Appeal by defendant from judgment dated 15 March 2002 by Judge
Jerry R. Tillett in Superior Court, Dare County. Heard in the
Court of Appeals 5 June 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth F. Parsons, for the State.
William H. Dowdy for defendant-appellant.
McGEE, Judge.
Jennifer S. Muse (defendant) was convicted of assault with a
deadly weapon inflicting serious injury on 15 March 2002. The
trial court found defendant to have a prior record level V and
sentenced defendant to a minimum term of forty-two months and a
maximum term of sixty months' imprisonment. Defendant appeals.
The State's evidence at trial tended to show that defendant
and Joseph Worsham (Worsham) lived together, along with their
infant son, in an apartment near Kitty Hawk, North Carolina. When
Worsham attempted to prevent defendant from leaving their apartment
late in the evening of 30 October 2001, they argued. During the
argument, defendant, who weighed approximately 110 pounds, stabbed
Worsham, who weighed approximately 250 pounds. Worsham testified that he had drunk four or five beers and
three-quarters of a bottle of wine prior to the argument with
defendant. He said that before defendant stabbed him he told her,
"I ought to kill you, b_ _ch." Worsham also testified that he did
not believe defendant was trying to kill him. Worsham admitted
that he had threatened defendant on numerous occasions in the past
and had actually struck defendant "many times before."
Defendant admitted in her testimony that she stabbed Worsham
during the argument but claimed she did so in self-defense.
Defendant testified that Worsham had beaten her in the past.
Officer Wade Styons (Officer Styons) of the Kitty Hawk Police
Department was dispatched by the department's communications center
to the apartment of defendant and Worsham following the stabbing.
After learning from Worsham that he had been stabbed and that
defendant was involved, Officer Styons located defendant in another
apartment. Defendant came out of the apartment and immediately
pleaded not to be taken to jail. When Officer Styons said he
needed to investigate the stabbing of Worsham, defendant stated to
Officer Styons that, "I did it because I was defending myself."
Defendant testified that when Officer Styons arrested her, he never
asked her what had happened.
Officer Styons placed defendant in handcuffs and took her to
his patrol car. Officer Styons did not give defendant her Miranda
warnings, but he did not ask her any questions. Officer Styons had
not yet located the weapon used in the stabbing, and he went back
to talk to Worsham again. Following his second conversation with Worsham, Officer Styons
drove defendant to the Dare County Detention Center (detention
center), approximately a thirty minute drive from the apartment.
Officer Styons did not question defendant or make any statements to
her during the drive, except in response to defendant's question as
to whether Worsham would also be arrested; Officer Styons replied
it would depend on the results of the investigation.
Upon arrival at the detention center, Officer Styons attempted
to present evidence to the magistrate to show probable cause for
defendant's arrest. During the proceeding, defendant became very
loud and boisterous, stating more than once, "I wished I'd killed
the motherf_ _ _er. I should have killed the motherf_ _ _er." The
magistrate ordered defendant to be placed in a holding cell due to
her disruptive conduct. However, before the proceeding could be
completed, a jailer informed Officer Styons that defendant had told
the jailer that she was pregnant and had been kicked in the
stomach, and the jailer could not admit defendant to the jail
without medical clearance.
Officer Styons drove defendant to the Outer Banks Medical
Center in Nags Head (medical center). During the drive, Officer
Styons did not question defendant or make any statements to her,
but defendant continued to state she wished she had killed Worsham.
Upon arriving at the medical center, defendant again became loud
and boisterous, shouting more than once, "I wish I had killed the
motherf_ _ _er. I should have killed the motherf_ _ _er." Officer
Styons told defendant he would not remove her handcuffs because ofher demeanor.
Worsham was also at the medical center getting treatment for
his stab wounds and overheard defendant say that she should have
killed him. After a few hours at the medical center, defendant was
cleared to go back to the detention center. Officer Styons drove
defendant back to the detention center but did not speak to
defendant during the drive.
