An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-850


Filed: 16 September 2003


v .                                 Onslow County
                                    No. 99CRS058846

    Appeal by defendant from judgment entered 17 April 2001 by Judge Ernest B. Fullwood in Superior Court in Onslow County. Heard in the Court of Appeals 16 April 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for plaintiff-appellee.

    Margaret Creasy Ciardella for defendant-appellant.

    HUDSON, Judge.

    Defendant Keith Allen Cole was convicted of first-degree murder, first-degree kidnapping, and conspiracy to commit murder and kidnapping and was sentenced to life imprisonment. He appeals, contending (1) that the trial court improperly admitted inculpatory statements and evidence; (2) that an error during jury selection prejudiced him; and (3) that the trial court erred in denying his motion to dismiss. For the reasons set forth below, we find no error in defendant's conviction.

    Late on the evening of 19 November 1999, Ruby Nicholson heard arguing outside her home on Riggs Road in Onslow County, followed by a loud bang. Shortly thereafter, Michael Grigsby ran out of gason Riggs Road, and pulled off on a dirt side road. When friends stopped to help him, they saw a body lying beside the dirt road and called for help. The victim had been stabbed, shot, and beaten.
    The next morning, Onslow County Sheriff Ed Brown saw a photograph of the victim and recognized him as William S. Gary, known as “Billy Jack.” Gary's sister told Sheriff Brown that between 7:30 and 8:00 p.m. the night before, a woman who lived down the street and her fiancé had picked up Gary in a gold truck. The sister also mentioned that the woman's fiancé wore a hat and thick glasses, and that Gary walked with a cane due to a crippling bone disease.
    Later that evening, Sheriff Brown stopped at the site of an auto accident, and saw defendant, wearing a hat and glasses, near a blue truck occupied by a woman. Brown asked them if they had seen Gary. Defendant claimed that he had dropped Gary at a restaurant around 10:30 p.m the night before. Another man then approached Brown, claiming that defendant was his friend, and pointed to a gold truck stopped across the highway. When Brown shined his flashlight into the open back of the gold truck, he saw blood stains.
    Deputy Patrick Garvey, standing nearby, heard the defendant say, “'I'm f---ed. I'm going away for a long time.'” His suspicions aroused, Garvey patted defendant down and took him across the highway to Brown. When Brown looked into the back of the truck and said, “'that looks like blood to me[,]'” defendant replied, “'I'm the trigger man. I'm the one that shot him.'” Defendant, his fiancée Velma Westling (“Nicole”) and two other men were taken into custody, handcuffed, and charged.
    Defendant then told the deputies that he could “'show [them] the stuff you need to see,'” and gave directions to his mobile home. On arriving at the home, he gave one deputy his house keys and the brass hull from a twelve-gauge shotgun shell. Brown made notes of defendant's statements about searching the house, which defendant and Deputy Garvey signed on a paper which has since been lost.
    As another deputy entered the home, defendant stated that he and some friends had killed Gary and volunteered to show them items related to the murder. Defendant pointed out several knives, a newspaper with spots of blood, two leather jackets, a gun case containing a twelve-gauge shotgun, and a box of ammunition. After the walk-through, the deputies drove defendant to the sheriff's office to be interviewed.
    Deputy Tim Robinson conducted the interview. He read defendant his Miranda rights and defendant acknowledged that he understood them. Robinson asked him if he wanted to talk, and defendant said no. When Robinson then asked defendant if he did not want to talk, defendant said, “'yes I do. I misunderstood.'” Robinson read the question again and defendant answered yes and so indicated on the waiver form.
    Defendant first gave an oral statement and then, in his own handwriting, wrote a detailed eleven-page statement describing the killing and his role. In the statement, defendant wrote that hisfiancée, Nicole, had told him that Gary constantly harassed her. In late September, defendant and Nicole began to plot Gary's death.
    On 18 November 1999, defendant and Nicole talked to John Race about killing Gary, and Race agreed to help. The next day, defendant, Nicole and Race came up with the story about dropping Gary off at the restaurant and the three then “went out to find [Gary] with the intent to kill him.” They found Gary at his sister's home. Race stayed in the truck, while defendant and Nicole went into the house and talked with Gary and his sister. When Gary tried to sell him a bag of tobacco products, defendant replied that he needed to go get cash. Gary rode along when defendant, Nicole and Race went to an ATM. Defendant pretended the ATM had not worked, so they kept driving.
    Defendant then pulled over as though he had car trouble, but drove on when he saw a house nearby. Nicole then asked defendant to stop for her to relieve herself, and defendant, Nicole and Race went into the woods to plan the killing. When they returned, Nicole kicked Gary in the chest, knocking him over. Defendant helped Gary up, but then defendant pushed him to the ground and beat him with his cane. Defendant and Nicole both stabbed Gary and then defendant shot him with a shotgun. Defendant, Nicole and Race then returned to defendant's house, where they washed their clothes and cleaned the knives and boots. The next day they buried the broken cane in the woods, ejected the empty round from the shotgun, and scrubbed the gun.    Defendant concluded his written statement with a description of being taken into custody on 21 November 1999. Later that morning, defendant led the officers to the wooded area where he had hidden the cane, and gave written consent for a search of his truck. Other lay witnesses testified that defendant had talked at work about killing Gary. The State's evidence included forensic details from the autopsy pathologist and SBI firearms, blood and DNA experts.
