STATE OF NORTH CAROLINA
v. Rockingham County
Nos. 01 CRS 93-94
JOHNNY ORLANDO CAHILL
Attorney General Roy Cooper, by Assistant Attorney General
Hilda Burnett-Baker, for the State
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for
defendant-appellant.
CAMPBELL, Judge.
On 5 March 2001, defendant was indicted for felonious breaking
and entering, felonious larceny, and felonious possession of stolen
goods. Defendant was also indicted as being an habitual felon.
The case was tried at the 23 July 2001 Criminal Session of
Rockingham County Superior Court.
The State presented evidence at trial which tended to show the
following: On 4 January 2001, Sergeant Andrew Powell of the
Madison County Police Department responded to the call of a
security alarm at U-Save Auto Lot. When he arrived, Sergeant
Powell found that a window had been broken beside the back door andthe door unlocked. The area was well lit, and Sergeant Powell
noticed someone working under the dash of a 1983 white Toyota
Celica. At the same time Sergeant Powell saw the person, the
person looked up and saw him, removed something from his lap and
started running with Sergeant Powell in pursuit. Eventually, the
person, identified at trial as the defendant, fell to the ground,
and Sergeant Powell restrained him. Officer Richard Rumley
arrived, and noticed that defendant had an open knife in his hand.
Officer Rumley put his foot on defendant's wrist, and defendant let
go of the knife and was arrested. Officer Rumley read defendant his
rights and searched him. While searching defendant, Officer Rumley
retrieved a handful of keys, two knives and a watch.
Detective Shane Bullins arrived and inspected the office.
Detective Bullins found that the window to the building was broken,
and found several drops of blood on a small chair and on top of the
desk inside. Detective Bullins testified that defendant's right
hand was bleeding. Detective Bullins went to investigate the
Celica, and found that somebody had tried to remove the car's
stereo system. Also, Detective Bullins learned that several sets
of keys were missing from the building, and found several sets of
keys in the trunk of the car. The owner of the lot, Rubin
Mitchell, identified the keys as being his property. Mitchell also
testified that the knives found on defendant were knives Mitchell
kept in his desk drawer and used as letter openers, and the watch
found on the defendant was also his.
Defendant testified that he approached the car lot atapproximately 10:30 p.m., and noticed some people leaving the lot.
As defendant got to the lot, he saw same car door open on a white
Toyota Celica. Defendant stated that he thought the car belonged
to a friend of his who worked at the lot. Defendant went to
investigate, and saw keys on the ground, which he picked up so he
could return them to his friend. Defendant then noticed that a
stereo system was outside of the car, and knives were thrown all
over the car. Defendant testified that somebody had
“ramsacked[sic]” the car. Defendant then testified that he had a
knife in his hand, because he thought he saw another individual who
he feared was “trying to attack me or something.” Defendant denied
removing any item or property from the vehicle, and denied entering
the building on the lot.
Defendant was convicted of breaking or entering, communicating
threats, larceny after breaking or entering, and being an habitual
felon. The offenses were consolidated for judgment and defendant
was sentenced to a term of 120 to 153 months imprisonment.
Defendant appeals.
We first consider whether the trial court erred by barring
evidence of statements made by defendant to Detective Bullins
explaining his possession of the stolen property. During Detective
Bullins' testimony, defendant moved to introduce evidence of
statements he made to Detective Bullins in which he explained how
he discovered the keys. Detective Bullins had recorded defendant's
statements in his notes while investigating the crime. Defendant
contends that the record of his statements made to DetectiveBullins should have been admitted as an exception to the rule
against hearsay since the statements were recorded in Detective
Bullins' notes and reports as a regularly conducted activity. N.C.
Gen. Stat. § 8C-1, Rule 803(6) (2001). Defendant asserts that the
statements were recorded by Detective Bullins at or near the time
they were made based on an information for a person with knowledge.
Id. Alternatively, defendant argues that the statements should
have been admitted as a then existing mental, emotional or physical
condition or excited utterance. N.C. Gen. Stat. § 8C-1, Rule
803(2) & (3) (2001). Defendant further argues that because the
evidence was not admitted, he was forced to testify. We disagree.
First, “[t]he statement cannot be admitted under the 'Public
Records and Reports' exception of N.C.G.S. § 8C-1, Rule 803(8),
since that rule specifically excludes 'in criminal cases matters
observed by police officers and other law enforcement personnel.'”
State v. Maness, 321 N.C. 454, 459, 364 S.E.2d 349, 351 (1988).
Second, an “excited utterance” is a “statement relating to a
startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” N.C. Gen.
