Appeal by defendant from judgments entered 26 March 2001 by
Judge Michael E. Beale in Cabarrus County Superior Court. Heard in
the Court of Appeals 17 September 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Daniel F. McLawhorn, for the State.
Osborn & Tyndall, P.L.L.C., by J. Kirk Osborn and Amos Granger
Tyndall, for defendant-appellant.
MARTIN, Judge.
Defendant appeals from judgments entered upon jury verdicts
finding him guilty of attempted first degree murder, possession of
a handgun by a felon, discharging a firearm into occupied property,
and being an habitual felon.
The State's evidence at trial tended to show that prior to 3
March 2000, defendant and Mack Jones had developed a tense and
unfriendly relationship that had included violent encounters. On
3 March 2000, defendant was at the home of Danny Hilton when Jones
drove up in front of the house. Defendant shot at him through the
car window several times. Jones drove away and defendant got in
his truck and followed him. Upon catching up with him, defendant
rammed Jones' vehicle with his own, then fired more shots at him.
Jones testified that he heard defendant say: “I'm going to killyou, _---- f-----.” Jones returned fire with his own pistol and
then managed to escape his vehicle, run to a nearby house, and call
the police. Defendant returned to Hilton's house where he was soon
located by the police.
The officers handcuffed defendant to frisk him for weapons,
then removed the handcuffs. The officers told defendant that his
truck had been involved in a shooting and he expressed surprise,
indicating to the officers that he had last seen the truck when he
parked it on the street in front of Hilton's house. The officers
asked defendant if he would voluntarily accompany them to the
police station so they could investigate what had happened with his
truck. He agreed to go with the officers; he was not questioned or
handcuffed during the ride to the station. While he was being
transported to the station, and after he arrived there, defendant
made certain statements to, and asked certain questions of, Officer
Tierney, the officer with whom he had ridden, concerning the
collision involving his truck, indicating to the officer that
defendant knew more about the collision than had been related to
him by the officers. Defendant subsequently made a statement to
Detectives Rummage and Inman in which he initially denied knowing
Jones, but later said that Jones had been threatening him and that
Jones had set him up. He claimed that his truck had been stolen.
Defendant was asked to submit to a gunshot residue test, but
he refused. He was subsequently placed under arrest. Upon his
continued refusal to submit to the gunshot residue test, defendant
was physically subdued by officers so that the test could beadministered. The incident was recorded on videotape. The results
of the gunshot residue test were not introduced into evidence at
trial, however, the State was permitted, over defendant's
objection, to introduce evidence of defendant's refusal to submit
to the test.
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The record on appeal contains twenty-five separate assignments
of error. Defendant brings forward seven of the assignments of
error in the four arguments contained in his brief. In those
arguments, defendant asserts the trial court erred by (1) denying
his request for a separate arraignment and to reschedule his trial
at least one week thereafter, (2) admitting evidence that he
refused to consent to the gunshot residue test, (3) admitting
statements made by defendant to the police when he had not been
given
Miranda warnings, and (4) failing to dismiss the charge of
attempted first degree murder on the grounds that the “short-form
indictment did not allege each element of the offense.” The
remaining assignments of error are deemed abandoned. N.C.R. App.
28(a), 28(b)(6). We find no error requiring that defendant receive
a new trial.
I.
Defendant contends he is entitled to a new trial by reason of
the State's failure to schedule his arraignment at least a week
before his trial, and the trial court's refusal to postpone the
trial for at least a week after his arraignment. He relies
primarily on G.S. § 15A-943, which provides in subsection (a) thatin counties where there are twenty or more weeks per year of
superior court scheduled for the hearing of criminal cases,
arraignments must be scheduled “on at least the first day of every
other week in which criminal cases are heard,” and in subsection
(b) that “[w]hen a defendant pleads not guilty at an arraignment
required by subsection (a), he may not be tried without his consent
in the week in which he is arraigned.” Defendant argues that no
arraignment was scheduled according to G.S. § 15A-943(a), and that
he objected to proceeding to trial on the same day he was arraigned
but was denied the week's interval between arraignment and trial to
which he was entitled under G.S. § 15A-943(b).
