{ "id": 8562266, "name": "STATE OF NORTH CAROLINA v. WILLIE THOMAS BUTLER, a/k/a TOP CAT", "name_abbreviation": "State v. Butler", "decision_date": "1978-06-06", "docket_number": "No. 87", "first_page": "250", "last_page": "256", "citations": [ { "type": "official", "cite": "295 N.C. 250" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "414 U.S. 1160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11856320, 11856386, 11856584, 11856425, 11856267, 11855982, 11856527, 11856081, 11856148, 11856215, 11856475, 11856028, 11856637 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/414/1160-07", "/us/414/1160-08", "/us/414/1160-12", "/us/414/1160-09", "/us/414/1160-06", "/us/414/1160-01", "/us/414/1160-11", "/us/414/1160-03", "/us/414/1160-04", "/us/414/1160-05", "/us/414/1160-10", "/us/414/1160-02", "/us/414/1160-13" ] }, { "cite": "187 S.E. 2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573842 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0100-01" ] }, { "cite": "185 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571097 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0273-01" ] }, { "cite": "375 U.S. 85", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11717703 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/375/0085-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "234 S.E. 2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571372 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0543-01" ] }, { "cite": "369 U.S. 506", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169152 ], "weight": 3, "year": 1962, "pin_cites": [ { "page": "516" }, { "page": "77" }, { "page": "890" } ], "opinion_index": 0, "case_paths": [ "/us/369/0506-01" ] }, { "cite": "185 S.E. 2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569736 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0042-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 7, "year": 1966, "pin_cites": [ { "page": "470, 475, 479" }, { "page": "721, 724, 726" }, { "page": "1626, 1628, 1630" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 663, "char_count": 12578, "ocr_confidence": 0.838, "pagerank": { "raw": 2.223263846267407e-07, "percentile": 0.7778760460551947 }, "sha256": "044a7e06515b69b0c9913e7721c49e6275cf91561810fad93af587cfcb3c752c", "simhash": "1:b7fb2a2a5de768c2", "word_count": 2165 }, "last_updated": "2023-07-14T14:50:00.775554+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE THOMAS BUTLER, a/k/a TOP CAT" ], "opinions": [ { "text": "HUSKINS, Justice.\nDefendant assigns as error the admission of his inculpatory statement to FBI Agent David C. Martinez, made while in custody and without benefit of counsel. He contends the incriminating statement is inadmissible because he had not waived his constitutional right to the presence and assistance of counsel, relying on Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966), as interpreted and applied by this Court in State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971). This constitutes his first assignment of error and requires examination of the proceedings on voir dire and the findings of the court based thereon.\nFBI Agent Martinez testified on voir dire that he arrested defendant at 1225 Sheraton Avenue in Brooklyn, New York, on a fugitive warrant on 3 May 1977. He was immediately and fully advised of his constitutional rights and transported to the New Rochelle office where he was again advised of his rights. Defendant, who had an eleventh grade education, then took the \u201cAdvice of Rights\u201d form and read it himself. He was asked if he understood his rights and he replied that he did. As to signing the \u201cWaiver of Rights\u201d printed at the bottom of the form, defendant said \u201che didn\u2019t want to sign this form and that he didn\u2019t want to sign anything.\u201d He was told that it was not mandatory that he talk and that he didn\u2019t have to sign the form but that \u201cwe would like for him to talk to us.\u201d Defendant replied: \u201cI will talk to you but I am not signing any form.\u201d FBI Agent Martinez then made a notation on the form that defendant refused to sign it.\nSince defendant had stated he would talk to Officer Martinez, he was then asked \u201cif he had participated in the armed robbery and he stated that he was there but that he did not actually participate as such in the armed robbery. We asked him to explain a little further and he stated that he and an accomplice had been drinking heavily that day and were walking around and decided to rob a gas station. They came up to a gas station where the attendant was locking up for the night and walked inside the station. He stated that the fellow with him pulled out a gun and told the gas station attendant to get in his car. He then said that the gas station attendant tried to run away and that his friend shot the attendant. At this point Mr. Butler stated that he ran away from them and didn\u2019t look back. He stated that he ran to a bus station where he caught a bus to Virginia and that in Virginia he caught another bus to New York where he had been until he was apprehended that morning. We asked him if the other person was someone by the name of Elmer Lee and we had had communications from our Charlotte office saying that Elmer Lee had also been involved. Butler said that Lee was there.