NO. COA01-1471
Appeal by defendant from judgment entered 11 April 2001 by
Judge Clifton W. Everett, Jr. in Edgecombe County Superior Court.
Heard in the Court of Appeals 29 July 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General J. Allen Jernigan, for the State.
Angela H. Brown, for defendant-appellant.
BIGGS, Judge.
Doris Michelle Pittman (defendant), age eighteen, was charged
with second-degree murder of her live-in boyfriend, J.M.
(hereinafter “the victim”), age seventeen. Prior to trial,
defendant moved to suppress her statement made while in police
custody and certain items seized by police officers during a search
of the crime scene, the residence shared by defendant and the
victim. During the suppression hearing, the State's evidence
tended to show the following: that during the early morning hours
of 28 January 1999, Officer A.B. Moore, of the Rocky Mount Police
Department, responded to a call for assistance at 916 North Raleigh
Street, Apartment E in Rocky Mount, North Carolina. Officer W.W.Rhodes arrived on the scene at about the same time. When Officer
Moore arrived, he observed defendant laying on top of the victim.
Defendant was crying. Moore testified that he heard Officer Rhodes
ask defendant what happened. In response, defendant continued to
cry, but raised herself from the body of the victim, and stated, “I
didn't mean to stab him. I just wanted him to leave me alone.”
The officers could then see that the victim had a stab wound, and
both defendant and the victim were covered with blood. Officer
Moore subsequently transported the defendant to the police station,
where he placed her in an interrogation room to await questioning
by Detective Mark Rosenfield. Officer Moore identified as State's
Exhibits 1 through 3 a signed “Interview--Advisement of Rights”
form, defendant's signed statement, and a signed “Consent to
Search” form. Further the officer confirmed that he was present
when defendant was questioned by Detective Rosenfield and gave
consent to search her residence.
Detective Rosenfield testified that as a Major Crimes
Investigator for the Rocky Mount Police Department, he too traveled
to the scene of the subject stabbing, arriving at approximately
5:15 a.m. Upon arriving, the detective observed the crime scene
and spoke to another officer who was on the scene. Thereafter,
Detective Rosenfield traveled back to the police department, where
he advised defendant of her rights, telling her to ask him if she
had any questions or did not understand something he said.
Defendant waived her Miranda rights, and gave a statement in which
she detailed the circumstances that resulted in her stabbing thevictim. Defendant stated that she and the victim had been arguing
over bills, that the victim hit her in the nose, causing her nose
to bleed; that they then pushed each other, and she scratched the
victim; that the victim hit her in the head; that she picked up an
iron and hit the victim in the head and on the hand with it; that
the victim then took the iron and threw it on the floor,
threatening to kick her in the head; that she went to the kitchen
and got a knife off of the counter; that the victim pushed over a
chair, and came towards her, at which time she went towards him
with the knife; that the victim continued to travel towards her,
and that she stabbed him. She asked that Detective Rosenfield
write the statement while she dictated it, whereupon she checked
the statement for error, made changes, and signed and dated it.
After defendant signed the statement, the detective asked for and
received defendant's permission to search the apartment at 916
North Raleigh Street. Defendant was taken to the hospital as a
safeguard, since she had complained that her nose was hurting.
Both Officer Moore and Detective Rosenfield noted that
defendant had blood on her clothing. Detective Rosenfield
testified that defendant seemed a little upset when he arrived, and
also noticed some minor swelling on defendant's nose but she was in
fact calming down and completely coherent during the interview.
After hearing the evidence and the arguments of counsel, the
trial court denied defendant's motion to suppress her statement and
to render her consent to search invalid. The matter proceeded to
trial where the State's evidence was in conformity with theevidence presented during the suppression hearing.
In addition, Corporal Barbara Wright, of the Rocky Mount
Police Department, testified that while transporting defendant to
the hospital to be examined for possible injury, defendant told the
corporal that “she didn't mean to kill [the victim]. She was only
defending herself.” At the hospital, defendant told emergency room
personnel that she had been punched in the nose, and that she was
in a lot of trouble, but did not want to discuss it. After
examination, defendant was determined to have a small amount of
swelling to the bridge of the nose, and a small bruise under her
left eye. Officer Gary Wester, of the Rocky Mount Police
Department, testified that he searched the apartment that defendant
and the victim shared and found the steak knife which was
determined to be the murder weapon. Officer Wester further
testified that, during the search, he observed a broken iron laying
on the floor, as well as upended furniture and other objects strewn
about. The officer also found a loaded sawed-off shotgun and a
letter, written by defendant to the victim and dated 5 November
1998, on a shelf in the bedroom closet. The testimony of the
Medical Examiner verified that the victim died as a result of being
stabbed in the chest, which resulted in massive internal bleeding.
