1. Robbery--taking by violence or fear--sufficiency of evidence<
br>
There was sufficient evidence to support an armed robbery
conviction, which underlay a first-degree murder conviction,
where defendant contended that there was no evidence that the
taking was by violence or putting in fear because the taking was
complete by the time the altercation occurred. Taking the
evidence in the light most favorable to the State, defendant
resorted to violence before she left the victim's home in order
to retain the money she had taken from the victim's dresser, and
the taking and violence were thus part of one continuing
transaction.
2. Evidence--other offense--drug use--not prejudicial
There was no plain error in a prosecution for robbery and
first-degree murder in the admission of evidence that defendant
had bought and used illegal drugs where the evidence was properly
used to demonstrate motive and there was no reasonable
possibility of a different outcome if the jury had not known of
the drug use. Defendant's version of events was incredible and
would not have been more believable in the absence of this
evidence.
3. Evidence--hearsay--deceased victim--catchall exception
The trial court did not err in a prosecution for robbery and
first-degree murder by admitting hearsay testimony regarding
statements made by the victim before her death that defendant had
stolen $200 from her under the catchall exception of N.C.G.S. §
8C-1, Rule 804(b)(5) where the court made numerous findings to
the effect that the victim and the witness were extremely close
and that the witness was the only person in the community who
looked after the victim, whom the victim trusted, and in whom she
confided.
4. Evidence--murder victim--irrelevant evidence about victim--
not prejudicial
The trial court did not err in a prosecution for robbery and
first-degree murder by admitting evidence that the victim had not
been able to receive her Christmas gift basket from church, a
portrait photograph of the victim taken before she died, and
twelve items of clothing where there was convincing evidence of
defendant's guilt and no reasonable possibility that the outcome
was changed.
5. Confessions and Incriminating Statements--Miranda warnings--lapse
of time until questioning
The trial court did not err in a prosecution for robbery and
first-degree murder by denying defendant's motion to suppress her
statements because she was not properly advised of her
constitutional rights where, assuming that she was in custody and
that Miranda warnings were required, warnings given at 6:30 p.m.
were still in effect at the time of defendant's questioning 30 to
45 minutes later and at the time of her inculpatory oral
statement one and a half hours later.
6. Confessions and Incriminating Statements--promises and
coercive environment--statement not induced
Statements given by the defendant in a prosecution for
first-degree murder and robbery were not induced by promises and
a coercive environment where the officers were merely speaking in
generalities and asking defendant to tell the truth, and there
was evidence to support the finding that officers had made no
promises of leniency.
7. Confessions and Incriminating Statements--promises or
threats--statements about defendant's child
Statements by officers to a robbery and murder defendant
regarding her child did not amount to promises or threats
regarding defendant's child where the detective told her that he
had seen defendant's closeness with her child and that the child
deserved a better life.
8. Confessions and Incriminating Statements--environment--not
coercive
A robbery and first-degree murder defendant was not
questioned in a coercive environment where defendant was not
physically or mentally impaired and showed a willingness to talk
to the officers; she never asked for a lawyer, asked to go home,
or requested to remain silent; she was never handcuffed,
physically restrained or threatened, and the officers were in
plain clothes; she was told that she was free to leave and that
the interview was to be entirely voluntary; the officers did not
accuse her of lying and did not yell at her or show anger; and
defendant's requests to smoke and use the telephone were allowed.
9. Homicide--short-form indictment--no error
The short-form murder indictment has been approved by the
North Carolina Supreme Court.
HUDSON, Judge.
Defendant appeals her conviction of common law burglary and
first degree murder. We find no reversible error in the
proceedings below.
The evidence presented at trial tended to show the following:
in the fall of 1996, the 30-year old defendant went regularly to
the home of 84-year old Mildred Carter (Carter). She knew where
Carter kept her money and when Carter's monthly checks arrived, and
she told her friend Sharon Turner that she was "getting" money from
Carter. She told Turner, "I ought to rob Ms. Mildred, hit that
bitch in the head."
