.C. 250, 244 S.E. 2d 410 (1978) is reproduced in its entirety

as APPENDIX A in the State of North Carolina's Petition for

Certiorari filed in this case in the United States Supreme Court on

30 August 1978. :

4Butler, supra, 295 N.C. at 254, citing Miranda v. Arizona,

supra, 384 US. at 470.

MANNER IN WHICH THE FEDERAL QUESTION

WAS RAISED AND DECIDED BELOW

The federal question presented herein was

originally raised by Butler's timely objection at trial to

the admission of any statement which he made to FBI

Agent Martinez at the time of his arrest and his

interrogation. Upon such timely objection, the trial

court heard evidence on voir dire out of the presence of

the jury and thereafter made the following findings of

fact and conclusions of law:

".. the Court makes the following findings of

fact:

That on or about May 3, 1977 Agent

Martinez together with other agents went to a

fifth floor apartment building in the Bronx, New

York, and knocked on a door and gained

entrance to the apartment; that the defendant,

Butler, was present in the apartment and was

placed under arrest at that time for unlawful

flight to avoid prosecution, the agent having

information at that time that the defendant had

allegedly committed an offense of armed

robbery in the State of North Carolina; that the

defendant was advised of his rights orally at

the time of the initial arrest in New York City,

and was advised that he had the right to

remain silent; that anything he said could be

used against him in court, and that he had the

right to talk to a lawyer for advice before any

questions were asked but if he could not afford

an attorney that one would be appointed for

him before any questioning; that if he decided

to answer questions without a lawyer present

that he could stop at any time and would have

the right to have an attorney appointed for him

at that time.

Having been warned of his rights as

required by the Miranda decision, the

defendant made no statements nor was he

asked any questions at the time of the initial

arrest of the defendant; that the defendant was

subsequently transported by Agent Martinez

to the New Rochelle, New York office of the FBI

where the defendant was taken to an

interrogation room where he was presented

with State’s Exhibit 1 on voir dire, the paper

writing entitled ‘Your Rights’; that it had been

previously determined by Agent Martinez that

the defendant had an eleventh grade

education and that he could read and write:

that State’s Exhibit No. 1 on voirdire indicates

the rights as shown thereon as follows:

‘Before we ask you any questions you

must understand your rights. You have the

right to remain silent; anything you say

can be used against you in Court; you

have the right to talk toa lawyer for advice

before we ask you any questions and to

have him with you during the questioning;

if you cannot afford a lawyer, one will be

appointed for you betore any questioning

if you wish. If you decide to answer

questions now without a lawyer present,

you will still have the right to stop

answering at any time. You also have the

right to stop answering at any time until

you talk to a lawyer.’

The form also provides in the middle

thereof the designation ‘Waiver of Rights’. The

Waiver reads:

‘T have read this statement of my rights and

I understand what my rights are. 1 am willing to

make a statement and answer questions. I do

not want a lawyer at this time. I understand and

know what I am doing. No promises or threats

have been made to me and no pressure or

coercion of any kind has been used against

me.

Having presented this form entitled

‘Advice of Rights’, and subdivision ‘Your

Rights’ and ‘Waiver of Rights’, the defendant

proceeded to read the form and upon

conclusion of his reading the form indicated

that he did not desire to sign the form but that

he would make a statement to the agent which

he proceeded to do as appears of record.

Based upon the foregoing, the court is of

the opinion and concludes that the statement

10

made by the defendant, William Thomas

Butler, to Agent David C. Martinez, was made

freely and voluntarily to said agent after

having been advised of his rights as required

by the Miranda ruling, including his right to an

attorney being present at the time of the

inguiry and that the defendant, Butler,

understood his right to have an attornev

present during the questioning by his

indication that he was willing to answer

questions, having read the rights form together

with the Waiver of Rights; that the statement

made by William Thomas Butler following the

agent's advising him of his rights was

voluntarily made at a time when the defendant

understood his rights and that no promises or

offers of leniency nor threats or pressure or

coercion of any kind has been exerted against

the defendant, and that any statement or

confession so made was freely and voluntarily

given;

Based upon the foregoing, the court is of

the opinion and rules as a matter of law that

any statement made by William Thomas Butler

in the presence of Agent David C. Martinez,

after having been advised of his rights, may be

received in evidence in the trial of this action.

EXCEPTION NO. 1”

[R. pp. 19-22]

11

Butler's exception to this ruling was duly noted,

recorded and raised when he appealed his conviction

to the North Carolina Supreme Court asserting as error

the admission of his confession in violation of his

Federal constitutional rights. The North Carolina

Supreme Court found the admission of this confession

to be error and reversed, holding that federal law

(Miranda v. Arizona) requires the prosecution to show

that an express oral or written waiver of right to counsel

was specifically made by a defendant before his

incriminating statement can be used as evidence

against him and that no waiver can be implied in the

absence of such express specific waiver.

The Federal Question presented herein has thus

been properly raised and appropriately preserved at all

stages of this case.

SUMMARY OF ARGUMENT

The Miranda decision enunciated a series of

specific protective procedural safeguards necessary to

secure and insure a criminal suspect's Fifth

Amendment privilege against compulsory

self-incrimination during custodial interrogation.

These procedural safeguards were not themselves

rights protected by the Constitution, but prophylactic

measures to ensure and guarantee Constitutional

rights. The decision adopted an exclusionary rule as its

prime sanction in the event that such prophylactic

measures were not followed. The Miranda Court with

clarity described these measures for police to follow as

“concrete constitutional guidelines” in precisely

12

delineating the rights to which any suspect is entitled

during custodial interrogation and the required

warnings to be given. After the police officer has borne

Miranda's burden of properly informing the suspect of

his rights, the language of the Miranda Court was less

than precise in what would or could thereafter

constitute a waiver of such rights by the suspect.

