STATE OF NORTH CAROLINA
v
.
JAMES WALLACE COCKERHAM,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
George K. Hurst, for the State.
Rudolf, Maher, Widenhouse & Fialko, by Andrew G. Schopler, for
defendant-appellant.
HUDSON, Judge.
A jury found defendant guilty of discharging a firearm into
occupied property, and the court sentenced defendant to a minimum
term of twenty-seven months and a maximum term of forty two months
imprisonment. Defendant appeals.
The State presented evidence indicating that at approximately
7:00 p.m. on 20 May 2000, Raquel Burnette, age 11, and Dominique
Burnette, age 10, were sitting on the bed in their mother's bedroom
in Apartment D-1, 2733 Wake Forest Highway in Durham when they
heard a gunshot. The girls ran from the room to a neighbor's house
and the neighbor called the police.
Corporal R.D. Edwards, an off-duty Durham police officer, who
was nonetheless in uniform with a police vehicle, heard andresponded to the dispatch about the shots being fired. When he
arrived at the scene, he immediately entered apartment D-1 and
spoke with the children, who showed him the hole in the bedroom
wall. Corporal Edwards then went to apartment D-2, which shared a
common wall with a apartment D-1.
Corporal Edwards knocked on the door and moments later,
defendant opened the door. Corporal Edwards testified that “[u]pon
him opening the door, I asked him what was going on. And he
started mumbling . . . about people been trying to break into his
house.” Corporal Edwards also noticed a strong odor of alcohol
coming from defendant.
Defendant then led Corporal Edwards to the back of the house.
When they reached the kitchen, defendant started to walk into the
bedroom. Corporal Edwards testified that he had defendant stay in
the kitchen while he went into the bedroom, for his safety as well
as defendant's. In the bedroom, Corporal Edwards smelled gun
powder, and saw a shotgun leaning against a wall or a dresser.
When he touched the shotgun to unload it, Corporal Edwards noticed
that it was still hot, which he believed indicated that it had been
fired recently. Corporal Edwards also testified that he saw a hole
in the common wall between apartments D-1 and D-2, which appeared
to have been made by a shotgun. Corporal Edwards then secured the
shotgun and asked defendant to sit in the living room while he
waited for Corporal Grugin to arrive.
When Corporal Grugin arrived shortly thereafter, Corporal
Edwards briefed him on the situation. Corporal Grugin saw the holein apartment D-2, and then looked at the hole from apartment D-1 to
confirm that they were made by the same shot. Corporal Grugin
returned to defendant's apartment, where defendant was seated on
the couch, and asked him what had happened. Defendant told him
that some people had tried to break into his apartment. Corporal
Grugin testified that he “asked him why he -- why he shot the hole
in the wall -- I don't know if that was my exact terminology I used
in asking the question. I may have asked, 'Why did you fire the
gun at the wall?'” and defendant responded “that the round he had
fired through the wall wouldn't hurt anyone, and he should know,
because he was in Vietnam.” Neither Corporal Edwards nor Corporal
Grugin saw anyone other than defendant in apartment D-2, and
neither observed any signs of forced entry. Corporal Grugin then
arrested defendant, handcuffed him and placed him in a police
cruiser.
Defendant did not testify, but presented evidence through five
witnesses. Defendant's son, Kevin Cockerham, testified that he
brought the shotgun to his father's apartment between 4:30 and 5:00
p.m. on the day of the shooting because someone had been trying to
break into his father's apartment. He testified that defendant was
not home when he left the shotgun and shells on the dresser.
Shekita Green, defendant's girlfriend, testified that
defendant had been at her house during the day on 20 May 2000 and
that she had her son, Calvin Parker, drive defendant home at
approximately 6:45 that evening. Calvin Parker testified that he
took the defendant up to his apartment and got him settled on thecouch, waited a few minutes to make sure everything was alright,
then left.
James Cockerham, Jr., defendant's son, testified that he and
two other unidentified individuals went to his father's apartment
at approximately 6:00 to 6:15 p.m. on 20 May 2000 to use drugs.
