A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA00-1336

NORTH CAROLINA COURT OF APPEALS

Filed: 5 February 2002

STATE OF NORTH CAROLINA

v .                         Alamance County
                            No. 99 CRS 56417
WAYNE THOMAS JOHNSON

    Appeal by defendant from judgment entered 18 May 2000 by Judge J. B. Allen, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 10 October 2001.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for State.

    David J. P. Barber, for defendant-appellant.

    BIGGS, Judge.

    Wayne Thomas Johnson (defendant) appeals his conviction of voluntary manslaughter. Defendant contends that the trial court erred in denying his motion to suppress inculpatory statements made to law enforcement officers and in refusing to declare a mistrial ex mero motu. For the reasons herein, we affirm the trial court.
    The State's evidence tended to show the following: On 31 October 1999 at 4:47 a.m., Detective R.M. Fuquay, of the Burlington Police Department, was dispatched to a crime scene after the body of Harold Keith Booker (the deceased) was discovered near the intersection of Sidney and Queen Anne Streets in Burlington, North Carolina. Reports later confirmed that the deceased died from head and spinal cord injuries caused by a great deal of force froma very heavy object such as a bat or a shovel.
    Detective Fowler interviewed Vicki Sims, who had accompanied the deceased and an “older white male” in a taxi from a bar the night the deceased died. She gave a description of the older man to the police and a composite was drawn. Officer Irby, of the Burlington Police Department, stated that earlier a man fitting that same description flagged him down not far from the crime scene stating that he was suffering from an apparent heart attack. Officer Irby had taken the man, who was later identified as defendant, to the Alamance Regional Medical Center. After discharging the defendant later that same day, the medical center sent defendant to Wesley Hall, a residential treatment facility for substance abuse. Two detectives went to Wesley Hall to ask if defendant would ride with them to the Burlington Police Department for questioning.
    Defendant arrived at the police department between 9:25 p.m. and 9:30 p.m. on 31 October 1999 and Officer Fuquay testified that before interviewing defendant, he explained to defendant that he was not under arrest and that he was “free to leave at any time”. According to Officer Fuquay, defendant explained that he did not know the deceased or anything about his death and that he had not been to any bars that night.
    Some time during the interview, defendant accompanied the officers on a road trip to the City Park, the location where defendant said he had slept upon arriving in town the night before. They rode in an unmarked vehicle with Officer Fuquay driving,defendant occupying the front passenger seat and Sergeant Fowler sitting in the back. Defendant first directed the officers to the underpass of I-40/I-85 where he explained that he sat and drank wine, once he arrived in town. Defendant then pointed to B&J's Lounge where he admitted to the detectives for the first time, that he met the deceased. Later, the detectives returned to the police department with defendant.
    During the early hours of 1 November 1999, defendant requested his glasses and medication that he had left at the treatment center. Two detectives transported defendant to Wesley Hall to pick up those items. On the way to Wesley Hall, defendant made several statements to the detectives: that he and the deceased were in an altercation; that he was afraid for his life and was only defending himself; that “he didn't want a charge”; that “he did not want to be charged with anything more than he had to be”; and that “he didn't mean to do it”. Defendant was thereafter read the Miranda warnings at which time he provided the officers with a written statement.
    Defendant was indicted on 8 November 1999 for second degree murder in violation of N.C.G.S. § 14-17 (1999). On 9 May 2000, defendant filed a motion to suppress inculpatory statements made to the law enforcement officers. A two-day voir dire hearing was held and at its conclusion the motion to suppress was denied. On 18 May 2000, defendant was found guilty of voluntary manslaughter by a jury from which he now appeals.

