An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-684

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2003

STATE OF NORTH CAROLINA

     v .                              Guilford County
                                     No. 00 CRS 98514
STEPHEN DAYLE HUDSON, JR.

    Appeal by defendant from judgment entered 2 November 2001 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 12 March 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General James A. Wellons, for the State.

    Clifford Clendenin O'Hale & Jones, LLP, by Walter L. Jones, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Stephen Dayle Hudson, Jr., was arrested on 8 August 2000 and charged with first-degree arson in violation of N.C. Gen. Stat. § 14-58 (2001). He was twenty years old at the time. It was alleged that he had set fire to an apartment unit at the Crossing at Chesterfield, an apartment complex located in High Point, North Carolina, on the night of 4 August 2000. Defendant was indicted on this charge on 4 December 2000.
    Defendant was tried at the 29 October 2002 Criminal Session of Guilford County Superior Court before The Honorable Catherine C. Eagles. The evidence at trial tended to show that sixteen-year-old Teresa Trnkova lived in the portion of the Crossing apartmentcomplex which had burned. Teresa was not in the building that night, but she had seen defendant on the night of the fire. Teresa's friend was dating defendant's younger brother, and she had gone to his house to meet with her. Apparently, defendant had been attempting some sort of relationship with her, although she thought of him nothing more than a friend. Defendant suggested that they meet up later that evening, to which she responded, “I don't know, call me.”
    Teresa lived with her father, mother and little brother at the Crossing at Chesterfield apartment complex on the third floor. Her father, Robert Trnkova, was in the apartment on the night of 4 August 2000. Early in the morning on 5 August 2000, he was wakened by defendant who was knocking at his door and wanted to speak to Teresa. Mr. Trnkova told him leave and then went back to sleep, only to be wakened again by screams of those who were escaping the fire. To escape the fire, he had to jump from the balcony as his door was blocked by fire. Shortly afterward, defendant approached Mr. Trnkova in the parking lot and again asked if Teresa was home.
    Several witnesses saw defendant at the scene and thought he smelled of alcohol. One witness, a former teacher of defendant, testified that defendant told him that he lived on the third floor of the building that burned. The teacher told defendant that he knew for a fact that defendant did not live there, and defendant “slinked away” from him. The teacher also heard defendant lie about himself to other witnesses and the police. These witnesses relayed this information to police officers on the scene. Still otherwitnesses testified that defendant admitted to them that he had something to do with setting the fire.
    Defendant was questioned at the scene by police and fire officials. Defendant gave conflicting stories and was eventually put under arrest for delaying and obstructing a police officer. A lighter was found on him. One officer recognized defendant and located defendant's vehicle, as it was blocked in by fire personnel. The officer kept the van secure until it could be investigated.
    Defendant was taken into custody and transported to the police station. While being transported to the magistrate's office, defendant made several statements that are the subject of this appeal and will be discussed more fully later.
    There was a piece of carpet in defendant's van that looked like a gas can had been sitting on it. Gasoline was found on the piece of carpet. Investigators found components of gasoline inside the apartment complex near the Trnkova apartment. Investigators determined the fire started from the outside of the building on the third floor. Causes for the fire, other than arson, were ruled out. The testimony was that the fire was of such magnitude as to be one that was started with an accelerant.
    The jury found defendant guilty of first-degree arson. Defendant was found to have a prior record level of II and was sentenced to a minimum of 77 months to a maximum of 102 months.
    Defendant makes the following assignments of error: The trial court (I) erred by allowing an expert in forensic chemistry totestify that certain samples of debris analyzed by him contained components of gasoline; and (II) committed reversible error by allowing a witness to testify regarding statements or remarks made by defendant after having been taken into custody.

I.
    Defendant's first assignment of error is that the trial court erred by allowing testimony by the State's expert witness that contradicted his written report.
    Special Agent Shawn Lee with the State Bureau of Investigation testified for the State and was received by the trial court as an expert in the field of forensic chemistry specializing in the examination of burn debris. Defendant made no objection to the expert's qualifications.
    The pertinent testimony by Special Agent Lee was about three items of debris: the Trnkova's front doormat, a collection of debris taken from in front of the Trnkova's threshold, and the piece of carpet found in defendant's van. Lee had prepared a written report of his investigation and analysis of the debris from the Crossing apartment complex. The results of this report indicated that no identifiable accelerants, such as gasoline, were found in debris from the Trnkova's threshold or front doormat. There was evidence of residual gasoline found in the carpet.
    Lee explained his testimony:
        Well, there are certain components of accelerants that we have to find in order to make a definitive call. There's several different steps that we look at, as far as looking at the graph, comparing it with thestandard, and then again looking at the actual components. Accelerants are made up of many, you know, 20 to 100 different components that we have to look at and compare. And so that's what I looked for.

