Petition for Writ of Certiorari — Strobel v. North Carolina

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041489 MAY 2 = 2005

OFFICE OF THE CLERK

IN THE SUPREME COURT

OF THE

UNITED STATES

CRYSTAL MAY STROBEL,

Petitioner

V.

STATE OF NORTH CAROLINA,

Respondent

On Petition for Writ of Certiorari

To the Supreme Court

Of the State Of North Carolina

PETITION FOR WRIT OF CERTIORARI

Alison Minet Adams,

Counsel of Record

The Chase Law Group

4181 Sunswept Drive 100

Studio City, California 91604

Telephone: (818) 487-7400

Counsel for Petitioner

Questions Presented for Review:

Whether Written-Only Advisement of the Miranda

Warnings Is Effective to Inform Suspects of their

Rights or Instead the Opinion of the North

Carolina Court Conflicts with Miranda v. Arizona

Table of Contents

Questions Presented for REVIEW: ......000.0c000000 I

Whether Written-Only Advisement of the

Miranda Warnings Is Effective to Inform

Suspects of their Rights or Instead the

Opinion of the North Carolina Court

Conflicts with Miranda v. Arizona.............. i

Table of COMMIS... :isscqcremempeamenmnes 1

OPINIONS BELOW ...:ccsscternntaniemecdtibiane 1

The published opinions of the North Carolina

Supreme Court denying discretionary review

and of the North Carolina Court of Appeal are

reproduced in the Appendix...........0ccceseeeee ]

The petition for discretionary review by the

North Carolina Supreme Court was denied

February 3, 2005. This Court has jurisdiction

under 26 U.5.CQI1Z3 annuunnnaanee 1

_ REASONS FOR GRANTING THE

PETITION, ccscssnsssssssnnesi . 9

1. The Petition Should Be Granted because the

Written Only Miranda Warnings Did Not

Adequately Advise Petitioner of Her Rights . 9

2. This Court Has Found Unconstitutional

Written Only Watvers by Criminal

Defendants of their Right to Counsel .......... 12

3. This Issue Is Ripe for This Court to Resolve

the Confusion in the Circuits and In the

North Caroling COMES. ccsessuesssaestmumisnenn 14

4. This Court Should Grant the Writ To

Protect Miranda by Ensuring That Suspects

Are Fully And Effectively Informed Of Their

Rights Before They Are Questioned By Police

sschadeebcnssinbebsonssieeeesnissaseescseetasievecsesssseceessacig.. 17

oo cetacean ae 19

APPENDIX A....... hadoomeseiniiisitadeteus ii tot ]

OPINION OF THE COURT OF APPEAL

OF THE STATE Of NORTH CAROLINA. 1

STATE OF NORTH CAROLINA v.

CRISTAL STROBEL oocccccsescesiessescesse......... ]

cine eon ot EE 13

ORDER OF THE SUPREME COURT OF

NORTH CAROLINA .oeceecccccccecsoceces- 13

TABLE OF AUTHORITIES

CASES

Bell v. United States,

382 F.2D 985 (9th Cir. 1967) ------------------------- 13

Brewer v. Williams

430 U.S. 386, 97 S.Ct. 1232, 51 L.Ed 2d 424 (1977)9

Davis v. United States

512 U.S 452, 129 L.Ed2d 362, 371(1994)------------ 9

Johnson v. Zerbst

304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed 1461 (1938)-- 9

Dickerson v. United States,

530 U.S. 428, 120 S.Ct. 2326,

147 L.Ed.2d 405 (2000) -------------------------------- 15

Michigan v. Jackson

475 U.S. 625, 106 S.Ct. 1404.

69 L.Ed 2d 631(1986 ----------------------------------- 11

Miranda v. Arizona

384 U.S. 436, 86 S.Ct. 1602.

16 L. Ed. 2d. 694(1 966) ------------------------ i, passim

Missouri v. Seibert

-U.S.--, 124 S.Ct 2601(2004) --------------- 14, passim

State Of North Carolina v. Crystal Strobel- 17, passim

State v. Sledge,

546 F.2d 1120 (4th Cir.), cert. denied, 430 U.S. 910,

51 L. Ed. 2d 588 (1977)(----------------------------- 12

Texas v. Cobb

532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 ---- 9

United States v. Alexander,

441 F.2d 403 (3d Cir. 1971)---------------------------- 12

United States v. Bailey, 468 F.2d 652, 659-660 (Sth

Cir. 1972) ---------------------------------------------- 12

United States v. Coleman,

524 F.2d 593 (10th Cir. 1975)------------------------- 12

United States v. Johnson, ,

426 F.2d 1112, (7th Cir.)------------------------------- 12

iV

United States v. Osterburg,

423 F.2d 704 (9th Cir. 1970) --22--------n2222---n2--2- 12

United States v. Van Dusen,

431 F.2d 1278 (1st Cir. 1970) ann----nnnnnnncoeeennnnne 12

STATUTES

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PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF THE STATE OF NORTH

CAROLINA

Petitioner Crystal Strobel, a

North Carolina incarcerated person,

prays that a writ of Certiorari issue to

the North Carolina Supreme Court

because her conviction was obtained

in violation of her Fifth Amendment

Rights as made binding upon that

State by the Fourteenth Amendment

when during a custodial interrogation

the police did not orally warn her

about those rights.

