# Petition for Writ of Certiorari — Strobel v. North Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1140

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0859%3A1. Public record. Not legal advice.