An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-665

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2003

STATE OF NORTH CAROLINA

v .                         Edgecombe County
                            No. 00 CRS 4775
KENNETH RAY WEBBER, SR.

    Appeal by defendant from judgment dated 9 October 2001 by Judge Frank R. Brown in Superior Court, Edgecombe County. Heard in the Court of Appeals 13 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State.

    Thomas R. Sallenger for defendant-appellant.

    McGEE, Judge.

    Kenneth Ray Webber, Sr. (defendant) was indicted for first degree murder on 17 April 2000. The evidence presented at trial tended to show the following.
    Detective Jerry Wiggs (Detective Wiggs) of the Edgecombe County Sheriff's Department testified that defendant gave him a written statement in the Edgecombe County Sheriff's Department in which defendant said that Ann Boyette Robbins (Robbins) visited defendant's place of employment on 31 December 1999 and asked defendant to give her forty dollars. Defendant refused Robbins' request and she left the store. After returning home, Robbins called defendant and said that J.C. Horne (Horne) had threatenedher because she owed him money. Defendant said that he would go by Robbins' house and give her the money.
    Defendant left work at 5:45 p.m. and drove to Robbins' house. He followed Robbins in her car to the Piggly Wiggly, where she parked her car. She then rode with defendant to Horne's house. Horne came outside and asked defendant to drive him to a store. Defendant asked Horne if Robbins owed him forty dollars and Horne said yes. Defendant paid Horne the money and Robbins became upset that defendant did not first give the money to her. Robbins stated that she was going to take a hit of cocaine and went inside the house while defendant waited outside on the porch. Defendant, Robbins, and Horne then went to a store.
    After returning to Horne's house, Robbins said that she was going to wait for another woman to come and take her to her car. Defendant asked Robbins if they could take a ride together for a few minutes and Robbins said yes, but they could not do anything. Defendant and Robbins traveled down the road a couple of miles before pulling over and backing up a path. Defendant asked Robbins why she asked for his money but said they could not do anything. Robbins replied that she guessed they could, but that they needed to hurry because she wanted to go to a party. Robbins removed her pants and underwear, unbuttoned her shirt, spread her legs, and turned towards defendant. Defendant told Robbins that he did not want to do anything because he was upset with her.
    Defendant reached behind the passenger seat and picked up a pistol he kept in his car. He pulled the gun around and fired twoshots into Robbins' chest. Defendant then put the gun to his chest, pulling the trigger, but the gun jammed. Defendant drove down the road, stopped again, and unsuccessfully attempted to revive Robbins before driving home with her body still in his car. Defendant parked his car behind his house and went inside to watch television with his family before going to bed.
    The next morning defendant drove to a grocery store with Robbins' body still in his car. He emptied her personal belongings into a trash dumpster and then entered the store to purchase duct tape and black plastic trash bags. Defendant drove to a side road, covered Robbins' body with the trash bags and tape, and put Robbins' body in the trunk. Defendant continued driving until he found an opening in the woods where he dumped Robbins' body. He covered her body with tree limbs and returned home until he left for work. Defendant returned to check on the body several days after leaving it in the woods.
    Detective Shane Guyant (Detective Guyant) of the Edgecombe County Sheriff's Department testified that Detective Gary Brady telephoned defendant and asked him to come by the Sheriff's Department on 12 January 2000 so that they could speak with him. Detective Guyant stated that defendant agreed to talk with them and that defendant was not under arrest or in custody. Defendant did not ask for a lawyer during the conversation. Detective Guyant testified that he asked defendant to bring his vehicles to the Sheriff's Department on 13 January 2000 for a luminol search, used to detect blood. Defendant agreed to permit the search provided hecould watch television and subsequently signed a consent form. A spent shell casing was found inside defendant's car as well as a substance that appeared to be blood.
    Detective John Scott (Detective Scott) testified at trial that he and another detective interviewed defendant on the night of 13 January 2000 at the Sheriff's Department. Detective Scott stated that defendant was not under arrest or in custody that evening. (T1 154). Defendant was advised of his Miranda rights by the detectives and subsequently signed a waiver of rights form. Defendant made a statement to police that he drove Robbins and Horne to a store on 30 December 1999 and then drove Robbins home. He stated that the following day, Robbins visited his place of employment and asked to borrow money, but left when he said he had not yet been paid. Defendant denied shooting Robbins.
    Defendant consented to a search of his residence that evening and signed a consent form. Defendant drove in his own vehicle, along with Detective Scott, to defendant's residence. Several other officers followed. While riding to defendant's residence, Detective Scott asked defendant if he killed Robbins and defendant declined to answer. Detective Scott told defendant if he talked to someone about it, then he would feel better, and that if he did kill her, there was nothing he could do about it now. Detective Scott asked defendant again if he had killed Robbins and defendant answered yes.
    After arriving at defendant's residence, defendant showed Detective Scott the location of the gun he used to shoot Robbinsand Detective Scott retrieved it. Defendant entered the house with Detective Scott and another officer and told his wife and son that he killed Robbins because Robbins had threatened to break up his marriage. He told his wife and son that he was going to be arrested, left the house, was taken into custody, and led the officers to the location where he had shot Robbins. Defendant was taken back to the Sheriff's Department and was again advised of his Miranda rights before signing a form waiving his rights.
    Defendant testified at trial that he took Robbins to Horne's house where defendant paid a debt for her. Defendant stated that he and Robbins left Horne's house, drove down the road, and stopped on a path in the woods. Defendant stated that he could not find his wallet, so he locked the car and searched for it before Robbins gave it to him. Robbins began removing her clothes and told defendant they needed to hurry, but defendant stated that he did not want to do anything. Defendant testified that he reached behind the seat to pick up his gun and brought it around to the front where Robbins grabbed it and the gun discharged. Defendant stated that he only remembered the gun discharging once. Defendant also testified that he stated he wanted to have an attorney present when discussing aggravating factors in the case.
    A jury convicted defendant of first degree murder. The trial court sentenced defendant to life imprisonment without parole. Defendant appeals.
    Defendant first argues the trial court erred in denying his motion to dismiss the first degree murder charge for lack ofsufficient evidence. Defendant contends the State failed to present sufficient evidence to permit a jury to find that defendant possessed the requisite malice, premeditation, and deliberation.
        "In ruling on a motion to dismiss, the trial court need only determine whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." Evidence is considered substantial when "a reasonable mind might accept [it] as adequate to support a conclusion." The motion to dismiss should be denied if there is substantial evidence supporting a finding that the offense charged was committed.

