An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA99-1574-2


Filed: 20 January 2004


v .                         Catawba County
                            No. 97 CRS 10058-59

    Appeal by defendant from judgments entered 30 March 1999 by Judge J. Marlene Hyatt in the Superior Court in Catawba County. Heard in the Court of Appeals 13 February 2001; by decision filed 17 April 2001, the Court of Appeals awarded a new trial. State v. Reed, 143 N.C. App 155, 545 S.E.2d 249 (2001). Heard in the Supreme Court 15 November 2001; by decision filed 1 February 2002. State v. Reed, 355 N.C. 150, 558 S.E.2d 167 (2002). Heard on remand by a reconstituted panel of the Court of Appeals.

    Attorney General Michael F. Easley, by Assistant Attorney General Buren R. Shields, III, for the State.

    Mark L. Killian, for defendant.

    HUDSON, Judge.

    A jury convicted defendant of two counts of first degree murder and the court sentenced him to two consecutive terms of life imprisonment. Defendant appealed, raising five assignments of error. This Court issued its decision 17 April 2001, vacating the judgment and ordering a new trial based on defendant's first assignment of error. In February 2002, the Supreme Court reversed and remanded to this Court, which now considers the remaining fourissues. For the reasons discussed below, we overrule defendant's remaining four assignments of error.
    The State's evidence tended to show the following. On 20 June 1997, Norah Pope (“Pope”) called the Catawba County Sheriff's Department to report a domestic dispute with defendant, her boyfriend. Two deputies responded to Pope's home, and on their advice, Pope swore out four misdemeanor arrest warrants on defendant, including for assault on a female and communicating a threat. The Sheriff's Department last had contact with Pope at about 10 p.m. Lorri Penly, a friend and co-worker of Pope, testified that she spoke with Pope on the phone at 10 p.m. and offered to come to her home. Pope declined, telling Penly that a friend was staying with her.
    A few hours later, at 2:48 a.m., sheriff's deputies arrested defendant at his home pursuant to the warrants. At that time, one of the officers tried to contact Pope to notify her that defendant was in custody, but Pope's phone line was busy. Later that morning, Griff Holston, the husband of Suzie Holston (“Holston”), another friend and co-worker of Pope, drove past their workplace, but did not see his wife's car. Mr. Holston then drove by Pope's home and saw the car in the driveway, but got no answer when he rang the doorbell. Neither woman appeared at work as scheduled.
    Shortly thereafter, deputies from the sheriff's department entered the home, and discovered the bodies of Norah Pope and Suzie Holston. Dr. James Parker, a pathologist who performed the autopsies on both women, testified that they were killed in theirsleep by gunshots to the head. The officers saw no signs of forced entry to Pope's home, but discovered that the telephone line had been cut.
    When sheriff's department Captain Coy Reid (“Capt. Reid”) discovered that defendant was in custody, he brought defendant to an interrogation room and informed him of his Miranda rights. Defendant waived his rights to remain silent and to have an attorney present during the interrogation. The interrogation lasted approximately one hour and nineteen minutes. Defendant told Capt. Reid that “he had been in a bad car wreck and it caused damage to his brain.” Defendant also said that he should be punished for what he had done, but that it was not first degree murder. Defendant also said that when his father arrived, he would tell Reid everything. Defendant consented to a search of his home and car, and the interview ended.
    Later that afternoon, Capt. Reid and a sheriff's department detective interviewed defendant a second time. Defendant waived his rights again and repeated that he would tell everything once his father arrived. Defendant also made several inculpatory statements, although he did not confess to the murders. This second interview lasted approximately fifty minutes.
    Tommy Boyette testified for the State that defendant spoke to him while both were in jail awaiting trial. According to Boyette defendant told him how he cut Pope's phone line, entered the home, hid in a closet until Pope and Holston came home, and then shot the two women.    Before trial, defendant moved to suppress his statements to Reid and to Boyette. At a hearing on the motions, the interviewing officers and Boyette testifed, as did Dr. Richard Lanham, a clinical neuropsychologist. Dr. Lanham testified concerning defendant's alleged brain injury, establishing that defendant suffered a severe brain injury as a result of a high speed car crash in December 1996. Dr. Lanham further testified that the effects of that injury could have persisted until the time of the murders, and could have affected defendant's ability to knowingly waive his rights and the voluntariness of his statements. The court made findings of fact and concluded that defendant's constitutional rights had not been violated and that his statements to officers and to Boyette had been made voluntarily, knowingly and intelligently. The court then denied the motion to suppress.

