STATE OF NORTH CAROLINA
v
.
Craven County
Nos. 01 CRS 003869
JAMES ALBERT BRYANT, JR. 00 CRS 51007
Attorney General Roy Cooper, by Assistant Attorney General
David Gordon, for the State.
Kurtz & Blum, P.L.L.C., by Howard A. Kurtz, for defendant-
appellant.
EAGLES, Chief Judge.
Defendant James Albert Bryant, Jr. appeals from convictions
for one count of taking indecent liberties with a child and one
count of statutory rape. Defendant raises two arguments on appeal:
(1) that defendant was deprived of his constitutional right to the
effective assistance of counsel; and (2) that the trial court erred
by allowing the admission of defendant's statement against him.
After careful examination of the record, transcript and briefs, we
find no error.
The evidence tends to show the following. Defendant lived in
James City in June 2000. Defendant lived in a trailer with his
wife, her two daughters, Selena and Monique, and Selena's infantdaughter. Selena was 22 at the time and Monique was 13. Selena
stated that she and a few other members of the family had become
suspicious of defendant's behavior around Monique at that time.
On 3 June 2000, Selena returned shortly after midnight.
Selena decided to sneak into the trailer to see if she could catch
defendant doing something improper with Monique. Selena parked her
car on the side of the street instead of pulling it into the yard
and approached the house as quietly as possible. When she began to
unlock the front door with her keys, a dog inside the trailer
started barking. Selena opened the door quickly and observed
defendant running out of the front room with a blanket covering the
lower half of his body. Selena also saw Monique running from the
living room, in the opposite direction as defendant, wearing only
a tee shirt, with no underwear or shorts. Selena confronted
Monique, asking what had happened when Selena arrived, but Monique
denied that any sexual contact occurred. Neither defendant nor
Monique would give Selena her mother's telephone number at work.
On the afternoon of the same day, Selena again asked Monique what
Monique and defendant had been doing when Selena entered the
trailer. Monique replied that “this was the first time” and “it
didn't go all the way in.” Selena contacted the police on the
following Monday and gave a statement to Investigator Strawbridge.
Monique testified that on the evening of 2 June 2000, she and
defendant were at home alone. Monique found a pornographic website
on the computer at defendant's request. After Monique found the
website for defendant, he began rubbing her breast and touched hervagina. He stood her up and removed her underwear and shorts.
Monique laid down and defendant briefly penetrated her vagina with
his penis. Monique stated that she was unsure how far defendant
penetrated her, because she immediately moved when she felt the
penetration. At this point, Selena arrived and interrupted her and
defendant. Monique initially denied that she and defendant had
sexual contact on 2 June. However, Monique testified that she and
defendant had engaged in sexual behavior before 2 June 2000.
Monique would usually mix an alcoholic drink for defendant, find a
pornographic website at defendant's request and they would “fool
around.” Monique stated that on several occasions after she found
a website, defendant would ask her to fondle his penis until he
ejaculated. In addition, Monique told the investigator that
defendant had performed oral sex on her and had inserted his finger
in her vagina several times before 2 June 2000. Monique told her
mother and sister that she and defendant had sexual intercourse on
2 June 2000. Monique later gave a statement to Investigator
Strawbridge.
Investigator Ike Strawbridge collected the statements from
Monique and Selena. He went to interview defendant on 19 June
2000. Strawbridge asked defendant to come to his office.
Defendant rode in the front passenger seat of Strawbridge's car and
was not handcuffed. Strawbridge talked to defendant in his office
rather than in the interview room. Strawbridge told defendant that
he would take defendant back to defendant's car when they finished
talking. Strawbridge did not place defendant under arrest or readdefendant his Miranda rights. Defendant and Strawbridge knew each
other because Strawbridge had arrested defendant several times
before. Defendant indicated that he had three years of college
education.
Strawbridge asked defendant to tell Strawbridge defendant's
side of the story. Defendant denied that anything had happened
between him and Monique. When Strawbridge asked defendant to tell
the truth, defendant responded by giving Strawbridge a statement.
Defendant admitted that he had taken indecent liberties with
Monique, but denied that he ever penetrated Monique with his penis.
Defendant stated that Monique was the aggressor in all of the
sexual contact they had and that he never forced any contact with
her. Defendant described an incident approximately six months
before 2 June 2000, when defendant caught Monique in her mother's
car with a boy after midnight. Defendant stated that he ran the
boy off and told Monique's mother about her behavior. Defendant
stated that Monique began “messing with” him about two or three
months after the car encounter. Defendant believed that Monique
initiated the sexual encounter on 2 June 2000 to get revenge or to
keep defendant from telling her mother about the earlier incident
with the boy in the car. Defendant also believed that Selena had
encouraged Monique to get defendant in trouble.