According to James Jr., at approximately 7:00 p.m., while they were
using drugs, one of the unidentified individuals went into the
bedroom and fired the shotgun. James Jr. testified that after the
two other individuals left, he cleaned up the apartment, put the
shotgun back, and then left. James Jr. did not see his father at
that time. He had not told his story to the police, and although
he testified that he told his father, his brother Kevin, and his
fiancé, none of them told the police.
Apartment D-1 and D-2 are adjacent to each other on the upper
floor of a two-story apartment building. There are two additional
units downstairs. There is a common wall between the two units,
but the two units are not otherwise connected.
Defendant first argues that the trial court erred in denying
his motion to dismiss based upon the sufficiency of the evidence.
He contends that since the State's evidence showed that defendant
was entirely inside the apartment when he fired the shot, he could
not have fired into occupied property within the meaning of N.C.
Gen. Stat. § 14-34.1 (2001). We disagree.
In ruling on a defendant's motion to dismiss, “the trial court
is to determine whether there is substantial evidence (a) of each
essential element of the offense charged, or of a lesser offenseincluded therein, and (b) of defendant's being the perpetrator of
the offense.” State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d
649, 651 (1982). Whether the evidence presented constitutes
substantial evidence is a question of law for the court.
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. at 66,
296 S.E.2d at 652. Our Courts have repeatedly noted that “[t]he
evidence is to be considered in the light most favorable to the
State; the State is entitled to every reasonable intendment and
every reasonable inference to be drawn therefrom; contradictions
and discrepancies are for the jury to resolve and do not warrant
dismissal . . . .” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d
57, 61 (1991) (citations omitted); see also, State v. Patterson,
335 N.C. 437, 449-50, 439 S.E.2d 578, 585-86 (1994). “If all the
evidence, taken together and viewed in the light most favorable to
the State, amounts to substantial evidence of each and every
element of the offense and of defendant's being the perpetrator of
such offense, a motion to dismiss is properly denied.” State v.
Mercer, 317 N.C. 87, 98, 343 S.E.2d 885, 892 (1986). (citations
omitted).
N.C. Gen. Stat. § 14-34.1 proscribes discharging a firearm
into occupied property and reads as follows:
Any person who willfully or wantonly
discharges or attempts to discharge:
(1) Any barreled weapon capable of &
nbsp;
discharging shot, bullets, pellets, or
other missiles at a muzzle velocity of at
least 600 feet per second; or
(2) A firearm
into any building, structure, vehicle,
aircraft, watercraft, or other conveyance,
device, equipment, erection, or enclosure
while it is occupied is guilty of a Class E
felony.
N.C. Gen. Stat. § 14-34.1 (2001). While it is not expressly
required by the statutory language, our Supreme Court has
interpreted this section to add a knowledge requirement with
respect to the occupancy of the property categories enumerated.
State v. James, 342 N.C. 589, 595-96, 466 S.E.2d 710, 714-15
(1996).
The offense of discharging a firearm into occupied property
requires that “the person discharging it is not inside the
property.” State v. Mancuso, 321 N.C. 464, 468, 364 S.E.2d 359,
362 (1988); see also, State v. Williams, 284 N.C. 67, 74-75, 199
S.E.2d 409, 413-14 (1973); State v. Surcey, 139 N.C. App. 432, 436,
533 S.E.2d 479, 482 (2000). Defendant argues that he did not fire
into any of the types of property specified in N.C. Gen. Stat. §
14-34.1 (2001).
Our Supreme Court has recently noted that:
It is well-settled that the meaning of any
legislative enactment is controlled by the
intent of the legislature and that legislative
purpose is to be first ascertained from the
plain language of the statute. When the
language of a statute is clear and
unambiguous, it must be given effect and its
clear meaning may not be evaded . . . under
the guise of construction.