    Defendant first assigns error to the court's denial of his motion to suppress his statements to Capt. Reid on the grounds that his statements were elicited after he invoked his right to remain silent and that the statements were involuntary. Defendant contends that his statement to Capt. Reid that he would tell the officers everything if they waited until his father arrived was an assertion of his wish to remain silent. For the reasons discussed below, we disagree and find no error.
    “[A] criminal defendant who has been advised of and has waived his rights has the right to terminate a custodial interrogation by indicating 'in any manner, [and] at any time prior to or duringquestioning, that he wishes to remain silent.'” State v. Murphy, 342 N.C. 813, 823, 467 S.E.2d 428, 434 (1996) (quoting Miranda v. Arizona, 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, (1966). In Murphy, the defendant abruptly stood up and stated “I got nothing to say.” Id. Our Supreme Court found these actions “clear indicators that [defendant] wished to terminate the interrogation and invoke his right to remain silent.” Id.
    In State v. Hunt, this Court found that a sixteen-year-old defendant who asked for his parents to be present before he answered any further questions had invoked his right to remain silent, and that his subsequent statements to police were inadmissible. 64 N.C. App. 81, 86, 306 S.E.2d 846, 850, disc. review denied, 309 N.C. 824, 310 S.E.2d 354 (1983). In that case, an “inexperienced and youthful defendant told [police] he did not want to answer any more questions until his parents arrived.” Id. to 85, 306 S.E.2d at 849. In the case of juvenile defendants, once a parent as been requested, “[the] defendant may not be interrogated further 'until [counsel, parent, guardian, or custodian] has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” State v. Branham, 153 N.C. App. 91, 95, 569 S.E.2d 24, 27 (2002) (quoting Michigan v. Jackson, 475 U.S. 625, 626, 89 L. Ed. 2d 631, 636 (1986)).
    Here, defendant never invoked his right to remain silent. His statements to Capt. Reid that “if you wait until my dad comes, I'll tell you everything” and later, “just wait till [sic] my dad comesand I'll tell you everything” were merely conditional statements. These comments are not analogous to Murphy, where the defendant clearly indicated by word and action that he did not wish to speak. Defendant's reliance on Hunt is likewise misplaced. Here, defendant was a twenty-eight-year-old adult, rather than a juvenile. Further, he did not state at any time that he did not want to continue the interrogation, but merely said that once his father arrived, he would tell the officers everything.
    The circumstances of defendant's interrogation here are more similar to those in State v. Fletcher, 348 N.C. 292, 500 S.E.2d 668 (1998), cert. denied, 525 U.S. 1180, 143 L. Ed. 2d 113 (1999). In Fletcher, “defendant made a statement that after he had gotten some sleep he would be willing to take the officers to the place where he had thrown some purses he had stolen from breaking into vehicles.” Id. at 306, 500 S.E.2d at 676. The officers ended the interview, but when they later resumed their questioning of the defendant, he made incriminating statements. Id. The later statements were held admissible because defendant Fletcher never clearly invoked his right to remain silent and to end the interrogation. Id. Here, as in Fletcher, defendant did not clearly invoke those rights.
    A custodial statement is voluntary when, in “the totality of the circumstances, the confession is the product of an essentially free and unconstrained choice by its maker.” State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994) (internal citations and quotations omitted). Factors to be considered include        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.

Id. If the court determines defendant's “will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process” and the statement must be suppressed. Id. (internal quotation marks and citations omitted). Here, defendant was in custody, his Miranda rights were honored, and he was not held incommunicado. Although defendant was not familiar with the criminal justice system, no physical threats were made against him by the officers, and the two interrogations lasted eighty and fifty minutes respectively.
    Defendant contends that he was deceived by Capt. Reid, who implied during the first interview that one of the victims was still alive and able to testify against him. Our Supreme Court has held that although it does not condone such tactics, their use alone does not establish coercion. State v. Jackson, 308 N.C. 549, 582, 304 S.E.2d 134, 152 (1983), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989).
    Defendant also alleges that Capt. Reid made promises to induce his statement and that defendant's mental condition prevented him from making his statement voluntarily. Capt. Reid testified “I told him that I wanted to give him one more chance to tell me in this case and it would help me decide whether it was first degreemurder, second degree murder or manslaughter” and “I needed to know what he left out so I could judge whether he was a first degree murderer or just someone that snapped.” Defendant argues these statements by Capt. Reid to defendant were impermissible as promises or inducements.
    Not all promises or threats made by officers during interrogations render statements involuntary. An improper inducement implies that a defendant “would be treated better by the criminal justice system if he confessed.” Hardy, 339 N.C. at 223, 451 S.E.2d at 609. Capt. Reid's comments to defendant did not constitute a promise of better treatment in the criminal justice system in exchange for a confession or inculpatory statement. On the contrary, when defendant proposed that he would tell Capt. Reid everything that happened in exchange for a promise to reduce the charges against him to manslaughter, Capt. Reid responded that he could not make any such promises about the outcome of the case, but wanted to know what happened “just for his own knowledge.” Capt. Reid's statements are analogous to those at issue in Hardy, where an agent told the defendant
        I want to know. . . why [you killed your wife], and that is important to you, because that has to do in the criminal system--that is going to have a lot to do with how you are treated and what happens to you. If you don't tell me the reason. . . then all we are going to look like [sic] is that you just went there and killed her. . . .If your side is not told, it's going to appear to be a lot worse than it looks.

