Appeal by defendant from judgment entered 7 July 2000 by Judge
Marcus L. Johnson in Mecklenburg County Superior Court. Heard in
the Court of Appeals 7 November 2001.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas F. Moffitt, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Anne M. Gomez, for defendant-appellant.
TYSON, Judge.
Kentay Lamarr Lee (“defendant”) appeals the trial court's
judgment and sentence of life imprisonment without parole. The
trial court entered judgment after a jury verdict convicted
defendant of first-degree murder based on premeditation and
deliberation, and felony murder, and guilty of robbery with a
dangerous weapon. We find no error.
I. Facts
On 31 December 1998, Edward Mingo (“Edward”) and his brother
William Mingo (“William”) hosted a New Year's Eve party. Edward
and William were both developmentally disabled and lived in
separate apartments at Edwin Towers, a public owned residential
complex for elderly and young adults with mental disabilities. William recruited people from the street to enlarge the party.
William encountered two teenagers later identified as Terrence
Henderson (“Henderson”) and defendant and brought them to the
party. The building's lobby video camera recorded William,
defendant, and Henderson enter the building at 9:40 p.m. Defendant
wore a dark-blue Carolina Panther's sweatshirt. Everyone at the
party drank alcohol and listened to music. William testified that
Edward appeared drunk.
William left the party a couple more times, once to buy more
beer and again to invite some women back to the party. The lobby
camera recorded William leaving at 10:25 p.m. and defendant and
Henderson leaving six minutes later. William returned at 10:39
p.m. with more beer. William left again at 10:57 p.m. At 11:05
p.m., the camera recorded defendant, still wearing the blue
Panther's sweatshirt, and Henderson standing outside the building
next to the self-locking security doors. Defendant and Henderson
slipped back into the building after a resident opened the doors as
he was leaving. The camera recorded defendant and Henderson exit
the building at 12:24 p.m. Defendant was now wearing a leather
jacket later identified as belonging to Edward.
On 2 January 1999, William walked to his brother's apartment
to return his glasses. William noticed Edward's door was unlocked.
William entered and found Edward dead, lying face down on the
floor.
Officers entered the apartment and observed that the couch,
living room wall, and floor were covered in blood. DetectiveRobert Buening (“Detective Buening”) testified that the living room
and bedroom had been ransacked, and that he saw various injuries on
Edward's body. He collected a bloody hammer, covered with hair
tissues and traces of scalp.
Dr. James Sullivan (“Dr. Sullivan”) performed an autopsy on
Edward's body. Dr. Sullivan recorded multiple trauma injuries,
including: three cutting wounds, six lacerations or gashes on the
head, bruising across the forehead, and approximately twelve other
cutting wounds on his back, chest, arm pit, and leg. Dr. Sullivan
opined that these trauma injuries, probably resulting from a box
cutter and a hammer, caused Edward's death.
The police arrested and transported defendant and Henderson to
the police station on 8 January 2000 at approximately 8:15 p.m.
Both communicated a statement to police. Defendant was fourteen
years old at the time of the crime.
Detective Buening testified that he read defendant his rights
from the Charlotte-Mecklenburg Police Department's standard
juvenile waiver of rights form (“waiver form”) before questioning
defendant about the murder. Detective Buening testified that
defendant acknowledged that he understood his rights, and that
defendant initialed each right listed on the waiver form.
Defendant was tried non-capitally on 26 June 2000. Defendant
did not testify or offer evidence. The statements of defendant and
Henderson were entered into evidence. Defendant's incriminating
tape recorded statement and transcript thereof were published to
the jury. The jury found defendant guilty of (1) first-degreemurder based on premeditation and deliberation and felony murder,
and (2) robbery with a dangerous weapon. The trial court sentenced
defendant to life imprisonment without parole for first-degree
murder and 55 months minimum and 75 months maximum for robbery with
a dangerous weapon to run consecutively with the life sentence.
Defendant appeals.
