STATE OF NORTH CAROLINA
v. Guilford County
Nos. 01 CRS 94043-44
ROY LINDSAY CASE 01 CRS 94086-89
Attorney General Roy Cooper, by Assistant Attorney General
Daniel P. O'Brien, for the State.
Joal H. Broun for defendant-appellant.
STEELMAN, Judge.
Defendant was charged with numerous sex offenses. Prior to
trial, defendant filed a motion to suppress statements he made to
deputies of the Guilford County Sheriff's Department and any
evidence seized as a result of his statement. Defendant, Deputy
Leonard Stump, Jr., Sergeant Robert R. Hamilton, Jr., Detective
David Clifton Shaw, and Detective Janet Ellington testified at the
suppression hearing. After hearing the evidence and arguments of
counsel, the trial court denied defendant's motion to suppress.
Thereafter, defendant pled guilty to four counts of statutory sex
offense, two counts of third degree sexual exploitation and four
counts of indecent liberties with a child. The trial courtsentenced defendant to 191 to 239 months imprisonment.
In his plea agreement, defendant specifically reserved his
right to appeal the trial court's denial of his motion to suppress
his statements. Defendant now seeks review of the order denying
his suppression motion. Defendant argues that the deputies induced
him “to waive his right to counsel and his right to silence by
'promising' they would get him help.” He also argues that his
statement was the result of a custodial interrogation without
Miranda warnings.
In reviewing a ruling on a motion to suppress, this Court is
generally limited to a determination of "whether the trial court's
findings of fact are supported by competent evidence, and whether
these findings of fact support the court's conclusions of law."
State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282
(2000)(citation omitted). The Court's review is further limited,
where, as here, defendant fails to specifically assign error to the
trial court's findings. In such cases, “the facts found will be
presumed to be correct and supported by the evidence and thus are
binding on appeal.” State v. Tate, 300 N.C. 180, 184, 265 S.E.2d
223, 226 (1980)(citations omitted). Therefore, our review is
limited to whether the trial court's findings support its
conclusions of law.
The trial court made the following pertinent findings of fact:
7. On or about August 8, 2001, at
approximately 3:00 p.m., the Guilford County
Sheriff's Department received a request to
investigate a possible Breaking and Entering
and Larceny at the home of Roy Lindsay Case at
7315 Shadyside Drive in Summerfield, NorthCarolina.
10. Upon arrival, Roy Case pointed out the
items missing from the home and voluntarily
walked through the premises with the Deputy.
16. As part of the Breaking and Entering
investigation, and while walking through the
home with the permission of the defendant,
Detective Shaw observed a marijuana bong or
bowl in plain view. Det. Shaw then asked for
and received written permission to search the
defendant's house.
17. Upon request to search by Detective Shaw,
the defendant indicated that he had marijuana
and other drug paraphernalia in the home.
18. Upon search of the residence, officers
found marijuana seeds and books appearing to
contain child pornography.
21. Subsequent to the search of the home,
Detective Shaw asked the defendant to go to
the Sheriff's Department to discuss the
Breaking and Entering and books appearing to
contain child pornography.
22. The defendant voluntarily rode with the
Detective to the Sheriff's Department, riding
in the front seat of the car.
25. The defendant spoke with Detective[s] Shaw
and Everett regarding the Breaking and
entering and the Detective subsequently
arrested the defendant for possession of child
pornography.
26. The defendant was read and waived his
Miranda rights in writing.
27. The defendant was subsequently interviewed
by Detective Shaw and Detective Everett and
provided a 12 page written statement
confessing to numerous sexual assaults over
the past 30 years.
28. The defendant provided oral statements to
the Detective and then Detective Shaw prepared
written statements which the defendant read,
corrected and signed. That this process took
many hours due to the lengthy historydisclosed by the defendant.
29. These statements are the subject of this
motion to suppress.
38. [T]he defendant testified that he went to
the car of Detective Shaw and agreed both
verbally and in writing to a search of his
home.
39. He was present in the home during the
search.
40. Upon the completion of the search, the
defendant testified that he agreed to go with
Detective Shaw to the Sheriff's Department to
speak with them because “It was to my
advantage.”