Certain portions of the opinion® lead to the conclusion

5A portion of the Miranda opinion indicated:

“Prior to any questioning, the person must be

warned that he has a right to remain silent, that any

statement he does make may be used as evidence

against him, and that he has a right tothe presence of an

attorney, either retained or appointed. The defendant

may waive effectuation of these rights, provided the

waiver is made voluntarily, knowingly and intelligently.

If however, he indicates in any manner and atany stage

of the process that he wishes to consult with an attorney

before speaking there can be no questioning.’ [384 US.

at 444 and 445 (emphasis added)]

“Once warnings have been given, the subsequent

procedure is clear. /f the individual indicates in any

manner at any time prior to or during questioning, that

he wishes to remain silent, the interrogation must

cease.... If the individual states that he wants an

attorney, the interrogation must cease until an attorney

is present.” [384 U.S. at 473 and 474 (emphasis added)]

*

“Our decision is not intended to hamper the

traditional function of police officers in investigating

crime....

13

that a properly warned suspect who chooses to speak

voluntarily in response to questioning, who has not

exercised his right to silence or counsel by indicating

in any manner that he chooses to exercise such rights,

may by his actions waive those rights, although he

never does so by specific express oral or written waiver.

This is the interpretation of Miranda which has been

consistently adopted by the Federal Circuit Courts of

Appeal in these United States.®

This Court's subsequent decisions have indicated

that the prophylactic guidelines of Miranda were not

intended to create a constitutional straightjacket to

thwart police and to be used as a shield protecting

killers, robbers and rapists from full disclosure of the

truth to the triers of fact, but instead were intended to

provide practical reinforcement of the Fifth

Amendment right against self-incrimination, and

protection against police improprieties of coercion,

Confessions remain a proper element in law

enforcement. Any statement given freely and

voluntarily without any compelling influences is, of

course, admissible in evidence.” [384 U.S. at 477 and

478]

6See cases cited in Argument II, /nfra, of this brief indicating

that the lst, 2nd, 3rd, 4th, 5th, 7th, 8th, 9th, 10th and District of

Columbia Federal! Circuit Courts of Appeal recognize the doctrine

of implied waiver of Miranda rights.

a |

14

brutality, physical and psychological pressure, and

overbearing in obtaining confessions.’ This Court has

indicated that it will not be bound by literal

interpretations of some portions of the Miranda Court's

opinion in such a way as to lead to an absurd and

unintended result, which could ‘transform the

Miranda safeguards into wholly irrational obstacles to

legitimate police investigative activity...”® The Court

has determined since Miranda that violation of a

prophylactic guideline does not necessarily require per

se exclusion of an otherwise voluntary confession in all

cases, so long as the confession was not the product of

willful or negligent police conduct amounting to bad

faith and unfair police activity.9

This Court has, since Miranda, declined to extend

or expand its requirements and has evidenced an

overall effort to “contain Miranda to the express terms

and logic of the original opinion.” !°

7 Michigan v. Tucker, 417 U.S. 433, 41 L. Ed. 2d 182 94S Ct.

2357 (1974).

8 Michigan v. Mosley, 423 U.S. 96, 102, 46 L. Ed. 2d 313, 320,

96 S. Ct. 321, (1975).

9Michigan v. Tucker, supra; Michigan v. Mosley, supra

10Fare v. Michael C.,_-_. U.S. ___, 58 L. Ed. 2d 19, 24 99S.

Ct. 3, 5, (1978).

15

The State of North Carolina respectfully submits

that Miranda v. Arizona, by its language and principles

as explained by the Miranda Court in its opinion and as

explained and interpreted by this Court in subsequent

opinions, establishes no mandatory requirement that a

properly warned suspect make a specific express oral

or written waiver of his rights before custodial

interrogation can commence, as a prerequisite to the

admissibility of any voluntary confession. If the totality

of the circumstances show that the suspect was

properly warned of his rights, that he was subjected to

no undue police pressure or unfair police activity, that

he responded to questioning without objection or

expression of a desire to remain silent or to have

counsel present, and that his choice to respond was a

product of his own volition, then “waiver is implicit in

such circumstances, for it is quite inconsistent with an

assertion of a known right.”!! Such an implied waiver

would violate neither the mandate nor the purpose of

Miranda.

ARGUMENT I

INTRODUCTION

The North Carolina Supreme Court has

consistently interpreted the requirements of Miranda v.

Arizona, supra, to include a mandatory showing of a

11Blackmon v. Blackledge, 541 F. 2d 1070, 1073 (4th Cir.

1976).

16

specific express affirmative oral or written waiver of

counsel by a suspect prior to the admissibility of any

voluntary statements by such suspect made during

in-custody interrogation. The opinions of that Court in

State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971)

appeal from retrial at 284 N.C. 1, 199 S.E. 2d 431

(1973); State v. Butler, supra; State v. Connley, 295 N.C.

327, S.E. 2d (1978) [State’s Petition for

Certiorari filed on 6 October 1978 is now pending

before this Court]!2 based solely on that Court's

interpretation of federal law, leave no question but that

the court will apply a per se rule of exclusion in the

absence of a specific express waiver, irrespective of the

totality of the surrounding circumstances, in

determining effective waiver of counsel. !3 The

12The State of North Carolina petitioned the United States

Supreme Court on 6 October 1978 (No. 78-582) for review of the

North Carolina Supreme Court's reversal of a first degree murder

conviction of Ruben Sonny Connley for the killing of a Virginia

State Highway Patrol Trooper. Connley'’s response to Miranda

warnings given by an FBI Agent indicated an acknowledgment

and an understanding of his rights and also a willingness to talk,

but a refusal to sign the waiver form. The facts in question

presented in Connley are almost identical to that presented in

Butler. At the time of the preparation of this brief, there had been no

ruling by this Court on that petition.

