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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. DOUGLAS PAGE, JR.
Filed: 15 March 2005
1. Search and Seizure_gunshot residue test_no court order_exigent circumstances
The trial court's findings supported its conclusion that, under the circumstances, exigent
circumstances and probable cause existed to conduct a gunshot residue test without a
nontestimonial identification or other order. The results of the test were correctly admitted.
2. Search and Seizure_gunshot residue test_consent
The trial court's finding of fact supports its conclusion that defendant consented to a
gunshot residue test and, even if defendant had objected to this finding, it was supported by
properly admitted testimony from officers who participated in administering the test.
3. Constitutional Law_right to counsel_gunshot residue test
While it was error to fail to advise defendant of his right to have counsel present during a
gunshot residue test, the error was not prejudicial because defendant did not assign error to the
admission of statements made during the test. The physical evidence would have been seized
even if counsel had been present.
4. Homicide_second-degree murder_sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss a charge of second-
degree murder where, resolving all inconsistencies in favor of the State, defendant admitted
being at the scene when the victim was shot, did not render assistance in reviving the victim or
contact emergency personnel regarding the shooting, defendant's hands contained gunshot
residue, and defendant's inconsistent statements regarding his location during the shooting is
circumstantial evidence of defendant's guilt.
Appeal by defendant from judgment entered 21 November 2003 by
Judge Jack A. Thompson in Cumberland County Superior Court. Heard
in the Court of Appeals 11 January 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Diane A. Reeves, for the State.
M. Alexander Charns, for defendant-appellant.
Douglas Page, Jr. (defendant) appeals from a judgment
entered after a jury found him to be guilty of second-degree
murder. The trial court sentenced defendant to a minimum term of
137 months and a maximum term of 174 months. The trial court did
not err when it denied defendant's motion to suppress and motion to
dismiss defendant's charge of second-degree murder. We find no
On 1 May 2002, defendant, Marvin George McNeill (McNeill),
and Valerie Willis (Willis) were present at the mobile home where
defendant and McNeill lived. Defendant and McNeill worked together
repairing cars and mowing grass. Both originally arrived home
around 8:00 p.m. They left and returned around 10:40 p.m.
At approximately 10:45 p.m., Willis left to pick up her
friend, Diane Luther (Luther), and the two women returned to
McNeill's mobile home around 11:20 p.m. Upon arrival, they found
McNeill on his knees with his head down in the couch. Willis and
Luther obtained a telephone, and Luther called 911. Luther
determined that McNeill had a pulse, received assistance from
Willis in turning McNeill on his back, and administered CPR to him.
Defendant was not present when Willis and Luther arrived but
entered the room shortly thereafter. During this time, Willis
testified that defendant would not respond to anything, and she
didn't know if he was in shock or what. Luther testified that
defendant refused to help her administer aid to McNeill. Deputy Paul Mead (Deputy Mead) responded to the scene and
spoke with defendant. Defendant stated he was standing outside
unloading lawn equipment when he heard several gunshots. He came
around the mobile home and noticed a light-skinned black male with
dreadlocks get into a car and flee the scene. Later, defendant
stated to McNeill's brother that he had been inside the house in
the restroom when he heard several shots. Defendant stated he
came out and saw the man with the same description he had given to
Deputy Mead in the living room and running out the front door.
Luther and Willis testified that upon returning to the house that
evening, they had observed a blue-green car nearby and the man
inside might have had dreads.
McNeill was known to sell drugs from his mobile home.
Defendant informed McNeill's brother that after the shooting,
McNeill had asked him to hide two bags of marijuana located in the
house. After the shooting, defendant showed McNeill's brother
where he had hidden the bags.
No weapon was recovered. The trial court admitted, over
defendant's motion to suppress and subsequent objection, evidence
from a gunshot residue test taken the night of the shooting that
revealed gunshot residue on the back of defendant's hands.
Although defendant argued otherwise, the State presented evidence
defendant had consented to the administration of the gunshot
residue test. Defendant was shackled when the test was conducted,
although Deputy Mead testified defendant was not under arrest and
had not received a Miranda warning. The trial court admitted theevidence concluding that: (1) it would have been a practical
impossibility for law enforcement to secure a non-testimonial
identification order . . . .; (2) probable cause and exigent
circumstances had existed; and (3)defendant consented to the test.
Defendant did not present any evidence. The jury returned a
verdict of guilty of second-degree murder. Defendant was sentenced
in the presumptive range to a minimum term of 137 months and a
maximum term of 174 months. Defendant appeals.