    Defendant was indicted for first-degree murder, first-degree kidnapping, and conspiracy to commit murder and kidnapping and tried capitally at the 2 April 2001 Criminal Session of Onslow County Superior Court. The jury found defendant guilty of first- degree murder, first-degree kidnapping, and conspiracy. At the capital sentencing hearing, the jury recommended a sentence of life imprisonment without parole. On 17 April 2001, the trial court arrested judgment on the kidnapping conviction and entered judgment sentencing defendant to life imprisonment without parole for first- degree murder and to the presumptive term of 157 to 198 months for conspiracy to commit murder, to run consecutively.
    Defendant appeals.
    Defendant first contends that statements he made to police as well as the items from his home were improperly admitted into evidence because at the time police obtained this evidence,defendant had not been read his rights as required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). We disagree.
    The trial court conducted a voir dire on defendant's motion to suppress his oral and written statements, and the physical evidence. At the conclusion of the voir dire, the court made findings of fact, which we summarize here. Sheriff Ed Brown was driving home and came upon an accident scene on Highway 53 in Onslow County. He pulled over and saw an individual that fit the description of the suspect in Gary's death. Deputy Garvey approached and heard defendant say, without any prompting or questioning, “'I'm f---ed. I'm going away for a long time.'” Garvey did not know until that time that defendant might be a suspect in a homicide. The detective did not place defendant under arrest at that time but instead walked him across the street to Sheriff Brown. In the Sheriff's presence and without any prompting, defendant said, “'I'm your trigger man, I'm your man.'”
    The court found that defendant made the statements at the accident site voluntarily in an effort to cooperate and not in response to any promises made by the officers. The court also found that defendant volunteered to take the officers to his residence. When defendant left the accident scene, he was under arrest and in police custody. The officers drove to defendant's residence at defendant's insistence after he gave them directions. Defendant voluntarily gave them consent to enter his residence and search. Again the court found that defendant had consented to the search in an effort to cooperate rather than in response to anypolice prompting. The court also found that defendant voluntarily walked the officers through his residence, pointing out items connected to the crime.
    Thereafter, the court found, the officers took defendant to the station house where Detective Robinson advised defendant of his Miranda rights. Robinson then said, “[w]ith these rights in mind, do you wish to speak with me at this time?” Defendant replied, “'no.'” Robinson then asked, “'then you do not want to talk to me[?]'” Defendant replied, “'yes, I do.'” Robinson then said, “'well, then why did you tell me “no?”'” Defendant said that he had misunderstood and in substance indicated to the officer that he wanted to speak with him. Defendant then cooperated and spoke with Robinson. After their conversation, defendant wrote out and signed a lengthy statement. Defendant then consented to a search of his vehicle and of his person, and led the officers to the cane that he had hidden in the woods. Defendant told Lieutenant Sutherland that he wanted to make things right.
    The court also found that at the time defendant made the statements, he was at or about twenty-one years old and an enlistee in the United States Marine Corps. He was not in any particular distress, and was not confused, but rather was coherent at all times and understood his exchanges with the officers. He did not make any complaints to the officers, and none of the officers made any threats, promises or offers to defendant to induce him to make the statements. The court found that defendant had never indicatedthat he did not want to speak to the police, except during the brief misunderstanding with Deputy Robinson.
    The court found that during the relevant time, defendant never indicated that he wanted to have a lawyer present while making statements. Further, the court found that the defendant made statements to Robinson after he was properly advised of and understood his Miranda rights, and after he had knowingly and voluntarily waived those rights. Defendant made statements at the scene of the accident voluntarily, while defendant was not in custody.
    As a result of these findings, the court concluded that defendant's statements at the scene of the car accident were non- custodial and voluntary, and that defendant's oral and written statements made at the sheriff's office were given freely, knowingly, intelligently, and voluntarily after waiving his Miranda rights, and that none of defendant's constitutional rights were violated. Thus, the court denied defendant's motions to suppress.     “It is well established that the 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, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001)). “The determination of whether a defendant was in custody, based on those findings of fact, however, is a question oflaw 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.” State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (citations omitted), disc. review denied 354 N.C. 578, 559 S.E.2d 549 (2001). The Supreme Court in Miranda defined “custodial interrogation” as “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.” Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706 (footnote omitted). “[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.'” Buchanan, 353 N.C. at 339, 543 S.E.2d at 828 (citations omitted). This involves “'an objective test as to whether a reasonable person in the position of the defendant would believe himself to be in custody or that he had been deprived of his freedom of action in some significant way.'” State v. Sanders, 122 N.C. App. 691, 693, 471 S.E.2d 641, 642 (1996) (quoting State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737 (1992)).
A. Defendant's statements at the