131m State v. Silhan, 295 N.C. 636, ____ S.E. 2d ___ (19778), the

North Carolina Supreme Court's most recent application of a

Miranda waiver, the Court excluded a confession wherein the

suspect allegedly verbally waived his rights but indicated on the

written waiver form that he did desire to have a lawyer present.

17

Blackmon case emphasizes that Court's interpretation

of this aspect of federal law and how such interpretation

is in conflict with the Federal Circuit Court of Appeals of

this jurisdiction, and the Federal Circuit Courts of

Appeal in all jurisdictions which have ruled upon this

issue.

Defendant Johnny James Blackmon was convicted

during the March 29, 1971 Term of the Superior Court

of Stanly County, North Carolina for the offense of first

degree murder. The jury making no recommendation

for life imprisonment, the death penalty was imposed

and defendant appealed. One of the errors assigned on

appeal was admission into evidence of defendant's

confession. The trial court on voir dire had found that

the defendant at the time of his arrest was fully warned

of his constitutional rights under Miranda, that

defendant “did not request...the presence of an

attorney,” that he stated “he understood his rights,” and

that incriminating statements made thereafter were

admissible. The North Carolina Supreme Court ruled it

was error for the trial judge to allow into evidence such

statement because there was no showing as required

by federal law, as that Court interpreted Miranda, that

the defendant had made a specific affirmative oral or

written waiver of counsel, rendering the inclusion of

That ruling is consistent with this Court's decision in Brewer v.

Williams, 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977).

Since the suspect had indicated in some positive manner that he

did not waive counsel, his subsequent confession was properly

excluded.

18

such evidence prejudicial error. [State v. Blackmon,

280 N.C. 42, 185 S.E. 2d 123 (1971)] On retrial the

defendant was again convicted during the 28 August

1972 session of Superior Court in Union County, North

Carolina. The confession was again offered and

received into evidence. The voir dire testimony showed

that the incriminating statements which defendant

made were made in an interrogation room in the

presence of police officers when defendant was

confronted by a co-defendant who accused the

defendant of having shot the victim. The incriminating

statements resulting from an exchange between these

two suspects verbally confronting one another were

admitted into evidence against Blackmon. When the

co-defendant had left the room and the Sheriff asked

defendant, "Do you care to make any further

statement? ’, defendant responded, ” Well, I'm just going

to tell you how it was.” His subsequent incriminating

narrative was also admitted into evidence. On this

second appeal the North Carolina Supreme Court in

reviewing this same confession again said, “[t]hese

facts, however, are not sufficient to constitute a waiver of

counsel. There is neitherevidence nor findings of fact to

show that defendant expressly waived his right to

counsel, either in writing or orally, within the meaning

of Miranda on which our decision in State v. Blackmon,

280 N.C. 42, 185 S.E. 2d 123 (1971) is based.” [State v.

Blackmon, 284 N.C. 1, 9, 199 S.E. 2d 431, 437 (1973)

(Emphasis added)] However, the Court thereafter held

the evidence admissible on the theory that such

statements were not the result of an interrogation and

were more in the nature of volunteered statements.

-*

19

[State v. Blackmon, 284 N.C. at 12] The conviction was

affirmed and case remanded for imposition of a life

sentence. Blackmon thereafter proceeded by writ of

habeas corpus to the Federal! District Court for the

Western District of North Carolina challenging his

conviction through the use of such confession in

violation of his federal constitutional rights. The District

Court granted the writ,/Blackmon v. Blackledge, 396F.

Supp. 296 (W.D.N.C. 1975)], but the Circuit Court of

Appeals reversed, finding under the facts as previously

described that there had been a compliance with

Miranda and that Blackmon had waived counsel,

stating that after proper warnings, ”...a suspect's

submission to questioning without objection and

without requesting a lawyer is clearly a waiver of his

right to counsel...” {Blackmon v. Blackledge, 541 F.2d

1070, 1073 (4th Cir. 1976)]

These opinions clearly focus the conflict in

interpretation of federal law that exists in this

jurisdiction.

ARGUMENT II

IN INTERPRETING AND APPLYING THE MIRANDA

DECISION, LOWER FEDERAL COURTS HAVE APPLIED A

TOTALITY OF CIRCUMSTANCES TEST IN DETERMINING

IMPLIED WAIVER OF COUNSEL, REJECTING FURTHER

EXTENSION AND EXPANSION OF MIRANDA.

A substantial body of case law has developed

among the United States Circuit Courts of Appeal

20

rejecting any extension or expansion of Miranda. In

United States v. Ganter, 436 F. 2d 364 (7th Cir. 1970)

the court applied its interpretation of Miranda to a case

wherein the suspect was arrested for assaulting an FBI

agent and fleeing with the agent's gun. After being

arrested and having been advised of his Miranda rights,

the suspect was asked where the gun was located; he

replied that the weapon was under a nearby couch,

where it was in fact found. Citing United States v.

Montos, 421 F. 2d 215, (5th Cir. 1970) cert. den. 397

U.S. 1022, 25 L. Ed. 2d 532, 90S. Ct. 1262 (1970) as”an

excellent summary of the Miranda doctrine as

developed to date,” the Seventh Circuit held “what we

believe to be a salutary rule if police investigations are

to have any efficacy whatsoever, namely, that an

express statement that the individual does not want a

lawyer is not required if it appears that the defendant

was effectively advised of his rights and he then

intelligently and understandingly declined to exercise

them.” [Ganter, 436 F. 2d at 370 (Emphasis added)]

In Hughes v. Swenson, 452 F. 2d 866 (8th Cir.

