1. Confessions and Other Incriminating Statements--Miranda
warnings--defendant not told he could leave--not in custody
The trial court did not err in a prosecution for the first-
degree sexual offense of a child and attempted first-degree rape
of a child by admitting a statement which defendant contended he
gave to police without Miranda warnings while he was in custody.
Defendant went to the police station of his own volition and gave
a statement without any promises being made; while he did not
know that he was a suspect and contends that no one told him that
he was free to go, he was not in custody and Miranda warnings
were not required.
2. Evidence--hearsay--out-of-court statements of witness
refusing to testify--witness unavailable--order to testify
required
There was no plain error in a prosecution for the first-
degree sexual offense of a child and the attempted first-degree
rape of a child where the victim refused to testify, the court
ruled that she was unavailable, and a number of witnesses were
allowed to testify regarding her out-of-court statements. While
the court exerted some pressure on the victim, she was never
ordered to testify; an order from the trial court is an essential
component in a declaration of unavailability under N.C.G.S. § 8C-
1, Rule 804(a)(2). However, the statements in question are very
similar to others admitted in evidence and it cannot be said that
the jury would probably have reached a different result without
these statements.
3. Constitutional Law--effective assistance of counsel--failure
to object to hearsay--other similar statements admitted--no
prejudice
A defendant in a prosecution for the first-degree sexual
offense of a child and first-degree attempted rape was not denied
the effective assistance of counsel where his counsel did not
object to hearsay testimony which was similar to statements given
by defendant which were admitted.
Attorney General Michael F. Easley, by Assistant AttorneyGeneral Celia Grasty Lata, for the State.
The Law Offices of James Williams, Jr., P.A., by James D.
Williams, Jr., for defendant-appellant.
HUNTER, Judge.
Jonathan Linton (defendant) appeals from judgments entered
upon the jury's verdicts finding him guilty of first degree sexual
offense of a child and attempted first degree rape of a child.
Defendant argues that the trial court erred by: (1) admitting into
evidence his statement to the police; and (2) admitting testimony
by various witnesses regarding out-of-court statements by the
victim, “K.” Defendant further argues that he received ineffective
assistance of counsel in violation of his Sixth Amendment right to
counsel. We find no prejudicial error.
The pertinent facts leading up to defendant's conviction
follow. The record tends to show that defendant met K in an
electronic (internet) chat room in June or July of 1999. The two
gave each other fake names, defendant calling himself “Majestic,”
and/or “Maurice,” and K identifying herself as “Toya.” Over the
next few weeks, having exchanged telephone numbers, the two “talked
on the telephone several times a day . . . and during those
conversations K[] told him that she was sixteen years old and they
made plans to go out together.” Contrary to her assertions, K was
only twelve.
On 7 August 1999, K and her girlfriend, Megan, went to the
movies with defendant, after which defendant and K drove Megan
home. Defendant and K then drove to the Southern High School
parking lot where they engaged in sexual activity. In a writtenstatement given to police three days later and testified to by
Investigator Jacqueline Fountain, K stated that she and defendant
were on the way to bring me home [and] he
[defendant] pulled in[to the] . . . parking
lot [and] he told me to get out of the car
. . . . Then he told me to get in the back
seat [and] I got in the back seat [and] he
told me to unbutton my pants [and] I said no.
Then he said I'll do it for you. Then I just
gave up. He got in the back seat [and] took
off his pants. Then he got on top of me [and]
stuck his penis in my vagina.
K went on to describe defendant having oral sex with her and then
continuing to have intercourse with her outside on the ground. She
then stated, “[w]hile he was having sex with me I was trying to
push him off but he kept hugging me.” Then she stated that she
remembered walking home. However, K did not tell anyone about the
incident when she initially returned to her home, and her mother
testified that when K came home from the movies, “there were no
signs of physical or emotional trauma and that K[] said she had a
good time.”
The record reflects that, after taking K's statement,
Investigator Fountain contacted defendant, informed him that she
was investigating a sexual assault, and “asked him to come down to
the police station” to talk. However, Investigator Fountain never
informed defendant that he was her only suspect or that she fully
intended to charge and arrest him at a later time. As defendant
discussed the incident, Investigator Fountain reduced defendant's
statement to writing and later had him sign it. In his statement,
defendant said:
On Saturday [the day in question] I parked in
front of K[]'s house [and] she came out, we
were going to the movies. I went to pick up afriend of hers, Megan, and then . . . we went
to the movies . . . . After the movie, I
asked her if she was ready to go home [and]
she said no, so we rode around. . . . We then
went to Southern High School, got out of the
car [and] we kissed. I unbuttoned her pants.
