An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1362

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2003

    

STATE OF NORTH CAROLINA

         v.                        Guilford County
                                No. 01 CRS 3315
KEVIN JERMAINE MCMANUS
    

    Appeal by defendant from judgment entered 10 May 2002 by Judge A. Moses Massey in Superior Court, Guilford County. Heard in the Court of Appeals 23 June 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant appellant.

    WYNN, Judge.

    On appeal from his conviction of attempted first-degree rape, defendant makes one argument: Did the trial court err by denying his motion to suppress his incriminating statements? We answer, no; accordingly, we uphold the trial court's judgment.
    The relevant facts adduced at the suppression hearing are as follows: On the morning of 7 March 2001, the female complainant while working for a realtor, inspected a residence in High Point, North Carolina when she was grabbed around the neck from behind by a male in a dark blue jacket. The man held a pistol to her head and repeatedly told her to “shut up” as he pulled her through the yard toward the back of the house. The complainant pushed thepanic button on her key ring, which sounded the horn of her car. The male loosened his hold on the complainant allowing her to run into a nearby store and report the incident to High Point Police Officer James O'Connor.
    On 4 April 2001, High Point police arrested defendant on unrelated robbery and kidnapping charges. After obtaining a waiver of defendant's Miranda rights, Detective O'Connor approached defendant while he was waiting to be fingerprinted and photographed. When Detective O'Connor asked defendant about a woman who had been “jumped” on West English Road, defendant replied, “Yeah, that was me.” Defendant described his assault in detail and told Detective O'Connor that he had intended to rape the victim.
    Defendant filled out an affidavit of indigency for the robbery and kidnapping charges on the morning of 5 April 2001. Detective O'Connor returned to speak with defendant on the morning of 5 April 2001. Again, Detective O'Connor advised defendant of his Miranda rights, and obtained defendant's written waiver, before recording defendant's confession. After speaking with Detective O'Connor, defendant had his first appearance on the robbery and kidnapping charges, at which time he exercised his right to appointed counsel.
    In denying defendant's motion to suppress his inculpatory statements, the trial court concluded that “defendant freely, voluntarily and understandingly waived his right to counsel on the 4th and the 5th of April [2001].” The court further concluded, “That on April 5th, if the defendant had, by filling out anaffidavit of indigency, and if he had appeared before a District Court judge and had counsel appointed, he thereafter knowingly, voluntarily, and freely waived his right to counsel for purposes of the interview.” The prosecutor then recalled Detective O'Connor, who clarified that he interviewed defendant at 9:44 a.m. on 5 April 2001, prior to his first appearance on the unrelated charges between 11:30 a.m. and noon. Accordingly, defendant's 5 April 2001 statement to Detective O'Connor was admitted into evidence at trial over defendant's objection.
    In challenging the denial of his motion to suppress, defendant concedes that he waived his Fifth Amendment right to counsel on both 4 April 2001 and 5 April 2001. He further acknowledges that his Sixth Amendment right to counsel is case-specific. However, he claims that he invoked his Sixth Amendment right to counsel on the kidnapping and armed robbery charges when he filled out the affidavit of indigency on the morning of 5 April 2001.   (See footnote 1)  Defendant suggests that if he had been able to speak with the lawyer appointed to represent him on these charges, he would not have given his statement to Detective O'Connor admitting to theattempted rape.
    As an initial matter, we note that the record on appeal does not contain written findings and conclusions to support the trial court's ruling on the motion to suppress. However, because there was “no material conflict in the evidence, findings and conclusions are not necessary even though the better practice is to find facts.” State v. Edwards, 85 N.C. App. 145, 148, 354 S.E.2d 344, 347 (citing State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980)), cert. denied, 320 N.C. 172, 358 S.E.2d 58 (1987).
    Both the Fifth and Sixth Amendments provide a right to counsel. See U.S. Const. amend. V, VI. A criminal suspect has a Fifth Amendment right to counsel during custodial interrogations. Under the Fifth Amendment, “once a defendant has expressed his desire to have counsel present during custodial interrogation, police questioning must cease.” State v. Williams, 355 N.C. 501, 545, 565 S.E.2d 609, 635 (2002) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386 (1981)), cert. denied, __ U.S. __, 154 L. Ed. 2d 808 (2003). A defendant who has invoked his Fifth Amendment right to counsel may not be interrogated about any offense. See Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed. 631, 642 (1986).
    By contrast, “[a] defendant's Sixth Amendment right to counsel attaches only when adversary judicial proceedings have been initiated, either 'by way of formal charge, preliminary hearing, indictment, information or arraignment.'” Warren, 348 N.C. at 95, 499 S.E.2d at 439 (citation omitted). Once a defendant invokes hisSixth Amendment right to counsel, “any subsequent waiver of this right by a defendant during a police-initiated custodial interrogation is a nullity; thus, any inculpatory statements made by a defendant to police during such interrogation must be suppressed.” Id. (citing Michigan v. Jackson, 475 U.S. 625, 636, 89 L. Ed. 2d 631, 642 (1986)). However, the Sixth Amendment right to counsel is offense-specific. Id. (citing McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 166-67 (1991)). A defendant's invocation of his Sixth Amendment right to counsel on a given charge does not preclude police from questioning him about other possible criminal activity. Texas v. Cobb, 532 U.S. 162, 172-73, 149 L. Ed. 321, 331-32 (2001); Warren, 348 N.C. at 95, 499 S.E.2d at 439.
    In light of the standard set forth above, we find no error in the trial court's denial of defendant's motion to suppress. Defendant concedes that he waived his Fifth Amendment right to counsel prior to each of his custodial interrogations on 4 April 2001 and 5 April 2001. Even assuming defendant invoked his Sixth Amendment right to counsel when he filled out the affidavit of indigency on the morning of 5 April 2001, this right attached only as to the robbery and kidnapping charges for which he had been arrested. McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 166-67 (1991). Inasmuch as defendant had not yet been formally charged with the attempted rape, his Sixth Amendment right to counsel had not yet attached for this offense. See State v. Hyatt, 355 N.C. 642, 654, 566 S.E.2d 61, 70 (2002), cert. denied,__ U.S. __, 154 L. Ed. 2d 823 (2003) (citation omitted). Therefore, having obtained defendant's waiver of his Fifth Amendment right to counsel, Detective O'Connor was free to ask defendant about the attempted rape. Defendant's statement was properly admitted into evidence.   (See footnote 2) 
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
    The heading of defendant's “Argument” on appeal cites to N.C. Const. art. I, §§ 19 and 23 in addition to the applicable provisions of the federal constitution. However, defendant did not raise a state constitutional claim in the trial court, see State v. Call, 353 N.C. 400, 414, 545 S.E.2d 190, 200, cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001). Moreover, defendant's brief to this Court contains no argument regarding a separate state constitutional standard. See N.C. R. App. P. 28(b)(6). We note that the right to counsel under N.C. Const. art. I, § 23 had been treated as equivalent to the right conferred by the Sixth Amendment. See State v. Warren, 348 N.C. 80, 96, 499 S.E.2d 431, 440-41, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998).
Footnote: 2
    The record on appeal contains an a dditional assignment of error not addressed by defendant in his brief to this Court. By rule, we deem it abandoned. See N.C. R. App. 28(b)(6).

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