41. The defendant testified that he had taken
Demerol in the morning before going to work
and another tablet in the afternoon, and that
he had worked all day.
42. The defendant testified that the
Detectives asked him if he had been abused as
a child and that he could get help.
43. The defendant testified that the
Detectives didn't specify what type of help he
could receive and that no specific promise was
made to him as to what type of help other than
a representation that the help would be
outside the court system.
44. The defendant testified that the
Detectives told him he could get help if he
made a statement and that he thought they
meant help outside the court system, but that
the type of help was never specified or
promised to him.
Based upon those findings, the court concluded:
1. The defendant freely, voluntarily and
understandingly waived his Miranda rights and
agreed to speak to the Detectives without
legal representation.
2. The statements given by the defendant were
a result of lawful interrogation by the
Detectives and such statements were obtainedwithout violation of the defendant[']s Fourth
or Fifth amendment rights or his statutory
rights pursuant to chapter 15A of the North
Carolina General Statutes.
3. The evidence presented is uncontroverted
that the defendant took a prescription drug
Demerol twice during the day of August 8,
2001, the amount of dosage taken by the
defendant in the afternoon was the same amount
taken in the morning which allowed the
defendant to work all day. That the defendant
testified he took the second dose at
approximately 4:00 and signed the statements
of confession after midnight. That the
medication effects were minimal, diminished or
worn off and had no effect on the
defendant[']s ability to waive his Miranda
rights.
4. The interrogation went on for approximately
10 hours but that the length of the
interrogation was not egregious under the
circumstances. No element of coercion existed
during the interrogation nor were the
defendant's rights violated. The length of
the time was due to the long history provided
by the defendant, which was given orally, then
written, and later reviewed by the defendant
prior to signing.
5. The defendant is well educated and had
every opportunity to cease interrogation, but
chose not to.
6. The defendant testified and detectives
agreed that there was a discussion that
defendant could receive help for pedophilia or
psychological needs. The defendant testified
that he felt there was an implication that he
might not be prosecuted, but the clear
testimony is that the defendant inferred this
from the detectives' offer of help. Said
offer to help the defendant was never stated
or promised by the Detectives in the context
of deferring prosecution, reducing the
charges, or recommending a reduction in his
sentence.
Based upon this record, we hold that the court's findings
support the trial court's conclusions that the defendant "freely,voluntarily and understandingly” waived his Miranda rights; that
defendant's statements were a result of a lawful interrogation
without coercion or promises as to prosecuting the case.
Accordingly, we affirm the trial court's denial of defendant's
motion to suppress his statement.
In his next argument, defendant challenges the voluntariness
of the consent to search his residence. Defendant, however, failed
to assign this issue as error, in violation of N.C. R. App. P.
10(a) ("scope of review on appeal is confined to a consideration of
those assignments of error set out in the record on appeal in
accordance with this Rule 10"). More importantly, defendant has no
right to appeal the issue of the voluntariness of his consent to
search. Defendant properly preserved his right of appeal from the
denial of his motion to suppress his statement and the evidence
seized as a result of his statement pursuant to N.C. Gen. Stat. §
15A-979(b)(2003)(This section “permits appellate review of a final
order denying a motion to suppress even though judgment has been
entered upon a plea of guilty.” State v. Afflerback, 46 N.C. App.
344, 346, 264 S.E.2d 784, 785 (1980)). However, defendant's motion
to suppress did not encompass the voluntariness of his consent to
search, and this issue was not preserved for appeal following his
guilty plea. In the absence of preservation of this issue under
N.C. Gen. Stat. § 15A-979(b), the defendant has no right of appeal
on this issue under N.C. Gen. Stat. § 15A-1444(a2) unless the
appeal is of sentencing issues or the defendant had made an
unsuccessful motion to withdraw the guilty plea. State v.Pimental, 153 N.C. App. 69, 568 S.E.2d 867 (2002). Neither of
these things having been shown, this argument is dismissed.
Affirmed.
Judges HUDSON and THORNBURG concur.
Report per Rule 30(e).
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