Stat. § 8C-1, Rule 803(2) (2002). “For this statement to qualify
as an excited utterance, 'there must be (1) a sufficiently
startling experience suspending reflective thought and (2) a
spontaneous reaction, not one resulting from reflection or
fabrication.'” Maness, 321 at 459, 364 S.E.2d at 351 (quoting
State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833 (1985)). Here,
defendant was in custody for thirty to forty minutes before tellingDetective Bullins that he found the keys and planned to return
them. The “interval between the event and the statement precludes
the statement from being 'a spontaneous reaction, not one resulting
from reflection or fabrication.'” Id. See also State v. Fullwood,
323 N.C. 371, 373 S.E.2d 518 (1988) (Defendant made statement over
an hour after the crime was discovered, and the trial court
properly could conclude that he had time to manufacture the
statement and did not make it spontaneously), sentence vacated and
remanded for further consideration, 494 U.S. 1022, 108 L. Ed. 2d
602 (1990).
Third, “[e]vidence tending to show the [declarant's] state of
mind is admissible so long as the [declarant's] state of mind is
relevant to the case at hand." State v. Stager, 329 N.C. 278, 314,
406 S.E.2d 876, 897 (1991). For example, “[i]n interpreting Rule
803(3), [our Supreme Court has] held that the rule allows the
admission of a hearsay statement of a then-existing intent to
engage in a future act.” State v. Ransome, 342 N.C. 847, 851, 467
S.E.2d 404, 407 (1996) (citing State v. McElrath, 322 N.C. 1,
17-18, 366 S.E.2d 442, 451 (1988)). Here, the defendant's state of
mind when he was arrested was not relevant. The statement was not
made for the purposes of showing his state of mind, but was
exculpatory in nature. Under these circumstances, the probative
value of the evidence was substantially outweighed by the danger of
unfair prejudice. Accordingly, the assignment of error is
overruled.
We next consider whether the trial court erred by allowing theState to elicit evidence that defendant exercised his
constitutional right to silence after being arrested and advised of
his Miranda warnings. Detective Bullins testified that defendant
told him he found the keys and was planning on holding them so they
would not be stolen. Detective Bullins was then subjected to
cross-examination as to what the defendant did and did not say.
Specifically, the prosecutor asked Detective Bullins if defendant
elaborated or gave any other explanation for his presence at the
car lot, the items found in defendant's possession, or his
intention to prevent the items from being stolen. Defendant
contends that the prosecutor's questions regarding his post-arrest
silence violated his constitutional rights.
After careful review of the record, briefs and contentions of
the parties, we find no error. “The Supreme Court stated that the
Miranda warnings contain an implicit assurance to a person who is
given them that he will not be penalized for his postarrest
silence.” State v. Mitchell, 317 N.C. 661, 666, 346 S.E.2d 458,
461 (1986) (citing Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d
91, 98 (1976)). “In such circumstances, it would be fundamentally
unfair and a deprivation of due process to allow the arrested
person's silence to be used to impeach an explanation subsequently
offered at trial.” Id. In the case sub judice, however, defendant
did not remain silent after being given Miranda warnings. Instead,
defendant told Detective Bullins that he had found the keys, and
was going to give them back so they would not be stolen. “[A]
defendant who voluntarily speaks after receiving Miranda warningshas not been induced to remain silent. As to the subject matter of
his statements, the defendant has not remained silent at all.”
State v. Westbrooks, 345 N.C. 43, 65, 478 S.E.2d 483, 497 (1996)
(citing Anderson v. Charles, 447 U.S. 404, 408, 65 L. Ed. 2d 222,
226 (1980)). “Therefore, any references to omissions or
inconsistencies in statements defendant made after receiving [his]
Miranda warnings were proper.” Id. at 66.
Finally, the defendant argues the trial court erred by failing
to consider and find mitigating factors submitted by him. We are
not persuaded. Because defendant was found to be an habitual
felon, he was sentenced as a Class C felon. N.C. Gen. Stat. § 14-
7.6 (2001). Pursuant to G.S. 15A-1340.17, defendant was sentenced
in the presumptive range as a Class C, Level IV felon, to a minimum
120 months imprisonment, and a corresponding maximum sentence of
153 months imprisonment. “A trial court is not required to justify
a decision to sentence a defendant within the presumptive range by
making findings of aggravation and mitigation.” State v. Campbell,
133 N.C. App. 531, 542, 515 S.E.2d 732, 739, disc. review denied,
351 N.C. 111, 540 S.E.2d 370 (1999). “The court may deviate from
the presumptive range of a minimum sentence. . .if it finds,
pursuant to [N.C. Gen. Stat. §] 15A-1340.16, that aggravating or
mitigating circumstances support such a deviation.” State v.
Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997).
Accordingly, because the trial court sentenced defendant within the
presumptive range, and was not required to make written findings of
aggravation or mitigation, we find no abuse of discretion.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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