_____________
    At the outset, we note that in his brief, defendant argues only two of eleven assignments of error set forth in the Record on Appeal. Pursuant to Rule 28 (b) of the North Carolina Rules of Appellate Procedure, those assignments which defendant has failed to address in his brief are deemed abandoned.
I.
    Defendant first contends that the trial court erred in denying his motion to suppress inculpatory statements made to law enforcement officers. We disagree.
    Defendant sets forth this argument in two parts. First, he argues that his statement was made under a custodial interrogation and therefore Miranda warnings were required. In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), the Supreme Court held:
        the prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Id. at 444, 16 L. Ed. 2d at 706. “[T]he Supreme Court of the United States has specifically rejected arguments that the principles of Miranda should be extended to cover interrogation in noncustodial circumstances after a police investigation has focused on the suspect. . . .” State v. Davis, 305 N.C. 400, 408, 290 S.E.2d 574, 580 (1982). Thus, defendant's claim of a Mirandaviolation is without merit unless his statements were obtained during a custodial interrogation.
    “Miranda warnings are required prior to questioning only if one is in custody or has been deprived of one's freedom of action in a significant way.” State v. Wiggins, 334 N.C. 18, 28, 431 S.E.2d. 755, 761 (1993) (citations omitted). “[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) (citation omitted). 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.'” Id. at 662, 483 S.E.2d. at 405 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977)); see also, Beckwith v. United States, 425 U.S. 341, 48 L. Ed. 2d 1 (1976) (fact that person has become the focus of a criminal investigation does not necessarily mean he is in custody).
    In reviewing the denial of a motion to suppress, the findings by the trial court are conclusive and binding on appeal if supported by competent evidence in the record. State v. Corley, 310 N.C. 40, 52, 311 S.E.2d 540, 547 (1984); see also, State v. Mahaley, 332 N.C. 583, 592, 423 S.E.2d 58, 64 (1992). This is true even though the evidence is conflicting. Id. (citation omitted). The trial court's conclusions of law, however, are fully reviewableby the appellate courts. Id. (citation omitted).
    In the case sub judice, the trial court made the following findings pertinent to whether defendant was the subject of a custodial interrogation:
        (5) . . .The [c]ourt finds that Detective Fowler testified as well as Detective Fuquay that both these detectives advised the defendant that he was not under arrest, that he was free to leave, and that they just wanted to talk to him about the death of Keith Booker, and the defendant acknowledged that he understood that he was not under arrest and that he was free to go.

        (6) The [c]ourt finds that Detectives Fowler and Fuquay began interviewing the defendant at 9:50 p.m. At that time the defendant was dressed appropriately and was seated at a table within arm's reach of the detectives. Before any questions were asked of the defendant, Detective Fuquay advised the defendant that he was not under arrest, and that he was free to leave at any time. The [c]ourt further finds as a fact that had the defendant wanted to leave at that time, then he would have been granted permission to leave, in that both Detectives Fuquay and Fowler have testified that at the time of the 9:50 p.m. interview, there was no probable cause to believe that the defendant had actually killed Harold Keith Booker, and that they would have allowed him to leave.

        (7) The [c]ourt finds that Detectives Fuquay and Fowler sat a few feet away from the defendant across the table and didn't notice any odor of alcohol about the defendant, and that the defendant appeared fine and normal. . . .

        . . . .

        (9) The [c]ourt does find as a fact that during the 9:50 p.m. interview with Detectives Fuquay and Fowler that the defendant stated, quote, “Maybe I should stop talking and get a lawyer,” end of quote. The [c]ourt will find as fact that Detective Fuquay immediately uponthat statement again told the defendant he was not in custody, he was not under arrest, and he was free to leave at any time. The [c]ourt will specifically find that Detectives Fuquay and Fowler never did tell the defendant yes, he needed a lawyer, or no, he didn't need a lawyer. The [c]ourt further finds that after that statement, the defendant continued [to] voluntarily interview, and did not again mention a lawyer.

        . . . .

        (11) The [c]ourt finds as a fact that during the trip, the defendant was in the passenger area of [the] police vehicle being driven by Detective Fuquay, and that Detective Fowler was in the back seat taking notes; that the defendant was not in handcuffs and was not restrained in any fashion. The [c]ourt further finds that the officers had abundantly made it clear to the defendant that he was not under arrest, that he was not in custody, and that he was free to go if he wished.

        . . . .