Officer Styons testified that although defendant smelled of
alcohol throughout the evening, it appeared that defendant knew
where she was when she was at the detention center and at the
medical center. Officer Styons also testified that defendant did
not appear to be suffering from any physical injury and that she
seemed upset and angry, mostly because it was defendant and not
Worsham who was going to jail.
While defendant was in jail, she telephoned Detective Eugene
McLawhorn (Detective McLawhorn) of the Kitty Hawk Police on 6
November 2001 to report the theft of her property by Worsham.
Detective McLawhorn went to the jail to investigate the allegation.
After a short conversation with defendant, Detective McLawhorn told
her the property matter appeared to be civil, and not criminal in
nature. Defendant said that she wanted someone to hear her side of
the story of the assault. McLawhorn provided a legal pad and
defendant wrote a statement about the assault, without McLawhorn
making any statements to defendant or asking her any questions.
Although defendant had been read her Miranda rights six days
earlier, McLawhorn did not re-inform defendant of her Mirandarights. Defendant testified that if advised by her attorney, she
would not have made the written statement.
Defendant moved to suppress the statements made to Officer
Styons and Detective McLawhorn because defendant was not advised of
her Miranda rights. The trial court denied defendant's motion as
to the statements made in the presence of Officer Styons, but
granted the motion as to the written statement given to Detective
McLawhorn.
During Officer Styons' testimony at trial, he indicated that
defendant had a prior criminal record. Officer Styons also
testified about defendant's behavior and about statements made by
defendant after she was taken to the medical facility for treatment
of alleged injuries she received in the argument. Officer Styons
also testified to the statements defendant made to him following
the stabbing.
On cross-examination of defendant, the State asked questions,
over defense objection, concerning defendant's dealings with the
Department of Social Services in matters relating to the custody
and care of defendant's children. The trial court sustained many
of these objections and thereafter gave the jury a limiting
instruction directing the jury to consider the testimony for
impeachment purposes only.
During the presentation of defendant's case, the State
attempted to introduce, as rebuttal evidence, the written statement
defendant gave to Detective McLawhorn. Defendant objected on the
basis that the evidence was "cumulative and irrelevant to thetestimony." However, the trial court allowed the statement into
evidence.
Defendant fails to present an argument in support of her first
two assignments of error and those assignments are deemed abandoned
pursuant to N.C.R. App. P. 28(b)(6).
I.
Defendant first argues the trial court erred in admitting into
evidence, over defendant's objection, testimony about other crimes
and bad acts of defendant during the State's case-in-chief.
Defendant contends the trial court erred in admitting Officer
Styons' statement that: "They just escorted [defendant] out. She
was in--she was placed in handcuffs, handcuffed in the front and
there was a female jailer, I'm not sure what her name was, that I
think was familiar with [defendant] and was talking to her." In
fact, when defendant objected to this statement, the trial court
sustained the objection. "[W]here the trial court sustains
defendant's objection, he has no grounds to except."
State v.
Quick, 329 N.C. 1, 29, 405 S.E.2d 179, 196 (1991). Further,
defendant did not move to strike after the objection was sustained.
When a defendant objects to testimony and that objection is
sustained, failure to move to strike results in a waiver of the
right to assert error on appeal.
State v. Barton, 335 N.C. 696,
709, 441 S.E.2d 295, 302 (1994). Therefore, defendant cannot argue
on appeal that the trial court erred in admitting this testimony of
Officer Styons.
We note that defendant moved for mistrial on the basis ofadmission of this statement by Officer Styons. The trial court
denied defendant's motion and defendant asserts this denial was in
error in her third assignment of error. However, defendant has put
forth no argument in support of this contention. Thus, any
argument that the trial court erred in denying defendant's motion
for mistrial has been abandoned. N.C.R. App. P. 28(b)(6).