Defendant signed his statement and Investigator Strawbridge
returned defendant to where he had been picked up. Strawbridge
issued an arrest warrant for defendant approximately ten days
later. The jury found defendant guilty of indecent liberties witha minor and statutory rape. The trial court sentenced defendant to
340 to 417 months of imprisonment. Defendant appeals.
Defendant's first argument on appeal is that he did not
receive the effective assistance of counsel. Defendant contends
that his trial attorney offered a defense of consent to the charges
against defendant. Defendant argues that consent is not a viable
defense to the charges of statutory rape and indecent liberties
with a minor. Therefore, defense counsel's use of this argument as
his sole defense denied defendant the effective assistance of
counsel at trial. We disagree that defense counsel's conduct rises
to the level of ineffective assistance of counsel.
A criminal defendant is guaranteed the effective assistance of
counsel during his trial by the United States and North Carolina
Constitutions. See U.S. Const. amend. VI and N.C. Const. art. I,
§ 23. The United States Supreme Court has outlined the standard
for determining whether a defendant benefitted from effective
assistance of counsel as follows:
First the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
“counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984). The Strickland test was adopted by the North CarolinaSupreme Court in 1985. See State v. Braswell, 312 N.C. 553, 324
S.E.2d 241 (1985).
Here, defendant contends his trial counsel's choice of an
invalid defense constituted deficient performance that prejudiced
his defense. Defendant argues that his trial counsel's only
argument on defendant's behalf against the statutory rape charge
was the initiation of sexual activity by the child involved. It is
well-settled that consent is not a defense to statutory rape. See
State v. Anthony, 351 N.C. 611, 528 S.E.2d 321 (2000). Similarly,
initiation of the sexual encounter by the child has not been
recognized as a defense to a charge of statutory rape. See G.S. §
14-27.7A(a)(2001).
Defendant argues that the following exchange during trial
counsel's cross-examination of Investigator Strawbridge constitutes
ineffective assistance of counsel:
Q: Now, from [defendant's] statement, would it
not appear that Monique was the aggressor in
these episodes?
A: Counselor, I can't imagine a twelve-year-
old being an aggressor with a fifty-some year
old, but that's his statement.
. . . .
Q: Well, if he was laying on the sofa, minding
his own business and she comes over and starts
playing with him, isn't she the aggressor in
that instance?
. . . .
Q: Well, you don't know who's telling the
truth, do you?
A: That's why we're in court, sir.
. . . .
Q: Also, she testified, did she not, that he
got her to go on the internet and find these
pornographic films, right?
A: That he got her to, yes, sir. That's what
her testimony was, as I recall it.
Q: In his statement he caught her doing it,
right?
. . . .
Q: And [defendant] also told you about that
incident in the car with the boy, didn't he?
A: He said that he had caught her in a car
with a boy, yes, sir.
Q: About six months earlier, right?
A: About six months ago, yes, sir.
Q: And then it was after, about three months
after that that she started to be an aggressor
with him, right? Doesn't his statement say
that?
. . . .
Q: Doesn't that tell you that she tried to get
[defendant] not to tell her mother about
catching her in the car with the boy? She
tried to set him up?
However, upon closer examination, it appears that defendant's trial
counsel was attempting to limit or destroy the complaining
witness's credibility. Trial counsel's line of questioning
Strawbridge, in addition to his cross-examination of the
complaining witness regarding her encounter with the unidentified
boy, indicates that trial counsel was attempting to establish a
motive for the complaining witness to lie about defendant's actions
towards her. The complaining witness's testimony was the onlyevidence presented that established the elements of the statutory
rape charge. If the jury found her testimony to be lacking in
credibility, the jury could conclude that the State had failed to
meet its burden of proof for statutory rape. Therefore, this line
of questioning by trial counsel was not deficient representation
because, if accepted by the jury, it presented a valid defense.
Trial defense counsel is given wide latitude to determine its trial
strategies, and in particular, what theory of defense it will
attempt to establish. See State v. Jaynes, 353 N.C. 534, 548, 549
S.E.2d 179, 191 (2001), cert. denied, 535 U.S. 934, 152 L. Ed. 2d
220 (2002); State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739
(1986). Because defendant has failed to prove that his counsel's
performance was deficient according to the first part of the
Strickland test, we do not need to examine the second part of the
test regarding whether the counsel's deficient performance
prejudiced the defense. We hold that defendant received the
effective assistance of counsel at his trial. This assignment of
error is overruled.