Defendant indicated in a statement to police that, on 10
December 1996, she went to Carter's home to pay back some money she
owed her. Defendant asked to borrow more money, but Carter said
no. Defendant then went to use the phone in Carter's bedroom,
opened her dresser drawer when Carter wasn't looking, and removed
$10.00. Carter "caught" defendant taking the money and demanded it
back. She allegedly grabbed defendant's coat sleeve and pushed
her, and defendant pushed her back. Defendant maintained that
Carter then hit a closet door and grabbed some plastic bags as she
fell to the floor. The bags purportedly "caught on [Carter's]
face" and she struggled to remove them. Defendant claimed she
began putting more bags on Carter's face, and that Carter startedwheezing. It appeared to defendant that Carter had gotten part of
a bag in her mouth, and Carter asked defendant to help her, but
defendant "was scared and couldn't move." "I just watched her
choke herself . . . from the bags being over her face that she just
couldn't get off alone." Defendant opined that Carter essentially
"killed herself from fighting herself with the plastic bags."
On 11 December, law enforcement officers discovered Carter's
body lying at the front door inside her home. Carter had been dead
for a number of hours, and her body was fully clothed and lying
face up with a brown plastic grocery bag pressed tightly around her
neck. Newspapers and five or six plastic grocery bags were in
disarray around the immediate area of her body. There was no
evidence of a struggle anywhere else in the home. The autopsy
showed Carter had eight broken ribs and a depression in the skin
around most of her neck. The cause of death was a combination of
ligature strangulation (strangulation with a device pulled around
the neck) and smothering.
Defendant was subsequently indicted for armed robbery and
murder. The jury found her guilty of common law robbery and first
degree murder under the theory of felony murder, with robbery as
the underlying felony. The jury was unable to reach a unanimous
verdict with regard to awarding defendant the death penalty. The
trial court arrested judgment on the robbery conviction and
sentenced defendant to life in prison without parole. Defendant
appealed to this Court.
[1]/A HREF>Defendant first argues that her first degree murder
conviction must be vacated, because there is insufficient evidenceshe committed common law robbery, the felony which underlies her
first degree murder conviction. Common law robbery is defined as
the non-consensual taking of money or personal property from
another by means of violence or putting in fear. See State v.
Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459
U.S. 1056, 74 L. Ed. 2d 622 (1982). The violence or putting in
fear must precede or be concomitant with the taking in order for
the crime of robbery to be committed. See State v. Sumpter, 318
N.C. 102, 111, 347 S.E.2d 396, 401 (1986).
Defendant in this case contends there was no evidence any
taking of property was done "by violence or putting in fear." She
claims the taking of the money from Carter's dresser was complete
by the time she and Carter had a physical altercation. A similar
argument was made by the defendant in State v. Sumpter, who
asserted the evidence showed he had broken into an unoccupied house
and had already taken property when the victim unexpectedly came
home and he shot her. The Supreme Court held: "[f]rom this
evidence the jury rationally could have found beyond reasonable
doubt that defendant used violence before he left the victim's
premises with the stolen property, and, therefore, before the
taking was over." 318 N.C. at 112, 347 S.E.2d at 402. Thus, the
taking and the violence were part of "one continuing transaction"
and supported the charge of robbery. Id.
In the present case, the evidence taken in the light most
favorable to the State showed that defendant resorted to violence
before she left Carter's home in order to retain the money she hadtaken from Carter's dresser. See State v. Earnhardt, 307 N
.C. 62,
67, 296 S.E.2d 649, 652 (1982)(in determining sufficiency of
evidence to support verdict, evidence must be taken in light most
favorable to the State). This evidence is sufficient to prove
defendant took money from Carter by violence or putting her in
fear, and therefore supports the charge of common law robbery.
[2]Defendant next contends the trial court erroneously
admitted evidence that she had bought and used illegal drugs.