Hardy, 339 N.C. at 223, 451 S.E.2d at 609. In Hardy, our Supreme Court held that, although the agent's statements in isolation might appear to contain impermissible implicit promises or threats, in context they did not constitute coercion. Id.
    The competent evidence before the court, including Capt. Reid's testimony that he informed defendant that he could not make promises about the outcome of the case, supports the court's finding that “no promises were made to obtain [defendant's] statements.”
    With regard to defendant's mental condition, Dr. Lanham testified extensively on the potential effects that a brain injury like defendant's would have on stress-management, emotional control, and resistence to coercion and manipulation. Dr. Lanham further testified that while defendant might have understood the words Capt. Reid read to him, defendant might not have understood the concepts of those rights or the ramifications of waiving them. Defense counsel asked Dr. Lanham hypothetically whether a person in defendant's condition and circumstances could make a voluntary statement, and he replied, “I think a very plausible argument could be made that it was not.” On cross-examination, however, when Dr. Lanham was asked for his opinion on the voluntariness of defendant's statement, he responded “I don't know,” and later acknowledged that it was a “plausible possibility” that defendant did understand his rights. Ultimately, the court found Dr. Lanham's testimony inconclusive.    While Dr. Lanham's testimony raises an issue about defendant's capacity, diminished capacity does not necessarily prevent a defendant from knowingly and understandingly waiving his rights. See, e.g., State v. Fincher, 309 N.C. 1, 8, 305 S.E.2d 685, 690 (1983) (holding a youthful defendant who was mentally retarded could knowingly and intelligently waive his Miranda rights); State v. Russell, 92 N.C. App. 639, 645, 376 S.E.2d 458, 462 (1989) (holding that subnormal mental capacity alone does not render a confession incompetent); State v. Basden, 19 N.C. App. 258, 259, 198 S.E.2d 494, 495, cert. denied, 284 N.C. 425, 200 S.E.2d 661 (1973) (holding that subnormal mental capacity does not render confession incompetent where the court finds upon competent evidence that the confession was freely, voluntarily and understandingly made). Further, in the case of a defendant unable to fully appreciate the import of her confession due to brain injury from a self-inflicted gunshot, our Supreme Court has held that “[i]f [defendant] was not fully capable of appreciating the seriousness of the confession, this does not make [her confession] inadmissible if it otherwise has the indicia of reliability.” State v. Shyte, 323 N.C. 684, 690, 374 S.E.2d 573, 576 (1989). Nor does expert psychiatric testimony that a defendant is “more easily intimidated than the average person” necessitate a finding that his statement is coerced. State v. Thompson, 287 N.C. 303, 312, 214 S.E.2d 742, 748 (1975), vacated in non-pertinent part, 428 U.S. 908, 49 L. Ed. 2d 1213 (1976).    The court here found that “[a]t the time of each interview, the defendant appeared calm and coherent. . . . there were no physical threats or shows of violence. . . .[and] no evidence that the physical setting itself was intimidating to the defendant. . . . That the defendant appeared to understand the questions asked, and his responses appeared appropriate to the questions asked.” “Nothing in the record suggests that the trial court in this case failed to give adequate consideration to all pertinent circumstances in making its determination as to the competency of defendant's statement.” Basden, 19 N.C. App. at 259, 198 S.E.2d at 495. Thus, we hold that the court did not err in concluding that defendant's statement was voluntary.
    Because defendant never clearly invoked his right to remain silent and to stop his interrogation, and because he made the statements voluntarily, we conclude that the court did not err in denying defendant's motion to suppress his statements.
    Defendant next argues that the court failed to make sufficient findings of fact during the suppression hearing to support its conclusions of law. Specifically, defendant contends the court made insufficient findings about defendant's mental condition and merely recited witness testimony. We disagree.
    “[F]indings of fact made by the trial court following a voir dire hearing on the voluntariness of a confession are conclusive on appellate courts if supported by competent evidence in the record.” State v. Rook, 304 N.C. 201, 212, 283 S.E.2d 732, 740 (1981), cert. denied 455 U.S. 1038, 72 L. Ed. 2d 155 (1982). “Indeed, a trialjudge's findings will not be disturbed on appeal when the finding is supported by competent evidence even when there is conflicting evidence.” Id.
    At the suppression hearing, the court made the following findings of fact
        At the time of each interview, the defendant appeared calm and coherent. . . . That at the time of the interview, there were no physical threats or shows of violence. And there is no evidence that the physical setting itself was intimidating to the defendant. That no promises were made to obtain the statements. That the defendant appeared to understand the questions asked, and his responses appeared appropriate to the questions asked.