The victim was 5'4" tall and weighed 117 pounds, and defendant is
5'2" tall, weighing 117 pounds.
A jury found defendant guilty of voluntary manslaughter. The
trial court entered judgment on the jury verdict and sentenced
defendant to 60-81 months imprisonment. Defendant appeals.
________________________
Defendant first argues that the trial court erred in denying
the motion to suppress her statement made to police officers as
well as evidence obtained by police officers during a search of the
apartment she shared with the victim. Specifically, defendant
alleges that she did not knowingly, intelligently, and voluntarily
waive her rights under
Miranda before making her statement to law
enforcement, nor did she knowingly, intelligently and voluntarily
consent to a search of the apartment she shared with defendant. We
disagree.
In reviewing the trial court's ruling on a motion to suppress,
this Court need “determine only whether the trial court's findings
of fact are supported by competent evidence in the record, and
whether th[ose] findings of fact support the court's conclusions of
law.”
State v. Colbert, 146 N.C. App. 506, 511, 553 S.E.2d 221,
224 (2001). The trial court's findings are binding on appeal if
supported by competent evidence, even if there is evidence to
support contrary findings.
State v. Brewington, 352 N.C. 489, 498,
532 S.E.2d 496, 502 (2000),
cert. denied, 531 U.S. 1165, 148 L. Ed.
2d 992 (2001). The court's conclusions of law, if supported by the
findings, are likewise binding on appeal.
Id.
We initially note that we need not address the merits of
whether defendant's statement was knowingly and voluntarily made,
as defendant has waived review of that issue. Here, defendant
testified in her own defense at trial. Her testimony detailed the
events of the early morning hours of 28 January 1999 leading up tothe stabbing death of the victim. Significantly, that testimony
was essentially the same as the statement which defendant seeks to
challenge here. In
State v. Terry, 337 N.C. 615, 447 S.E.2d 720
(1994), our Supreme Court was confronted with a similar set of
facts. There, the Court held that the defendant waived his
objection to the admission of his statement to police “when he
testified on direct examination that he had made this statement,
that the statement was not true, and that he made it because he was
afraid of going to jail.”
Id. at 624, 447 S.E.2d at 725. The Court
explained,
While the Constitutions of the United States
and North Carolina protect a defendant's
privilege against compulsory self-
incrimination, a defendant who testifies to
the same facts that he alleges to be
inadmissible and then fails “to claim that his
in-court testimony was compelled or impelled
by the trial court's errors . . . [has] cured
the errors of the trial judge and rendered
them harmless.”
Id. (quoting
State v. McDaniel, 274 N.C. 574, 584, 164 S.E.2d 469,
475 (1968)). The Supreme Court in
McDaniel stated:
To hold that a defendant in a criminal action,
once evidence has been erroneously admitted
over his objection, may then take the stand,
testify to exactly the same facts shown by the
erroneously admitted evidence, and from that
point embark upon whatever testimonial
excursion he may choose to offer as
justification for his conduct, without thereby
curing the earlier error, gives to the
defendant an advantage not contemplated by the
constitutional provisions forbidding the State
to compel him to testify against himself.
McDaniel, 274 N.C. at 584, 164 S.E.2d at 475 (quoting
Terry, 337
N.C. at 624, 447 S.E.2d at 725)
. In the instant case, defendant testified in conformity with
her statement made to police. Defendant explained during her
testimony that she was afraid of the victim and acted in self-
defense. Notably, defendant does not contend that she was
“compelled or impelled” to testify as the result of the admission
of her prior statement into evidence. Accordingly, we conclude
that defendant's objection to the admission of her statement made
to police officers during questioning on 28 January 1999 has been
waived. We move, then, to defendant's contention that her consent
to search was not done knowingly and voluntarily.
While the Fourth Amendment, as applied to the States through
the Fourteenth Amendment Due Process Clause, protects the citizenry
from unreasonable searches and seizure,
it is well settled that “a
search is not unreasonable within the meaning of the Fourth
Amendment when lawful consent to the search is given.”
State v.
Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). However, to
pass constitutional muster, the consent must be voluntarily given.