Defendant also challenges the admission into evidence of
Officer Styons' testimony that defendant initially refused to give
a urine sample at the medical center, as well as his testimony that
defendant was loud and boisterous at the medical center, cursed
several times, and threatened to destroy the treatment room.
Defendant did not object to this testimony at trial. By failing to
object at trial, defendant has waived the right to assert error on
appeal as to the admission of these statements. "Error may not be
predicated upon a ruling which admits or excludes evidence unless
a substantial right . . . is affected, and . . . a timely objection
or motion to strike appears of record." N.C. Gen. Stat. 8C-1, Rule
103(a)(1) (2001). Our appellate courts "will not consider
arguments based upon matters not presented to or adjudicated by the
trial tribunal."
State v. Eason, 328 N.C. 409, 420, 402 S.E.2d
809, 814 (1991).
Defendant also assigns error to the State's questions during
cross-examination of defendant concerning the involvement of DSS
with defendant's children. During this line of questioning,
defendant continually objected to the State's questions and these
objections were often sustained. Further, the trial court gave alimiting instruction that the jury was only to consider testimony
concerning DSS for impeachment purposes.
A defendant is entitled to a new trial on
the basis of an improper question if there is
a reasonable possibility that such an improper
question affected the outcome of his trial.
N.C.G.S. § 15A-1443(a) (1988);
State v.
Whisenant, 308 N.C. 791, 794-95, 303 S.E.2d
784, 786 (1983). Merely asking an improper
question to which an objection is sustained
does not automatically result in prejudice to
a defendant.
State v. Whisenant, 308 N.C. at
794-95, 303 S.E.2d at 786;
State v. Campbell,
296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979).
When the trial court sustains a defendant's
objections to improper questions and instructs
the jury to disregard such questions, any
possible prejudice to the defendant is cured.
State v. Walker, 319 N.C. 651, 655, 356 S.E.2d
344, 346 (1987).
State v. Knight, 340 N.C. 531, 564, 459 S.E.2d 481, 501 (1995). In
the present case, defendant objected to the questions about her
interactions with DSS concerning her other children. The trial
court also gave a limiting instruction when it became apparent that
the testimony concerning her interaction with DSS was relevant as
to defendant's lack of truthfulness. "[A] jury is presumed to
follow the instructions given to it by the trial court."
State v.
Wiley, 355 N.C. 592, 637, 565 S.E.2d 22, 52 (2002),
cert. denied,
___ U.S. ___, 154 L. Ed. 2d 795 (2003). Given the limiting
instruction and the abundance of other evidence in the record of
defendant's guilt, we do not find a reasonable possibility that any
of the alleged improper questioning now challenged affected the
outcome of defendant's trial.
Knight, 340 N.C. at 564, 459 S.E.2d
at 501. Defendant's third and fifth assignments of error are
overruled.
II.
Defendant also argues that the trial court erred by denying
her motion to suppress and admitting testimony, over her objection,
concerning several incriminating statements defendant made in the
presence of police officers, when defendant was not given
Miranda
warnings. These challenged statements tended to show that
defendant stabbed Worsham.
The State argues that defendant did not sufficiently preserve
these constitutional issues for review, by failing to renew her
objections on constitutional grounds at trial. In examining the
record, defendant made sufficient objection to preserve for review
the issue of the statements made in the presence of Officer Styons.
However, since defendant's argument is based solely on a
Miranda
violation, defendant has abandoned other grounds for review.
N.C.R. App. P. 28(b)(6).
[W]e review the trial court's determination
that defendant was not entitled to
Miranda
warnings under a
de novo review.
"
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[,
disc.
review denied, 354 N.C. 578, 559 S.E.2d 549]
(2001) (citations omitted). 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."
Miranda [
v.
Arizona], 384 U.S. [436,] 444[, 16 L. Ed. 2d
694, 706 (1966)]. Accordingly, in determining
whether defendant was entitled to
Miranda
protections this Court must make three
[inquiries]: First, was defendant in custody?