        That Dr. Lanham, an expert witness in the field of clinical neuropsychology, has testified that the defendant possibly understood the words, but did not and may not have understood the concepts. Dr. Lanham's testimony is admissible as to the weight of the evidence.

The court then concluded:
        Based upon the foregoing findings of fact, the Court concludes as a matter of law that no constitutional rights of the defendant were violated by his arrest, interrogation or confession. That the statements made by the defendant to Captain Reid, Officer Crouse and the cellmate, Tommy Boyette, were made freely, voluntarily and understandingly. Therefore, the motion to suppress as to these statements is denied.

    Failure to except to particular findings of fact at trial waives any challenge to the sufficiency of the evidence supporting those findings, and those findings are conclusive on appeal. State v. Durham, 74 N.C. App. 121, 123, 327 S.E.2d 312, 314 (1985). Here, defendant failed to except to any particular finding or to assert plain error in his assignments of error. Instead, defendant alleges that the court's finding about Dr. Lanham's testimony raised a question about his mental capacity, which in turn, made further findings of fact resolving that question necessary.
    In ruling on a motion to suppress, the court must make findings “which disclose the circumstances and conditions surrounding the making of the incriminating admissions.” State v. Barnes, 264 N.C. 517, 520, 142 S.E.2d 344, 346 (1965). However, the court need not make findings on all of the evidence presented at a hearing on the motion. State v. Dunlap, 298 N.C. 725, 730-31, 259 S.E.2d 893, 896 (1979). Here, the issue was whether defendant's mental capacity prevented his statements to Capt. Reid from being voluntary. The court's findings indicate clearly that the court considered Dr. Lanham's testimony in making its determination that defendant's statements were voluntary. Because the findings are consistent with Barnes, we overrule this assignment of error.
    Finally defendant assigns error to the failure of the court to properly exercise its discretion as required by statute regarding jury requests to review evidence during deliberations. N.C. Gen. Stat. § 15A-1233(a) (1995). We disagree.
    After retiring to deliberate, the jury requested a transcript of the testimony of Jeff Davis. The court refused the request, stating:
        As to your request to have a copy of Jeff Davis' testimony, I'm sorry, but that is notavailable. Moreover, the jury has the responsibility of recalling all the evidence. To begin rehearing parts of the testimony would tend to emphasize certain portions of the evidence without giving equal publication to the other evidence in the case. For that reason it is best not to let portions of the evidence be repeated without having it all repeated, because all of the evidence is important.

Defendant argues that in failing to allow the testimony to be read to the jury, the trial court failed to exercise its discretion in accordance with N.C. Gen. Stat. § 15A-1233(a). That statute provides that
        If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

Id. This statute imposes a duty upon the trial court to exercise its discretion in ruling upon a request to review testimony. See State v. Helms, 93 N.C App. 394, 378 S.E.2d 237 (1989); see also State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). A refusal merely upon grounds that a transcript is not available is not an exercise of discretion, and thus is error is a matter of law. See Ashe, 314 N.C. at 34, 331 S.E.2d at 656; see also State v. Lang, 301 N.C. 508, 511, 272 S.E.2d 123, 125 (1980) (holding that trial court's comment to the jury that the transcript was not availableto them was an indication that the court did not exercise its discretion).
    Here, however, the court did not base its refusal on the fact that the transcript was not available. Rather, the court stated that reviewing only part of the evidence would tend to over- emphasize that part. This remark indicates that the court was aware it could allow review of parts of the evidence, but that it chose not do so. See State v. Eason, 328 N.C. 409, 402 S.E.2d 809, (1991) (holding that denial of jury request to review evidence to avoid giving particular emphasis to the testimony of a specific witness was proper); see also State v. Jones, 47 N.C. App. 554, 563, 268 S.E.2d 6, 12 (1980). We note that when a court does not give a reason for ruling, we presume it exercised its discretion. Brittain v. Piedmont Aviation, Inc., 254 N.C. 697, 703, 120 S.E.2d 72, 76 (1961). Only a statement by the court showing a refusal to exercise discretion overcomes the presumption. State v. Johnson, 346 N.C. 119, 126, 484 S.E.2d 372, 376 (1997). For these reasons we overrule this assignment of error.
    No error.
    Judges WYNN and MCCULLOUGH concur.
    Report per Rule 30(e).

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