An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1199


Filed: 7 October 2003


         v.                        Forsyth County
                                No. 01 CRS 57464

    Appeal by defendant from judgment entered 18 April 2002 by Judge Melzer A. Morgan, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 25 August 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen U. Baldwin, for the State.

    George E. Kelly, III, for defendant-appellant.

    GEER, Judge.

    Defendant Tyree Nareem Payne appeals from an order denying a motion to suppress his inculpatory statement. Defendant contends that his statement should have been excluded both because he was not given his Miranda warnings and because the statement was not voluntary. We conclude that the trial court's findings of fact are supported by competent evidence and that those findings in turn support the trial court's conclusions of law that defendant was not subjected to a custodial interrogation and his statement was voluntary. We, therefore, affirm.
    On 22 July 2001, Warren Butler, armed with a gun, entered the Crown Gas Station on Reynolda Road in Winston-Salem and robbed the attendant. Butler subsequently gave a statement implicatingdefendant in the commission of the offense. A surveillance camera videotape showed that a person's foot was in the doorway keeping the door open while the robbery occurred. Butler identified defendant as the person who had placed his foot in the doorway in order to keep Butler from being locked in the store.
    As a result of Butler's confession, the Winston-Salem Police interviewed defendant, who subsequently gave a statement in which he admitted assisting Butler with commission of the robbery. Defendant's motion to suppress this statement was denied. Defendant pled guilty to robbery with a dangerous weapon, but, in the plea agreement, preserved his right to appeal the denial of his motion to suppress. The court accepted the plea and sentenced defendant to a minimum term of 46 months and a maximum term of 65 months.
    In reviewing a trial court's denial of a motion to suppress, this Court must accept the trial court's findings of fact as conclusive if those findings are supported by competent evidence. State v. Fincher, 309 N.C. 1, 9, 305 S.E.2d 685, 691 (1983). Determination that a defendant was in custody at the time of interrogation and that a statement was made voluntarily are fully reviewable conclusions of law. State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994); State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737 (1992).