Schneckloth v. Bustamonte, 412 U.S. 218, 222, 36 L. Ed. 2d 854, 860
(1973);
see also N.C.G.S. § 15A-221(a),(b)(2000) (providing for
warrantless searches and seizures if consent is voluntarily given
for a law enforcement officer to conduct a search). Whether the
consent is voluntary is to be determined from a totality of the
circumstances.
State v. Brewington, 352 N.C. 489, 499, 532 S.E.2d
496, 502 (2000).
The totality of the circumstances in the present case supports
the trial court's finding that defendant “voluntarily andunderstandingly” consented to the search of the apartment shared by
her and the victim. The evidence tends to show that defendant was
transported to the police station after she stabbed the victim
during the early morning hours of 28 January 1999; that initially,
she was quite upset, but calmed down sufficiently to be interviewed
by investigating officers; that defendant executed a waiver of
rights form after her
Miranda rights were explained to her; that
after dictating a statement to one of the officers, she read, made
changes and signed the statement detailing the events leading up to
the victim's death; and that thereafter, when asked for permission
to search the crime scene, defendant signed a consent to search
form. Although defendant was only eighteen years old at the time
of the commission of the offense and execution of the document, had
never been in any trouble with the law, and had been understandably
crying and distraught after stabbing the victim, these facts do not
negate the voluntary nature of her consent to search.
See State v.
Murry, 277 N.C. 197, 176 S.E.2d 738 (1970) (holding that the
confession of a 16-year-old was knowing and voluntary);
State v.
Lewis, 298 N.C. 771, 259 S.E.2d 876 (1979) (holding that the
statement of the defendant, made after being informed of his
rights, was admissible despite the fact that defendant was nervous
and distraught at time of his confession to the murder of his
wife). Similarly, the fact that the police did not inform
defendant that the victim was dead until after questioning, does
not render defendant's consent to search involuntary or unknowing.
See State v. Schneider, 306 N.C. 351, 355, 293 S.E.2d 157 (1982)(stating that the failure to inform a defendant of the nature of
the charge for which he or she is being questioned, does not render
the confession inadmissible).
We also reject defendant's contention that her consent to
search was not valid under N.C.G.S. § 15A-222 (2001) as specious.
This provision reads in pertinent part:
(3) By a person who by ownership or otherwise
is reasonably apparently entitled to give or
withhold consent to a search of premises.
N.C.G.S. § 15A-222 (3). First, this claim is contrary to evidence
adduced at trial, and indeed, the very affidavit filed in support
of her motion to suppress. In her affidavit, defendant
specifically averred, “Jerry and I had lived together as a couple
at 916-E Raleigh Street in Rocky Mount, North Carolina.” More
importantly, defendant did not raise the issue of her authority to
consent to search during the hearing on her suppression motion, and
therefore, this issue is not properly before the Court.
See N.C.R.
App. P. 10(b)(1);
State v. Pinchback, 140 N.C. App. 512, 518 n.2,
537 S.E.2d 222, 225 n.2 (2000). Finally, if defendant was truly
without authority to consent to the instant search, she is also
without standing to claim the protections of the Fourth Amendment,
so as to challenge the alleged unlawful search of the apartment and
the seizure of items therein.
State v. Fernandez, 346 N.C. 1, 16,
484 S.E.2d 350, 360 (1997). Accordingly, the trial court properly
concluded that evidence seized from the apartment shared by
defendant and the victim was admissible.
Defendant next argues that the trial court erred in denyingher motion to dismiss as “the evidence was insufficient to persuade
a rational trier of fact of each essential element of second degree
murder beyond a reasonable doubt.” Again, we disagree.
In
State v. Bryant, our Supreme Court stated, “[i]t has long
been recognized in this State that submission of a question
regarding the guilt of a defendant of murder in the second degree
bec[omes] harmless when the jury return[s] a verdict of
manslaughter.” 282 N.C. 92, 101, 191 S.E.2d 745, 751 (1972)
, cert.
denied, 410 U.S. 958, 35 L. Ed. 2d 691 (1973),
cert. denied, 410
U.S. 987, 36 L. Ed. 2d 184 (1973). In accordance with
Bryant and
its progeny, defendant, who was convicted of voluntary manslaughter
instead of second degree murder, cannot show prejudicial error in
the trial court's denying his motion to dismiss the second degree
murder charge. Defendant's argument to the contrary, therefore,
fails.
Defendant specifically abandons her remaining assignments of
error by failing to argue this in her brief or otherwise set forth
authority. N.C.R. App. P. 28(b)(5). In light of all of the
foregoing, we hold that defendant received a fair trial, free from
prejudicial error.
No error.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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