State's witness Wendell Gatling (Gatling) testified without
objection that, in early December 1996, defendant asked him for a
ride to Norfolk, bought $60.00 worth of cocaine there, and smoked
it. He further testified without objection that on 11 December
1996, the day after Carter died, defendant asked him for a ride to
Norfolk to buy cocaine, bought and smoked cocaine on the way to
Norfolk, unsuccessfully tried to buy more cocaine in Norfolk, and
asked Gatling if he knew where to buy more cocaine. Over
defendant's objection, Gatling read his prior statement to police
containing this evidence to the jury, and the statement itself was
admitted as evidence for corroborative purposes. Also over
defendant's objection, Investigator Mason read a statement to the
jury by defendant in which she admitted unsuccessfully trying to
buy cocaine in Norfolk on December 11th. Finally, defendant
complains that the State, with no objection by defendant, referred
to defendant's buying and using cocaine a number of times during
closing argument.
Defendant claims the above evidence was inadmissible under
N.C. R. Evid. 401 because it was irrelevant in proving the crimescharged. Defendant also contends its admission violated N.C. R.
Evid. 404(b), which provides that "[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith."
Defendant argues that this evidence convinced the jury she was a
person of bad character who must have committed the charged
offenses.
Evidence of other wrongs, however, "may be admissible for
other purposes, such as proof of motive." N.C. R. Evid. 404(b).
In the present case, we believe evidence of defendant's drug use
was properly used to demonstrate that she had a motive to rob
Carter. See State v. Powell, 340 N.C. 674, 690, 459 S.E.2d 219,
226-27 (1995), cert. denied, 516 U.S. 1060, 133 L. Ed. 2d 688
(1996)(evidence of defendant's cocaine habit relevant to show
motive to commit robbery after his government assistance checks
were terminated); State v. Stevenson, 136 N.C. App. 235, 241, 523
S.E.2d 734, 737 (1999), disc. review denied, 351 N.C. 368, 543
S.E.2d 144 (2000)(evidence that defendant went to place known for
drug dealing immediately after robbery relevant to show motive);
State v. Smith, 96 N.C. App. 235, 240, 385 S.E.2d 349, 351 (1989),
disc. review denied, 326 N.C. 267, 389 S.E.2d 119
(1990)(defendant's possession of cocaine tended to establish motive
for robbery). In this case, the evidence of defendant's drug use
was limited to two instances in December 1996, clearly within the
time period she was "getting" money from Carter. The second day
about which Gatling testified, December 11th, was the day afterCarter was killed. Evidence of defendant's desire and attempt to
buy drugs in December 1996 provides a potential explanation as to
why she killed Carter in order to retain the $10 she had taken.
We note that defendant did not object to the majority of the
instances in which the State introduced evidence of defendant's
drug use. As such, defendant is limited to arguing that the trial
court committed "plain error" in allowing such evidence. See N.C.
R. App. P. 10(c)(4). "Before deciding that an error by the trial
court amounts to 'plain error,' the appellate court must be
convinced that absent the error the jury probably would have
reached a different verdict." State v. Gardner, 315 N.C. 444, 450,
340 S.E.2d 701, 706 (1986)(citations omitted). As for the evidence
to which defendant properly objected, in order to reverse the trial
court, we must believe that "there is a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached at the trial." N.C.G.S. § 15A-
1443(a) (1999).
Assuming arguendo that the evidence of defendant's drug use
was improperly admitted, we cannot say the trial court committed
"plain error," or even prejudicial error under G.S. § 15A-1443. We
do not believe there is a reasonable possibility the trial would
have had a different outcome if the jury had not known of
defendant's drug use. Defendant admitted that she took money from
Carter, then engaged in a physical altercation with Carter, put
bags on her face, and watched her die. Her assertion that Carter
killed herself fighting with the bags is incredible and would nothave become more believable in the absence of this evidence. The
autopsy showed Carter was killed in part by ligature strangulation,
and this evidence created a strong inference that defendant
strangled her to death with a grocery bag.