In
State v. Shook, 293 N.C. 315, 319-20, 237 S.E.2d 843, 847
(1977), the Supreme Court held that it was reversible error to
proceed with a defendant's trial on the same day as arraignment
without his consent in violation of G.S. § 15A-943(b). Indeed, if
defendant here had been subjected to such a violation, he would be
entitled to a new trial. However, the circumstances of this case
indicate that he was not.
In response to defendant's insistence upon a formal
arraignment at least a week prior to his trial, the trial court
found that the record contained no request for arraignment by
defendant, particularly not one filed within 21 days of notice of
return of the bill of indictment. Thus, the trial court concluded
that defendant had waived the requirement of G.S. 15A-943(b). G.S.
§ 15A-941 provides:
(a) Arraignment consists of bringing a
defendant in open court . . . advising him ofthe charges pending against him, and directing
him to plead. The prosecutor must read the
charges or fairly summarize them to the
defendant. If the defendant fails to plead,
the court must record that fact, and the
defendant must be tried as if he had pleaded
not guilty.
. . .
(d) A defendant will be arraigned in
accordance with this section only if the
defendant files a written request with the
clerk of superior court for an arraignment not
later than 21 days after service of the bill
of indictment . . . [or if applicable] not
later than 21 days from the date of the return
of the indictment as a true bill. Upon the
return of the indictment as a true bill, the
court must immediately cause notice of the 21-
day time limit within which the defendant may
request an arraignment to be mailed or
otherwise given to the defendant and . . .
counsel of record, if any. If the defendant
does not file a written request for
arraignment, then the court shall enter a not
guilty plea on behalf of the defendant.
Defendant concedes that he filed no request for formal arraignment.
However, he argues, without citing authority, that the arraignment
scheduling requirements of G.S. § 15A-943 required the State to
schedule an arraignment regardless of the provisions of G.S. § 15A-
941(d). We hold that it would be illogical to require the State to
schedule an arraignment pursuant to one statute where the right to
such has been waived pursuant to another, and we decline to do so.
Alternatively, he argues for the first time on appeal that the
trial court's ruling was flawed because defendant never received
notice of the 21-day limit for filing a request for arraignment as
required under G.S. § 15A-941(d). His failure to raise the issue
at trial precludes his raising it on appeal. N.C.R. App. P.
10(b)(1). In any event, the argument is based on the content ofdocuments which are not included in the record on appeal. See
N.C.R. App. P. 9(a). It is the defendant's duty to see that the
record on appeal is complete and “when the matter complained of
does not appear of record, defendant has failed to show prejudicial
error.” State v. Fox, 305 N.C. 280, 283, 287 S.E.2d 887, 889
(1982), (quoting State v. Cutshall, 278 N.C. 334, 346, 180 S.E.2d
745, 752 (1971)). This assignment of error is overruled.
II.
Next, defendant argues that the trial court erred by admitting
into evidence statements made by defendant while he was being
transported to the police station and, once there, during an
interview with Detectives Inman and Rummage. Defendant moved to
suppress the evidence, alleging that he was in custody when he made
the statements and that he had not been given the warnings required
by
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d. 694 (1966).
Defendant asserts that the trial court's denial of the motion and
admission of the evidence violated his rights under the Fifth
Amendment of the United States Constitution and similar provisions
in the North Carolina Constitution. U.S. Const. Amend. V.; N.C.
Const. Art. I., § 23.
In reviewing the decision of a trial court to deny a motion to
suppress, this Court may evaluate whether the findings of fact are
supported by the evidence and whether those findings support the
conclusions of law.
See State v. Steen, 352 N.C. 227, 536 S.E.2d
1 (2000),
cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).
Although defendant assigned error to certain findings made by thetrial judge in his orders denying the motion to suppress, he did
not address the allegedly erroneous findings in his brief.