scene of the car accident

    Defendant did not testify or call witnesses at the voir dire hearing. From the State's uncontradicted evidence, the trial court made the findings summarized above, to the effect that defendantwas not in custody when he voluntarily made the statements. After careful review, we conclude that the trial court's findings were amply supported by competent evidence in the record.
    The trial court's findings support the claim that defendant was not in custody when he made the challenged statements. Because defendant was not in custody, the police were not required to give Miranda warnings. See, e.g., State v. Kincaid, 147 N.C. App. 94, 100, 555 S.E.2d 294, 299 (2001) (“'[a] seizure does not occur simply because a police officer approaches an individual and asks a few questions'”).

B. The search of defendant's home

    From the uncontradicted voir dire evidence, the trial court found as fact that defendant made statements at the accident scene in an attempt to cooperate with the police and that the officers did not urge defendant or offer any reward. The court then found that defendant volunteered to take the officers to his residence. While under arrest and in custody, but without any prompting or questioning by officers, defendant gave directions to his home and offered to take the police there. The court then found that defendant voluntarily consented to a search of his home and then voluntarily walked the officers through his residence, pointing out items that he felt were connected with the crime.
    A law enforcement officer may conduct a search in the absence of a search warrant when the consent to search is given voluntarily by the occupant of the premises. N.C. Gen. Stat. §§ 15A-221, 15A- 222. Even after a suspect is in custody, Miranda warnings arerequired only prior to interrogation by police. State v. Barden, 356 N.C. 316, 337, 572 S.E.2d 108, 123 (2002). An interrogation takes place when there is “'questioning initiated by law enforcement officers[.]'” Buchanan, 353 N.C. at 337, 543 S.E.2d at 827 (citation omitted). Consent to search is not required to be in writing so long as it is given voluntarily. State v. Vestal, 278 N.C. 561, 578-79, 180 S.E.2d 755, 767 (1971); State v. Ghaffar, 93 N.C. App. 281, 288, 377 S.E.2d 818, 823 (1989). Here, the court found that it was.
    The evidence supports the court's findings that defendant handed the house keys to Captain Bryan and, as he walked through the home, pointed out the clothes he wore and the knives and gun he used in the killing. Since defendant did not present any evidence from which the court could have found that his consent was coerced, involuntary or prompted, the uncontradicted evidence supports the court's findings which, in turn, support its conclusions regarding these items. Thus, we conclude that the court did not err in denying the motion to suppress the evidence seized during the search and admitting it at trial.
C. Defendant's statements at the police station

