STATE OF NORTH CAROLINA
v. Wake County
Nos. 99CRS5341-43
FRANK W. TIBBETTS, III
Attorney General Roy Cooper, by Assistant Attorney General
Chris Z. Sinha, for the State.
The Kelly Law Firm, by George E. Kelly, III, for defendant
appellant.
McCULLOUGH, Judge.
Defendant was charged with two counts of statutory sex offense
of a fourteen-year-old child, one count of indecent liberties with
a child, and one count of statutory rape of a fourteen-year-old
child. Prior to trial, defendant filed a motion to suppress
certain statements he made to police officers. This motion was
heard during the 20 September 1999 Session of Wake County Superior
Court. After hearing the evidence and arguments of counsel, the
trial court denied defendant's motion to suppress the statements
made to Detective Maron on 12 January 1999. In an order entered on
or about 20 September 1999, the trial court made some sixteen
detailed findings of fact before concluding that defendant “was notin custody” for Miranda purposes.
The matter proceeded to trial, where the State's evidence
tended to show that defendant engaged in various sex acts with a
minor victim on 2 and 3 January 1999, when she was fourteen years
old and he was thirty years old. The minor victim was staying for
the weekend with defendant; his fiancée, Cynthia Houser; and their
roommate, Judy Wood, to babysit Houser's and defendant's young
child. After arriving, defendant and his fiancée escorted the
minor victim to their bedroom where she would be sleeping that
weekend, and subsequently induced the minor victim to participate
in a kissing game. When the minor victim became tired and laid
down on one of the mattresses, which was on the bedroom floor,
defendant began to fondle her, speaking of “sharing energy.”
Defendant thereafter removed the minor victim's clothing and
digitally penetrated her vagina before engaging in sexual
intercourse with the minor victim. Defendant's fiancée was present
during all of these acts, and provided defendant with a condom when
the victim asked that he use protection. While defendant engaged
in intercourse with the minor victim, Houser lay nearby
masturbating.
Defendant testified in his own behalf and denied engaging in
sexual intercourse or any other sexual acts with the minor victim.
Defendant stated that the minor victim did, however, initiate an
unsolicited kiss, which he did not return. Defendant's and
Houser's roommate, Judy Wood, also testified. Ms. Wood stated that
the minor victim told her during the weekend of 2 and 3 January1999 that defendant had kissed her.
The trial court dismissed the charge of statutory sex offense
of a fourteen-year-old child in 99CRS5341, and submitted the
remaining charges to the jury. The jury found defendant guilty of
taking indecent liberties with a child and statutory rape of a
fourteen-year-old child. The jury acquitted defendant of statutory
sex offense against a fourteen-year-old child in 99CRS5342. The
trial court then consolidated the convictions for judgment, and
sentenced defendant to a presumptive term of 216-269 months'
imprisonment. Defendant appealed.
Defendant's sole assignment of error on appeal is that the
trial court erred in denying his motion to suppress. Defendant
contends that his statements made to Wake Forest police officers
should have been suppressed, since he was never advised of his
Miranda rights. We disagree.
The standard of review in evaluating a trial court's ruling on
a motion to suppress is well settled. The trial court's “'findings
of fact “are conclusive on appeal if supported by competent
evidence, even if the evidence is conflicting.”'” State v.
Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert.
denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001) (quoting State v.
Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), cert. denied,
513 U.S. 1096, 130 L. Ed. 2d 661 (1995). “'Once this Court
concludes that the trial court's findings of fact are supported by
the evidence, then this Court's next task “is to determine whether
the trial court's conclusion[s] of law [are] supported by thefindings.”'” Id. at 498-99, 532 S.E.2d at 502 (quoting State v.
Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000), cert. denied,
531 U.S. 1114, 148 L. Ed. 2d 775 (2001)). “'Conclusions of law
that are correct in light of the findings are also binding on
appeal.'” Id. at 498, 532 S.E.2d at 501 (quoting State v. Howell,
343 N.C. 229, 239, 470 S.E.2d 38, 43 (1996)).
It is equally well settled that Miranda warnings are only
necessary when a defendant is in custody and is being interrogated.
In determining whether a person is “in custody” for Miranda
purposes under the Fifth Amendment, the “'ultimate inquiry,' based
on the totality of circumstances, . . . is whether there is a
“formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.”'” State v. Buchanan, 353 N.C.
332, 338, 543 S.E.2d 823, 827 (2001) (quoting Thompson v. Keohane,
516 U.S. 99, 112, 133 L. Ed. 2d 383, 394 (1995)); Stansbury v.
California, 511 U.S. 318, 322, 128 L. Ed. 2d 293, 298 (1994);
Berkemer v. McCarty, 468 U.S. 420, 440, 82 L. Ed. 2d 317, 335
(1984)). See also Brewington, 352 N.C. at 499, 532 S.E.2d at 502;
State v. McNeill, 349 N.C. 634, 644, 509 S.E.2d 415, 421 (1998),
cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999); State v.
Gregory, 348 N.C. 203, 207-08, 499 S.E.2d 753, 757, cert. denied,
525 U.S. 952, 142 L. Ed. 2d 315 (1998); State v. Gaines, 345 N.C.
647, 662, 483 S.E.2d 396, 405, certs. denied, 522 U.S. 900, 139 L.