[3]Defendant next contends the trial court erroneously
admitted testimony by Leroy Long (Long) regarding statements made
by Carter before her death under N.C. R. Evid. 804(b)(5) without
making proper findings. The State filed a pre-trial notice of
intent to present Long's hearsay evidence at trial under Rule
804(b)(5), and the court held a hearing on the matter. At the
hearing, Long testified that in the several weeks before her death
Carter told him: 1) "[Defendant] took $200 from [me];" 2) "While
[defendant] was making a telephone call, that's when she got that
$200;" 3) "I know who got [my money] because [defendant is] the
only one that's been here and been in there;" 4) "[Defendant has]
got every nickel I've got in here and I don't have money to pay my
bills;" and 5) "I ain't got no money because [defendant has] done
been in here and got my money." In an oral order later reduced to
writing, the trial court admitted this testimony into evidence over
defendant's objection. Also over defendant's objection, the court
instructed the jury it could consider Long's testimony to show that
defendant had "a plan, scheme, system, or design involving the
crime charged in this case."
Under Rule 804, if a witness is unavailable to testify at
trial, for example, due to death, the witness's statement may be
admitted under certain exceptions to the rule excluding hearsay.
Under Rule 804(b)(5), a statement not covered under otherspecifically enumerated exceptions is admissible if it has
equivalent circumstantial guarantees of trustworthiness
[and] if the court determines that (A) the statement is
offered as evidence of a material fact; (B) the statement
is more probative on the point for which it is offered
than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes
of these rules and the interests of justice will best be
served by admission of the statement into evidence.
Defendant argues the trial court failed to make findings of
fact and conclusions of law that Long's testimony was "more
probative on the point for which it [was] offered than any other
evidence which the proponent [could have] procure[d] through
reasonable efforts." Defendant's argument is without merit.
The trial court made numerous findings of fact to the effect
that Long and Carter were extremely close and that he was the only
person in the community who looked after her, whom she trusted, and
in whom she confided about financial and personal matters. Carter
was clearly the person in the best position to know that defendant
had stolen $200 from her, and the court's findings demonstrate that
Long was the likeliest person with whom Carter would have shared
this information.
The trial court made a conclusion of law that Long's hearsay
testimony was "more probative than any other evidence which the
State may present because the victim, Mildred Carter, is
unavailable due to her death." Defendant is correct that Carter's
unavailability due to her death is a prerequisite for admission of
the evidence under Rule 804(b)(5), and is not an explanation of why
Long's testimony was more probative on the point for which it was
offered than any other evidence the State could reasonably find.
However, the trial court's extensive findings of fact support itsconclusion that Long's testimony did meet the requirements of Rule
804(b)(5)(B).
As for the trial court's instruction to the jury that it could
use Long's testimony as proof that defendant had a plan or scheme
to rob Carter, defendant simply argues that it was improper due to
the inadmissibility of Long's statement under Rule 804(b)(5).
Again, the trial court made proper findings as to the admissibility
of Long's statement. This assignment of error is overruled.
[4]Next, defendant asserts the trial court erroneously
admitted certain irrelevant evidence which had the effect of
inflaming the passions of the jury to convict her. First, Mary
Pittman testified that, on 11 December 1996, she attempted to
deliver a Christmas gift basket to Carter's house but got no
answer. Over defendant's objection, Pittman testified that the
basket was from Carter's church and affirmed that Carter was never
able to get her "little goodie Christmas basket" because she was
dead.
Second, Pittman, Leroy Long, and Sharon Turner testified that
a portrait photograph of Carter taken before she died looked like
Carter in life; over defendant's objection, the trial court
admitted the picture into evidence. This picture was later passed
to the jury.