Therefore, we deem the related assignments of error to be
abandoned. N.C.R. App. P. 28(b)(6). Unchallenged by defendant,
the trial court's findings of fact are binding on this Court on
appeal.
See Steen, 352 N.C. at 238, 536 S.E.2d at 8.
Defendant's brief and remaining assignments of error on this
issue address only whether the trial judge erred in concluding that
defendant was in custody (a) while he was being transported to the
station and waiting in the interview room with Officer Tierney and
(b) while being interviewed by Detectives Rummage and Inman. This
Court may review the trial court's legal conclusions
de novo. Id.;
State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992). The
determination of whether defendant was in custody when he made the
statements is important because, generally, statements made by a
defendant during custodial interrogation should be excluded from
evidence if the defendant can show that he made them without
benefit of
Miranda warnings.
See Miranda, supra.
With respect to statements made by defendant to Officer
Tierney during the ride to the station or while waiting in the
interview room, however, this Court need not reach the issue of
custody. In its order, the trial court concluded that defendant
was not interrogated by Officer Tierney. Defendant did not assign
error to this conclusion or challenge it in his brief. Therefore,
it is not within the scope of review and is binding on appeal.
N.C.R. App. P. 10(a), 10(b)(1), 28(b)(6). Because
Miranda appliesonly to statements made as a result of custodial
interrogation, the
trial court's conclusion that there was no interrogation by Officer
Tierney is fatal to defendant's argument on this point.
With respect to statements made by defendant to Detectives
Rummage and Inman, the trial court concluded that although
defendant was interrogated, he was not in custody during the
interrogation and was not, therefore, entitled to
Miranda warnings.
In
State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001);
opinion
after remand, 355 N.C. 264, 559 S.E.2d 785,
reconsideration denied,
355 N.C. 495, 563 S.E.2d 187 (2002), our Supreme Court clarified
the test for determining whether a defendant is in custody for
purposes of
Miranda. Prior to
Buchanan, several cases had focused,
when considering whether a defendant was in custody at the time of
interrogation, upon the question of whether a reasonable person
would have felt “free to leave” under the circumstances.
See id.
at 339-40, 543 S.E.2d at 828. In
Buchanan, however, the Court
declared that:
based on United States Supreme Court precedent
and the precedent of this Court, the
appropriate inquiry in determining whether a
defendant is “in custody” for purposes of
Miranda is, based on the totality of the
circumstances, whether there was a “formal
arrest or restraint on freedom of movement of
the degree associated with a formal arrest.”
Id. The Court referred to this test as the “ultimate inquiry”
test.
For purposes of comparison with the present case, it is
important to note that in
Buchanan, the trial court had granted the
motion to suppress based on its conclusion that defendant was incustody at the time of his statement.
See id. at 333, 543 S.E.2d
at 824. The Supreme Court described the “free to leave” test as a
broader test than the “ultimate inquiry” test and remanded the case
for reconsideration.
See id. at 339-40, 543 S.E.2d at 828. If
under the narrower “ultimate inquiry” test the trial court
concluded that the defendant was not “in custody,” the motion would
be denied and the State could introduce the statements at issue
into evidence.
In the present case, however, the circumstances are reversed
in that the defendant's motion to suppress was denied. The trial
court based its denial of the motion with regard to the statements
made by defendant in the interview on the conclusion that
“[d]efendant was never formally arrested and a reasonable person,
under the totality of the circumstances then existing, would have
believed that he was free to leave and not under arrest.” At
worst, this conclusion seems to be based on a combination of the
“free to leave” and “ultimate inquiry” tests. However, even if it
is solely based on the “free to leave” test, there is no need for
us to remand. In an analogous case, this Court stated that:
[s]ince the trial court determined that under
the less restrictive “free to leave” test that
defendant's statement should not be
suppressed, it follows that an application of
the more restrictive “formal arrest” test
would yield the same conclusion, that,
“defendant was not in custody” for purposes of
Miranda.