1971) the Eighth Circuit Court of Appeals was faced

with the following issue. “The thrust of appellant's claim

is that a valid waiver cannot be effective absent an

expressed declaration to that effect. We are cited to no

case which supports appellant’s thesis and

independent research discloses none. To the contrary,

the Fifth, Seventh, Ninth, and Tenth Circuits have held

in effect that if the defendant is effectively advised of his

rights and intelligently and understandingly declines to

exercise them, the waiveris valid.” /Hughes v. Swenson,

a

452 F. 2d at 867 (emphasis added), citing as authority:

United States v. Montos, 421 F. 2d 215, 224 (5th Cir),

cert. den. 397 U.S. 1022, 25 L. Ed. 2d 532, 90 S. Ct.

1262 (1970); United States v. Ganter, 436 F. 2d 364,

369-370 (7th Cir. 1970); United States v. Hilliken, 436

F. 2d 101, 102-103 (9th Cir. 1970), cert. den 401 U.S.

958, 28 L. Ed. 2d 242, 91 S. Ct. 987 (1971); Bond v.

United States, 397 F.2d 162, 165 (10th Cir.) cert. den.

393 U.S. 1035, 21 L. Ed. 2d 579, 89 S. Ct. 652 (1968)].

Further research indicates that the United States Court

of Appeals for the District of Columbia in United States

v. McNeil, 433 F. 2d 1109 (1969) and Mitchell v. United

States, 434 F. 2d 483 (D.C. Cir.), cert. den. 400 U.S. 867

(1970), had taken a similar position at the time of the

Hughes v. Swenson decision in the Eighth Circuit. The

Third and Fourth Circuit Courts of Appeal had taken

this same position at the time of the Hughes v. Swenson

decision in United States v. Ruth, 394 F. 2d 134 (3rd

Cir.), cert. den., 393 U.S. 888 (1968), United States v.

Stuckey, 441 F. 2d 1104 (3rd Cir.), cert. den.,, 404 U.S.

841 (1971) and United States v. Thompson, 417 F. 2d

196 (4th Cir.) cert. den.,396 U.S. 1047 (1970).

Thereafter a number of the remaining Circuit

Courts of Appeal followed suit. In United States v.

Moreno-Lopez, 466 F. 2d 1205 (9th Cir. 1972) the

Ninth Circuit remained consistent with its prior Miranda

interpretation finding that “[a]n express waiver is not

required. Rather, courts must !ook at the circumstances

of each case to determine the validity of a waiver of

Miranda rights.” In United States v. Speaks, 453 F. 2d

966 (lst Cir. 1972) the First Circuit Court of Appeals

22

found a valid waiver where the properly warned

suspect refused to sign the written waiver, but was

willing to talk. In United States v. Boston, 508 F.2d 1171

(2nd Cir. 1974) the Second Circuit Court of Appeals

refused to adopt a per se exclusionary rule where there

was no written waiver and the suspect refused to sign a

waiver, looking instead to the surrounding

circumstances in determining that there was a valid

waiver of rights. Citing a number of the aforementioned

cases, The Eighth Circuit Court of Appeals took a

similar position in United States v. Marchildon, 519 F.

2d 337 (8th Cir. 1975), consistent with its decision in

Hughes v. Swenson. In Blackmon v. Blackledge, supra,

the Fourth Circuit Court of Appeals citing the above

authorities found a suspect's waiver by implication “in

all of the surrounding circumstances, including his

knowledge of his rights and his response to questioning

without objection or expression of a wish for the

presence of a lawyer.” The Court wenton to find that the

suspect “never requested a lawyer or suggested in any

way that he did not wish to submit to questioning

without the presence of a lawyer. Waiver is implicit in

such circumstances, for it is quite inconsistent with an

assertion of the known right.” /Blackmon, 541 F. 2d at

1073]

Present research indicates that the Sixth Circuit

Court of Appeals is the only Federal Circuit Court

which has not yet faced and resolved this issue. All

remaining Circuit Courts of Appeal appear to have

adopted a fotality of the circumstances test in

determining whether there exists an implied waiver,

23

where an express waiver is absent. Such has been and

continues to be a proper interpretation and application

of the Miranda decision, precluding any unwarranted

expansion or extensions.'4

14An examination of the opinions of the Supreme Courts and

Courts of Appeal of the various States reveals that a number of

states have interpreted Miranda as allowing an implied waiver of

counsel from the totality of the circumstances. The following twenty

states appear to recognize implied waiver:

ALABAMA~—Sullivan v. State, Ala-Cr.App. 351 So.2d 659, cert.

denied 351 So.2d 665 (1977)

ARIZONA~—State v. Pineda, 110 Ariz. 342, 519 P.2d 41

(1974): State ex re/ Berger v. Superior Court, 109 Ariz. 506,

513 P.2d 935 (1973).

CALIFORNIA—People v. Johnson, 75 Cal.Rptr. 401, 450 P.2d 865

(reversed on other grounds) (1969); People v. Sam, 77

Cal.Rptr. 804, 454 P.2d 700 (1969).

COLORADO~—People v. Weaver, 179 Colo. 331, 500 P.2d 980

(1972): Reed v. People, 171 Colo. 421, 467 P.2d 809 (1970).

DELAWARE—Aaron v. State, Del.Supr. 275 A.2d 791 (1971).

FLORIDA—State v. Craig, Fla. 237 So.2d 737 (1970).

GEORGIA—Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977).

ILLINOIS—People v. Brooks, 51 Il].2d 156, 281 N.E.2d 326(1972).

KANSAS—Strate v. Baker, Kan.App. 580 P.2d 90 (1978).

MAINE—State v. Hazelton, Me. 330 A.2d 919 (1975).

MARYLAND—Miller v. State, 251 Md. 362, 247 A.2d 530 (1968);

Burton v. State, 7 Md.App. 671, 256 A.2d 826 (1969).

