{
  "id": 8552591,
  "name": "STATE OF NORTH CAROLINA v. LEON WILBURT STARLING",
  "name_abbreviation": "State v. Starling",
  "decision_date": "1977-03-16",
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  "casebody": {
    "judges": [
      "Judges Parker and Arnold concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LEON WILBURT STARLING"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nDefendant moved to suppress the evidence of his confession. From competent evidence offered on voir dire, the trial judge found that defendant was advised of his rights in accordance with the Miranda requirements and that defendant understood those rights. There also was competent evidence to support the trial judge\u2019s finding that defendant was offered the opportunity to call an attorney and that his statements to the officers were not coerced but were voluntarily made. However, there is no evidence in this record of an express waiver of right to counsel at the interrogation, and the trial judge made no such finding.\nAccording to the mandate of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), \u201c[n]o effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.\u201d Id. at 470, 16 L.Ed. 2d at 721, 86 S.Ct. at 1626 (emphasis added). \u201cBut a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.\u201d Id. at 475, 16 L.Ed. 2d 724, 86 S.Ct. at 1628. \u201c . . . [F] ailure to ask for a lawyer does not constitute a waiver.\u201d Id. at 470, 16 L.Ed. 2d at 721, 86 S.Ct. at 1626.\nThe foregoing principles were adhered to in State v. White, 288 N.C. 44, 215 S.E. 2d 557 (1975); State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972); State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971); and State v. Head, 28 N.C. App. 189, 220 S.E. 2d 641 (1975).\nWhen the State \u201cseeks to offer in evidence a defendant\u2019s in-custody statements, made in response to police interrogation and in the absence of counsel, the State must affirmatively show not only that the defendant was fully informed of his rights but also that he knowingly and intelligently waived his right to counsel. (Citations omitted.) When the voir dire evidence regarding waiver of counsel is in conflict the trial judge must resolve the dispute and make express findings as to whether the defendant waived his constitutional right to have an attorney present during questioning.\u201d State v. Biggs, 289 N.C. 522, 531, 223 S.E. 2d 371, 377 (1976).\nFor the failure of the State to show affirmatively that defendant knowingly and intelligently waived his right to counsel, it was error to admit defendant\u2019s confession into evidence, and there must be a trial de novo.\n.Defendant\u2019s argument that the trial judge should have instructed the jury on the law regarding voluntary intoxication is feckless. The only evidence of intoxication was defendant\u2019s statement on voir dire. No evidence of intoxication of defendant was presented before the jury.\nNew trial.\nJudges Parker and Arnold concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.",
      "Michael R. Greeson, Jr., and Jim D. Cooley for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LEON WILBURT STARLING\nNo. 7621SC752\n(Filed 16 March 1977)\nCriminal Law \u00a7 75\u2014 admission of confession \u2014 failure to show express waiver of counsel\nThe trial court erred in the admission of defendant\u2019s confession where the State failed to show affirmatively that defendant knowingly and intelligently waived his right to have counsel present during the questioning.\nAppeal by defendant from Crissman, Judge. Judgment entered 10 June 1976 in Superior Court, Forsyth County. Heard in the Court of Appeals 16 February 1977.\nDefendant was charged in a bill of indictment with felonious breaking or entering and felonious larceny. The jury found him guilty as charged. The two counts were consolidated for a judgment of imprisonment for a term of not less than four nor more than eight years.\nAttorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.\nMichael R. Greeson, Jr., and Jim D. Cooley for the defendant."
  },
  "file_name": "0593-01",
  "first_page_order": 621,
  "last_page_order": 623
}