State v. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545,
disc. review denied, 355 N.C. 497, 564 S.E.2d 51 (2002) (quoting
Buchanan, supra). Having settled that the trial court committed no prejudicial
errors of law, we must also evaluate whether the findings of fact
in the order support the conclusion that defendant was not in
custody. The findings indicate that defendant was only briefly
restrained with handcuffs for a weapons frisk and that he
thereafter voluntarily went to the station with the police,
submitted to an interview, and signed a written statement that
specifically affirmed his understanding of the situation and his
voluntary cooperation. He was informed several times that he was
free to leave, including after he indicated interest in having an
attorney present, but made no effort to do so. These and other
facts found by the trial judge support the conclusions that
defendant was not in custody, could not reasonably have believed he
was in custody, and thus had no right to be informed of his
Miranda
rights.
See State v. Gaines, 345 N.C. 647, 662-63, 483 S.E.2d 396,
405,
cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997)
(upholding conclusion that defendant was not in custody where he
was told several times that he was not under arrest and was free to
leave, and defendant signed a statement including a clause to that
effect). Furthermore, defendant's additional argument that his
request for an attorney should have put an end to the questioning
is without merit. If defendant was not in custody, then a request
for an attorney would have no Fifth Amendment implications.
See
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 trial court properly
concluded that none of defendant's constitutional rights had beenviolated and denied the motion to suppress.
III.
Defendant also assigns error to the admission of evidence of
his refusal to submit to the gunshot residue test. He argues that
he had a constitutional right to refuse the test and that the use
of evidence of that refusal at trial amounted to unlawful
punishment for the exercise of his rights. Defendant further
argues that even if the use of the evidence is not unlawful, the
evidence was both irrelevant and prejudicial. The arguments in
defendant's brief focus primarily on the admission and alleged
playing before the jury of the portion of the videotape showing his
refusal to submit to the test and his subsequent struggle with the
officers. A careful review of the transcript, especially the pages
cited by defendant, reveal, however, that although the entire
videotape was admitted as an exhibit, the portion related to
defendant's refusal to submit to the test was not played for the
jury. Therefore, to the extent that defendant's argument rests on
use of the videotape evidence, it is without merit.
Defendant challenges the admission of the evidence of his
refusal to submit to the residue test based on his alleged right to
refuse to consent to the test, the officers' alleged lack of
authority to proceed without consent or court order, and the
asserted irrelevance of the evidence and resulting prejudice. In
his brief, defendant addresses not only these points, but also
argues that his right to the assistance of counsel was violated.
Because it was not argued at trial or included in his assignment oferror, this Court declines to address this aspect of defendant's
argument on appeal. N.C.R. App. P. 10(a).
Both at trial and on appeal, defendant makes what is
essentially a “fruit of the poisonous tree” argument.
See, e.g.,
State v. Graves, 135 N.C. App. 216, 221, 519 S.E.2d 770, 773
(1999). Defendant asserts that the administration of the gunshot
residue test was an unconstitutional search of his person under the
Fourth Amendment. U.S. Const. Amend. IV. Thus, he contends the
statements by defendant and the video of his physical resistance
that resulted from the search should have been excluded. However,
in making this Fourth Amendment argument, defendant has failed to
address the basis for the trial court's ruling to admit the
evidence.
The Fourth Amendment of the United States Constitution
protects the public from “
unreasonable searches and seizures”
(emphasis added). Generally, a warrant is required for any search
or seizure, and such warrant must be based upon “probable cause.”
See State v. Coplen, 138 N.C. App. 48, 54, 530 S.E.2d 313, 318
(2000). “However, an exception arises when law enforcement
officers have probable cause to search and 'the circumstances of a
particular case render impracticable a delay to obtain a warrant.'”
Id. (citations omitted). “Probable cause exists where 'the facts
and circumstances within their [the officers'] knowledge and of
which they had reasonable trustworthy information [are] sufficient
in themselves to warrant a man of reasonable caution in the belief
that' an offense has been or is being committed.”