State v. Bates, 348 N.C. 29, 34-35, 497 S.E.2d 276, 279 (1998)
(citations omitted), cert. denied 350 N.C. 837, 539 S.E.2d 297
(1999), habeas corpus appeal at 308 F.3d 411 (4th Cir. 2002). “Words in a statute must be construed in accordance with their
plain meaning unless the statute provides an alternative meaning.”
Kilpatrick v. Village Council, 138 N.C. App. 79, 86, 530 S.E.2d
338, 343 (2000).
Our Supreme Court has stated that:
Nothing else appearing, the Legislature is
presumed to have used the words of a statute
to convey their natural and ordinary meaning.
In the absence of a contextual definition,
courts may look to dictionaries to determine
the ordinary meaning of words within a
statute.
Perkins v. Arkansas Trucking Services, Inc., 351 N.C. 634, 638, 528
S.E.2d 902, 904 (2000).
The dictionary definition of “enclosure” includes the
following:
1. The act of enclosing. 2. The state of
being enclosed. 3. An area, object, or item
that is enclosed. 4. Something that
encloses, such as a wall or fence.
The American Heritage Dictionary of the English Language 430 (1978)
(emphasis added). Further, the definition of “enclose” is:
1. To surround on all sides; fence in; close
in. *** 3. To contain, especially as to
shelter or hide . . . .
Id.
Although the word “apartment” is not used in the statute, it
is commonly used to refer to a housing unit in a multi-family
residential structure. The dictionary defines the term apartment
as follows:
1. A room or suite of rooms designed for
housekeeping and generally located in a
building which includes other such rooms orsuites . . . .
Id. at 60.
Therefore, for the purposes of N.C. Gen. Stat. § 14-34.1, we
believe that an apartment within an apartment building is an “area”
that is “surround[ed] on all sides” or “close[d] in.” Thus, we
hold than an apartment is an enclosure as that term is used in N.C.
Gen. Stat. § 14-34.1. Furthermore, our Supreme Court has stated
that the “protection of the occupants of the building was the
primary concern and objective of the General Assembly when it
enacted G.S. 14-34.1.” State v. Williams, 284 N.C. 67, 72, 199
S.E.2d 409, 412 (1973). By classifying an apartment as an
enclosure, our holding is consistent with that legislative purpose.
A person who fires a gun through a common wall of an apartment is
engaged in the same mischief as a person shooting into the building
from the outside. This assignment of error is overruled.
Defendant next argues that the indictment for violation of
N.C. Gen. Stat. § 14-34.1 was fatally defective in that it failed
to allege that defendant fired into a “building, structure . . . or
enclosure.” The pertinent portion of the indictment here alleged
that “the defendant . . . unlawfully, willfully and feloniously did
discharge a shotgun, a firearm, into that dwelling known as
apartment 'D-1', located at 2733 Wake Forest Highway, Durham, North
Carolina . . . .” Defendant's argument is premised on the
assumption that an apartment is not one of the types of property
specified in N.C. Gen. Stat. § 14-34.1.
According to N.C. Gen. Stat. § 15A-924, an indictment mustcontain a “plain and concise factual statement in each count which
. . . asserts facts supporting every element of a criminal offense
and the defendant's commission thereof with sufficient precision
clearly to apprise the defendant . . . of the conduct which is the
subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5)
(2001). An indictment which avers facts constituting every element
of an offense need not be couched in the language of the statute.
State v. Palmer, 293 N.C. 633, 638-39, 239 S.E.2d 406, 410 (1977).
Here, the indictment accused defendant of discharging a
firearm into “that dwelling known as apartment 'D-1', located at
2733 Wake Forest Highway, Durham, North Carolina . . . .” Since we
have held that an apartment is an “enclosure” for purposes of N.C.
Gen. Stat. § 14-34.1, and this description provides sufficient
precision to clearly apprise defendant of the elements of the
accusation against him, this assignment of error is overruled.
Palmer, 293 N.C. at 638, 239 S.E.2d at 410; see also, N.C. Gen.
Stat. § 15A-924(a)(5) (2001).