Custodial Interrogation
    Under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), cert. denied, 396 U.S. 868, 24 L. Ed. 2d 122 (1969),statements given during custodial interrogation must be excluded if the defendant was not first warned of his rights. State v. Buchanan, 353 N.C. 332, 336-37, 543 S.E.2d 823, 826 (2001). In deciding whether defendant was subjected to a custodial interrogation, the trial court was required to determine whether defendant's statements were the result of "'questioning initiated by law enforcement officers after [defendant had] been taken into custody or otherwise deprived of his freedom of action in any significant way.'" State v. Gaines, 345 N.C. 647, 661-62, 483 S.E.2d 396, 405 (quoting State v. Phipps, 331 N.C. 427, 441, 418 S.E.2d 178, 185 (1992)), cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997). The court applies an objective test: "whether a reasonable person in defendant's position, under the totality of the circumstances, would have believed that he was under arrest or was restrained in his movement to the degree associated with a formal arrest." Buchanan, 353 N.C. at 339-40, 543 S.E.2d at 828.
    The trial court's pertinent findings of fact state that on 30 July 2001, Detective Rose and Detective Fine of the Winston-Salem Police Department located defendant near his home and told him that they wanted to talk to him and that he needed to clear his name. Detective Rose informed defendant that he was not under arrest, that a warrant was not out for his arrest, that his name had come up in a situation, and that Detective Rose needed defendant to clear his name. Detective Rose asked defendant to accompany them to the Public Safety Center to talk. When defendant asked what the situation involved, Detective Rose declined to identify theincident. The trial court found that Detective Rose did not tell defendant that he had to go with him, but he gave defendant the impression "that the defendant did have to clear his name."
    As defendant rode with the officers, he repeatedly asked them what the questioning would be about. Detective Rose responded that they needed to wait until they reached the Public Safety Center before getting into the details. The officers promised to bring defendant home after they were finished at the Public Safety Center. Defendant, however, told the officers that he had a cousin who could pick him up. When Detective Rose said that having his cousin pick him up would be okay, defendant called his cousin on his cellular telephone.
    The trial court found that the officers did not promise defendant that he would not be arrested if he spoke with them. Specifically, he "was not told, before arriving at the Public Safety Center, that if he would confess that he would not be charged. However, the defendant was told that after the interview he would be allowed to leave."
    After arriving at the Public Safety Center, the officers took defendant to an interview room. The trial court stated that "Detective Rose made it clear to the defendant that he was free to leave at any time" and explained to him how to leave the room. The trial court further found that "defendant felt free to leave at any and all times throughout the interview. The manner in which Detective Rose spoke with the defendant made the defendant feel at ease."     After defendant sat down, Detective Rose again told defendant he was free to go at any time. Defendant still had his cellular telephone with him and was permitted to take several calls while inside the interview room. At the point when Detective Rose began discussing the Crown Gas Station robbery with defendant, Detective Rose had not yet decided whether he would charge defendant after the interview.
    The trial court found that the interview lasted part of the afternoon. Initially, defendant denied any involvement in the robbery. During the course of the interview, defendant received a telephone call, after which defendant indicated that he wanted to hurry and get the interview done so he could see a girl. Defendant eventually admitted that he had held his foot in the door while Warren Butler robbed the gas station. After defendant made that unrecorded statement, Detective Rose then brought out a tape recorder to record a statement. Defendant again indicated his involvement in the robbery, but refused to disclose the names of others who were involved or what they did. After conferring with his supervisor and Detective Fine, Detective Rose decided to charge defendant.
    According to the trial court, during defendant's time at the Public Safety Center, he never asked to leave, he was never prevented from leaving, and his freedom of movement was never restricted in any substantial way. The court noted that defendant was not held incommunicado, his mental and physical condition were good, he was not deprived of food or sleep, the detectives werecordial and friendly, and the environment in which defendant was questioned was not intimidating. Defendant never requested a lawyer. The court found that defendant had been contacted by police on previous occasions and, "[a]t such other times, he had made a decision to talk to police and a decision not to talk with police."
    We hold that the findings of fact are amply supported by competent evidence. While defendant points to evidence that would allow different inferences to be drawn, it is beyond the scope of our review to reweigh the evidence or revisit credibility determinations. We note, however, that defendant himself candidly testified that he felt "real comfortable" during the interview and at all times felt free to leave.
    The trial court's findings of fact in turn are sufficient to support a conclusion that a reasonable person in defendant's position would not have believed himself to be "in custody" within the meaning of Miranda. Defendant voluntarily went with the police to the Public Safety Center, he was repeatedly told that he was free to leave, the officers took no action inconsistent with those assurances, defendant was shown how to leave the building, defendant was allowed to talk freely on his cell phone, and defendant felt free to leave and at ease. See State v. Sanders, 122 N.C. App. 691, 694, 471 S.E.2d 641, 643 (1996) (defendant not in custody when voluntarily accompanied detectives to police station, interview lasted only two hours, defendant was not threatened, and defendant was told that he could call his wifelater).
Voluntariness of Statements
    Alternatively, defendant claims that his statements were not voluntarily made. Even in situations when Miranda warnings are not required, a statement must be excluded if made under circumstances rendering it involuntary. State v. Wiggins, 334 N.C. 18, 28, 431 S.E.2d 755, 761 (1993). We affirm the trial court's determination that defendant's statements were voluntarily made.
    Defendant points to the fact that he had used alcohol and marijuana prior to giving his statement. A defendant's intoxication does not, however, require a finding that a statement was involuntary. State v. Barnes, 154 N.C. App. 111, 116, 572 S.E.2d 165, 168 (2002) (prior consumption of prescription drugs and alcohol did not make incriminating statements involuntary), disc. review denied, 356 N.C. 679, 577 S.E.2d 892 (2003). "An inculpatory statement is admissible unless the defendant is so intoxicated that he is unconscious of the meaning of the words." State v. Oxendine, 303 N.C. 235, 243, 278 S.E.2d 200, 205 (1981). The evidence in this record does not reveal such a level of intoxication.
    Defendant also argues that he was promised that he would not be arrested if he gave a statement. The trial court, however, found that "defendant was not led to believe that he would not be charged if he confessed his participation in the armed robbery" and he "was not led to believe that he would be allowed to go if he just went ahead and confessed to his participation in the armedrobbery." Although early on, defendant was told that he could go home after he was finished at the Public Safety Center, "there were no promises made by the detectives to the defendant during the time he was with the detectives. No promises were made to the defendant to obtain a confession." These findings are supported by competent evidence in the record and, therefore, conclusive on appeal. These findings _ together with findings that defendant was not threatened, the detectives were cordial and friendly, and the environment was not intimidating _ are also sufficient to establish the voluntariness of defendant's confession.
    The order denying the motion to suppress is affirmed.

    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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