OPINIONS BELOW

The published opinions of the North

Carolina Supreme Court denying

discretionary review and of the North

Carolina Court of Appeal are reproduced in

the Appendix.

JURISDICTION

The petition for discretionary review by the

North Carolina Supreme Court was denied

February 3, 2005. This Court has jurisdiction

under 28 U.S.C.§1257.

CONSTITUTIONAL AND

STATUTORY PROVISIONS

INVOLVED

Amendment V

No person. . .shall be compelled in any

criminal proceeding to be a witness against

himself.

Amendment XIV sec.1

[Njor shall any State deprive any

person of life, liberty, or property,

without due process of law

18 U.S.C. § 1257. State courts; certiorari

(a) Final judgments or decrees rendered by

the highest court of a State in which a

decision could be had, may be reviewed by

the Supreme Court by writ of certiorari. . .

where any right, privilege, or immunity is

specially set up or claimed under the

Constitution . . .of, or any commission held

or authority exercised under, the United

States.

STATEMENT OF THE CASE

Petitioner was charged with robbery

with a dangerous weapon and with

conspiracy to commit robbery. She moved

the court to suppress her statement to police

based upon Miranda v. Arizona 384 US. 436,

86 S.Ct. 1602, 16 L. Ed.2d. 694(1966) and

violation of her Fifth and Sixth Amendment

Rights. The trial court denied the motion and

Petitioner pled guilty to the consolidated

charges; she was sentenced to a mitigated

sentence of thirty-eight to fifty-five months.

She appealed and the North Carolina Court

of Appeal affirmed her conviction. The facts

below are taken from the appellate opinion.

The State’s evidence

tended to show that on 14

November 2001, Jessica Pritt, a

manager at a Taco Bell

restaurant in Havelock, North

Carolina, was robbed while

making a nightly deposit...

Three individuals were

involved in the robbery. One of

the individuals, Ernest Erdman,

approached Pritt with a bottle

while [Petitioner] waited in the

car. Officer Brian Woods of the

Havelock City Police

Department interviewed

[Petitioner] on 25 November,

2001, after receiving

information from Erdman’s

girlfriend that indicated

3

[Petitioner] was involved in the

crime. This was a non-custodial

interview. On 29 November,

2001, a warrant was issued for

the arrest of [Petitioner]

charging her with conspiracy to

commit robbery with a

dangerous weapon. Police

arrested [Petitioner] on

November 30, 2001, and she

appeared before the District

Court of Craven County on 3

December, 2001. At that time,

[Petitioner] requested an

attorney and the court

appointed Joshua Willey to

represent her on the conspiracy

charge. (Opinion, Appendix

page 4.) -

After counsel had been appointed to

represent Petitioner on the conspiracy to

commit robbery charge, she was arrested for

the robbery itself. When the police

questioned her they gave her, without any

oral explanation or discussion of the

contents, a written form, called “Voluntary

Statement” which contained the Miranda

warnings and other language:

The trial court found that “Detective

King did not orally advise the Defendant of

her Miranda Rights, but rather they were

given to her to read on State's Exhibit No.-1,

the “Voluntary Statement.” The written

statement form set forth each of the Miranda

rights. It also contained the following

language: .

I do not want to talk to a lawyer and |

hereby knowingly and personally

waive my rights to remain silent and

my right to have a lawyer present

while I make the following statement

to the aforesaid person, knowing that |

have the right and privilege to

terminate any interview at anytime

hereafter and have a lawyer present

with me before...answering any more

questions or making any more

statements if | choose to do so.

Defendant signed each page of the

statement. The following language appears at

the bottom of the first page of the statement:

I have read each page of

this statement consisting of four

pages, each page of which bears

my signature and corrections, if

any, bears my initials, and I

certify that the facts contained

hereon are true and correct. I

further certify that | have made

no request for.advice or

presence of a lawyer before or

during any part of this

statement, nor at any time

before it was finished did |

request the statement be

stopped. I also declare that

I...was not told or prompted

what to say in this statement,

5

and that this statement was

completed at 10:40 a.m. on the

_ 24 of January, 2002.

(Opinion, Appendix pages 4-5.)

The evidence presented at the

suppression motion hearing showed that

When Petitioner was arrested on the second

charge, the officer took her to the police

station and demanded a statement.

Petitioner told the police officer that

she already had an attorney; however, the

officer told her that she had appointed

counsel on the conspiracy to commit the

robbery charge but not on the robbery itself.

The trial court found that she had made at

best an equivocal request for counsel because

she did not take the opportunity to telephone

Mr. Willey and she did not take advantage of

his offer to stop the statement until she had

spoken with him.

While she was writing her statement

she was discussing whether she had a lawyer

with the police and that Petitioner was

neither told to read, nor even given quiet

time to read, the advisement of rights

contained in the “Voluntary Statement”

form. Instead, the police officer sat her down

and told her he wanted a statement

(Reporter’s Transcript of Suppression Motion

Hearing, page 23). He then provided her

with a form which had “the rights on there”

(Id at p. 24), sat down next to her with the

form, and immediately began filling out the

preliminary information---which is also the

6

part of the form containing the Miranda

warnings. (Id at p. 25.)