MASSACHUSETTS—Commonwealth v. Johnson, Mass.App. 326

N.E.2d 355 (1975); Commonwealth v. Murray, 359 Mass. 541,

269 N.E.2d 641 (1971).

oe

24

ARGUMENT III

CERTAIN PORTIONS OF THE MIRANDA DECISION

LEAD TO THE INTERPRETATION AND CONCLUSION OF

THE FEDERAL CIRCUIT COURTS OF APPEAL AND THE

OTHER COURTS CITED ABOVE THAT A PROPERLY

WARNED CRIMINAL SUSPECT DOES NOT EXERCISE HIS

RIGHT TO SILENCE UNDER MIRANDA UNLESS HE

STANDS MUTE OR OTHERWISE CLEARLY EXPRESSES

HIS DESIRE NOT TO SPEAK, AND THAT ANY OTHER

CONDUCT MAY IMPLY A WAIVER OF RIGHTS TO

SILENCE AND COUNSEL.

Minn.

MINNESOTA—Strate v. Ne/son,

(1977).

MISSOURI—State v. Williams, Mo.Cr.App. 547 S.W.2d 139

(1977); State v. Alewine, Mo. 474 S.W.2d 848 (1972): State v.

Burnside, Mo. 473 S.W.2d 697 (1971).

OKLAHOMA-— Shirley v. State, Okl.Cr. 520 P.2d 701 (1974),

OREGON —State v. Davidson, 252 Ore. 617, 451 P.2d 481 (1969),

PENNSYLVANIA—Commonwealth v. Cost, 238 Pa. Superior Ct.

591, 362 A.2d 1027 (1976); Commonwealth v. Garnett, 458

Pa. 4, 326 A.2d 335 (1974).

TENNESSEE—FParks v. State, Tenn.Cr.App. 543 S.W.2d 855

(1976); Bowling v. State, Tenn.CrApp. 458 S.W.2d 639

(1970).

VIRGINIA—Land v. Commonwealth, 211 Va. 223, 176S.E.2d 586

(1970) (reversed on other grounds).

WASHINGTON —Srate v. Young, 89 Wash.2d 613,574 P.2d1171

(1978).

257 N.W.2d 356

25

Miranda imposes a constitutional duty and burden

upon a police officer conducting custodial

interrogation to properly inform the suspect of his rights

and to honor any right which the suspect chooses to

exercise. Although a police officer may not in any

manner improperly discourage the exercise of basic

constitutional rights by a suspect, such officer is not

required or obliged to encourage a suspect to exercise

these rights, nor is he expected to exercise a particular

right for the suspect. Expecting such of law

enforcement personnel would require an abrogation of

their function.!5 Although the officer bears Miranda’s

15* * * “(I]n this country we have one of the most

moralistic criminal law systems that the world has yet

produced. It is enforceable only in a sporadic, uneven

and discriminatory fashion. The most severe drug laws

and the largest number of addicts. Highly restrictive sex

laws in a society that can hardly be regarded as

dedicated either to monogamy or the missionary

position in copulation; and in which sexual stimuli are

ubiguitous. In relation to these laws the police have

ritual, sacerdota! functions to perform, like a secular

priesthood. And they have also to handle our drunks

and alcoholics, our snarled and feverish traffic, our

vagrants, our treed cats, our parading dignitaries, our

gamblers other than us, our burgeoning riots, andin the

remainder of their time to protect us from serious crime.

* * * In many of our cities we pay the police less

than the garbage collector, overload them with a

morally pretentious law, and require them to

demonstrate wisdom and skill in excess of that which is

expected of any of the established professions. The

26

burden to inform the suspect of his rights, the suspect

bears the responsibility in the exercise of these rights.

The officer may not improperly influence the suspect's

decision, but it is the suspect who must by word or act

make and demonstrate his choice.

This Court's language in Miranda addresses that

distinction: “Once warnings have been given, the

subsequent procedure is clear. /f the individual

indicates in any manner at any time prior to or during

questioning, that he wishes to remain silent, the

interrogation must cease.... If the individual states that

he wants an attorney, the interrogation must cease until

an attorney is present.” [384 U.S. at473-474 (Emphasis

added)}

A RATIONAL INTERPRETATION OF THIS

LANGUAGE WOULD INDICATE THAT ONCE WARNINGS

HAVE BEEN PROPERLY GIVEN AND ACKNOWLEDGED

IN THE ABSENCE OF ANY INDICATION THAT THE

SUSPECT WISHES TO REMAIN SILENT OR TO CONSULT

WITH COUNSEL, THE OFFICER MAY PROPERLY BEGIN

TO QUESTION THE SUSPECT UNTIL THE SUSPECT

EXERCISES ONE OF THESE RIGHTS OR “INDICATES IN

ANY MANNER” THAT HE CHOOSES TO DO SO.

policeman is expected to be an expert on the law, a

psychologist, a strategist, on occasion a midwife, a

protector of public safety, a ruthless prosecutor of crime

and at the same time a guardian of civil liberty.”

L. Hall, Y. Kamisar, W. LaFave, J. Israel, MODERN

CRIMINAL PROCEDURE (3rd Edition, 1969) p. 160.

27

If the suspect chooses to exercise his right to

silence, this Court, as indicated in Doyle v. Ohio, 426

U.S. 610, 49L. Ed. 2d 91, 96 S. Ct. 2240 (1976), will

rigidly protect that choice and will allow no inference of

guilt to be drawn from the suspect's decision not to

speak.

If the suspect chooses to exercise his right to

counsel, this Court, as indicated in Brewer v. Williams,

430 U.S. 387, 51 L. Ed. 2d 424, 97S. Ct. 1232 (1977) will

require strict adherence to such request and will

prohibit any attempt at circumvention.

However, if the properly warned suspect makes the

decision to speak, he by his words or actions

demonstrates what rights, if any, he chooses to exercise.

In United States v. Washington, 431 U.S. 181, 52 L. Ed.