Then she asked me did I have any condoms, I
said no. Then she said, “don't come in me
because I don't want to get pregnant.[”] Then
we started having sex, I could never get all
the way in there. She got on top of me and
tried. We were in the back seat . . . [and]
went to the front of the car [and] tried to
have sex on the hood. That didn't work, [and]
then, last, we got on the street, on the
ground. I wanted to stop because it wasn't
working but she said no she didn't want me to
stop. So I continued to try to have sex with
her. . . . [When I drove her home, s]he
wanted me to stop up the street from her
house. . . . She left messages after that
saying that she wanted to do it again [and]
she wanted me to come over to her house to get
her. . . . She called me [again] from . . .
her friend[']s house. I asked her again if
she was really sixteen, she said yes. I
didn't know she was twelve until I called her
at her house today and her father told
me. . . . When she was lying on the ground I
had oral sex with her because nothing else was
working.
Shortly after giving his statement, defendant left the police
station. He was arrested for the crimes against K five days later.
[1]In his brief, defendant sets forth six assignments of
error, condensed into three arguments for our review. The
remaining seven assignments of error appearing in the record but
not raised in defendant's brief are deemed abandoned. N.C.R. App.
P. 28(b)(5). Defendant first argues that the trial court erred by
denying his motion to suppress his statement to the police, which,
defendant argues, was given while defendant was in custody without
having been read his Miranda rights. We are unconvinced.
“'The scope of review on appeal of the denial of a defendant'smotion to suppress is strictly limited to determ
ining whether the
trial court's findings of fact are supported by competent evidence,
in which case they are binding on appeal, and in turn, whether
those findings support the trial court's conclusions of law.'”
State v. Cabe, 136 N.C. App. 510, 512, 524 S.E.2d 828, 830
(citation omitted), appeal dismissed and disc. review denied, 351
N.C. 475, 543 S.E.2d 496 (2000). As to the merits of defendant's
argument, “the initial inquiry in determining whether Miranda
warnings were required is whether an individual was 'in custody.'”
State v. Buchanan, 353 N.C. 332, 337, 543 S.E.2d 823, 826 (2001).
“[I]n determining whether a suspect was in custody, an appellate
court must examine all the circumstances surrounding the
interrogation; but the definitive inquiry is whether there was a
formal arrest or a restraint on freedom of movement of the degree
associated with a formal arrest.” State v. Gaines, 345 N.C. 647,
662, 483 S.E.2d 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d
177 (1997). Miranda warnings are not required “simply because the
questioning takes place in the station house, or because the
questioned person is one whom the police suspect.” Buchanan, 353
N.C. at 337, 543 S.E.2d at 827 (quoting Oregon v. Mathiason, 429
U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977)).
In applying the law to the facts of this case, we hold that
defendant was not in custody when he chose, by his own volition, to
go to the police station and give a statement without any promises
being made to him, even if he did not know he was a suspect at thetime. The record discloses no evidence of defendant being
handcuffed or affirmatively placed in custody, neither is there
evidence of any officer telling defendant he was not free to go.
Defendant simply contends that at no time did anyone tell him he
was free to go. That fact, standing alone, does not compel the
conclusion that Miranda warnings should have been given. Without
any evidence to the contrary, we hold that defendant was not in
custody when he gave his statement to police and, thus, Miranda
warnings were not required. His statement was admissible, and the
trial court did not err in denying his motion to suppress.
[2]In his second argument, defendant contends that the trial
court erred in admitting the testimony of a number of witnesses
regarding out-of-court statements made by K. Specifically,
defendant argues that the testimony of Elese Black, Nathaniel
Keith, Cecelia Black, Barbara Sanders, Howard Alexander, Jacqueline
Fountain, and Susan Rowe, regarding statements allegedly made by K,
should not have been admitted by the trial court because K was not
“unavailable as a witness” as required by N.C. Gen. Stat. § 8C-1,
Rule 804 (1999) (Rule 804). Although we agree that K was not
“unavailable as a witness,” and that the admission of the testimony
in question pursuant to Rule 804 was error, we hold that the error
does not require reversal because it does not amount to plain
error.