The part of the form the officer

testified that he filled out also contains the

following language:

Before answering any questions or making

any statement, Sgt. D.H. King, the person who

has identified himself as a Havelock police

officer, duly warned and advised me and | know

and understand that | have the following rights: |

have the right to remain silent and do not

have to answer any questions or make any

statements at all, that any statement I can

make and will be used against me in Court

or Courts of law for the offense or offenses

concerning which the following statement in

hereinafter made. That | have the right to

consult with a lawyer of my own choice

before or at anytime during questioning or

statements I make. That if | cannot afford to

hire a lawyer I may request and have a

lawyer appointed for me by the proper

authorities before, or at any time during any

questioning or statements that | make

without cost or expense to me. That I can

stop answering any questions or making any

statements at any time that I choose and call

for the presence of a lawyer to advise me

before continuing any more questioning or

making any more statements, whether or not

I have already answered some questions or

made some statements. I do not want to talk

to a lawyer and I hereby knowingly and

personally waive my right to remain silent

and my right to have a lawyer present while I

j

make the following statement to the

aforesaid person, knowing that | have the

right and privilege to terminate any

interview at anytime hereafter and have a

lawyer present with me before answering

any more questions or making any more

statements. I declare the following voluntary

statement is made of my own free will

without promise or hope for reward, without

fear or threat, without leniency, or offer of

leniency by any person or persons

whomsoever.” (Reporter's transcript of

suppression motion hearing at pp. 26-27.

Emphasis added.)

The officer testified that they went

over her statement after she completed it and

she signed each page, so that is how he

knows she read it--- he did not specify that

he meant that Petitioner had read the

~ advisements (Id. at p. 28.)

Petitioner contends that her waiver of

her rights was involuntary because the

written-only advisement did not effectively

inform her of those rights.

REASONS FOR GRANTING THE

PETITION

1. The Petition Should Be Granted because the

Written Only Miranda Warnings Did Not

Adequately Advise Petitioner of Her Rights

This is a case of first impression to this

Court. It was a case of first impression to the

8

North Carolina courts. (Opinion, Appendix

at p.5) There is no dispute about the necessity

for the Miranda warnings. However, how and

when such warnings must be given has been

the subject of almost continuous litigation.

While several Circuits have agreed with the

North Carolina court that Miranda warnings

need not be given in oral rather than in

written form, this Court has not decided the

issue. Petitioner urges this Court to issue the

writ because the Opinion of the North

Carolina courts conflicts with the long-

standing jurisprudence of this Court

regarding the protection of the constitutional

rights of those accused of crime.

More than a half century ago this

Court decided Johnson v. Zerbst 304 U.S. 458,

58 S.Ct. 1019, 82 L.Ed 1461 (1938), explaining

that it should “indulge every reasonable

presumption against waiver of fundamental

constitutional rights.” (304 US at 464, 58 S.Ct.

1023.) In the intervening years this Court has

also held that while the Sixth Amendment

right to counsel does not depend upon its

invocation (Brewer v. Williams 430 U.S. 386, 97

S.Ct. 1232, 51 L.Ed 2d 424 (1977)), the Fifth

Amendment right to counsel requires a

suspect to make an unequivocal request for

counsel before the police must stop an

interrogation. (Davis v. United States 512 U.S

452, 459, 129 L.Ed2d 362, 371(1994)). In Texas

v. Cobb 532 U.S. 162, 121 S.Ct. 1335, 149

L.Ed.2d 321, this Court explained that the

Sixth Amendment right to counsel is offense

specific; thus following Cobb, the North

9

Carolina Court correctly decided that

Petitioner’s counsel on the conspiracy charge

did not automatically represent her on the

robbery. However, in Cobb, this Court also

emphasized that its opinion had no effect on

and did not limit the Fifth Amendment right

to counsel because the Sixth Amendment

right to counsel did not even attach until

criminal proceedings were initiated in court.

(532 U.S. at 172, 121 S.Ct. 1335.)

Although Petitioner initialed and

signed the written document, there is no

support for the North Carolina Court's

finding that she read or understood the

written rights. Moreover, the vice of written-

only advisement and waiver is not limited to

Petitioner's case: it is common knowledge

that many people accused of crime may have

learning disabilities or psychological

problems that prevent them from

comprehending what they read, especially

when under the severe stress necessarily

engendered by custodial interrogation. The

difficulty that people who have cognitive

limitations face when confronted with the

Miranda warnings has been the subject of

much historical concern. (See Marvel, MENTAL

SUBNORMALITY OF ACCUSED AS AFFECTING

VOLUNTARINESS OR ADMISSIBILITY OF

CONFESSION, 8 ALR 4¢» 16.) It is because an

accused person is vulnerable, because the

mere circumstance of custodial interrogation

may overcome her will that this Court

required the Miranda warnings. This Court

should grant the writ so that it may halt the

10

efforts of the Circuits to dilute and eviscerate

Miranda.

2. This Court Has Found Unconstitutional

Written- Only Waivers by Criminal Defendants of

their Right to Counsel

This Court has already found un-

constitutional written-only waivers of the

Fifth and Sixth Amendment rights to counsel.

In Petitioner’s case, the failure to orally

advise her of her rights led to involuntary

waiver of not only her right against self-

incrimination but also her Fifth Amendment

right to counsel. (Texas v. Cobb, supra, 532 US.

162, 172, 121 S.Ct. 1335,1343, 149 L.Ed.2d

321).) In Cobb, supra, this Court declined the

concurrants’ invitation to disapprove of

Michigan v. Jackson 475 U.S. 625, 106 S.Ct.