    From the voir dire testimony, the trial court found that defendant was advised of his Miranda rights. After clarifying that he had misunderstood the officer's question, defendant indicated that he indeed wanted to speak with the officer. The court also found that defendant knowingly and voluntarily waived his Miranda rights and at no point indicated that he wished to talk to or havean attorney present. Based on these findings, the court concluded that defendant made his statements voluntarily and knowingly and that the statements could be admitted into evidence at trial.
    Again, these findings of fact made by the trial court are binding on appeal if supported by competent evidence. State v. Ingle, 336 N.C. 617, 635, 445 S.E.2d 880, 889 (1994), cert. denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995). After a careful review of the record, we conclude that they are. Deputy Robinson, the interviewing officer, indicated that he read defendant his Miranda rights, and defendant responded that he understood them. Robinson asked him if he wanted to talk, and defendant said no. When Robinson asked defendant if he did not want to talk, defendant said, “'yes I do. I misunderstood.'” Robinson read the question again and defendant answered yes and so indicated on the waiver form.
    We conclude that the trial court's findings of fact are supported by the evidence, and thus we consider them binding. “'Nevertheless, the conclusions of law drawn from the facts found are not binding on the appellate court and “are fully reviewable on appeal.”'” Ingle, 336 N.C. at 635, 445 S.E.2d at 889 (quoting State v. Mlo, 335 N.C. 353, 365, 440 S.E.2d 98, 103 (1994)). Next, we determine whether the conclusions of law are supported by the findings of fact, considering “all circumstances surrounding the statement.” State v. Rook, 304 N.C. 201, 216, 283 S.E.2d 732, 742 (1981), cert. denied, 455 U.S. 1038, 72 L. Ed. 2d 155 (1982).    The trial court concluded that the defendant fully understood his constitutional right to remain silent and his right to counsel and all other rights; and that he freely, knowingly, intelligently, and voluntarily waived each of those rights and thereupon made the statement. An examination of all of the circumstances surrounding the giving of the statement leads us to the same conclusion. No officers asked questions until he had waived his rights. Defendant clarified that his initial response “no” to Deputy Robinson's question about whether he wanted to talk was a misunderstanding.
    Moreover, during the questioning, defendant did not give any indication that he was incapable of knowingly and understandingly waiving his rights. In sum, the evidence fully supported the court's findings of fact, which in turn support the conclusion that defendant knowingly and understandingly waived his rights. Thus, we concluded that the court properly admitted defendant's inculpatory statements.
    Defendant also argues that the court erred to his prejudice when it excused three jurors that the State challenged for cause, but did not immediately call replacement jurors to fill the jury box. He contends that this procedure violated N.C. Gen. Stat. § 15A-1214 and his right to due process, and therefore entitles him to a new trial. Although the State concedes that a procedural error occurred, it argues, and we agree, that the error was harmless beyond a reasonable doubt.    The North Carolina jury selection statute provides, in pertinent part:
            (d)    The prosecutor must conduct his examination of the first 12 jurors seated and make his challenges for cause and exercise his peremptory challenges. If the judge allows a challenge for cause, or if a peremptory challenge is exercised, the clerk must immediately call a replacement into the box. When the prosecutor is satisfied with the 12 in the box, they must then be tendered to the defendant. Until the prosecutor indicates his satisfaction, he may make a challenge for cause or exercise a peremptory challenge to strike any juror, whether an original or replacement juror.
N.C. Gen. Stat. § 15A-1214(d) (2001).
    “When a trial court acts contrary to a statutory mandate, the defendant's right to appeal is preserved despite the defendant's failure to object during trial.” State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). Although the jury selection procedure here violated the express requirement of section 15A-1214(d) that replacement jurors be called immediately into the jury box, the Supreme Court has not required a new trial when the defendant has failed to show prejudice. Here, as in Lawrence, defendant did not exhaust his peremptory challenges and, therefore, was not forced to accept an undesirable juror. Id. Moreover, defendant himself could not articulate why he was prejudiced. He informed the court that he didn't “know what prejudice that might be at this time” and that he didn't “know if any exists at this time.” He argues in his brief that the State received the advantage of “spending more time with each individual juror without those jurors being influenced byother jurors sitting in the box.” We are not persuaded that this occurred or, if it did, whether any alleged advantage to the State is more than merely speculative.
