
163 S.E.2d 492 (1968)
274 N.C. 277
STATE of North Carolina
v.
Donald FOX, Roy Lee Fox, and Robert Carson McMahan.
No. 83.
Supreme Court of North Carolina.
October 9, 1968.
*500 T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., Millard R. Rich, Jr., Asst. Atty. Gen., and Andrew A. Vanore, Jr., Staff Atty., Raleigh, for the State.
T. E. L. Lipsey, Asheville, for Roy Lee Fox, defendant.
John H. Giezentanner, Asheville, for Robert Carson McMahan, defendant.
SHARP, Justice.
Each appellant assigns as error the court's denial of his motion for a separate trial. These assignments raise the question whether a defendant, who is jointly indicted with another or others and moves for a severance, has a right to a separate trial when the State will offer in evidence the confession or admission of a codefendant which implicates the movant in the crime charged and is inadmissible against him.
At the time this case was tried below, we followed the general rule that whether defendants jointly indicted would be tried jointly or separately was in the sound discretion of the trial court, and, in the absence of a showing that a joint trial had deprived the movant of a fair trial, the exercise of the court's discretion would not be disturbed upon appeal. State v. Battle, 267 N.C. 513, 148 S.E.2d 599; State v. Hines, 266 N.C. 1, 145 S.E.2d 363; State v. Bryant, 250 N.C. 113, 108 S.E.2d 128; Annot., Right to severance where codefendant has incriminated himself, 54 A.L.R.2d 830 (1957). In State v. Bonner, 222 N.C. 344, 23 S.E.2d 45, this Court held that a joint trial had resulted in prejudice to the defendants and ordered a severance. The two defendants were tried jointly under separate bills of indictment for the first degree murder of Ira L. Godwin. The State relied for conviction solely upon each defendant's separate confession, which incriminated the other defendant, who had not acquiesced in it. Motions for separate trials were overruled and each was convicted. Upon appeal, this Court held that, despite the court's instructions to the jury to consider a confession only against the maker, the admission of the incriminating statements of one defendant had obviously prejudiced the trial of the other and that at the close of all the evidence the judge should have declared a mistrial and ordered a severance. See State v. Battle, supra; 1 Strong, N.C. Index, Criminal Law § 87 (1957).
Ordinarily, however, the admission of the extrajudicial confession of one codefendant, even though it implicated another against whom it was inadmissible, was held not to be error, provided the trial judge instructed the jury that the confession was evidence only against the confessor and must not be considered against another. State v. Lynch, 266 N.C. 584, 146 S.E.2d 677; Stansbury, N.C. Evidence § 188 (2d ed. 1963). In countenancing that rule, the court realized fully that the jury might find it difficult to follow *501 the court's instructions and to put out of their minds those portions of a confession which implicated codefendant(s), yet, after weighing all the circumstances, the court thought that procedure the best solution of the difficult problem, and that it could not assume a jury would ignore the trial judge's instructions. State v. Kerley, 246 N.C. 157, 97 S.E.2d 876. A confession legally obtained is clearly competent against the defendant who made it and the best evidence of his guilt. A severance requires multiple trials on exactly the same evidence, except as to the confessions, and, as in the instant case, the State's evidence frequently warrants an indictment against all the defendants for conspiracy to commit the crimes charged. State v. Egerton, 264 N.C. 328, 141 S.E.2d 515.
The North Carolina rule was also the federal rule. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). In Delli Paoli, the District Court admitted in evidence the confession of one of two defendants but instructed the jury that it was to consider it only in determining the guilt of the confessor. In affirming the appellant's conviction the Supreme Court of the United States said:
"* * * Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court's instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.
"`To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions.' * * * Opper v. United States, 348 U.S. 84, [75 S.Ct. 158, 99 L.Ed. 101]." Id. at 242, 77 S.Ct. at 300, 1 L.Ed.2d at 286.
On 20 May 1968, however, in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court of the United States overruled Delli Paoli v. United States, supra. In Bruton, the two defendants, Bruton and Evans, were tried jointly in the District Court on a federal charge of armed postal robbery. Evans' confession, which implicated Bruton, was admitted in evidence. Relying upon Delli Paoli, the trial judge instructed the jury that Evans' confession was incompetent hearsay against Bruton and should not be considered in determining his guilt or innocence. In reversing the decision of the United States Court of Appeals for the Eighth Circuit, which had affirmed Bruton's conviction, the Supreme Court repudiated the basic premise of Delli Paoli and quoted a statement by Chief Justice Traynor in People v. Aranda, 63 Cal.2d 518, 529, 47 Cal.Rptr. 353, 407 P.2d 265, 271-272 (1965):
"* * * A jury cannot `segregate evidence into separate intellectual boxes.' * * * It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A."