State v. Zuniga,312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (quoting
Brinegar v.
United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 1890 (1949)).
In support of its ruling, the trial court concluded that the
officers had probable cause to conduct the test and that exigent
circumstances required that it be done immediately without a court
order. In
State v. Coplen,
supra, this Court held that those two
circumstances made the administration of a gunshot residue test
without a court order lawful.
Although the trial court made no findings of fact preceding
its conclusions, the evidence from which it would have drawn the
requisite findings was not controverted and supported the
conclusions.
See State v. Richardson, 295 N.C. 309, 245 S.E.2d 754
(1978). Moreover, defendant did not take exception to the lack of
findings at trial or on appeal. N.C.R. App. P. 10(b)(1). On the
issue of probable cause, the trial court ascertained during the
hearing that the search occurred after the police had gathered
information regarding the defendant and the shooting in interviews
with Mr. Jones and Mr. Hilton. Further, the
voir dire witness,
Officer Ledwell, responded to inquiry by the trial court that a
gunshot residue test must be performed within three to four hours
of the shooting. This evidence provided an adequate basis to
support the conclusion that the search was reasonable under the
circumstances.
See State v.
Richardson,
supra.
Because the search was reasonable and not a violation of
defendant's Fourth Amendment rights, statements or actions made by
defendant as a result of the request for and administration of thetest cannot be “fruit of the poisonous tree.”
See Graves, supra.
Furthermore, the admission of evidence of the refusal could not
have penalized defendant for exercise of his constitutional rights
in violation of due process because defendant did not have the
right to refuse to take the test. U.S. Const. Amend. XIV.
Defendant further argues that even if the search was lawful,
the evidence of his refusal to submit to the test should have been
excluded because it was both irrelevant and prejudicial. N.C. Gen.
Stat. § 8C-1, Rules 401-403 (2002). In the two specific portions
of the transcript to which defendant directs our attention,
defendant did not object to the officers' testimony on the basis of
relevance. Although he argued at trial that the evidence was
prejudicial, his theory was grounded in the constitutional
arguments analyzed above, not in the claims made in his brief that
the evidence of his refusal cast defendant as a danger to society,
someone who had to be wrestled to the ground by police, thus
resulting in unfair prejudice. Because defendant's brief has not
directed this Court to any objections or rulings on the issues of
relevance or prejudice within the transcript, we decline to address
them. N.C.R. App. P. 10(b)(1). Nevertheless, we note that
evidence of a defendant's refusal to submit to a lawful testing or
identification procedure has been held admissible when offered as
circumstantial evidence of guilt.
See, e.g., United States v.
Parhms, 424 F.2d 152, 154-55 (9
th Cir. 1970) (refusal to participate
in line-up);
United States v. Nix, 465 F.2d 90, 92-94,
cert.
denied, 409 U.S. 1013, 34 L. Ed. 2d 307 (5
th Cir. 1972) (refusal toproduce handwriting sample);
State v. Odom, 303 N.C. 163, 277
S.E.2d 352,
cert. denied, 454 U.S.1052, 70 L. Ed. 2d 587 (1981)
(refusal to submit to gunshot residue test). We find no error in
the trial court's admission of evidence that defendant refused to
submit to the gunshot residue test.
IV.
In his final argument, defendant challenges the use of the
short form indictment for the charge of attempted first degree
murder, contending the indictment was insufficient because it did
not allege each of the specific elements of the offense. In his
brief, defendant concedes that the use of short form indictments
for first or second degree murder was upheld 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). Furthermore, this Court applied
Wallace and
other similar cases to uphold the use of the short form indictment
for attempted first degree murder in
State v. Choppy, 141 N.C. App.
32, 539 S.E.2d 44 (2000),
disc. review denied, 353 N.C. 384, 547
S.E.2d 817 (2001). This assignment of error is overruled.
Defendant received a fair trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge THOMAS concur.
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