Third, over defendant's objection, Detective Barfield
identified and the court admitted into evidence twelve items of
clothing he retrieved at Carter's autopsy and from her home,
including the gown, shorts, shoes, underpants, panties, bra, slip,
stockings, girdle, hat, and wig she appeared to have been wearingat the time she was killed, and a loose button found under her
body. The jury was at one point allowed to view and touch the
clothing while wearing gloves.
N.C. R. Evid. 401 states: "'relevant evidence' means evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence." The
photograph of Carter was relevant in that it allowed the State to
contrast Carter's normal, well-kept appearance with her appearance
when she was found dead in her home. This contrast was evidence
that there was a struggle before she died. Furthermore, certain
items of Carter's clothing had dirt and blood on them and thus were
relevant as evidence of a struggle and of her injuries.
We agree that Pittman's statement regarding Carter's inability
to get her Christmas basket was irrelevant to the case, as were
arguably certain items of Carter's clothing which were not stained,
such as her underclothing. However, we believe there is no
reasonable possibility that admission of Pittman's statement and
Carter's clothing changed the outcome of this case. See G.S. §
15A-1443(a). As discussed above, defendant's explanation of
Carter's death defies credibility; there was convincing evidence
that defendant robbed and killed Carter. Any error by the trial
court in admitting the above evidence was harmless. Furthermore,
defendant did not object to the jury's personal viewing of Carter's
picture and of her clothes, and we do not believe the trial court's
allowing this contact with the evidence amounted to plain error.
[5]Defendant next argues that the trial court erred indenying her motio
n to suppress oral and written statements s
he gave
to the police on 14 December 1996, in that she was not properly
advised of her constitutional rights beforehand and that the
statements were given involuntarily.
In its order on defendant's motion to suppress these
statements, the trial court found the following facts: On 13
December 1996, officers spoke with defendant on three occasions.
She gave statements on two of these occasions, which statements are
not the subject of the motion to suppress.
On the afternoon of 14 December 1996, Detectives Barfield and
Skinner interviewed Wendell Gatling, who gave a statement which
conflicted with those of defendant. The officers telephoned
Investigator Mason and asked that he seek defendant's further
cooperation in coming to the sheriff's office for another
interview. Mason went to defendant's house in plain clothes, asked
if she would go to the sheriff's department to answer more
questions, and, when she said yes, returned to his unmarked car to
wait for her. Defendant sat in the front seat of the police car on
the way to the station.
At the station, she was taken into an interview room and given
the Miranda warnings at approximately 6:30 p.m. Defendant
indicated she understood each of the constitutional rights read to
her and signed a form waiving these rights. Mason did not ask her
any questions, but explained that the interview would not begin
until Barfield and Skinner arrived in a few minutes. Defendant
indicated her willingness to wait for their arrival and thereafter
sat in the interview room unattended. Approximately 30 to 45minutes later, Barfield and Skinner arrived. Barfield
and Mason
conferred outside the interview room in close proximity to
defendant, where Mason advised Barfield he had warned defendant of
her rights and that she had waived them. Barfield entered the room
and advised her that he wanted to talk with her further, but that
she was not under arrest and that she was free to leave. Barfield
and Skinner, also present, were unarmed, in plain clothes, and
without handcuffs or symbols of authority.
After some discussion with the officers, defendant requested
to smoke and use the telephone, both of which were allowed. She
went across the hall to use the telephone unattended. She talked
for approximately three to five minutes to her mother, then
returned to the room and said, "I'll tell you what happened." She
gave an inculpatory verbal statement, and when she was finished,
the officers asked her to write it down. She was then advised of
her Miranda rights, waived them, and wrote the same statement she
had orally given. Finally, she was arrested and booked.
The trial court's findings of fact resulting from the voir
dire on defendant's motion to suppress are binding if they are
supported by any competent evidence in the record. See State v.
Leak, 90 N.C. App. 351, 354, 368 S.E.2d 430, 432 (1988). We have
thoroughly reviewed the record and determined the court's findings
of fact above are so supported.