\u201d\nOn cross-examination Agent Martinez said: \u201cHe did not say anything when I advised him of his right to have an attorney and he just sat there and listened. I repeatedly asked him if he understood his rights and he said that he did. He stated that he would not sign the paper. . . .\u201d\nUpon further interrogation by the presiding judge, Agent Martinez said: \u201cHe never told us that he did not want the lawyer present. He never told us he did want a lawyer present. ... He said T won\u2019t sign the form. I will talk to you but I won\u2019t sign the form.\u2019 . . . What made me believe that he did not want a lawyer present at that time was the fact that he was relating the story concerning the charges against him at that point. If he had wanted an attorney present with him, he wouldn\u2019t have said anything.\u201d\nBased upon the evidence of Agent Martinez \u2014 defendant offered none on voir dire \u2014 the court found, among other things, that defendant\u2019s statement to Agent Martinez was made freely and voluntarily after having been advised of his rights as required by Miranda, including his right to an attorney, and that defendant understood his rights and \u201ceffectively waived his rights, including the right to have an attorney present during the questioning by his indication that he was willing to answer questions, having read the rights form together with the waiver of rights; that the statement . . . was voluntarily made at a time when the defendant understood his rights. . . .\u201d Upon those findings the court concluded as a matter of law that defendant had knowingly waived his right to counsel and that his statement was competent evidence in the trial of the action. Defendant\u2019s first exception and assignment of error is based on this ruling. We hold that the assignment is sound and must be sustained.\nAdmission of defendant\u2019s inculpatory statement to Agent Martinez was erroneous because the evidence on voir dire is insufficient to support the finding that defendant waived his right to counsel. He refused to waive it in writing and the evidence on voir dire fails to show a specific oral waiver knowingly made.\nIn Miranda v. Arizona, supra, the United States Supreme Court said:\n\u201cAn individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. . . . [Emphasis added.]\n* * * *\nAn express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But 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. . . .\n* * * =t=\nAfter such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.\u201d\n384 U.S. at 470, 475, 479, 16 L.Ed. 2d at 721, 724, 726, 86 S.Ct. at 1626, 1628, 1630.\nIn Carnley v. Cochran, 369 U.S. 506, 516, 8 L.Ed. 2d 70, 77, 82 S.Ct. 884, 890 (1962), the United States Supreme Court said:\n\u201cPresuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.\u201d\nMeasured by Miranda standards it is apparent that the findings of fact are not supported by the voir dire testimony of Agent Martinez. Failure to request counsel is not synonymous with waiver. Nor is silence. Compare State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977). The trial judge erred in holding that since defendant had been fully informed and understood his right to the presence of counsel at the in-custody interrogation and did not request a lawyer, his act in making the statement amounted to a waiver of counsel. The holding in Miranda as interpreted and applied by this Court in Blackmon provides in plain language that waiver of the right to counsel during interrogation will not be recognized unless such waiver is \u201cspecifically made\u201d after the Miranda warnings have been given.\nAlthough there is other evidence amply sufficient to support a conviction in this case, the statement made by defendant to Agent Martinez placed him at the scene of the crime in company with Elmer Lee with whom defendant had agreed to rob a gas station and describes the attempted robbery. This statement alone would have been sufficient to convict defendant of armed robbery at least. There is a reasonable possibility that defendant\u2019s statement might have contributed to his conviction. Therefore, we cannot say beyond a reasonable doubt that the in-culpatory statement did not materially affect the result of the trial to defendant\u2019s prejudice or that it was harmless error. See Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967); Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963); State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677 (1972); State v. Blackmon, 280 N.C. 42, 185 S.E. 2d 123 (1971). The State argues for harmless error, relying on State v. Hudson, 281 N.C. 100, 187 S.E. 2d 756 (1972), cert. den. 414 U.S. 1160 (1974), but that case if factually distinguishable. Error in the admission of defendant\u2019s incriminating statement to Agent Martinez requires a new trial.