    We conclude that defendant has not established any prejudice as a result of the jury selection procedure. N.C. Gen. Stat. § 15A-1443(c). Moreover, although defendant also argues that the improper jury selection procedure violated his constitutional right to due process, he did not raise this constitutional issue at trial. Consequently, the trial court did not have the opportunity to consider or rule on this issue. N.C.R. App. P. 10(b)(1). Thus, defendant has failed to preserve the constitutional issue for appellate review. Lawrence, 352 N.C. at 13, 530 S.E.2d at 815.
    Finally, defendant argues the trial court erred by denying his motion to dismiss the charges on the basis of insufficient evidence. Specifically, he contends that, had the trial court not improperly admitted his inculpatory statement and physical evidence, there would have been insufficient evidence to convict him of first-degree murder under the felony murder rule, kidnapping, and conspiracy to commit murder. We disagree.
    First, when ruling on a defendant's motion to dismiss on the ground of insufficiency of the evidence, “'[a]ll evidence actually admitted, both competent and incompetent, which is favorable to the State must be considered.'” State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000) (citation omitted). Thus, we considerdefendant's inculpatory statements and other evidence discussed above, all of which we have held were properly admitted.
    A motion to dismiss should be denied if “there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is that relevant evidence which a reasonable mind would find sufficient to support a conclusion.” State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70, 72 (1996). In determining whether there is evidence sufficient for a case to go to the jury, the trial court must consider the evidence, both direct and circumstantial, in the light most favorable to the State, giving the State the benefit of every reasonable inference drawn therefrom. Id.
    Defendant argues that his inculpatory statement to Detective Robinson is suspect because it directly contradicts the State's evidence. In that statement, defendant said that after he pushed Gary to the ground and repeatedly kicked and beat him, Gary then “got up and headed toward the gate.” Defendant contends in his brief that Gary had a crippling bone disease and could not get up if he fell. However, when ruling on a motion to dismiss, we disregard conflicts in the evidence because “'contradictions and discrepancies do not warrant dismissal of the case -- they are for the jury to resolve.'” State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (citation omitted).    Moreover, we conclude that the State produced sufficient evidence to convict defendant of kidnapping, first-degree murder, and conspiracy to commit murder. First-degree kidnapping is the unlawful removal of a person sixteen years of age and over from one place to another without their consent for the purpose of facilitating the commission of a felony where the person is not released in a safe place or is seriously injured. N.C. Gen. Stat. § 14-39. Removal accomplished by fraud or trickery is the equivalent of removal by force. State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978).
    Here, there is sufficient evidence in the record that defendant, through trickery and admitted lies, removed Gary from his sister's house to the isolated country road and killed him. Defendant located Gary at his sister's house and offered to buy some tobacco from him. Pretending he needed cash from an ATM, defendant lured Gary out of the house and into his vehicle. Defendant pretended to go to an ATM that was not working and drove away, eventually to a secluded area, where defendant stabbed and shot Gary. This evidence amply supports the jury's conviction of defendant of first-degree kidnapping.
    Next, a murder committed in the perpetration of a kidnapping is first-degree murder. N.C. Gen. Stat. § 14-17. The felony murder rule applies where “[a] killing is committed in the perpetration of a kidnapping when there is no break in the chain of events so that the kidnapping and the homicide are part of the same series of events, forming one continuous transaction.” State v.Roseborough, 344 N.C. 121, 127, 472 S.E.2d 763, 767 (1996). As set forth above in detail, the State presented substantial evidence from which the jury could and did find that defendant first kidnapped Gary, then stabbed and shot him to death.
    Defendant was also convicted of conspiracy to commit murder. “'A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means.'” State v. Gibbs, 335 N.C. 1, 47, 436 S.E.2d 321, 347 (1993) (citation omitted), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). “The conspiracy is the crime and not its execution. . . . As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed.” Id. (citations omitted).
    Taking the evidence, including defendant's statements, in the light most favorable to the State, we conclude that there is substantial evidence that defendant and Nicole agreed in September to kill Gary. On 19 November 1999, the pair enlisted John Race to assist them. On the night of the murder, they made up their alibi before they picked up Gary at his sister's house, with by defendant's own admission, the “intent to kill” Gary. This evidence amply supports the conviction of conspiracy to commit murder.
    Accordingly, we conclude that the trial court properly denied defendant's motion to dismiss the charges of first-degree kidnapping, first-degree murder, and conspiracy to commit murder.
    For the reasons set forth above, we conclude that none of the issues raised by defendant warrants relief.
    No error.
    Judges MARTIN and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***