Defendant first contends that her oral statement to police on
14 December 1996 is inadmissible because she was in custody at the
time of the statement and was not warned of her constitutionalrights before she gave it. See State v. Harvey, 78 N.C. App. 2
35,
237, 336 S.E.2d 857, 859 (1985)(person "in custody" of police must
be informed of rights before interrogation begins). The trial
court found that defendant was informed of her rights at 6:30 p.m.
and was questioned by police approximately 30 or 45 minutes later.
Defendant contends that the 6:30 p.m. Miranda warnings had grown
stale by the time she was questioned by police and gave an
inculpatory statement at approximately 8:00 p.m.
Whether the Miranda warnings were stale such that "there is a
substantial possibility [defendant] was unaware of [her]
constitutional rights at the time of the subsequent interrogation"
is to be determined by the totality of the circumstances. State v.
McZorn, 288 N.C. 417, 434, 219 S.E.2d 201, 212 (1975), vacated in
part, 428 U.S. 904, 49 L. Ed. 2d 1210 (1976). Our Supreme Court
has set forth several factors to consider in determining whether
earlier Miranda warnings remained in effect during subsequent
questioning:
(1) the length of time between the giving of the first
warnings and the subsequent interrogation; (2) whether
the warnings and the subsequent interrogation were given
in the same or different places; (3) whether the warnings
were given and the subsequent interrogation conducted by
the same or different officers; (4) the extent to which
the subsequent statement differed from any previous
statements; (5) the apparent intellectual and emotional
state of the suspect.
Id. (citations omitted).
Assuming arguendo that defendant was in police custody on
December 14th and that therefore Miranda warnings were required, an
analysis of the above factors leads us to a determination that the6:30 p.m. warnings were still in effect at the time of defendant's
questioning 30 to 45 minutes later and at the time of her
inculpatory oral statement one and a half hours later. First,
based on prior case law, we do not believe an overly long amount of
time passed between the giving of the Miranda warnings in this case
and defendant's questioning and statement. See State v. Mitchell,
353 N.C. 309, 328, 543 S.E.2d 830, 842 (2001)(admitting a
confession which occurred six and a half hours after warnings);
State v. Westmoreland, 314 N.C. 442, 447, 334 S.E.2d 223, 226
(1985)(second interrogation within two and a half hours of initial
warnings; warning not stale); State v. Small, 293 N.C. 646, 655,
239 S.E.2d 429, 436 (1977)(thirty minute lapse of time between
initial questioning and subsequent interrogation did not render
warnings stale).
Furthermore, defendant was given the Miranda warnings and
interrogated in the same room. Although Officer Mason gave
defendant the warnings and Officers Barfield and Skinner questioned
her, Mason explicitly told defendant that the other officers, not
he, were going to question her. She expressed a willingness to
wait for their arrival and was thereafter left alone in the room to
wait for them. There were no intervening events between the
warning and their arrival to dilute the message of the Miranda
warnings. However, defendant's December 14th statement did differ
from her earlier statements and did inculpate her. This factor
weighs against finding the Miranda warnings to be valid.
Regarding defendant's intellectual and emotional state, thecourt found as fact that she was a thirty year-old woman
with a
twelfth grade education. She was not under the influence of drugs
or alcohol at the time of her statement; rather, she was alert and
coherent and her attitude toward the officers was generally calm.
Balancing the above factors, we agree with the finding of the
trial court that the 6:30 p.m. Miranda warnings were not so remote
in time as to be stale at the point of defendant's questioning and
statement shortly thereafter. In other words, we do not believe
there is a substantial possibility that defendant was unaware of
her constitutional rights at the time she gave her December 14th
oral statement. As for defendant's written statement, given
immediately after the oral statement, defendant was advised of her
constitutional rights before making it.