1404, 69 L.Ed 2d 631(1986). (532 U.S. 162 at

174-75, 121 S.Ct. 1344.) In that case this Court

iterated that written waivers are insufficient to

Justify police- initiated interrogations after the

request for counsel in a Fifth Amendment

analysis, so too are they insufficient to justify

police- initiated interrogations after the request

for counsel in a Sixth Amendment analysis. (475

US. at p. 635, 106 S.Ct. 1411.)

The written advisement in Petitioner's

case contains language suggesting that there

should be a contemporaneous oral

advisement. “ Before answering any questions or

making any statement, Sgt. D.H. King, the

person who has identified himself as a

Havelock police officer, duly warned and

1]

advised me.” (Reporter's transcript of

suppression motion hearing at pp. 26-27.)

Further, the record demonstrates that the

advisement left Petitioner confused about

whether her attorney in the conspiracy case

could actually assist her in the new case. The

circumstances give rise to an inference

Petitioner was misled about whether the

written- only advisement about the Fifth

Amendment right to counsel, which did not

match the contemporaneous discussion

about whether her Sixth Amendment right to

counsel had attached so that she already had

an attorney in the robbery case, misled her.

The record further discloses that Petitioner

describes herself as having completed only

the eighth grade. She was not asked whether

she suffered from any learning disabilities or

abnormalities that could have affected her

comprehension, under conditions of extreme

stress of these arcane provisions.

The totality of the circumstances then

does not support the decision of the North

Carolina courts that she was effectively

advised of her rights or still less knowingly,

intelligently, and voluntarily waived either

her Fifth Amendment or Sixth Amendment

Rights.

3. This Issue Is Ripe for This Court to Resolve the

Confusion in the Circuits and In the North

Carolina Courts

In its Opinion, the North Carolina

Court of Appeal found support for its

12

decision on what it recognized as a matter of

first impression, in decisions of the several

Circuits of the United States Court of Appeal.

(See e.g., State v. Sledge, 546 F.2d 1120, 1122

(4th Cir.), cert. denied, 430 U.S. 910, 51 L. Ed.

2d 588 (1977)(defendant admitted he could

read and write and that he had read the i

document, court nevertheless said the

preferred method was both oral and written);

United States v. Coleman, 524 F.2d 593, 594

(10th Cir. 1975); United States v. Bailey, 468

F.2d 652, 659-660 (5th Cir. 1972); United States

v. Alexander, 441 F.2d 403, 404 (3d Cir. 1971);

United States v. Van Dusen, 431 F.2d 1278,

1280 (1st Cir. 1970); United States v. Johnson,

426 F.2d 1112, 1115 (7th Cir.), cert denied, 400

U.S. 842, 27 L. Ed. 2d 78 (1970) (but oral as

opposed to written advisement was not

discussed); United States v. Osterburg, 423

F.2d 704 (9th Cir. 1970) (but defendant, who

did not sign the advisement, orally

confirmed that he understood them before

making his statement); Bell v. United States,

382 F.2D 985, 987 (9th Cir. 1967). ) (Opinion

of the North Carolina Court of Appeal, Tab A

at pages 2-3).

Petitioner notes that the North

Carolina Court's reading of these decisions as

to the effectiveness of written-only

advisements is somewhat strained because

those cases almost unanimously support the

belief of the North Carolina Court that the

better practice is to give both oral and written

warnings. (Id. at page 3.)

13

In Van Dusen the First Circuit held that

as a matter of law oral warnings were not

required where the defendant was observed

to read the form, signed it, began to talk, and

had told the agents orally that he understood

it; nevertheless the Court thought that the

warning should have been expanded to

explain that failure to sign the form while

proceeding to talk did not render the

statement inadmissible. The First Circuit also

was addressing whether a written waiver of

rights was required. (431 F.2d 1278, 1280-

1281.) ;

In Sledge the Fourth Circuit iterated

that it was the prosecution's burden to prove

the voluntariness of the waiver and that the

preferred practice included both an oral

recitation of the rights and a written

explanation thereof with a request that he

execute a written waiver of the rights. (546

F.2d 1120, 1122.)

The Tenth Circuit, almost uniquely,

found the written -only advisement sufficient

without hesitation or expressed preference

for both oral and written. (United States v.

Coleman, supra, 524 F.2d 593, 594.)

Many of the cases rely upon the Ninth

Circuit decision Bell v. United States but

because the Ninth Circuit placed the burden

on appellant to show that he was not

properly advised of his rights by showing

that he did not read and understand the

warnings (382 F.2d 985, 987) that case should

be rejected in view of this Court’s decisions

placing on the prosecution the burden of

14

showing voluntariness of the waiver of

constitutional rights. (See, e.g. Missouri v.

Seibert -U.S.--, 124 S.Ct 2601(2004).)

This Court should grant the Petition to

resolve the confusion in the Courts of

Appeals of the United States and the State of

North Carolina.

4. This Court Should Grant the Writ To Protect

Miranda by Ensuring That Suspects Are Fully

And Effectively Informed Of Their Rights Before

They Are Questioned By Police

At the hearing on the motion to

suppress the confession, Officer King initially

testified that Petitioner did not appear to read the

written warnings but simply began to fill out the

form after he handed to her. The rule of Miranda

requires clear advisement of the rights and a

knowing, intelligent, and voluntary waiver of

those rights. (Miranda v. Arizona, supra, 384

US. at 464, 86 S. Ct 1602.)

