STATE OF NORTH CAROLINA
v. Rowan County
Nos. 95 CRS 1321
TIMOTHY MAQUEL DAVIS 95 CRS 1323
95 CRS 1735
Attorney General Roy Cooper, by Assistant Attorney General
Clinton C. Hicks, for the State.
R. Marshall Bickett, Jr. for defendant-appellant.
EAGLES, Chief Judge.
Defendant Timothy Maquel Davis was charged with assault with
a deadly weapon with intent to kill inflicting serious injury,
robbery with a dangerous weapon, and attempted murder. The
evidence tends to show that on the night of 13 December 1994,
defendant secreted himself inside of the A & P grocery store, also
known as Save-A-Center, in Kannapolis, North Carolina. At about
6:25 a.m. on the next morning, Tommy Wayne Plyler, the store's co-
manager, and James W. Hall, the meat department manager, arrived at
the grocery store to start work. Plyler proceeded to the store's
office to do some bookkeeping and Hall went directly to the back of
the store towards the meat department. After entering the office,Plyler looked up to see defendant pointing a gun at him. Defendant
had a metal bar in his other hand, and ordered Plyler to open the
safe. When Plyler was unable to open the safe, defendant ordered
Plyler to hand over his wallet, whereupon defendant extracted the
sixty dollars it contained and dropped the wallet onto the floor.
Defendant then let Plyler escape to the back of the store, where he
observed Hall, laying on the floor with a serious head injury.
Hall was subsequently treated at the Carolinas Medical Center
for his injuries. Despite having undergone brain surgery and
receiving further treatment for more than a year for his head
injury, Hall has been unable to return to work as a meat cutter
because his mind does not “work fast enough” as a result of his
injuries. Hall has no recollection of the incident in question.
At trial, Eric Mills testified that defendant told him that he had
hidden in the A&P grocery store until it closed, stayed overnight,
and later pointed his gun at some people in the store. Mills'
wife, Leona, testified that she overheard defendant tell her
husband that he had been locked in the A&P grocery store one night.
On or about 26 January 1995, defendant made certain statements to
Detectives M.D. Davis and Tony Gulledge, of the Kannapolis Police
Department, admitting to being involved in the 14 December 1994
robbery of the A & P grocery store.
The jury subsequently found defendant guilty as charged.
After arresting judgment on the assault with a deadly weapon with
intent to kill conviction, the court sentenced defendant to
consecutive sentences of 115-147 months imprisonment for therobbery with a dangerous weapon conviction, and 243-301 months
imprisonment for the attempted first degree murder conviction.
Defendant appeals.
At the outset, we note that appellate counsel has failed to
comply with our appellate rules. First, counsel has failed to
paginate the record on appeal, in violation of N.C.R. App. P.
9(b)(4). More importantly, counsel failed to indicate in
defendant-appellant's brief (or for that matter, in the record on
appeal) which assignment of error his respective argument is based
upon, or the page in the record or transcript that the error
occurred, in violation of N.C.R. App. P. 28(b)(5). While counsel's
failure to comply with our appellate rules ordinarily would subject
this appeal to dismissal, N.C.R. App. P. 25(b), defendant is a
criminal indigent and is entitled to an appeal of his convictions.
Therefore, we elect to address the merits of defendant's arguments
on appeal.
On appeal, defendant first argues that the trial court erred
in allowing into evidence the statements of the victim's attending
physician made to the victim's wife. Defendant contends that the
physician's statements regarding the victim's injuries were
“clearly hearsay,” and were “not admissible under any of the
twenty-four exceptions to the hearsay rule.” We note, however,
that defendant has lost the benefit of his objection to the
admission of the statements in question because subsequent
testimony by the attending physician about the nature and extent of
the victim's injuries was allowed into evidence without objection. See State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588
(1984). Accordingly, this argument fails.
Defendant next argues that the trial court erred in allowing
into evidence the statement made by defendant to Detective Davis.
We disagree.
It is well established that before a confession can be legally
obtained from a suspect, who is in custody and who is interrogated,
the suspect must receive Miranda warnings. See State v. Campbell,
133 N.C. App. 531, 536, 515 S.E.2d 732, 736, disc. review denied,
351 N.C. 111, 540 S.E.2d 370 (1999). Irrespective of whether
Miranda warnings are required or given, the Fourteenth Amendment to
the United States Constitution requires that a statement be
voluntary in order to be admissible, with the State having “the
burden of proving, by a preponderance of the evidence and examined
in context with the totality of the circumstances, that the
statement was voluntary.” Id. at 537, 515 S.E.2d at 737. The
following factors are to be considered in determining whether a
suspect's statement is voluntary:
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 the
mental condition of the declarant.
Id. at 538, 515 S.E.2d at 737 (quoting State v. Hardy, 339 N.C.
207, 222, 451 S.E.2d 600, 608 (1994)). Here, defendant was in the Cabarrus County jail when he called
the Kannapolis Police Department and told Detective L.W. Blume that
he had some information to give the detective. In response,
Detective Blume traveled to the jail and picked up defendant. The
detective then took defendant back to the police station, where he
read defendant his Miranda rights. Defendant did not, however,
offer any helpful information as to the investigation of the A & P
robbery.
Detective Gulledge subsequently escorted defendant to the
restroom and then allowed him to step outside the police station to
smoke a cigarette. At this time, without any questioning or
prompting, defendant said, “I did the A & P.” Defendant then
slammed the door in Detective Gulledge's face and ran. Detective
Gulledge chased defendant and eventually overtook and subdued him.
Defendant was returned to the station, secured in handcuffs and
shackles, and laid on the floor. Because defendant appeared to be
in respiratory distress, and stated that he was about to throw up,
Detective Davis sat defendant in a chair with a trash can in front
of him. Defendant twice threw up, and subsequently told Detective
Davis, “I have to tell you something.” The officer reminded
defendant that he was still in custody and that he had the right to
remain silent, but defendant continued, telling Detective Davis
that he had robbed the A & P grocery store, along with “Eric, and
another guy.”
We conclude that the totality of the circumstances here tends
to show that defendant's statements to Detective Davis werevoluntary. While defendant was in custody at the local jail, he
voluntarily contacted the police department about some information
he had, and after being informed of his Miranda rights, disclosed
this information. Defendant's attempt to escape while at the
police station brought about a pursuit. His subsequent capture,
return and eventual restraint by police officers were a result of
defendant's actions, and were not motivated by a desire of the
officers to extract information from defendant. The fact that
defendant subsequently suffered some respiratory distress and threw
up prior to giving his inculpatory statement does not negate the
voluntariness of his statements to Detective Davis.
Even if the contrary were true, defendant cannot show
prejudicial error in the admission of his statements to Detective
Davis in light of his earlier admission of involvement in the
robbery to Detective Gulledge. In addition, Eric Mills testified
at trial that defendant told him that he had robbed the A&P store.
Mills' wife also testified that she overheard defendant tell her
husband about being locked in the A&P grocery store all night.
Accordingly, this argument is unpersuasive.
In light of the foregoing, we hold that defendant received a
fair trial, free from prejudicial error.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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