II. Issues
Defendant assigns the following errors: (1) the trial court
erred by denying defendant's motion to suppress his statement to
police, (2) the trial court erred in sentencing defendant to life
imprisonment without parole on first-degree murder, and (3) the
trial court erred by entering judgment on the first-degree murder
verdict and sentencing because the murder indictment was
insufficient. Defendant has assigned numerous other errors. All
other assignments raised and not argued by defendant are deemed
abandoned pursuant to N.C. R. App. P. 28(b)(5) (1988).
III. Motion to Suppress Defendant's Statement to Police
Defendant argues that the waiver form warnings read to
defendant were, as a matter of law, insufficient and defective,
failing to satisfy the requirements of
Miranda v. Arizona, 384 U.S.
436, 16 L. Ed. 2d 694,
reh'g denied, 385 U.S. 890, 17 L. Ed. 2d 121
(1966).
Miranda requires that, prior to questioning, a defendant be
informed that he “has the right to remain silent, that anything he
says can be used against him, . . .[and] that he has a right to thepresence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning . . . .”
Id. at 478-79, 16 L. Ed. 2d at 726. Additionally, a defendant must
be informed of his right to an attorney during questioning.
Duckworth v. Eagan, 492 U.S. 195, 204, 106 L. Ed. 2d 166, 178
(1989). Moreover, the right to counsel before and during
questioning cannot be “linked with some future point in time.”
California v. Prysock, 453 U.S. 355, 360-61, 69 L. Ed. 2d 696, 701-
02 (1981). “An interrogating officer need not explain the
Miranda
rights in any greater detail than what is required by
Miranda, even
when the suspect is a minor.”
State v. Flowers, 128 N.C. App. 697,
700, 497 S.E.2d 94, 96-97 (1998) (citing
Prysock, 453 U.S. at
356-57, 361, 69 L. Ed. 2d at 699-700, 702;
Fare v. Michael C., 442
U.S. 707, 726, 61 L. Ed. 2d 197, 213 (1979);
State v. Brown, 112
N.C. App. 390, 395-97, 436 S.E.2d 163, 166-68 (1993),
aff'd per
curiam, 339 N.C. 606, 453 S.E.2d 165 (1995)).
“In addition to the above-mentioned constitutional rights, our
legislature has granted to juveniles the right to have a parent,
guardian or custodian present during questioning.”
State v.
Miller, 344 N.C. 658, 666, 477 S.E.2d 915, 920 (1996)(citing N.C.
Gen. Stat. § 7A-595(a)(3)(1995)).
Here, Detective Buening read defendant his rights from the
waiver form, which states:
(1) I have the right to remain silent. Thatmeans I do not have to say anything or
answer any questions.
(2) If I decide to start answering questions,
I still have the right to
stop answering
questions any time I want to.
(3) If I do answer questions or say anything,
whatever I say can be used against me.
(4) I have the right to have a parent,
guardian, or custodian here with me now
during questioning . . . .
(5) I have the right to talk to a lawyer and
to have a lawyer here with me now to
advise and help me during questioning.
(6) If I want to have a lawyer with me during
questioning but do not have a lawyer, one
will be provided to me at no cost
before
I am questioned.
(7) If I agree to answer questions now,
without a lawyer, parent, guardian, or
custodian here, I still have the right to
stop answering questions whenever I want
to.
(8) If I decide to answer questions now, I
can still change my mind and
stop
answering questions until I have talked
to a lawyer an/or parent, guardian or
custodian.
(Emphasis in original).
Defendant contends that these warnings were insufficient
because they (1) did not clearly inform defendant that he had a
right to an attorney before the questioning began, and (2) that
they conditioned defendant's right to counsel to his willingness to
undergo interrogation. The entire record before us does not
support defendant's contentions.
“Miranda itself indicated that no talismanic incantation wasrequired to satisfy its strictures.”
Prysock, 453 U.S. at 359-60,
69 L. Ed. 2d at 701.
“'The now familiar
Miranda warnings . . .
or
their equivalent'” is sufficient.
