STATE OF NORTH CAROLINA
v
.
Edgecombe County
No. 00 CRS 4775
KENNETH RAY WEBBER, SR.
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).
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