Defendant also assigns error to the trial court's denial of
his motion to suppress defendant's statement. Defendant argues
that this statement was coerced. Defendant contends that the
statement was given while defendant was in custody and without a
Miranda warning from Investigator Strawbridge. Defendant contends
that this statement should have been suppressed because it was
obtained in a manner that violated his constitutional rights. We
disagree. Here, the trial court conducted a voir dire hearing on whether
defendant's statement should be suppressed. The trial court made
findings of fact regarding the circumstances surrounding
defendant's statement. The court then concluded that the statement
was given voluntarily and that defendant's constitutional rights
were not violated before denying the motion to suppress.
On appeal, “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 661 (2001)). However,
“the trial court's determination of whether an interrogation is
conducted while a person is in custody involves reaching a
conclusion of law, which is fully reviewable on appeal.” Buchanan,
353 N.C. at 336, 543 S.E.2d at 826 (citing State v. Greene, 332
N.C. 565, 577, 422 S.E.2d 730, 737 (1992)). In order to review a
trial court's conclusion regarding whether a defendant was in
custody, “an appellate court must examine all the circumstances
surrounding the interrogation; but the definitive inquiry is
whether there was a formal arrest or a restraint on freedom of
movement of the degree associated with a formal arrest.” State v.
Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405, cert. denied, 522
U.S. 900, 139 L. Ed. 2d 177 (1997); see also Buchanan, 353 N.C.
332, 543 S.E.2d 823; Brewington, 352 N.C. 489, 532 S.E.2d 496. Here, neither party asserts that a formal arrest had occurred
when defendant gave his statement. Therefore, we must analyze the
circumstances surrounding defendant's conversation with
Investigator Strawbridge in order to determine whether there was a
restraint on defendant's freedom of movement of the degree
associated with a formal arrest. The trial court found that
defendant knew Investigator Strawbridge, who had arrested defendant
several times. Strawbridge told defendant that he would return
defendant when they were finished talking. Defendant rode to
Strawbridge's office in the police vehicle, but rode in the front
seat and did not wear handcuffs during the trip. Defendant spent
approximately one hour speaking with Strawbridge, including the
trips riding to and from the police station. Strawbridge told
defendant that defendant was a suspect before defendant gave his
statement. These circumstances, in combination, do not indicate
that defendant's movement was restrained to the degree associated
with an arrest. We hold that defendant was not in custody when he
was interrogated and was not entitled to a Miranda warning by
Strawbridge.
In addition, defendant argues that his statement was not
voluntary. North Carolina has adopted the federal test for
determining voluntariness of a statement. See State v. Hardy, 339
N.C. 207, 222, 451 S.E.2d 600, 608 (1994); State v. Jackson, 308
N.C. 549, 581, 304 S.E.2d 134, 152 (1983). A statement is
voluntarily given “[i]f, looking to the totality of the
circumstances, the confession is the 'product of an essentiallyfree and unconstrained choice by its maker.'” Hardy, 339 N.C. at
222, 451 S.E.2d at 608 (quoting Schneckloth v. Bustamonte, 412 U.S.
218, 225, 36 L. Ed. 2d 854, 862 (1973)). Some of the factors to
be considered when determining whether a statement was voluntary
are:
whether defendant was in custody, whether he
was deceived, whether his Miranda rights were
honored, whether he was held incommunicado,
the length of the interrogation, whether there
were physical threats or shows of violence,
whether promises were made to obtain the
confession, the familiarity of the declarant
with the criminal justice system, and the
mental condition of the declarant.
Hardy, 339 N.C. at 222, 451 S.E.2d at 608. Again, “[t]he trial
court's findings of fact are binding if supported by competent
evidence in the record.” Hardy, 339 N.C. at 222, 451 S.E.2d at 608.
However, the conclusion that defendant's statement was voluntary is
fully reviewable as a conclusion of law on appeal. Id.
Here, the trial court made findings regarding several of the
factors outlined in Hardy. The trial court found that defendant
was not in custody and was not given Miranda warnings. Defendant's
interview lasted approximately one hour. The trial court made no
findings related to whether defendant was held incommunicado,
threatened or promised anything in order to force defendant to make
a statement. However, the court found that defendant had been
arrested several times, which indicates that defendant was familiar
with the criminal justice system. Also, defendant was found to
have completed three years of college education and found to be
educated and able to speak and write in English. Viewing thecircumstances in their totality, we hold that the trial court's
conclusion that defendant voluntarily gave his statement was not
erroneous. Therefore, this assignment of error is overruled.
For the reasons stated above, we find no error.
No error.
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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