Last term this Court reaffirmed its

commitment to Miranda and condemned

question-first advisements. (Missouri v. Seibert,

supra, --U.S.--, 124 $.Ct. 2601, 2604.) In

Miranda, we explained that the "voluntariness

doctrine in the state cases ... encompasses all

interrogation practices which are likely to

exert such pressure upon an individual as to

disable him from making a free and rational

choice," id., at 464-465, 86 S.Ct. 1602. We

appreciated the difficulty of judicial enquiry

post hoc into the circumstances of a police

15

interrogation, Dickerson v. United States, 530

U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405

(2000), and recognized that "the coercion

inherent in custodial interrogation blurs the

line between voluntary and involuntary

statements, and thus heightens the risk" that

the privilege against self-incrimination will

not be observed, id., at 435, 120 S.Ct. 2326.

Hence our concern that the "traditional

totality-of-the-circumstances" test posed an

"unacceptably great" risk that involuntary

custodial confessions would escape

detection. Id. at 442, 120 S.Ct. 2326.” (124

S.Ct. 2607-2608.)

This Court condemned question-first

because it was unreasonable to believe that

the warnings could function effectively to

inform the suspect clearly that he had the

choice between talking and not talking. (Id.

at 2610.)

The same concern that required

condemnation of question-first requires this

Court to decide how Miranda warnings

should be given as it has done for when they

should be given.

Conclusion

Petitioner was convicted

in violation of her rights to the

assistance of counsel, to be free of

compulsory self-incrimination, and to

be advised of those rights under the

United States Constitution. This Court

should therefore issue the writ and

16

examine the adequacy of written-only

advisement of a person's Fifth

Amendment as well as Sixth

Amendment rights.

Therefore, she requests that this

Court issue a writ of certiorari to the

North Carolina Supreme Court, that

her conviction may be reversed.

Dated: May 1, 2005

Respectfully submitted

The Chase Law Group, P.C.

Alison M. Adams

4181 Sunswept Drive Suite 100

Studio City, CA. 91604

818-487-7400

Attorneys for petitioner

17

APPENDIX A

OPINION OF THE COURT OF APPEAL OF

THE STATE Of NORTH CAROLINA

STATE OF NORTH CAROLINA vy. CRYSTAL

STROBEL

NO. COA03-566

Filed: 18 May 2004

Appeal by defendant from judgment entered 22

October 2002 by Judge Benjamin G. Alford in

Craven County Superior Court. Heard in the Court of

Appeals 4 February 2004.

Roy Cooper, Attorney General, by Daniel D. Addison,

Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Katherine

Jane Allen, Assistant Appellate Defender. for

defendant-appellant.

STEELMAN, Judge.

Defendant, Crystal Strobel, appeals the trial court's

denial of her motion to suppress a statement given by

her to the police. For the reasons discussed herein, we |

affirm.

The State's evidence tended to show that on 14

November 2001, Jessica Pritt, a manager at a Taco

Bell restaurant in Havelock, North Carolina, was

robbed while making a nightly deposit at the Branch

Bank and Trust. Three individuals were involved in

the robbery. One of the individuals, Ernest Erdman.

approached Pritt with a bottle while defendant waited

in the car. Pritt sustained minor head injuries as she

was robbed of a $1600 deposit.

Officer Brian Woods of the Havelock City Police

Department interviewed defendant on 25 November

2001, after receivinginformation obtained from

Erdman's girlfriend that indicated defendant was

involved in the crime. This was 2 non-custodial

interview. On 29 November 2001, a warrant was

issued for the arrest of defendant, charging her with

conspiracy to commit robbery with a dangerous

weapon. Police arrested defendant on 30 November

2001, and she appeared before the District Court of

Craven County on 3 December 2001. At that time,

defendant requested an attorney and the court

appointed Joshua Willey to represent her on the

conspiracy charge.

Sergeant David King of the Havelock Police

Department subsequently interviewed Ernest Erdman,

who implicated defendant as a participant in the

robbery. On 18 January 2002, a warrant was issued

for the arrest of defendant, charging her with robbery

with a dangerous weapon. Police arrested defendant

on 24 january 2002, and she gave a written statement

to Sergeant King following her arrest. Defendant

moved to suppress her 24 January 2002 statement.

The trial court denied this motion after a hearing on

22 October 2002. Following this ruling, defendant

entered pleas of guilty to robbery with a dangerous

weapon and conspiracy to commit robbery with a

dangerous weapon. The charges were consolidated by

the trial court and defendant received an active

sentence from the mitigated range of thirty-eight to

fifty-five months.

Defendant appeals the denial of her motion to ~

suppress pursuant to N.C. Gen. Stat. § 15SA-979(b).

This is her soleassignment of error.

Sergeant King's interview of defendant on 24 January

2002 was a custodial interrogation. Prior to a

custodial interrogation of a defendant, an officer must

give warnings to the defendant as mandated by the

holding of the United States Supreme Court in

Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694

(1966): State v. Steptoe, 296 N.C. 711, 716, 252

S.E.2d 707, 710 (1979). In order for a statement

obtained during a custodial interrogation to be

admissible, Miranda requires the following warnings

be given to an accused before such interrogation

begins: (1) that she has the right to remain silent; (2)

that anything she says can and will be used against

her in court; (3) that she has the right to consult with a

lawyer and to have a lawyer present during

interrogation; and (4) that if she cannot afford an

attorney, counsel will be appointed to represent her.

Steptoe, 296 N.C. at 716, 252 S.E.2d at 710.