At the outset we note that defendant failed to object to the
admission of the testimony when it was offered (which was before K
refused to testify) and thereby failed to preserve the issue forreview. However, an alleged error by the trial court not objected
to at trial may be made the basis of an assignment of error where
a defendant contends that the judicial action amounts to plain
error, and defendant here does so contend. N.C.R. App. P.
10(c)(4). Thus, we review the alleged error under the plain error
standard of review although it was not preserved at trial. If we
find that the admission of the testimony constitutes error, in
order for the error to warrant reversal, this Court “must be
convinced that absent the error the jury probably would have
reached a different verdict.” State v. Walker, 316 N.C. 33, 39,
340 S.E.2d 80, 83 (1986).
“[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
'fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,' or 'where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,'
or the error has '“resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial”' or where the error is such as to
'seriously affect the fairness, integrity or
public reputation of judicial proceedings'
. . . .”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.),
cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). In
addition, a defendant asserting plain error on appeal bears the
burden of proving that the trial court committed plain error.
Walker, 316 N.C. at 39, 340 S.E.2d at 83.
Turning to the merits of defendant's argument, the firstquestion is whether the trial court's admission of the test
imony at
issue was, in fact, error. “Hearsay” is an out-of-court statement
“offered in evidence to prove the truth of the matter asserted,”
N.C. Gen. Stat. § 8C-1, Rule 801(c) (1999), and is “not admissible
except as provided by statute or by the North Carolina Rules of
Evidence.” State v. Wilson, 322 N.C. 117, 131-32, 367 S.E.2d 589,
598 (1988). Rule 804 provides various exceptions to the general
prohibition against the admission of hearsay where the declarant is
“unavailable as a witness.” Subdivision (a) of Rule 804 enumerates
the circumstances in which a witness may be deemed unavailable for
purposes of admitting hearsay testimony under subdivision (b) of
the rule:
(a) Definition of unavailability. --
“Unavailability as a witness” includes
situations in which the declarant:
. . . .
(2) Persists in refusing to testify
concerning the subject matter of his
statement despite an order of the
court to do so . . . .
Rule 804(a)(2). Subdivision (b)(5) of the rule, which provides a
“catch all” exception for hearsay not falling under any other
hearsay exception, states in pertinent part:
(b) Hearsay exceptions. -- The follow
ing
are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
. . . .
(5) Other Exceptions. -- A statement not
specifically covered by any of the
foregoing exceptions but having
equivalent circumstantial guarantees
of trustworthiness, if the court
determines that (A) the statement isoffered 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.
Rule 804(b)(5).
In the case at bar, K entered the courtroom to testify on
behalf of the State, but once she arrived she refused to testify.
The following discourse transpired during voir dire by the trial
court:
THE COURT: Do you understand that the
Court could require you to testify?
[K]: Yes.
THE COURT: Are you currently unwilling to
testify on behalf of the State?
[K]: Yes.
THE COURT: Do you refuse to testify at
this point?
[K]: Yes.
The trial court then excused K from testifying, declaring that she
was “unavailable within the meaning of [Rule 804(a)(2)] in that she
persists in refusing to testify concerning the subject matter of
her statement despite some admonitions and directives of the
Court.”
Defendant argues that because the trial court “never ordered
K[] to testify,” it was improper to find her unavailable pursuant
to Rule 804(a)(2), and therefore error to admit the statements
pursuant to Rule 804(b)(5). We have not found any cases from thisState directly addressing the issue.
(See footnote 1)
However, because Rule
804(a)(2) is identical to Rule 804(a)(2) in the Federal Rules of
Evidence, see Fed. R. Evid. 804(a)(2), opinions from federal courts
that have addressed this issue are instructive. See, e.g., Stone
v. Lynch, Sec. of Revenue, 68 N.C. App. 441, 443, 315 S.E.2d 350,
352 (1984), aff'd, 312 N.C. 739, 325 S.E.2d 230 (1985).
In United States v. Zappola, 646 F.2d 48 (2d Cir. 1981), the
Court held that the trial court erred in ruling that a witness, who
refused to testify, was unavailable pursuant to Rule 804(a)(2)
because “the district court did not order [the witness] to
testify,” but “[i]nstead . . . relied on [the witness's] assertion
that he would refuse to testify even if ordered to by the court.”
Id. at 54. The Court stated:
The procedure that should have been followed
by the court when faced with [the witness's]
refusal to testify was (1) the issuance of an
order, outside the presence of the jury,
directing him to testify and (2) a warning
that continued refusal to testify despite the
court's order would be punishable by contempt.