State v. Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208 (2002) (citations omitted). The State is entitled to all reasonable inferences that may be drawn from the evidence. State v. Scott, 296 N.C. 519, 522, 251 S.E.2d 414, 416 (1979).
            First-degree murder is the unlawful killing of a human being with malice, premeditation, and deliberation. "Premeditation" means that the defendant formed the specific intent to kill the victim "for some length of time, however short," before the murderous act. "Deliberation" means that the defendant formed the intent to kill in a cool state of blood and not as a result of a violent passion due to sufficient provocation. Premeditation and deliberation usually are not proved by direct evidence but "by actions and circumstances surrounding the killing."

State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995) (citations omitted).
    Premeditation and deliberation may be proven by circumstantial evidence that includes:
        (1) want of provocation on the part of the victim; (2) defendant's conduct and statements before and after the killing, includingattempts to cover up involvement in the crime; (3) the manner in which or means by which the killing was done, including evidence that the killing was done in a brutal manner or with use of grossly excessive force; and (4) unseemly conduct toward the victim's corpse, including concealment of the body.

State v. Parker, 354 N.C. 268, 280, 553 S.E.2d 885, 894-95 (2001) (citations omitted), cert. denied, Parker v. North Carolina, ___ U.S. ___, 153 L. Ed. 2d 162 (2002); see also State v. Sokolowski, 351 N.C. 137, 144-46, 522 S.E.2d 65, 70-71 (1999). Malice may be inferred from the use of a deadly weapon in the killing. State v. Davis, 340 N.C. 1, 15, 455 S.E.2d 627, 634 (1995).
    The defendant in Parker argued that the evidence was insufficient to show that she killed the victim with premeditation and deliberation. Parker, 354 N.C. at 279, 553 S.E.2d at 894. The evidence showed that the defendant killed the victim without provocation, disposed of the victim's personal belongings, stored the body in her vehicle, and abandoned the body to go to a party. Id. at 280-81, 553 S.E.2d at 895. The evidence also showed that the defendant drove the body around in her vehicle for hours, with the body in the front seat and trunk. Id. at 281, 553 S.E.2d at 895. In upholding the defendant's conviction for first degree murder, our Supreme Court found that the defendant's "lengthy mistreatment and concealment of the body [was] evidence of premeditation and deliberation." Id.
    In the case before us, there was no evidence in the record that Robbins provoked defendant. Testimony at trial showed that defendant drove Robbins to a secluded area and shot her twice inthe chest. Defendant drove home that night, left the body in the car while he watched television and slept, and then drove into town the next day with the corpse in the front seat of the car. Defendant placed Robbins' personal belongings in a dumpster and concealed the body by wrapping it in trash bags and placing it in the trunk. Defendant then hid the body under some brush in the woods and returned to check on it several days later. Detective Scott also testified that defendant told defendant's wife he killed Robbins because Robbins threatened to break up their marriage.
    Viewed in a light most favorable to the State, the evidence was sufficient to permit a reasonable mind to conclude that defendant killed Robbins with malice, premeditation, and deliberation. This assignment of error is without merit.
    Defendant next argues the trial court erred in failing to suppress defendant's statements because the admission of the evidence violated his rights under the United States and North Carolina constitutions. Defendant contends that the trial court applied an "incomplete and an inaccurate test" in determining whether defendant was in custody for the purposes of Miranda.
    "[T]he standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact 'are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'" State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, Brewington v. North Carolina, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001)). ThisCourt will not disturb a trial court's conclusions if they are supported by the trial court's findings of fact. State v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191, 193-94 (2001). However, the determination of whether a defendant was in custody under those findings of fact is a question of law and is fully reviewable by this Court. State v. Briggs, 137 N.C. App. 125, 128, 526 S.E.2d 678, 680 (2000).
            "Miranda warnings are required only when a defendant is subjected to custodial interrogation." The Miranda Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way." "[T]he appropriate inquiry in determining whether a defendant is in 'custody' for 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.'"