2d 238, 97 S. Ct. 1814 (1977) this Court, in refusing to

hold inadmissible at a federal criminal prosecution the

grand jury transcripts of incriminating testimony of a

defendant who had chosen to testify before such federal

grand jury after proper admonishments regarding his

Fifth Amendment rights, indicated that incriminating

statements made voluntarily by a properly warned

suspect who chose to speak and thus chose not to

exercise his right to silence was competent evidence

irrespective of whether or not the suspect fully

appreciated that the focus of the investigation had

crystallized upon him and that any statement he made

had potential adverse significance.

28

The language of Miranda is not inconsistent with

the concept of implied waiver, nor does the Miranda

Court's choice of language preclude implied waiver as

a viable concept in the application of its decision.

A decision expressly to exercise the right to remain

silent or to consult counsel or a decision to expressly

waive both rights is not the only alternative presented in

the usual custodial interrogation situation. The totality of

the circumstances may in some cases reflect an implied

exercise of rights, as when the accused simply remains

silent. Likewise the totality of the circumstances may

reflect an implied waiver as when the accused

promptly volunteers an incriminating statement. The

test is not whether the exercise of the waiver is express,

but whether it is real, recognizing that the burden of

persuasion in establishing waiver rests entirely with the

State.

ARGUMENT IV

THE POLICY CONSIDERATIONS UNDERLYING

MIRANDA AS DISCUSSED BY THIS COURT IN THAT

DECISION AND IN ITS SUBSEQUENT DECISIONS

SUPPORT A RULE OF LAW WHICH ALLOWS A FINDING

OF IMPLIED WAIVER OF COUNSEL FROM THE TOTALITY

OF THE CIRCUMSTANCES, BALANCING THE INTERESTS

OF SOCIETY AND OF THE SUSPECT.

The landmark Miranda decision enunciated a

series of specific protective procedural guidelines

necessary to secure and insure a criminal suspect's

Fifth Amendment privilege against compulsory

self-incrimination during custodial interrogation. The

historical roots of the Fifth Amendment privilege

29

against compulsory self-incrimination lay in the

Founding Fathers’ desire to prohibit Star Chamber

proceedings and assorted inquisition style brutalities

by law enforcement officers who sought to obtain

admissions of guilt from a suspect's own lips. This Court

indicated that these procedural safeguards were not

themselves rights protected by the Constitution, but

were prophylactic measures to ensure that a criminal

suspect's right against compulsory self-incrimination

during a custodial interrogation was protected. Under

Miranda, the suspect must be apprised of his Fifth

Amendment rights and make a voluntary, knowing,

and intelligent waiver before his statements can be

introduced by the prosecution against him in its casein

chief. The Court stated, “The warnings required and the

waiver necessary in accordance with our opinion today

are, in the absence of a fully effective equivalent

prerequisites to the admissibility of any statement made

by a defendant.” [384 U.S. at 476] In analyzing whether

a waiver of an individual’s Miranda rights can be

implied from the totality of the circumstances

immediately preceding the giving of a statement, the

policy considerations underlying Miranda, as

enunciated by the Court in cases following Miranda,

must be examined.

In Michigan v. Tucker, 417 U.S. 433, 41 L. Ed. 2d

182, 94 S. Ct. 2357 (1974), this Court set forth a

two-pronged analysis of Miranda rights questions. Mr.

Justice Rehnquist, delivering the opinion of the Court,

reviewed the historical antecedents of the Fifth

Amendment privilege against compulsory

self-incrimination. He indicated that the Miranda

prophylactic guidelines were not intended to create a

constitutional straight-jacket to thwart police, but

30

instead were intended to provide practical

reinforcement for the right against self-incrimination.

The Court drew a distinction between the violation of

the actual privilege itself, [i.e., the right to be free of

torture, isolation, starvation, or assorted mental or

physical pressure overbearing the suspect's will and

thereby compelling incriminating statements] and the

violation of a prophylactic safeguard created to

preserve this privilege.. If the underlying privilege is

violated, a suspect's statements are per se inadmissible

for any purpose. [See Mincey v. Arizona, US. ;

57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978)] However, if

merely the prophylactic guidelines are violated, thei

the Court will balance the interests of the suspect's

constitutional Fifth Amendment right against the

government's interests in protecting society from

criminals. In assessing the government's interests, the

Court will weigh the deterrent value of excluding the

evidence in question to deter future unlawful police

conduct against the strong interest of making available

to the trier of fact all concededly relevant and

trustworthy evidence. Mr. Justice Rehnquist indicated

that the exclusionary rule concerning technical

violations of Miranda’s prophylactic guidelines only

makes sense if it will deter police conduct which is

willful or negligent or if the statements obtained are

untrustworthy. The real significance of Michigan v.

Tucker lies in the Court's rejection of a purely

mechanical application of Miranda’s exclusionary

provisions for violation of the prophylactic guidelines

enunciated in Miranda and in its willingness to look at

the circumstances of the case in order to balance the

interests of society and the criminal suspect. In

Michigan v. Tucker, the Court struck the balance in

favor of the government.

31

Michigan v. Tucker was decided shortly after

Harris v. New York, 4C1 U.S. 222, 28, L. Ed. 2d 1,91 S.

Ct. 643 (1971), wherein the Court indicated that it

would not expand Miranda beyond its specific holding.

In Harris, the Court decided that although a criminal

suspect has the right to be free from having statements

which were elicited from him in violation of Miranda

used against him by the prosecution in its case in chief

(deterrent interest], a criminal defendant could not use

the shield provided by Miranda as a license to commit

perjury if the criminal defendant took the stand to testify

falsely in his own defense [interest in preserving

judicial integrity and making relevant and trustworthy

evidence available to the trier of fact]. Therefore, the

Court struck the balance in favor of allowing the

prosecution to use otherwise impermissible statements

[which were only technical Miranda violations] to

impeach such a criminal defendant's testimony.

In Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d

313, 96 S. Ct. 321 (1975), the Court's decision turned on

the interpretation of a single paragraph from the

Miranda decision. Rejecting literal interpretations of the

Miranda language that would lead to absurd and

unintended results, the Court addressed Miranda's

purpose of protecting criminal suspects’ Fifth

Amendment rights as balanced against the probability

that a literal interpretation of Miranda would ‘transform

the Miranda safeguards into wholly irrational obstacles

to legitimate police investigative activity and deprive

suspects of an opportunity to make informed and

intelligent assessments of their interests.’ [423 U.S. at

102] The Court once again balanced the interests of a

criminal suspect's right to be free from compulsory

self-incrimination against the interests of the State to

32

relevant and trustworthy evidence, holding that the

criminal suspect's Fifth Amendment rights, upon

re-questioning following an initial assertion of his right

to silence, were not violated as long as he was not

deprived of his right to cut off all present and future

questioning by the police should he choose to do so.

The trend of the United States Supreme Court cases

concerning interpretations of Miranda was clearly

articulated by Mr. Justice Rehnquist, as Circuit Justice,

in his order granting an application for a stay of

enforcement of a California Supreme Court Judgment

in Fare v. Michael C,, U.S.___, 58 L. Ed. 2d 19, 99

S. Ct. 3 (1978), ashe commented that, . . . this Court has

been consistently reluctant to extend Miranda or to

extend in any way its strictures on law enforcement

agencies.” [99 S.Ct. at 5] The Court simply will not

create any extensions of Miranda which would “cut

Miranda loose from its doctrinal moorings.” [Id., at 5]

Keeping in mind the balance of interests

surrounding the applicability of any extensions of

Miranda, the underlying policy which serves as its

doctrinal moorings bears examination. The Miranda

Court stated that the constitutional foundation

underlying the privilege against compulsory

self-incrimination is the respect a government must

accord to the dignity and integrity of its citizens. [384

U.S. at 460] The Court primarily focused on the right of

the individual to be free from coercive tactics which

overbear his will and compel him to incriminate

himself. The analysis involves considerations of a

33

complex of values implicated in police questioning of a

suspect in a custodial atmosphere. At one end of the

continuum is the need for police questioning as a tool

for the effective enforcement of criminal laws. At the

other end is the societal belief that criminal law

enforcement cannot be used as an instrument of

coercion and unfairness. There is a fundamental

tension between society's interest to be secure [effective

law enforcement, judicial integrity, search for the truth,

and punishment of criminals], and the individual's

interest to be free from governmental intrusion which

improperly overbears, coerces, and restrains liberty.

The Miranda case attempted to strike the balance

between security and liberty by creating rigid and

precise prophylactic rules. To enforce this balance, an

exclusionary rule was adopted. The rationale for the

exclusionary rule was to deter police misconduct and

protection of the courts from untrustworthy evidence.

As Mr. Justice Rehnquist stated in Michigan v. Tucker,

the pressures of law enforcement and the vagaries of

human nature make it unrealistic to require policemen

investigating serious crimes to make no errors

whatsoever. Where the policeman’s actions were

pursued in complete good faith and he has not engaged

in willful or negligent conduct, the deterrent rationale

loses much of its force. In addition, if only technical

violations of Miranda are involved, then there is little

likelihood that the statements are untrustworthy.

Considering society's interest in being secure from

criminals, judicial integrity, and the fundamental

fairness of punishing those guilty of serious crimes, the

balance should shift in favor of not finding constitutional

34

infirmity when mere technical infractions of Miranda

are involved. Furthermore, as the Court indicated in

Michigan v. Mosley, the Court will look to Miranda’s

underlying purposes and will not allow literal

interpretations of passages in Miranda to lead to absurd

and unintended results which could transform Miranda

safeguards into wholly irrational obstacles to legitimate

police activity. [423 U.S. at 102]

When considering the question of waiver of

Miranda rights, a similar balancing of interests must be

kept in mind. This Court has never held that a waiver of

an individual's Miranda rights cannot be implied from

the totality of the circumstances surrounding the giving

of his statement. The suspect can easily protect his

interest in preserving his Fifth Amendment rights by

remaining silent or by telling the police officer that he

does not desire to speak and/or by requesting to speak

to an attorney prior to answering questions. On the

other hand, no deterrent effect will be accomplished by

excluding statements made voluntarily to police

officers who take such statements after reasonably

determining that the suspect has waived his rights

under Miranda based upon the totality of the

circumstances. To disallow the finding of an implied

waiver under such circumstances would transform the

procedural safeguards of Miranda into an irrational

obstacle to legitimate police activity. Surely this is not

what Miranda intended. An implied waiver is a fully

effective equivalent of an express waiver as long as the

facts warrant the conclusion that there was an implied

waiver. This comports with society's interest in security

35

and judicial integrity. Furthermore, it allows the trier of

fact to receive relevant trustworthy evidence and

satisfies the societal interest that perpetrators of crime

be punished. Balancing these interests leads to the

conclusion that this Court should hold that a waiver ofa

criminal suspect's Miranda rights can be implied from

the totality of circumstances.

ARGUMENT V

IN SUBSEQUENT DECISIONS THIS COURT "HAS

BEEN CONSISTENTLY RELUCTANT TO EXTEND

MIRANDA OR TO EXTENDIN ANY WAY ITS STRICTURES

ON LAW ENFORCEMENT AGENCIES."!6¢

As noted by Mr. Justice Rehnquist in his

IN-CHAMBERS OPINION staying enforcement of a

judgment of the California Supreme Court adverse to

the state which required exclusion of a juvenile’s

confession in Fare v. Michael C., 21 Cal. 3rd 471 (1978),

“some pattern has developed in the handling of

Miranda issues... .’