Id. at 360, L. Ed. 2d at 701
(emphasis in original)(citation omitted). "Words that convey the
substance of prequestioning warnings are sufficient."
Miller, 344
N.C. at 666, 477 S.E.2d at 920 (citation omitted).
“A defendant may waive his
Miranda rights, but the State
bears the burden of proving that the defendant made a knowing and
intelligent waiver.”
State v. Brown, 112 N.C. App. 390, 396, 436
S.E.2d 163, 167 (1993) (citing
State v. Simpson, 314 N.C. 359, 334
S.E.2d 53 (1985);
Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 707)).
“The totality of the circumstances must be carefully scrutinized
when determining if a youthful defendant has legitimately waived
his
Miranda rights.”
Miller, 344 N.C. at 666-67, 477 S.E.2d at 920
(citing
State v. Fincher, 309 N.C. 1, 19, 305 S.E.2d 685, 697
(1983)). “'Whether a waiver is knowingly and intelligently made
depends on the specific facts and circumstances of each case,
including the [defendant's] background, experience, and conduct .
. . .'”
Id. (citing
Simpson, 314 N.C. at 367, 334 S.E.2d at 59);
Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378,
reh'g denied,
452 U.S. 973, 69 L. Ed. 2d 984 (1981).
The waiver form's language unequivocally informed defendant
that he had the right to a lawyer “now.” Number 5 on the waiver
form states that “I have a right to talk to a lawyer and to have alawyer here with me
now to advise and help me during questioning.”
(Emphasis added). Detective Buening read defendant his
Miranda
warning rights from the waiver form, and defendant initialed each
right, prior to any questioning about the crime. Based on the
circumstances in this case the word “now” can only refer to the
time prior to or before the questioning about the murder.
Similarly, number 6 on the waiver form states that “[i]f I
want to have a lawyer with me during questioning but do not have a
lawyer, one will be provided to me at no cost
before I am
questioned.” (Emphasis in original). The word “before” is
underlined on the form. We conclude that the words “now,”
“before,” and “during” read in conjunction with all the rights
enumerated on the waiver form sufficiently inform a defendant of
his constitutional rights to a lawyer before and during
questioning.
Second, there is nothing in the record to indicate that the
Miranda warnings given to defendant, specifically his right to
counsel, was conditioned on his willingness to undergo
interrogation or “linked with some future point in time.”
Prysock,
453 U.S. at 360, 69 L. Ed. 2d at 701. Detective Buening testified
that he asked defendant if he wanted to “talk to me now about the
charges outside the presence of your parent, guardian or lawyer.”
Detective Buening testified that defendant “indicated he did” want
to talk. Detective Buening placed a “check” on the waiver form
that stated:
I am 14 years old or more and I understand my
rights as explained by Officer Buening.
I DO
wish to answer questions now, WITHOUT a
lawyer, parent,
guardian, or custodian here
with me. My decision to answer questions now,
without anyone here to help me, is made freely
and is my own choice. No one has threatened
me in any way or promised me special
treatment. Because I have decided to answer
questions now, without anyone here to help me,
I am signing my name below.
(Emphasis in original). Defendant then signed his name right below
the above-paragraph on the waiver form, after having initialed each
right enumerated. The record before us is clear that, given the
age of defendant, Detective Buening took extra care to provide
defendant his
Miranda warnings both orally and in writing. There
is nothing on the waiver form which links defendant's right to an
attorney with his willingness to be questioned.
Finally, the trial court included a finding of fact in its
order denying defendant's motion to suppress that “defendant had
been through the juvenile arrest process more than once before, and
was not naive where his rights were concerned.” Detective Buening
also testified that defendant was “very willing to talk,” was cocky
about what he had done, and showed no remorse.