Mr. Justice Brennan, delivering the opinion of the Court in Bruton, said:
"* * * We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.
"* * *
"* * * Not only are the incriminations devastating to the defendant but their *502 credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed." Id. 391 U.S. at 126 and 136, 88 S.Ct. at 1622 and 1628, 20 L.Ed.2d at 479 and 485.
In Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), the Supreme Court held that Bruton is to be applied retroactively. In Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), it was held that "the Sixth Amendment's right of an accused to confront the witnesses against him is * * * a fundamental right and is made obligatory on the States by the Fourteenth Amendment." Id. at 403, 85 S.Ct. at 1068, 13 L.Ed.2d at 926. Bruton, therefore, is binding upon this Court and controls decision here.
The result is that in joint trials of defendants it is necessary to exclude extra-judicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see State v. Bryant, supra), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra, 246 N.C. at 160, 97 S.E.2d at 879.
In this case, Arrlie Fox testified and was cross-examined by his codefendants. His statement, therefore, did not come within the ban of Bruton. However, no other defendant testified, and the confession of eachwhich implicated all the otherswas admitted in evidence over their objections as were the statements of Carson McMahan (S-52 and S-53) with reference to two previous robberies. Thus, the decision in Bruton requires that appellants' convictions be set aside and a new trial awarded each of them.
A new trial requires consideration of the assignments of error by which each appellant challenges the admissibility of his confession. The confessions in question were made in November 1964. Their admissibility therefore is not dependent upon whether McMahan and Fox were given the warnings specified in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), decided 13 June 1966; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The question remains, however, whether they were freely and voluntarily given and whether the officers obtaining the confessions employed the procedural safeguards then applicable. We consider first the confession of Carson McMahan.
It has been the law of this State from its beginning that an extrajudicial confession of guilt by an accused is admissible against him only when it is voluntary. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Warren, 235 N.C. 117, 68 S.E.2d 779; State v. Roberts, 12 N.C. 259. When an investigating officer "offers some suggestion of hope or fear * * * to one suspected of crime and thereby induces a statement in the nature of a confession, the decisions are at one in adjudging such statement to be involuntary in law, and hence incompetent as evidence. * * *" (Citations omitted.) State v. Biggs, 224 N.C. 23, 26-27, 29 S.E.2d 121, 123. Whether conduct on the part of investigating officers amounts to a threat or promise which will render a subsequent confession involuntary and incompetent is a question of law, and the decision of the *503 trial judge is reviewable upon appeal. State v. Biggs, supra.
In this case, the judge found that Officer Cunningham told McMahan that it would be better for him in court if he told the truth; that thereafter on 13 November McMahan made a statement (S-37), and while he was making it he was told that "he might be charged with being an accessory to the crime rather than a principal and this would be a lesser charge"; that on 15 November two other officers who did not know he had made a previous statement, after warning him of his rights, informed McMahan that he could "make a voluntary statement"; that McMahan then made the statement which was introduced in evidence as S-36.
Where the officers merely ask for the truth and hold out no hope of a lighter punishment a defendant's confession is not rendered involuntary by their request for "nothing but the truth." State v. Thomas, 241 N.C. 337, 85 S.E.2d 300; State v. Thompson, 227 N.C. 19, 40 S.E.2d 620; 23 C.J.S. Criminal Law § 817(8) (1961). In State v. Dishman, 249 N.C. 759, 107 S.E.2d 750, the officers told defendant that "it would be better if he would go ahead and tell (them) what had happened." Nothing else was said. The court's conclusion that the defendant's confession was voluntary was upheld. In State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68, however, the officer testified that he told the defendant "if he wanted to talk to me then I would be able to testify that he talked to me and was cooperative." We held that "[t]his statement by a person in authority was a promise which gave defendant a hope for lighter punishment"; that therefore the defendant's confession was involuntary and incompetent as a matter of law. Id. at 228, 152 S.E.2d at 72.
Here, the implication of Officer Cunningham's statement to McMahan was (1) if he told the truth about the entire matter it would be better for him in court and (2) he might be charged with a lesser offense. Clearly this statement constituted "a suggestion of hope" which rendered his subsequent confessions involuntary. Nothing in the evidence suggests that the first confession (S-37) was any different from the subsequent confession (S-36), or that the promise which influenced the first one had not similarly influenced the second. If the hope of avoiding a murder charge influenced McMahan's first statement, it is improbable that he would have jeopardized that chance by refusing to make the same statement, or by making a different statement, to a second group of officers. "[W]here a confession has been obtained under circumstances rendering it involuntary, a presumption arises which imputes the same prior influence to any subsequent confession, and this presumption must be overcome before the subsequent confession can be received in evidence." State v. Moore, 210 N.C. 686, 692, 188 S.E. 421, 425; accord, State v. Hamer, 240 N.C. 85, 81 S.E.2d 193; State v. Gibson, 216 N.C. 535, 5 S.E.2d 717; State v. Roberts, supra.