The trial court found that “Detective King did not

orally advise the Defendant of her Miranda Rights,

but rather they were given to her to read on State's

Exhibit No. 1, the Voluntary Statement.” The written

statement form set forth each of the Miranda rights. It

also contained the following language:

I do not want to talk to a lawyer and I hereby

knowingly and personally waive my rights to remain

silent and my right to have a lawyer present while |

make the following statement to the aforesaid person,

knowing that I havethe right and privilege to

terminate any interview at anytime hereafter and have

a lawyer present with me before...answering any more

questions or making any more statements if I choose

to do so.

Defendant signed each page of the statement. The

following language appears at the bottom of the first

page of the statement:

I have read each page of this statement consisting of

four pages, each page of which bears my signature

and corrections, if any, bears my initials, and I certify

that the facts contained hereon are true and correct. |

further certify that | have made no request for advice

or presence of a lawyer before or during any part of

this statement, nor at any time before it was finished

did I request the statement be stopped. | also declare

that I...was not told or prompted what to say [in this]

statement, and that this statement was completed at

10:40 a.m. on the 24" of January, 2002.

Defendant first contends Sergeant King was required

to give defendant the Miranda warnings orally and

not just in writing. Defendant further contends she did

not read the Miranda warnings placed in front of her.

As aresult of these alleged defects, defendant asserts

she did not knowingly waive her Miranda rights, and

thus, her confession should have been suppressed as

being obtained in violation of her rights under the

Fifth and Fourteenth Amendments to the United

States Constitution.

Where a defendant challenges the admissibility of an

in-custody confession, the trial judge must conduct a

voir dire hearing to ascertain whether defendant has

been informed of their constitutional rights and has

knowingly, voluntarily, and intelligently waived these

rights before making the challenged admissions. State

v. Jenkins, 300 N.C. 578, 584, 268 S.E.2d 458, 463 ~

(1980). “When the voir dire evidence is conflicting,

as here, the trial judge must weigh the credibility of

the witnesses, resolve the crucial conflicts and make

appropriate findings of fact.” /d. Where the trial

court's findings of fact are supported by competent

4

evidence, they are conclusive on appeal. /d. However.

the trial court's conclusions of law “must be legally

correct, reflecting a correct application of applicable

legal principles to the facts found.” Stare v.

Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357

(1997). On appeal, the conclusions of law, which are

drawn from these findings are fully reviewable. State

v. Booker, 306 N.C. 302, 308, 293 S.E.2d 78, 81

(1982).

There is no specific requirement as to the exact

manner in which police must convey Miranda

warnings to a person suspected of a crime. United

States v. Osterburg, 423 F.2d 704, 705 (9th Cir.),

cert. denied, 399 U.S. 914, 26 L. Ed. 2d 571 (1970).

“The requirement is that the police fully advise such a

person of [their] rights” /d. (quoting Bell v. United

States, 382 F.2d 985, 987 (9th Cir. 1967). cert denied,

390 U.S. 965. 19 L. Ed. 2d 1165 (1968)). Although

we were unable to find a case in North Carolina

addressing this issue, numerous other courts have

found that it is not essential that the warnings

required by Miranda be given in oral rather than

written form. See e.g., State v. Sledge, 546 F.2d 1120,

1122 (4th Cir.), cert. denied, 430 U.S. 910, 51 L. Ed.

2d 588 (1977); United States v. Coleman, 524 F.2d

593, 594 (10th Cir. 1975); United States v. Bailey.

468 F.2d 652. 659-660 (Sth Cir. 1972); United States

v. Alexander, 441 F.2d 403, 404 (3d Cir. 1971);

United States v. Van Dusen, 431 F.2d 1278, 1280 (Ist. -

Cir. 1970); United States v. Johnson, 426 F.2d 1112,

1115 (7th Cir.), cert denied, 400 U.S. 842, 27 L. Ed.

2d 78 (1970); United States v. Osterburg, 423 F.2d

704 (9th Cir. 1970); Bell v. United States, 382 F.2D

985, 987 (9th Cir. 1967). Thus, the mere fact that

Sergeant King did not read the Miranda warnings to

defendant, standing alone, does not render defendant's

waiver ineffective.

Defendant further argues that since she did not read

the “Voluntary Statement” form before she signed it,

she did not receive the required Miranda warnings

and, therefore her statement is inadmissible. We find

this argument unpersuasive.

When a statement purporting to be a confession bears

the signature of the accused, it is presumed, nothing

else appearing, that the accused has read it or has

knowledge of its contents." State v. Walker, 269 N.C.

135, 139, 152 S.E. 2d 133, 137 (1967). The rule in

civil cases, also applicable to the defendant's

argument in this criminal case, is that a person who

signs a paper writing has a duty to ascertain the

contents of the writing, and he will be held to have

signed with full knowledge and assent as to its

contents unless it is shown that he was wilfully

misled or misinformed by the opposing party, or if the

contents were fraudulently withheld from him.

Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364

(1942).State v. King, 67 N.C. App. 524, 526, 313

S.E.2d 281, 283 (1984).