We hold: (1) that the rights and words read to and initialed
by defendant constituted a fully effective equivalent of the
Miranda warnings, conveyed the substance of the pre-questioning
warnings, and were in full compliance with all constitutional and
statutory requirements; and (2) that considering defendant's
background, experience, conduct, and all facts and circumstances,
defendant knowingly and voluntarily waived his right to remainsilent and have an attorney or guardian present. This assignment
of error is overruled.
IV. Defendant's Life Sentence Without Parole
Defendant contends that his sentence of life in prison without
parole violates the Eighth Amendment of the United States
Constitution, as made applicable to the States through the
Fourteenth Amendment, and Article I, Sections 19 and 27 of the
North Carolina Constitution. Defendant argues that: (1) the
sentence does not reflect “the evolving standards of decency that
mark the progress of a maturing society,” (2) “there is no
penological justification for imposing [that sentence] on a
fourteen-year-old,” and (3) the punishment is disproportionate to
the crime. Additionally defendant argues that G.S. § 14-17 and
G.S. § 7A-608 are unconstitutional on their face, and as applied,
for the same reasons outlined above.
We note at the outset that defendant failed to preserve this
issue for appeal because he failed to object to the sentence
imposed at trial. Defendant asks us to consider his appeal,
however, under theories that (1) G.S. § 14-17 and G.S. § 7A-608 are
facially unconstitutional, and (2) the unconstitutional application
of these statutes constituted plain error.
Considering the age of defendant, even if the appeal was
properly before us we believe that the holding in
State v.
Stinnett, 129 N.C. App. 192, 199-200, 497 S.E.2d 696, 701-02,
cert.
denied, 525 U.S. 1008, 142 L. Ed. 2d 436 (1998) is dispositive ofdefendant's G.S. § 14-17 and G.S. 7A-608 facial challenge. "Where
a panel of the Court of Appeals has decided the same issue, albeit
in a different case, a subsequent panel of the same court is bound
by that precedent, unless it has been overturned by a higher
court."
In the Matter of Appeal from Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 37 (1989). Defendant has also failed to
persuade us that G.S. § 14-7 and G.S. § 7A-601 are unconstitutional
as applied to defendant.
Our Supreme Court's holding and analysis in
State v. Green,
348 N.C. 588, 502 S.E.2d 819 (1998),
cert. denied, 525 U.S. 1111,
142 L. Ed. 2d 783 (1999),
superceded by statute on other grounds,
136 N.C. App. 596, 525 S.E.2d 500 (2000) determines and controls
defendant's cruel and/or unusual punishment and proportionality
arguments. Defendant's attempts to distinguish
Green are
unpersuasive. In
Green, the defendant was 13 years old and was
sentenced to life in prison for first-degree sexual offense.
Id.
at 592, 502 S.E.2d at 822. The analysis and reasoning in
Green is
even more applicable to the facts at bar. Here, the jury convicted
defendant of first-degree murder in a horrific, premeditated and
deliberate manner. “It is elementary that this Court is bound by
holdings of the Supreme Court.”
Rogerson v. Fitzpatrick, 121 N.C.
App. 728, 732, 468 S.E.2d 447, 450 (1996) (citations omitted).
Defendant's punishment “'is severe but it is not cruel or unusual
in the constitutional sense.'”
Green, 348 N.C. at 612, 502 S.E.2dat 834 (quoting
State v. Fulcher, 294 N.C. 503, 525, 243 S.E.2d
338, 352 (1978)). This assignment of error is overruled.
V. Indictment Insufficiencies
Defendant contends that the “short” indictment form failed to
confer jurisdiction on the trial court arguing that the indictment
did not specify all the elements of first-degree murder necessary
to put defendant and the grand jury on notice. Defendant concedes
that
State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000) controls
this issue. We are bound by that decision.
Rogerson, 121 N.C.
App. at 732, 468 S.E.2d at 450.
We conclude that defendant's transfer, trial, and sentence
were constitutional and free from error.
No error.
Judges TIMMONS-GOODSON and HUDSON concur.
*** Converted from WordPerfect ***