Finally, defendant argues that the trial court erred in
denying his motion to suppress his answers to Corporal Grugin's
questions that were asked prior to defendant being given his
Miranda warnings. We disagree.
Our standard of review of the denial of a motion to suppress
is whether the trial court's findings of fact are supported by the
evidence and whether the findings of fact support the conclusions
of law. State v. Wynne, 329 N.C. 507, 522, 406 S.E.2d 812, 820
(1991). The court's findings “are conclusive on appeal ifsupported by competent evidence, even if the evidence is
conflicting.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d
823, 826 (2001), appeal after remand, 355 N.C. 264, 559 S.E.2d 785
(2002), recons. denied, 355 N.C. 495, 563 S.E.2d 187 (2002). “The
determination of whether a defendant was in custody, based on those
findings of fact, however, is a question of law that is fully
reviewable . . . .” State v. Briggs, 137 N.C. App. 125, 128, 526
S.E.2d 678, 680 (2000). The trial court's failure to make findings
of fact regarding custody “does not prevent this Court from
examining the record and determining whether defendant was in
custody.” State v. Torres, 330 N.C. 517, 525, 412 S.E.2d 20, 24
(1992).
Our Supreme Court recently held that “the appropriate inquiry
in determining whether a defendant is 'in custody' for the purposes
of Miranda is, based on the totality of the circumstances, whether
there was a 'formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.'” Buchanan at 339, 543
S.E.2d at 828. Absent objective indicia of such restraint, the
fact that police have identified the person interviewed as a
suspect and that the interview was designed to produce
incriminating responses from the person are not necessarily
relevant to the determination of whether the person was in custody
for Miranda purposes. Stansbury v. California, 511 U.S. 318, 324,
128 L.Ed.2d 293, 300 (1994), cert. denied, 516 U.S. 923, 133
L.Ed.2d 222 (1995).
Here, the officers did not pat down defendant, search him,handcuff him, or restrain his movement until they formally arrested
him. Defendant let Corporal Edwards into his apartment and led him
to the back of the apartment. While Corporal Edwards was looking
in the bedroom, he left defendant in the kitchen. Corporal Edwards
located a shotgun in the bedroom, smelled gunpowder, found a spent
shotgun shell, and observed a hole in a bedroom wall that appeared
to have been made by the shotgun. Corporal Edwards then secured
the shotgun and had defendant sit in the living room. Corporal
Edwards then waited at the door to the apartment for Corporal
Grugin, the lead investigator, to arrive.
Corporal Grugin arrived seven to ten minutes after Corporal
Edwards and was briefed on the situation by Corporal Edwards.
After Corporal Grugin observed the hole in the wall from both
apartments, he returned to defendant's apartment and asked
defendant what had happened, to which defendant replied that some
people had tried to break into his apartment. Corporal Grugin then
asked defendant why he shot at the wall and defendant replied “that
the round he had fired through the wall wouldn't hurt anyone, and
he should know, because he was in Vietnam.”
Here, Officers Edwards and Grugin did not formally arrest
defendant or restrain his movement to the extent associated with
formal arrest until after the general investigative questions were
asked and answered. Based upon this evidence, we find no objective
indicia of formal arrest or similar restraint. However, even
assuming arguendo that defendant was in custody, these
circumstances are more similar to the “general investigation”situation in which Miranda warnings need not be given. See State
v. Meadows, 272 N.C. 327, 158 S.E.2d 638 (1968); State v. Hipps,
348 N.C. 377, 501 S.E.2d 625 (1998), cert. denied, 525 U.S. 1180,
143 L.Ed.2d 114 (1999). The questions asked by Corporal Grugin
were general “what happened” and “why” questions apparently asked
when the officers did not yet know if what occurred was accidental
or potentially criminal. Thus, we conclude that defendant was not
in custody when he answered Corporal Grugin's questions and, as
such, Miranda warnings were not required. This assignment of error
is overruled.
No error.
Judges TIMMONS-GOODSON and CAMPBELL concur.
(Judge Campbell concurred prior to 1/1/03).
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