State v. Johnston, ___ N.C. App. ___, ___, 572 S.E.2d 438, 440-41 (2002) (citations omitted).
    The evidence in the record shows that defendant voluntarily agreed to talk with detectives at the Edgecombe County Sheriff's Department on 13 January 2000. The evidence also shows that defendant voluntarily consented to searches of his vehicles and residence. Defendant was not under arrest or in custody and could have declined to talk with detectives or refused to consent to the searches. The evidence does not demonstrate that there was any restraint on defendant's freedom of movement to the degree associated with an arrest. Defendant drove to the police station for questioning and was permitted to drive to his house in his ownvehicle after consenting to the search of his residence. Defendant permitted Detective Scott to ride with him to the residence and confessed to Detective Scott during the trip.
    We hold that the evidence presented at trial was sufficient to uphold the trial court's findings of fact regarding defendant's motion to suppress. These findings of fact are conclusive on appeal and support the trial court's conclusions of law. We hold that, on these facts, defendant was not in custody for the purposes of Miranda during the police questioning or consensual searches on 13 January 2000. Absent a formal arrest or custodial restraint, defendant was not entitled to receive Miranda warnings and no violation of his constitutional rights occurred.
    While defendant was not in custody and therefore not entitled to receive Miranda warnings, the evidence shows that defendant was administered Miranda warnings prior to questioning on 13 January 2000 and again before consenting to a search of his residence that evening. Defendant waived his rights each time after they were read to him and there is evidence in the record that shows he did not request an attorney. Assuming arguendo that defendant was in custody for the purposes of Miranda, the evidence shows that defendant was informed of his rights and that no constitutional violation occurred.
    Defendant also argues for review under the plain error standard. However, a plain error review is not warranted since defendant properly preserved this issue for appeal. This assignment of error is without merit.    Defendant finally argues the trial court erred in permitting testimony into evidence that defendant failed a polygraph test. Defendant contends the testimony was inadmissable, improper, prejudicial, and deprived defendant of a fair trial under the United States and North Carolina constitutions.
    "In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent." State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see N.C.R. App. P. 10(b)(1). A review of the trial transcript shows that defendant did not object or move to strike the challenged testimony during trial. Accordingly, defendant has failed to properly preserve this issue for appeal. See State v. Gardner, 315 N.C. 444, 447, 340 S.E.2d 701, 704 (1986).
    Defendant argues alternatively that the admission of testimony into evidence that defendant failed a polygraph test constituted plain error and should therefore be reviewed by this Court. See N.C.R. App. P. 10(c)(4). Plain error review is appropriate when a defendant fails to preserve an issue for appeal by properly objecting to the admission of evidence during trial. State v. Rourke, 143 N.C. App. 672, 675, 548 S.E.2d 188, 190, cert. denied, 354 N.C. 226, 553 S.E.2d 396 (2001).
        Plain error is an error which was "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." To prevail under a plain error analysis, a defendant must establish notonly that the trial court committed error, but that absent the error, the jury probably would have reached a different result.

State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d 700, 704 (citations omitted), disc. review denied, 352 N.C. 153, 544 S.E.2d 235 (2000). Our Supreme Court has stated that
        "[t]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has '"resulted in a miscarriage of justice or in the denial to appellant of a fair trial."'"

State v. Steen, 352 N.C. 227, 255, 536 S.E.2d 1, 18 (2000) (emphasis omitted) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)), cert. denied, Steen v. North Carolina, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).
    "While the results of a polygraph test are inadmissible in North Carolina, not every reference to a polygraph test necessarily results in prejudicial error." State v. Hutchings, 139 N.C. App. 184, 189, 533 S.E.2d 258, 261, disc. review denied, 353 N.C. 273, 546 S.E.2d 381 (2000). A review of the trial transcript shows that Detective Scott stated during his testimony: "I asked Mr. Webber if he didn't have anything to do with the death of Ann why did he fail the polygraph test. Mr. Webber couldn't give me an answer." The trial transcript shows that defendant's counsel specifically declined to request a correcting instruction during the charge conference. Defense counsel also stated that he did not believethat it made "much difference in this case." Defendant has failed to demonstrate that the trial court committed fundamental error resulting in the denial of justice or to show that the jury probably would have reached a different result had there been no reference to the polygraph. In light of the compelling evidence of defendant's guilt presented at trial, we hold the trial court did not commit plain error. See State v. Parks, 148 N.C. App. 600, 609, 560 S.E.2d 179, 185 (2002).
    Although defendant's counsel moved for a mistrial during the jury instruction conference, which was denied by the trial court, defendant did not assign error to the trial court's denial of the motion for mistrial. Accordingly, this issue is not before us for review. See N.C.R. App. R. 10(a). This assignment of error is without merit.
    We have reviewed defendant's remaining arguments and find them to be without merit.
    No error.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***