Id. In a similar case, United States v. Oliver, 626 F.2d 254 (2d
Cir. 1980), the same Court held that an order from the trial court
is an essential component in a declaration of unavailability under
Rule 804(a)(2). In Oliver, the trial court had put pressure on thewitness to testify; “[h]owever, the court never ordered him to
testify, which is an essential requisite to the invocation of Rule
804(a)(2).” Id. at 261. The Court also noted that “[i]t is always
possible that a recalcitrant witness who does not respond to
judicial pressure will testify when ordered to do so.” Id.
Here, during voir dire, the trial court asked K whether she
intended to refuse to testify although she could be required to do
so by the court. K responded affirmatively, indicating that she
refused to testify. While the court exerted some pressure on K to
testify, the court never ordered K to testify and never warned her
of the possibility of punishment for her continued refusal. We
believe it is possible that K would have testified had she been
ordered to do so by the court. We agree with the rule set forth in
Zapolla and Oliver that an order from the trial court is an
essential component in a declaration of unavailability under Rule
804(a)(2). Therefore, we conclude that the trial court erred in
declaring K unavailable without first giving the required order to
testify.
The next question is whether this error warrants reversal.
The record shows that the statements in question are extremely
similar (in terms of providing evidence of the offenses charged) to
the statement that defendant gave to the police, and the statement
that K gave to the police, both of which were admitted in evidence
and considered by the jury. For this reason, we cannot say that,
absent the admission of the statements in question, the jury would
probably have reached a different verdict. Furthermore, we agreewith the trial court that the fact that the statements in question
were made shortly after the incident indicates a significant degree
of reliability as to the accuracy of these statements. Thus, we
also cannot say that admission of the statements resulted in a
miscarriage of justice. In sum, although the trial court erred in
deeming K unavailable without ordering her to testify, we conclude
that defendant has failed to carry his burden under a plain error
analysis and that the error does not warrant reversal. This
assignment of error is overruled.
[3]In defendant's final argument, he contends that he
received ineffective assistance of counsel in violation of his
Sixth Amendment right to counsel. “Defendant argues that he was
denied effective assistance of counsel when, during the testimony
of Elese Black, Cecelia Black, Nathan Keith, Rosalyn Keith,
Investigator Jacqueline Fountain and Corporal Howard Alexander,
defense counsel failed to object to their hearsay testimony about
what K[] said to them” regarding the incident in question.
Defendant further contends that “[e]ven the [trial] court
recognized the flawed proceedings,” because when defense counsel
finally did object, the trial court stated:
As far as the defendant's general objection to
the testimony of the alleged victim as given
through other witnesses, the defendant having
failed to object to any of that evidence
offered through other witnesses at the time
offered by the State, the Court overrules that
objection.
We are unpersuaded by defendant's argument.
It is well-established that
[a] defendant's right to counsel includes the
right to the effective assistance of counsel. When a defendant attacks his conviction on the
basis that counsel was ineffective, he must
show that his counsel's conduct fell below an
objective standard of reasonableness. In
order to meet this burden defendant must
satisfy a two part test.
“First, the defendant must show that
counsel's performance was deficient. This
requires showing that counsel made errors so
serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.”
. . . .
The fact that counsel made an error, even
an unreasonable error, does not warrant
reversal of a conviction unless there is a
reasonable probability that, but for counsel's
errors, there would have been a different
result in the proceedings.
. . . .
Thus, if a reviewing court can determine
at the outset that there is no reasonable
probability that in the absence of counsel's
alleged errors the result of the proceeding
would have been different, then the court need
not determine whether counsel's performance
was actually deficient.
State v. Braswell, 312 N.C. 553, 561-63 324 S.E.2d 241, 247-49
(1985) (citations omitted).
Here, our examination of the record convinces us that there is
no reasonable probability that defense counsel's failure to object
to the admission of the testimony in question affected the outcome
of the trial. This is because, as discussed above, the statements
in question are extremely similar (in terms of providing evidence
of the offenses charged) to the statement that defendant gave tothe police, and the statement that K gave to the police, both of
which were admitted in evidence and considered by the jury. As a
result, we believe the evidence of defendant's guilt was more than
substantial to prove defendant committed the crimes with which he
was charged, even without the hearsay testimony being allowed.
Looking to the totality of the circumstances in the present case,
we hold that defendant has failed to show that any errors by
defense counsel prejudiced defendant.
No error.
Judges MARTIN and HUDSON concur.
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