An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1101


Filed: 5 August 2003


v .                         Dare County
                            No. 01 CRS 51298

    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).

    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.

    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 underBuchanan).
    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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