[6]Regardless of her awareness of her Miranda rights,
defendant contends that her statements were induced by promises
made by the officers and an overall coercive environment. In
determining whether a statement was given voluntarily, the court is
to consider the totality of the circumstances. See State v. Smith,
328 N.C. 99, 114, 400 S.E.2d 712, 720 (1991).
Defendant first points to several statements made by
Detectives Barfield and Skinner during her questioning on December
14th as being coercive. Specifically, Barfield told her that in
his experience, "a lie would hurt her much more than the truth ever
would." He also said that if she had to go to court, she "could
tell the court about her drug problem, or anything else she wanted
to tell." Detective Skinner told her that "a mistake had been made
and it was time to correct it." A confession is not admissible when it is induced by "threat,
coercion, hope, or promise of reward." State v. Small, 293 N.C.
646, 652, 239 S.E.2d 429, 434 (1977). However, it is not coercive
for officers to ask an accused to tell the truth if they hold out
no hope of a lighter punishment in exchange for the accused's
inculpatory statement. See State v. Fox, 274 N.C. 277, 292, 163
S.E.2d 492, 503 (1968). In Small, the Supreme Court held that an
officer's telling a defendant that he could not "buy" one of the
defendant's statements and that the defendant should tell the truth
did not amount to coercion. 293 N.C. at 653, 239 S.E.2d at 435.
Likewise, in State v. Dishman, 249 N.C. 759, 762, 107 S.E.2d 750,
752 (1959), the Supreme Court did not object to an officer's
message that "[he] thought it would be better if [the defendant]
would go ahead and tell [them] what had happened."
In this case, the officers were merely speaking in
generalities and asking defendant to tell the truth. The trial
court found as fact that the officers made no promises of leniency
in exchange for her giving a statement, and there is evidence in
the record to support this finding.
Detective Barfield's statement that she could tell the court
about her drug habit does imply that drug use is a relevant factor
the court might consider in her favor in determining her
culpability. However, the officers did not promise defendant that
the judge would show her leniency on this basis. In fact, the
trial court did submit defendant's cocaine use as a mitigating
factor in her sentencing phase, and it was the only mitigatingfactor the jury found to apply.
[7]Defendant also objects to certain statements the officers
made about her child. When Detective Skinner visited her home on
the night of December 13th, he told her that her son was well-
behaved. On December 14th, during defendant's questioning, he told
her he "saw the closeness that she had with her child the night
before." Also on the 14th, Detective Barfield told defendant her
child deserved a better life than he was having at that time.
Defendant contends the officers effectively told her that her son's
life would be better if she cooperated and gave a statement. We do
not believe these statements by the officers amounted to promises
or threats regarding defendant's child.
[8]Defendant argues finally that there was an overall
coercive environment. The trial court did not find this to be the
case. Defendant was not physically or mentally impaired, and she
showed a willingness to talk to the officers. She never asked for
a lawyer, asked to go home, or requested to remain silent.
Defendant was never handcuffed, physically restrained or
threatened, and the officers were in plain clothes. Detective
Barfield told her she was free to leave and that the interview was
to be entirely voluntary on her part. The officers did not accuse
her of lying, and did not yell at her or show anger. Defendant
requested to smoke and to use the telephone, both of which were
allowed. These findings are supported by evidence in the record.
In considering the totality of the circumstances, defendant was not
questioned in a coercive environment and her statements will not be
considered involuntary. [9]Defendant finally argues that her first degr
ee murder
conviction must be vacated because the "short-form" indictment
returned by the grand jury did not allege that the murder was
committed during the perpetration of another felony. Defendant
recognizes that the North Carolina Supreme Court approved the use
of such "short-form" indictments in State v. Wallace, 351 N.C. 481,
528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498
(2000). We are not at liberty to revisit this issue. See Dunn v.
Pate, 106 N.C. App. 56, 60, 415 S.E.2d 102, 104 (1992), rev'd on
other grounds, 334 N.C. 115, 431 S.E.2d 178 (1993)(Court of Appeals
bound by decisions of the Supreme Court).
No error.
Judges WYNN and TIMMONS-GOODSON concur.
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