        (13) The [c]ourt does find as a fact that both Detectives Fuquay and Fowler have testified several times during the direct and cross examination in this voir dire hearing, that the defendant did not have any odor of alcohol on his breath, that he was able to walk and talk properly, and that he had no difficulty in answering questions. The [c]ourt further finds that the defendant was informed on several occasions that he was not in custody and that he was free to leave, and that Detectives Fuquay and Fowler have testified that if the defendant in fact wanted to leave, he could have left.

        . . . .

        (19) . . . The [c]ourt further finds that the two detectives accompanied by the defendant went back to the police department about 11:50 p.m.; that they went back up to the interview room. When they went up there, the defendant stated he wanted to go to the restroom, and he was allowed to go to the restroom unattended.
        . . . .

        (22) . . . The [c]ourt finds that Lieutenant Flack was well aware that the other detectives had freely acknowledged fully and every way advised the defendant that he was not under arrest, and that he was free to leave. . . .

    The trial court found that defendant was not under a custodial interrogation. We are bound by these findings when there is competent evidence in the record to support them. Testimony of Detectives Fowler and Fuquay support these findings as follows:
        Detective Fuquay
        Q. How did you begin your interview?

        A. First told him that he was not under arrest, and that he was free to leave at any time, and asked him if he understood this.

        Q. How did Mr. Johnson (defendant) reply?

        A. He stated he did.

        Detective Fowler

        Q. When you first met [defendant], did you engage in any conversation with him?

        A. Introduced, Detective Fuquay and I both introduced ourselves, saying we were looking into the death of Mr. Booker, and that we would like to ask him some questions. We understood that he was with him earlier that evening. . . . [W]e also advised him [that] he was not under arrest. He was free to go, that we just wanted to get some information from him.

        . . . .

        Q. Okay. Did you inform the defendant that [sic] any of his rights at the time you first met with him?

        A. No, sir. We, we explained to him that his presence was a volunteer basis [sic] and that we just wanted to ask him some questions, thathe was free to go at any time.

    Furthermore, when questioned on cross-examination about defendant's supposed request for counsel, Detective Fuquay offered this testimony:
        Q. . . . Mr. Johnson asked for an attorney, didn't he?

        A. No, sir. He didn't.

        Q. He never asked you for an attorney to be present?

        A. He said that--at one point, Mr. Johnson stated that maybe he should stop talking and get a lawyer. At this point, I again informed Mr. Johnson that he was not in custody and that he was free to leave and asked him if he understood. He again stated that he understood that he was free to leave and that he was not in custody.

    We hold that there is competent evidence in the record to support the findings of the trial court, therefore, the findings are conclusive on appeal.
    We further hold that these findings support the trial court's conclusions of law that defendant was not in custody at the time the challenged statements were made. There is neither evidence that at the time the statements were made, defendant was under arrest, nor is there evidence that his freedom of movement had been restrained in such a way that he was not free to move about or leave if he chose to do so. To the contrary, the evidence suggested the following: Defendant agreed to accompany the officers to the police station for questioning; that throughout the interview process, defendant was apprised by the officers that he was free to leave at any time and that he was not under arrest;that upon request the officers transported him back to the treatment center to retrieve his glasses and medicine; that he was allowed to go to the restroom unattended; that defendant was never searched, handcuffed, restrained, or threatened by the police officers; that during his ride with the officers he sat in the front passenger seat of the vehicle; and that he freely and voluntarily spoke to the officers. Considering the totality of the circumstances, we conclude that defendant was not in custody or deprived of his freedom of action in any significant way and thus Miranda was not applicable.
    Next, we address the second part of defendant's argument that the challenged statements were involuntarily made due to his “weakened physical state, his lack of transportation, the length of the interview, and the psychological tactics used by the police.” We find this argument without merit. The State has the burden to show by a preponderance of the evidence that the defendant's statement was voluntary. See generally, State v. Thibodeaux, 341 N.C. 53, 58, 459 S.E.2d 501, 505 (1995). Again, this Court must consider the totality of the circumstances. State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994) (emphasis added). In Hardy, the Supreme Court set out factors to be considered in this inquiry:
        whether defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and themental condition of the declarant.