Here, the trial court found, by a preponderance of the

evidence, that: (1) it had the opportunity to see and

observe each witness and determine what weight and

credibility to give each witness's testimony; (2)

Detective King did not orally advise defendant of her

Miranda rights, but rather gave them to her to read on

a form entitled “Voluntary Statement;” (3) defendant

could read and write; (4) she apparently read the

Voluntary Statement form; (5) defendant was 22

years old at the time she gave this statement and she

had previous employment, which required her to read

and sign other documents; and (6) defendant signed

_each page of her four page statement and on the first

page of the document she signed acknowledging she

had read each page of the statement and initialed any

corrections made to the statement. Based on these

6

findings of fact, the trial court concluded:

4. The Statement made by the Defendant to Detective

David King on January 24, 2002. was made freely,

voluntarily and understandingly.

5. The Defendant fully understood her constitutional

rights to remain silent and her constitutional right to

counsel and all other rights.

6. The Defendant freely, knowingly, intelligently and

voluntarily waived each of those rights and thereupon

made the statement to the abovementioned officers.

We find that there was competent evidence in the

record to support the findings of fact, and these in

turn support the conclusions of law.

Despite our ruling today. we do note that the better

practice would have been to give the accused both an

oral recitation of the required Miranda warnings, as

well as providing her with a written explanation of

such rights, and a request that she execute a legally

sufficient waiver before the officers began the

custodial interrogation. See United States v. Sledge.

546 F.2d 1120, 1122 (4th Cir. 1977) (stating that

while Miranda does not require the warnings be in

oral rather than written form, since a heavy burden

rests on the State to show the waiver was knowingly

given, ue Detter practice is to give the defendant his

Miranda warnings in both oral and written form). -

Next, defendant argues in the alternative, that even if

she did receive the Miranda warnings, the waiver of

those rights was not knowing. intelligent, and

voluntary. “[F]or a confession to be admissible, the

Miranda warnings must be given, a valid waiver

obtained, and the confession must be voluntary.”

State v. Detter, 298 N.C. 604, 628, 260 S.E.2d 567,

584 (1979). The State has the burden of establishing

by a preponderance of the evidence that the defendant

knowingly, voluntarily, and intelligently waived the

rights afforded to her under Miranda. State v.

7

Johnson, 304 N.C. 680, 685, 285 S.E.2d 792, 795

(1982). The voluntariness of a waiver is to be

determined by the “totality of the circumstances.”

State v. Wallace, 351 N.C. 481, 520, 528 S.E.2d 326,

350, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498

(2000) (citations omitted).

In order to protect an accused's Fifth Amendment

right not to be compelled to incriminate themselves,

Miranda directs that an accused who is subject to

custodial interrogation have the right to consult with

an attorney and to have counsel present during such

questioning. Miranda, 384 U.S. 436, 470, 16 L. Ed.

2d 694, 421 (1966); Steptoe, 296 N.C. 711, 716, 252

S.E.2d 707, 710 (1979). If at any time during the

questioning a suspect requests counsel to be present,

all questions must cease immediately. Miranda, 384

U.S. at 444-45, 16 L. Ed. 2d at 707; Steptoe, 296 N.C.

at 716, 252 S.E.2d at 710. However, a suspect must

unambiguously request counsel. Davis v. United

States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371

(1994). “[I]f a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a

reasonable officer... would have understood only that

the suspect might be invoking the right to counsel, our

precedents do not require the cessation of

questioning.” /d. (emphasis in original).

Defendant contends she asserted her Fifth

Amendment right to counsel during the interrogation

when she told the officer she had a court-appointed

attorney representing her on the conspiracy charge.

However, we find that Officer King did not deny

defendant the opportunity to contact the attorney who

represented her on the conspiracy charge. To the

contrary, when defendant mentioned she had a court-

appointed attorney representing her on her conspiracy

charge, Detective King told defendant she could use

the telephone and telephone book located in the room

8

to call her attorney. Detective King also told

defendant he would stop the statement until such time

as she had the opportunity to talk to her lawyer. At

best, defendant's statement amounted to an equivocal

request for an attorney, and as the case law indicates,

the officer could have and did continue questioning

defendant without any constitutional violation.

Detective King attempted to clarify whether

defendant wanted a lawyer. He also gave defendant

every opportunity to contact her attorney. Defendant

never availed herself of these opportunities. For these

reasons, we find defendant's Fifth Amendment right

to counsel was not violated.

Defendant, again argues in the alternative. that even if

she did receive the warnings required under Miranda

v. Arizona, the waiver of those rights was not

voluntary because Detective King gave her an

implied “warning” about the consequences of

contacting her attorney.

For a waiver of defendant's rights to be valid, it must

be given free from intimidation, coercion, or

deception. Moran v. Burbine, 475 U.S. 412, 421, 89

L. Ed. 2d 410, 421 (1986). As we stated above, the

State has the burden of establishing by a

preponderance of the evidence that the defendant

voluntarily waived the rights afforded to her under

Miranda, and that the voluntariness of a waiver is to

be determined by the totality of the circumstances.

Johnson, 304 N.C. at 685, 285 S.E. 2d at 795;

Wallace, 351 N.C. at 520, 528 S.E.2d at 350:

Furthermore, where it appears that an incriminating

statement was given under any circumstances

indicating coercion or involuntary action, that

statement will be inadmissible. Steptoe, 296 N.C. at

716, 252 S.E.2d at 710.