\nDefendant\u2019s remaining assignment alleging error in allowing the district attorney to ask leading questions is without merit and requires no discussion.\nFor the reasons stated defendant is entitled to a new trial in each case and it is so ordered.\nNew trial.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Thomas F. Mof-fitt, Associate Attorney, for the State of North Carolina.", "Michael A. Ellis and R. Gene Braswell, attorneys for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE THOMAS BUTLER, a/k/a TOP CAT\nNo. 87\n(Filed 6 June 1978)\nCriminal Law \u00a7 75.11\u2014 in-custody statement \u2014specific waiver of counsel\nThe trial court erred in finding that, since defendant had been fully informed of and understood his right to the presence of counsel at his in-custody interrogation and did not request a lawyer, his act in making an in-custody statement amounted to a waiver of counsel, and the court erred in the admission of defendant\u2019s statement where the evidence on voir dire failed to show that defendant specifically made a waiver of counsel after the Miranda warnings had been given him.\nDEFENDANT appeals from judgment of Grist, J., 31 October 1977 Session, WAYNE Superior Court.\nDefendant was tried on separate bills of indictment charging (1) felonious assault, (2) kidnapping and (3) armed robbery, the State alleging that all three crimes were committed on 28 December 1976 in Wayne County.\nThe State\u2019s evidence tends to show that Ralph Burlingame was closing a Kayo station about 11 p.m. on 28 December 1976 when two black males came to the door to buy beer. They left when told that the station was closed. Burlingame completed his inventory for the day, locked up and started to his car parked nearby. The same two black males with pistols drawn then accosted Burlingame and forced him to drive them away in his own car. Defendant told Burlingame \u201cit was a holdup\u201d and he was going to kill him when the ride ended because he was a white boy. In a few seconds Burlingame opened the door and jumped from the moving car. As he jumped he was shot in the back, the bullet penetrating his spinal cord and leaving his legs paralyzed. He \u201cplayed dead\u201d as he lay in the street while the robbers stopped the car 200 feet away, returned, took his wallet containing $30, shot him twice more and ran away. Shortly thereafter police officers arrived and took him to the hospital.\nWithin a week Burlingame positively identified photographs of defendant Butler and Elmer Lee from a twelve-photograph display. He testified in court that he was certain defendant was the man who shot him.\nDefendant fled the State and was arrested in New York City on 3 May 1977 by FBI Agent David C. Martinez. Defendant was given the Miranda warnings, refused to sign a waiver of rights but said he understood his rights and would talk with the arresting officers. He made an incriminating statement which was admitted into evidence over objection. Defendant contended at trial, and now contends, that he never waived counsel at the in-custody interrogation by Martinez.\nDefendant testified as a witness in his own behalf. He denied that he was a participant in the robbery of Ralph Burlingame and denied ever having seen Burlingame prior to a pretrial hearing held three weeks before his trial. He further denied making an admission to FBI Agent Martinez and denied that he waived any of his rights. He stated he did not know Elmer Lee and was not with him on the night of 28 December 1976 when the kidnapping and armed robbery allegedly occurred.\nDefendant was convicted as charged in all three cases and given a life sentence for kidnapping, a life sentence for armed robbery and five years for the felonious assault, all sentences to run concurrently. He appealed the kidnapping and armed robbery cases to the Supreme Court, and we allowed motion to bypass the Court of Appeals in the felonious assault case to the end that all three convictions receive initial appellate review in this Court. Defendant assigns errors discussed in the opinion.\nRufus L. Edmisten, Attorney General, by Thomas F. Mof-fitt, Associate Attorney, for the State of North Carolina.\nMichael A. Ellis and R. Gene Braswell, attorneys for defendant appellant." }, "file_name": "0250-01", "first_page_order": 282, "last_page_order": 288 }