Id. at 222, 451 S.E.2d at 608.
    In the case sub judice, the trial court, in applying the “totality of the circumstances” test concluded as a matter of law that defendant's statements were voluntarily given. There is ample evidence in the record to support the trial court's findings of fact on this issue. Although the police officers questioned defendant from approximately 9:30 p.m. on 31 October 1999 to approximately 5:00 a.m. the following morning, we have earlier concluded that defendant was not “in custody” during that period; that he was not held incommunicado; and further that defendant was not searched, handcuffed, restricted in his movement or otherwise threatened by police officers. Moreover, the trial court specifically found that the detectives who sat a few feet from defendant “didn't notice any odor of alcohol about defendant, and that the defendant appeared fine and normal,” and that “defendant was rational, that he had a normal tone of voice, and that he had no problems understanding the questions and responded appropriately.” Finally, defendant was very familiar with the criminal justice system; he had been in and out of prison for approximately twenty-five years. We therefore hold that the trial court did not err in concluding that defendant's statements were voluntarily made. Accordingly, this assignment is overruled.

II.
    The defendant next assigns as error, the trial court's refusalto declare a mistrial ex mero motu based on the State's closing argument. In essence, defendant argues that the trial court on its own motion should have declared a mistrial after the prosecutor's alleged “improper and inflammatory jury argument referring to the defendant as a 'con man.'” We find no merit in defendant's argument.
    Where there is no objection to a jury argument, as in this case, the standard of review “to determine whether the trial court should have intervened ex mero motu is whether the allegedly improper argument was so prejudicial and grossly improper as to interfere with defendant's right to a fair trial.” State v. Alford, 339 N.C. 562, 571, 453 S.E.2d. 512, 516 (1995). “Prosecutors are given wide latitude in the scope of their arguments.” State v. Syriani, 333 N.C. 350, 398, 428 S.E.2d. 118, 144, cert. denied, 510 U.S. 948, 126 L. Ed. 2d 341 (1993). Additionally, “the arguments of counsel are left largely to the control and discretion of the trial judge.” State v. Williams, 317 N.C. 474, 481, 346 S.E.2d. 405, 410 (1986). The decision to grant a mistrial based on such alleged misconduct is within the trial court's discretion. State v. Marlow, 334 N.C. 273, 287, 432 S.E.2d 275, 283 (1993). “This is particularly true where, defendant has not moved for a mistrial.” State v. Jaynes, 342 N.C. 249, 280, 464 S.E.2d 448, 467 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). A mistrial may be granted only when the case has been prejudiced at trial to such an extent that a fair and impartial verdict is impossible. Marlow, 334 N.C. at 287, 432 S.E.2d at 283;State v. Laws, 325 N.C. 81, 105, 381 S.E.2d 609, 623 (1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990). A trial court's decision will not be disturbed on appeal unless the trial court clearly abused its discretion. Marlow, 334 N.C. 287, 432 S.E.2d at 283.
    In the present case, defendant challenges the following statement made by the prosecutor during the closing argument: “Who is the con man in this case?” Defendant claims that this statement was made with the intention of labeling him as a liar before the jury.
    Our Supreme Court has stated that:
        Where defendant fails to object to an alleged impropriety in the State's argument and so flag the error for the trial court, “the impropriety . . . must be gross indeed in order for this court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.”

State v. Abraham,
338 N.C. 315, 338, 451 S.E.2d. 131, 143 (1994) (quoting State v. Johnson, 298 N.C. 355, 369, 259 S.E.2d. 752, 761 (1979)).
    After reviewing the challenged statement in the present case, in context, we conclude that such statement was not grossly improper and thus the trial court did not abuse its discretion in declining to declare a mistrial on its own motion. Moreover, we note that the trial court did provide the following admonishment to the jury:         

        Well, ladies and gentlemen, again these arguments are not to be construed as yourinstructions on the law. I will give you the instructions on the law. Counsel may contend and argue his position.

Thus, we overrule this assignment of error.
    Accordingly, we conclude that the defendant received a fair trial free of prejudicial error.
    No Error.
    Judges MCGEE and TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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