Defendant claims Officer King gave her an implied

9

“warning” against calling her attorney by telling her

that if she wanted to call her attorney he would stop

his questioning and she could give her version in

court. When asked at the voir dire hearing whether

she felt she was being warned, defendant responded

in the negative. She testified that Detective King

never told her what, if anything. would happen to her

if she did not give her statement. The lack of evidence

that defendant felt threatened or was being warned

supports the trial court's conclusion that defendant's

statement was voluntary. Detective King's remarks

could not be taken as a threat or warning. Rather,

Detective King's statement to defendant, that he

would stop the questioning if she chose to talk with

her attorney, was simply a recital of her rights and the

officer's duty as required by Miranda v. Arizona. The

rest of Detective King's remarks, that defendant

“could give her version in court,” also cannot is

merely the truth. If defendant chose not to give her

statement, then she would be given the chance to tell

her side of the story at trial. In considering the totality

of the circumstances, none of the findings supports a

claim that the officer threatened defendant or

otherwise attempted to frighten or coerce her into

confessing.

Our review of the record in this case affirms that the

trial court did not err by denying defendant's motion

to suppress, as her statement was given voluntarily

and knowingly. This assignment is overruled.

We also find that defendant's Sixth Amendment right

to counsel was not violated. The Sixth Amendment

provides that “[i]n all criminal prosecutions the

accused shall enjoy the right...to have the assistance

of counsel for his defense.” U.S. CONST. amend VI.

A defendant's Sixth Amendment right to counsel does

not attach until a prosecution has been commenced,

either “by way of a formal charge, preliminary

10

hearing, indictment, information or arraignment.”

Texas v. Cobb, 532 U.S. 162, 167-68, 149 L. Ed. 2d

321, 328 (2001), cert denied, 537 U.S. 1195, 154 L.

Ed. 2d 1032 (2003): State v. Warren, 348 N.C. 80, 95,

499 S.E.2d 431, 439, cert denied, 525 U.S. 915, 142

L. Ed. 2d 216 (1998) (citations omitted). The police

may not interrogate a defendant whose Sixth

Amendment right has attached unless counsel is

present or the defendant expressly waives his right to

assistance of counsel. Warren, 348 N.C. at 95, 499

S.E.2d at 439. However, the Sixth Amendment right

to counsel is offense-specific and “cannot be invoked

once for all future prosecutions.” Cobb, 532 U.S. at

167, 149 L. Ed. 2d at 328; Warren, 348 N.C. at 95,

499 S.E.2d at 439 (emphasis added)(citations

omitted). Just because a defendant invokes his Sixth

Amendment right to counsel on a given charge does

not prevent police from questioning him about other

possible criminal activity, even if the other criminal

activity is factually related to the first crime charged.

Cobb, 532 U.S. at 172-73, 149 L. Ed. at 331-32;

Warren, 348 N.C. at 95, 499 S.E.2d at 439.

To ascertain whether the second crime is a separate

crime from the first for purposes of determining

whether the Sixth Amendment right to counsel has

attached, the court must determine if each crime

requires proof of a fact which the other does not.

Cobb, 532 U.S. at 173, 149 L. Ed. 2d at 331-32. If the

two crimes are different, then the police may question

the suspect about the second crime without the

presence of the attorney representing the defendant in

the first crime. /d.

When Officer King arrested defendant on the robbery

charge, defendant told the officer she had an attorney

who was appointed to represent her on the conspiracy

charge. Officer King told defendant that the attorney

who had been appointed to represent her on the

conspiracy charge had not been appointed to

represent her on the robbery charge because the two

charges were different. The North Carolina Supreme

Court has determined that robbery and conspiracy to

commit robbery are separate crimes. S/ate v.

Kemmerlin, 356 N.C. 446, 477, 573 S.E.2d 870, 891

(2002): State v. Carey, 285 N.C. 509, 513, 206 S.E.2d

222, 225 (1974). Therefore, defendant's Sixth

Amendment right to counsel had not attached to the

robbery with a dangerous weapon charge. Thus, it

was permissible for the police to question defendant

about the robbery, outside the presence of the

attorney who had been appointed to represent her in

the conspiracy charge.

AFFIRMED.

Chief Judge MARTIN and Judge GEER concur

12

APPENDIX B

ORDER OF THE SUPREME COURT OF

NORTH CAROLINA

359 N.C. 286, --- S.E.2d ----

Supreme Court Of North Carolina.

State Of North Carolina

V.

Crystal Strobel

No. 311P04.

Feb. 3, 2005.

Katherine Jane Allen, Assistant Appellate

Defender, for Crystal Strobel.

Daniel D. Addison, Assistant Attorney General,

William David McFadyen, Jr., District Attorney,

for State. |

Prior report: 164 N.C.App. 310, 596 S.E.2d 249.

ORDER

Upon consideration of the notice of appeal from

the North Carolina Court of Appeals, filed by

the Defendant on the 22nd day of June 2004 in

this matter pursuant to G.S. 7A-30, and the

motion to dismiss the appeal for lack of

substantial constitutional question filed by the

Attorney General, the following order was

entered and is hereby certified to the North

Carolina Court of Appeals: the motion to

dismiss the appeal is

"Allowed by order of the Court in conference,

this the 3rd day of February 2005."

Upon consideration of the petition filed on the

22nd day of June 2004 by Defendant in this

13

matter for discretionary review of the decision of

the North Carolina Court of Appeals pursuant to

G.S. 7A-31, the following order was entered and

is hereby certified to the North Carolina Court of

Appeals:

"Denied by order of the Court in conference, this

the 3rd day of February 2005."

N.C.,2005.

State v. Strobel

359 N.C. 286, --- S.E.2d ----

14