We hold, therefore, that the confession of Carson McMahan was incompetent and that its admission was prejudicial error.
Roy Fox's confession antedated the decision in Miranda v. State of Arizona, supra. In the Miranda opinion, it is stated that interrogation of a prisoner who said he desires counsel must cease until he has had an opportunity to confer with an attorney. The question arises, therefore, whether this was the law prior to the Miranda decision. In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), it was held that incriminating statements elicited by government agents from the defendant after he had been indicted and in the absence of his attorney were not admissible at his trial. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), extended this right to the presence of counsel to the time an accused is taken into custody. In Escobedo, the statement of a defendant, who had not been effectively warned of his constitutional right to remain *504 silent and whose attorney had been forcibly kept from him, was held to be inadmissible in evidence against him.
Roy had been fully advised of his right to remain silent and to have counsel. Notwithstanding this distinction (and others which might be made between this case and Escobedo), if, after requesting an attorney, Roy was not given an opportunity to confer with him prior to making his confession, it is our opinion that Massiah and Escobedo dictate a holding that his incriminating statements are not admissible in evidence against him. As pointed out in Collins v. State (Fla.App.), 197 So.2d 574, cert. denied, 207 So.2d 430 (Fla.1968), a case involving this question, the Supreme Court said in Miranda that it based its decision upon cases it had previously decided:
"[W]e start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are enshrined in our Constitutionthat `No person * * * shall be compelled in any criminal case to be a witness against himself,' and that `the accused shall * * * have the Assistance of Counsel.'" Miranda v. State of Arizona, supra, 384 U.S. at 442, 86 S.Ct. at 1611, 16 L.Ed.2d at 705.
People v. Blanchard, 37 Ill.2d 69, 224 N.E.2d 813 (1967), also involved a crime which antedated Miranda. Relying upon Escobedo, the Illinois Supreme Court held the defendant's confession inadmissible because made in the absence of counsel after a request which had not been withdrawn. It disposed of the State's contention that the officers to whom the confession was made did not know that defendant had requested counsel by upholding that the "interrogating officers" were charged with the same knowledge which the "escorting deputies" had. "To hold otherwise," the Court said, "could make it possible to nullify an accused's request for the assistance of counsel by the expedient of transferring his custody for questioning to an officer who would be unaware of the request for an attorney." Id. at 73, 224 N.E.2d at 813, 816. See Annot., Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1259 (1966).
In passing upon the admissibility of Roy's confession it is necessary to ascertain whether he had been denied the assistance of counsel at the time of the interrogation which produced his confession. The State's evidence tends to show that shortly after his arrest Roy said that he did not want counsel; that thereafter he voluntarily made his confession to Sheriff Clay without telling him he desired counsel; that he first requested an attorney after he had made his confession. Roy's evidence tends to show that he requested counsel immediately after his arrest on Friday afternoon, 13 November; that, despite his continuous requests thereafter Mr. Jackson was not called until Saturday, 14 November; that when Jackson came to the jail in response to the call, he was informed that the sheriff was talking to Roy; that he waited and, in about fifteen minutes, Roy was brought up from the sheriff's office.
Although the evidence as to when Roy requested an attorney was sharply conflicting, the court's findings of fact omit any reference to this request, the time Mr. Jackson was called, and when he came. In a case such as this, after the preliminary inquiry into the circumstances surrounding the making of a confession, "the approved practice requires that the judge, in the absence of the jury, make findings of fact. These findings are made to show the basis for the judge's decision as to the admissibility of the proffered testimony." State v. Conyers, 267 N.C. 618, 621, 148 S.E.2d 569, 571-572. Accord, State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868; State *505 v. Gray, supra; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344.
If Roy voluntarily made the statement (S-42), or the earlier one which was not transcribed, and thereafter requested counsel for the first time, he was not deprived of his Sixth Amendment right to counsel. If, however, after he had requested an attorney, and before he was given an opportunity to confer with him, officers continued to interrogate Roy, any incriminating statement thus elicited cannot be received in evidence against him. The ruling upon the admissibility of any statement which Roy may have made must await the findings of material facts to be made by the judge at the next trial.
New trial.