The Justice goes on to say:

“Miranda v. Arizona was decided by a

closely divided Court in 1966. While the

rigidity of the prophylactic rules was a

principal weakness in the view of dissenters

16 Fare v. Michael! C., _— U.S. __, ~~, 58 L. Ed. 2d 19, 23,

99 S. Ct. 3, 5, (1978).

36

and critics outside the Court, its supporters saw

that rigidity as the strength of the decision. It

afforded police and courts clear guidance on

the manner in which to conduct a custodial

investigation: if it was rigid, it was also precise.

But this core virtue of Miranda would be

eviscerated if the prophylactic rules were

freely augmented by other courts under the

guise of ‘interpreting’ Miranda, particularly if

their decisions evinced no principled

limitations. Sensitive to this tension, and to the

substantial burden which the original Miranda

rules have placed on local law enforcement

efforts, this Court has been consistently

reluctant to extend Miranda or to extend in any

way its. strictures on law enforcement

agencies.”

[Fare v. Michael C., ___ U.S. __, 58 L. Ed. 2d

19, 23, 99'S. Ct. 3, 5 (1978)]

Mr. Justice Rehnquist, in expressing concern that

unrestrained lower court interpretation of Miranda

“risks cutting Miranda loose from its doctrinal

moorings,’ concludes that in the United States

Supreme Court's subsequent cases ‘the overall thrust

of these cases represents an effort to contain Miranda to ,,

the express terms and logic of the original opinion.”!”

17Fare v. Michael C., Supra, 58 L. Ed. 2d 19, 24,99 S.Ct.3,5

(1978).

PAM Ma iar rcs

37

In Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1,

91 S. Ct. 643 (1971) the Court refused to extend

Miranda to require a per se exclusion of a confession,

taken without proper Miranda warnings but which was

otherwise voluntary, used in cross examination to

impeach the defendant's direct testimony. When the

Oregon Supreme Court thereafter refused to accept the

fine line of Harris and chose to extend Miranda

violations as a total per se exclusion for any purpose in

their jurisdiction beyond the perimeters of Harris and of

this Court's desired intent, the Court reversed in

Oregon v. Hass, 420 U.S. 714, 43 L. Ed 2d 570, 95S. Ct.

1215 (1975), making it clear that the United States

Supreme Court will allow no further extension or

expansion of Miranda beyond that which it deems

appropriate. However, in Mincey v. Arizona, 437 U.S.

57 L. Ed. 2d 290, 98 S. Ct. 2408 (19778) this Court

made it clear that the Harris exception to per se

exclusion arises only when a “Miranda violated”

confession is otherwise voluntary.

In its per curiam opinion of Oregon v. Mathiason,

429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) this

Court declined the opportunity to extend the scope of

Miranda to expand the concept of ‘custodial

interrogation” broad enough to include a burglary

suspect on parole who voluntarily came down to the

police station at police request for questioning, who was

not under arrest, and who was free to leave at any time

and did in fact leave after making incriminating

statements without the benefit of Miranda warnings.

Reversing the Oregon Supreme Court's suppression of

38

such confession, the Court said: "We think that court

has read Miranda too broadly, and we therefore reverse

its judgment.” This Court found that this interrogation

was not ‘that sort of coercive environment to which

Miranda by its terms was made applicable and to which

it is limited.”

In Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d

313, 96 S. Ct. 321 (1975) this Court refused to hold that,

once rights are invoked, Miranda creates a per se

proscription of indefinite duration precluding any

subsequent opportunity to obtain a valid waiver and a

voluntary statement.

In Beckwith v. United States, 425 U.S. 341, 48 L. Ed.

2d 1, 96 S. Ct. 1612 (1976) this Court did not see fit to

extend Miranda warning requirernents to IRS Agents

questioning tax evasion suspects regarding federal

income tax liability, even though the focus of any

criminal investigation was directed entirely at the

suspect being interrogated.

These decisions strongly echo the words of Justice

Rehnquist that “the overall thrust of these cases

represents an effort to contain Miranda to the express

terms and logic of the original opinion.”

CONCLUSION

Upon the reasoning and authorities heretofore

cited and discussed, the State of North Carolina

respectfully submits that the Supreme Court of North

Carolina erred in its interpretation of Miranda v.

Arizona that the showing of a specific express oral or

39

written waiver of counsel is a mandatory prerequisite to

the admissibility of any statement made by a suspect

during in-custody interrogation, where such literate,

adult suspect has been properly advised of his Miranda

rights prior to questioning, has acknowledged that he

understands such rights, has indicated he would ‘talk to

you but I am not signing any form”, has not been

subjected to improper and unfair police activity or

coercion, and has spoken freely and voluntarily in

response to questions without requesting counsel or

indicating in any manner that he wished to remain

silent. Therefore, the decision of the North Carolina

Supreme Court suppressing the respondent's

confession on such basis, and the Court's order for a

new trial, should be reversed and the conviction of this

respondent should be affirmed. Respondent's

conviction is free from any constitutional infirmity

requiring a new trial.

Respectfully submitted,

RUFUS L. EDMISTEN

Attorney General

LESTER V. CHALMERS, JR.

Special Deputy Attorney General

DONALD W. STEPHENS

Assistant Attorney General

Counsel for Petitioner

STATE OF NORTH CAROLINA

North Carolina Department

of Justice

Post Office Box 629

Raleigh, North Carolina 27602

(919) 733-2011

CERTIFICATE OF SERVICE

I hereby certify that I am Assistant Attorney

General for the State of North Carolina; that I have

served copies of the within BRIEF FOR THE

PETITIONER by depositing copies of same in the United

States mail at Washington, D.C., first class postage paid,

addressed to:

Mr. R. Gene Braswell

Attorney at Law

231 E. Walnut Street

Goldsboro, North Carolina 27530

Mr. Michael! A. Ellis

Attorney at Law

615 Park Avenue

Goldsboro, North Carolina 27530

This 25th day of January, 1979

/s/

DONALD W. STEPHENS

Assistant Attorney General

COUNSEL FOR THE

STATE OF NORTH CAROLINA,

Petitioner

Bibi eo