He continued by giving reasons he may not have found accelerants, such as they might have evaporated or burned away or displaced during the fire fighting effort.
    At this point in Lee's testimony, a bench conference was held as to whether the trial court would allow Lee to testify that the items tested contained some of the components of gasoline, although not enough of them to support a conclusion that gasoline was definitively present. These facts were contained in his notes, but were not in his report. The trial court, even though it expressed concern, allowed Lee to continue over defendant's objection.
    Lee then testified that gasoline may contain between 100 and 150 detectable components and/or ingredients. During his analysis of the items, he found that the Trnkova doormat contained eight of these components and the threshold debris contained six of these components. These amounts were insufficient to base a definitive determination that the items contained the accelerant gasoline. The piece of carpet contained 20 to 25 components of gasoline.
    Lee was thoroughly cross-examined by defendant. It was brought to light that there were a myriad of reasons these items may contain gasoline components independent of having gasoline applied to them. For instance, they could have come from other burned objects such as rubber and other material. This was the extent of Special Agent Lee's testimony.     Defendant argues on appeal that the trial court failed in its gatekeeper duties by allowing Lee to testify as to the components found in the doormat and other debris.
        “[A]n expert is not competent to testify as to a causal relation which rests upon mere speculation or possibility.” Whether scientific opinion evidence is sufficiently reliable and relevant is a matter entrusted to the sound discretion of the trial court.

            Implicit in the rules governing the admissibility of an expert's opinion is a precondition that the matters or data upon which the expert bases his opinion be recognized as sufficiently reliable and relevant by the scientific community. Further, our Supreme Court has identified several indices of reliability including: “the expert's use of established techniques, the expert's professional background in the field, the use of visual aids before the jury so that the jury is not asked 'to sacrifice its independence by accepting [the] scientific hypotheses on faith,' and independent research conducted by the expert.”

Leatherwood v. Ehlinger, 151 N.C. App. 15, 23-24, 564 S.E.2d 883, 889 (2002) (citations omitted), disc. review denied, ___ N.C. ___, ___ S.E.2d ___ (filed 1 May 2003).
    According to defendant, by Lee's own testimony his self- imposed standards did not lend themselves to an opinion that the items reviewed by him contained gasoline. By allowing him to tell the jury that he found components in the materials that are consistent with gasoline, but not enough to make a determination of gasoline, allowed the State to place before the jury its theory that defendant poured gasoline onto materials and intentionallystarted the fire. This amounts to speculation and error. We disagree.
    This case dealt with circumstantial evidence. Special Agent Lee testified that the carpet from inside defendant's van definitely had gasoline on it. Further, he testified that he could not say that other materials taken from the area in front of the Trnkova's apartment had gasoline on them. He was allowed to explain that this was because these materials had so few components, or ingredients, of gasoline on them. This evidence is relevant, especially considering the theory of the State and the testimony concerning the reasons why more components were not found. The trial court did not abuse its discretion in allowing this testimony, and properly allowed the jury to draw its own conclusions.
    The expert did not go so far as to claim that he knew the cause of the fire. He merely reported the findings of an investigation. These findings were thoroughly explored on cross- examination, primarily on the basis that the expert could not say with impunity that gasoline had once been on the items and the many reasons those few components were on the items independent of the presence of gasoline. This evidence properly went to the weight of Special Agent Lee's testimony, and not its admissibility.
    This assignment of error is overruled.
II.
    Defendant's only other assignment of error states that the trial court erred by allowing the statements made by defendant whenhe was confined at the jail into evidence in violation of defendant's Miranda rights.
        [T]he Fifth Amendment provides that “no evidence obtained from a defendant through custodial interrogation may be used against that defendant at trial, unless the interrogation was preceded by (1) the appropriate warnings of the rights to remain silent and to have an attorney present and (2) a voluntary and intelligent waiver of those rights.”

            Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

State v. Stokes, 150 N.C. App. 211, 221, 565 S.E.2d 196, 203 (2002) (citations omitted), rev'd on other grounds, ___ N.C. ___, 518 S.E.2d 51 (2003).
    Defendant was involved in a conversation with a High Point Police Officer. Testimony at trial was as follows:
        Q. Did he spontaneously make statements in your presence?

        A.    Uh, yes.

        Q.     What statements did he make?

            [Def. Atty.]: Objection.

            THE COURT: Overruled. You may answer.

        A:    I-
    
        Q. Let me ask you this, have you documented these in your report?

        A.     Yes.

        Q.    And do you have them in quotes?

        A.    Uh, yes, I do.
        Q.    Just read those to the jury.

        A. He first stated, “This is bullshit. This is just a waste of my time. I was just trying to get a piece of ass. I was over there to see my girlfriend. She lives in the one that went up.” And that's when I said, uh, I stated, “I hope it was worth it.”

            [Def. Atty.]: Object at this point. Now we're getting into some statements designed -

            THE COURT: I can't hear you.

            [Def. Atty.]: I'm objecting at this point because he is now making comments to [defendant] to get information.

            THE COURT: All right. Step up here for a second.

        (Conference at the bench)

            THE COURT: Overruled. Repeat your question.

            [Prosecutor]: Yes, ma'am.

        Q. Officer Castle, I believe you said some statement you made in the defendant's presence. And you noted that in your report?

        A.     Yes, I did.

        Q.    What did you say?

        A.     I said, “I hope it was worth it.”

        Q. And did the defendant say something after that?

        A.    Yes, he did.

            [Def. Atty]: Object. Line objection after this.

            THE COURT: Overruled. Go ahead.

        A.    He said she wasn't even there.
        Q.    And did you say something to him?

        A.    I did.

        Q.    What did you say?

        A.    At that point, I said, “How do you know?”

        Q.    And did the defendant answer you?

        A.    Yes, he did.

        Q.    What did he say?

            [Def. Atty]: Objection.

            THE COURT: Overruled.

        A. He said, “I knocked on the door just before it went up.”

    Defendant relies on Stokes, 150 N.C. App. 211, 565 S.E.2d 196 as support for his position that the trial court erred by admitting the substance of the above conversation. In Stokes, the defendant was in custody when an officer walked up to his cell. Defendant asked the officer what he wanted, and the officer asked him, “How?” Id. at 221-22, 565 S.E.2d at 203-04. The question was whether or not the defendant was being “interrogated.”
        “Interrogation,” as that term is used in the Fifth Amendment cases, is defined as “'any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'”

Id. at 222, 565 S.E.2d at 203 (citations omitted).
    This Court found that the officer had violated the defendant's Fifth Amendment rights and granted a new trial. Id. at 223, 565 S.E.2d at 204. The defendant did not voluntarily blurt out aconfession, but responded to a question posed by an officer. Regardless of whether the officer expected the type of response given by the defendant, it was still not spontaneous on the part of the defendant. The focus was on the fact that the officer initiated the communication, and thus it was an interrogation. Id.
    The Supreme Court has since reversed this Court's opinion in Stokes, ___ N.C. ___, 581 S.E.2d 51. Rather than directly reviewing the holding of this Court, though, the Supreme Court analyzed and reversed the case on different grounds not pertinent to this case. Thus, the Stokes opinion relied upon by defendant holds no precedential value but the reasoning from that opinion is instructive to this panel.
    In the present case, defendant admits that the exchange was initiated by defendant. However, defendant argues that it is also clear that the officer engaged in questioning that continued the conversation and was likely to elicit incriminating statements. However, this Court is of the opinion that the statement by the officer, “I hope it was worth it,” is not the type of statement that is eliciting an incriminating response or even one that is designed to further conversation.
    However, the question, “How do you know?” poses a much closer question, as it is virtually identical with the question in Stokes that was found to be improper. Yet, even if we assume that “How do you know?” was improper, this would not end the inquiry. “A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds thatit was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2001). The question elicited the response that defendant had been at the apartment complex before it burned up. While under different circumstances this may have been a significant statement, in the present case it was known that defendant had been to the apartment of Teresa Trnkova early in the morning before the fire. Her father, Robert Trnkova testified to the fact that defendant knocked on the door looking for Teresa and that he had told him she was not home. Thus, defendant's statement only corroborated earlier testimony. We fail to see any prejudicial effect this may have had on the jury.
    Therefore, this assignment of error is overruled.
    No prejudicial error.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).

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