Second, was defendant interrogated? Third, do
any exceptions to the
Miranda rule apply?
State v. Crudup, ___ N.C. App. ___, ___, 580 S.E.2d 21, 23-24
(2003).
In determining whether a defendant was in custody, the test 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. Buchanan, 353 N.C.
332, 339, 543 S.E.2d 823, 828 (2001) (citations omitted). "'[T]he
only relevant inquiry is how a reasonable [person] in the suspect's
position would have understood [this] situation.'"
Id. at 341-342,
543 S.E.2d at 829 (citations omitted).
In the present case, defendant's first statement to Officer
Styons occurred when he came to the door of the apartment of a
friend of defendant's, asked to speak with defendant, and stated he
needed to investigate the stabbing of Worsham. This does not
satisfy the totality of the circumstances test for custody. Thus,
the trial court did not err in allowing into evidence defendant's
statement, "I did it because I was defending myself," since
defendant voluntarily made the statement and she was not entitled
to the protections of
Miranda at the time she made the statement.
However, immediately following this statement, Officer Styons
put handcuffs on defendant and placed her in his patrol car. At
this time, a reasonable person would believe she was in custody for
the purposes of
Miranda.
See,
e.g.,
State v. Johnston, 154 N.C.
App. 500, 501, 572 S.E.2d 438, 440 (2002),
appeal dismissed, 356
N.C. 687, 578 S.E.2d 320 (2003) (holding "that handcuffing
defendant in the back of a police car" constituted custody under
Buchanan).
The admissibility of the remaining challenged statements made
in the presence of Officer Styons will be determined based on
whether they were the product of custodial interrogation. A
defendant is subject to interrogation for the purposes of
Miranda
if there were "'any words or actions on the part of the police
. . . that the police should know are reasonably likely to elicit
an incriminating response from the suspect.'"
State v. Golphin,
352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (citations omitted),
cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). The record
shows that Officer Styons never questioned defendant about the
stabbing or in anyway made statements or actions "'reasonably
likely to elicit an incriminating response from the suspect.'"
Id.
(citations omitted).
In fact, there is no evidence, nor does
defendant argue, that any officer ever questioned defendant at any
point during the night of the stabbing. The only evidence of
communication between defendant and Officer Styons were Officer
Styons' responses to defendant's questions as to whether Worsham
was going to be arrested, whether defendant could call and check on
her child, and whether Officer Styons was going to remove
defendant's handcuffs when they were at the medical center.
Officer Styons' responses to these questions are not interrogation
as defined above; and further, the statements defendant now
challenges were not made in relation to these brief exchanges.
Since defendant was not subjected to interrogation, she was not
entitled to the protections of
Miranda. Therefore, it was noterror for the trial court to deny defendant's motion to suppress
and to allow into evidence the statements made by defendant in the
presence of Officer Styons.
As to any alleged constitutional error the trial court made by
admitting the written statement defendant gave to Detective
McLawhorn, defendant failed to preserve this issue for appeal.
While the statement was originally excluded at the suppression
hearing, following testimony by defendant, the statement was
offered as rebuttal evidence by the State.
Defendant objected to
admission of the statement at that time only on the basis that the
evidence was "cumulative and irrelevant to the testimony."
In
fact, in reviewing defendant's brief, she only argues that the
trial court erred in admitting statements during the State's case-
in-chief; and in her references to pages in the transcript to which
this assignment of error pertains, she does not reference the
portion of the transcript where the written statement given to
Detective McLawhorn was admitted into evidence. Based on
defendant's failure to object on constitutional grounds to the
admission of the statement, failure to cite the portion of the
transcript where the statement was admitted, and in light of her
argument clearly attempting to distinguish between statements
admitted during the State's case-in-chief and those admitted for
rebuttal purposes, we determine that defendant has not properly
challenged the admission of the written statement on appeal. This
assignment of error is overruled.
No error. Judges TYSON and CALABRIA concur.
Report per Rule 30(e).
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