Ed. 2d 177 (1997); State v. Daughtry, 340 N.C. 488, 506-07, 459
S.E.2d 747, 755 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d
739 (1996) (recognizing the use of the “ultimate inquiry” standardfor determining whether a person is “in custody” for purposes of
Miranda). This test is to be distinguished from the “free to
leave” test utilized in determining whether a person has been
“seized” for Fourth and Fourteenth Amendment purposes. See Gaines,
345 N.C. at 663, 483 S.E.2d at 406 (applying the “free to leave”
test in Fourth Amendment analysis, but noting that the “ultimate
inquiry” of whether defendant's restraint on freedom of movement
was to the degree of a formal arrest is the proper test for Fifth
Amendment analysis).
In the present case, the State's evidence at the suppression
hearing tended to show that, while investigating allegations of
statutory rape against defendant, Detective Mike Maron and Officer
Cynthia Perry of the Wake Forest Police Department traveled to
defendant's residence at 848 Taylor Street on the evening of 12
January 1999. Both officers were unarmed and dressed casually in
T-shirts and jeans, and were driving an unmarked vehicle. After
talking briefly with defendant about the allegation made against
him, defendant asked the officers for specifics. Because the case
file was at the police department, Detective Maron invited
defendant to come down to the police station and speak further
about the case. Significantly, defendant asked what his chances
were of returning home that night. Detective Maron answered, “One
hundred percent.” Defendant then stated that he did not have a
license, but could get a ride to the police station to discuss the
case later that evening.
Defendant's roommate brought him to the police station at 7:35p.m. After he arrived, Detective Maron showed defendant where the
snack and drink machines were located, and arranged for him to be
able to freely re-enter through the electronic door when he went
outside to smoke. The interview began at 7:53 p.m. Detective
Maron, Officer Perry, and defendant were in one of the station's
interview rooms, with the door partially open. Detective Maron
told defendant that he was not under arrest and was free to leave.
Both officers were unarmed, and there were no weapons in the
interview room. In addition, both officers were still dressed in
civilian clothing. During the interview, defendant told the
officers that the criminal allegations made against him were
untrue. He stated that his fiancée, Cindy Houser, could
corroborate his version of the events. He volunteered to accompany
police to the residence he and Ms. Houser shared, so that police
could speak with Ms. Houser about the allegations.
Officer Perry drove Detective Maron's unmarked vehicle, with
defendant riding in the front seat of the car. The two did not
converse during the short drive to defendant's residence. Officer
Perry waited for defendant and Ms. Houser to retrieve Ms. Houser's
shoes and coat. During the return trip to the police station,
defendant and Ms. Houser rode in the backseat of the unmarked
vehicle, speaking quietly to each other.
Defendant, Ms. Houser, and Officer Perry arrived back at the
station at 9:10 p.m., at which time Detective Maron informed
defendant and Ms. Houser that they were not under arrest. The
detective explained to both defendant and Ms. Houser that he wasonly seeking clarification and corroboration. Detective Maron,
Officer Perry and Ms. Houser then went into the interview room,
while defendant went outside with his roommate, Judy Wood, to smoke
another cigarette. Ms. Houser subsequently told Detective Maron
that defendant and the minor victim had engaged in consensual
intercourse. In fact, Ms. Houser stated that she had been present
during the act, and supplied a condom for defendant's use.
At the completion of Ms. Houser's interview, she and defendant
left the police station to take a walk. They returned to the
station after approximately twenty or thirty minutes, whereupon
defendant, Detective Maron and Officer Perry returned to the
interview room. Detective Maron again advised defendant that he
was not under arrest and was free to leave. As during the first
interview, the door remained ajar, and the officers were unarmed
and attired in civilian clothing. The officers did not read
defendant his Miranda rights. During this second interview, which
lasted about twenty minutes and ended at 10:33 p.m., defendant
admitted that he had engaged in consensual intercourse with the
minor victim. Detective Maron did not place defendant under arrest
at the conclusion of the second interview, but thanked defendant
for his time and indicated he would be in touch in a few days.
Defendant, Ms. Houser and Ms. Wood left in Ms. Wood's vehicle.
During the suppression hearing, defendant testified that the
officers never told him that he was free to leave. Defendant
stated he felt that he could not leave the station during
questioning. The trial court made some eleven findings of fact, which
closely tracked the State's evidence. The trial court went on to
make the following pertinent mixed findings:
12. There is no evidence to suggest that at
any time was the defendant in custody;
13. There is no evidence to suggest that the
defendant was forced or coerced into
speaking with Maron and Perry;
14. There is no evidence from which any
reasonable person in the defendant's
position would believe that he was in
custody at any time before or during the
interviews with Maron and Perry[.]
The trial court then concluded that defendant “was not in custody”
and was therefore not entitled to Miranda warnings, and that “[t]he
officers did not violate [any of his] [f]ederal or [s]tate
[c]onstitutional rights.”
Defendant's citation to cases utilizing the “free to leave”
test of the Fourth Amendment to analyze Fifth Amendment concerns
are unpersuasive. See Buchanan, 353 N.C. at 340, 543 S.E.2d 828
(disavowing those opinions of our Supreme Court and Court of
Appeals that use the “free to leave” test in determining whether a
defendant is “in custody” for Miranda purposes). Based on the
record below, the trial court's findings are wholly supported by
the evidence, and are therefore binding upon this Court on appeal.
The trial court's mixed findings are also upheld because they are
fully supported by fact and existing law and show the proper
application of the “ultimate inquiry” test. The totality of the
circumstances here tends to show that defendant was not “incustody,” and was therefore not entitled to Miranda warnings. We
conclude that the trial court did not err in denying defendant's
motion to suppress.
Having so concluded, we hold that defendant received a fair
trial, free from prejudicial error.
No error.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
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