The issues presented on appeal are whether the trial court
erred by: (1) failing to grant defendant's motion to suppress the
results from a gunshot residue test; and (2) denying defendant's
motion to dismiss the charge of second-degree murder.
III. Motion to Suppress
 Defendant contends the trial court erred by admitting into
evidence gunshot residue test results taken the night of the
murder. We disagree.
On appeal of a motion to suppress, our review is
limited to a determination of whether
competent evidence supported the trial court's
findings of fact and whether the findings of
fact supported the trial court's conclusions
of law. State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 619 (1982). In the present
case, defendant does not object to the
findings of fact which the trial court made in
the order denying defendant's motion to
suppress. Defendant merely assigns error to
the denial of the motion to suppress.
Therefore, the issues before this Court are
whether the trial court's findings of fact
support its conclusions of law and whether its
conclusions of law are legally correct.
State v. Coplen, 138 N.C. App. 48, 52, 530 S.E.2d 313, 317, disc.
rev. denied, 352 N.C. 677, 545 S.E.2d 438 (2000). Here, defendant
did not assign error to the trial court's findings of fact. Our
review is limited to: (1) whether the findings of fact support the
conclusions of law; and (2) whether the conclusions of law are
The unchallenged findings of fact show, in part:
4. At or about midnight on the 1st day of May
2002 law enforcement arrived at the
trailer home of the victim after
receiving a 911 call and found the victim
deceased as a result of several gunshot
5. Located at the scene was the defendant
along with two distraught females, one
being a sister of the victim and a friend
of the victim's sister. The two females
had arrived at the trailer some time
after the shooting, discovering the
victim on the floor of the trailer.
6. Upon the arrival of law enforcement and
emergency personnel, a large crowd of
neighbors and relatives formed around the
scene necessitating the placing [of]
crime scene tape to secure the scene.
7. The defendant initially told law
enforcement that he had been outside the
victim's trailer unloading lawnmowers
from a trailer when he heard several
gunshots and saw a light-skinned black
male with dreadlocks run from the
trailer, entering a vehicle that left the
8. The defendant later said he was in the
rear of the trailer when he heard the
gunshots and saw someone running from the
9. While the officers were securing the
scene, the defendant was placed in the
rear of a patrol car and the car door wasleft open and the defendant was told that
he was not under arrest.
10. It was decided by law enforcement that
the gunshot residue test would be
administered on the defendant. The
defendant was asked if he would submit to
the test and he consented. The defendant
was asked if leg shackles could be
attached while the test was being
administered and the defendant consented.
11. The [gunshot residue] test was then
administered on the defendant and the
shackles were then removed.
12. Crime scene investigator Jimmy
Shackleford testified that the testing
guidelines require that the [gunshot
residue] test be administered within 3 or
4 hours of suspected use of a weapon. He
also testified that evidence of a firing
of a gun could be destroyed by wiping or
13. The officer also testified that from the
remote location of the crime scene, it
would have taken at least 2 to 3 hours to
obtain a search warrant to administer the
[gunshot residue] test.
Based upon these and other findings of fact, the trial court
concluded: (1) it would have been a practical impossibility for
law enforcement to secure a non-testimonial identification order .
. . due to the time limitations and the evanescent nature of the
gunshot residue evidence; (2) under the circumstances known to
the officers at the scene and the conflicting stories told to them
by the defendant and the fact that the defendant was the last
admitted person to have seen the victim before the shooting,
probable cause and exigent circumstances existed to warrant the
gunshot residue test without a court order; and (3) the defendantconsented to the [gunshot residue] test willfully, understandingly
A. Probable Cause
Defendant argues the officers did not have probable cause to
conduct the gunshot residue test and conducted the test in
violation of his constitutional rights. We disagree.
The Fourth Amendment is applicable to the states through the
Due Process Clause of the Fourteenth Amendment. State v. Smith,
346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997) (citing State v.
Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994)).
The Fourth Amendment to the United States
Constitution protects against unreasonable
searches and seizures and establishes, as a
general rule, that a valid search warrant must
accompany every search or seizure. However,
an exception arises when law enforcement
officers have probable cause to search and the
circumstances of a particular case render
impracticable a delay to obtain a warrant. If
probable cause to search exists and the
exigencies of the situation make a warrantless
search necessary, it is lawful to conduct a
Probable cause exists where the facts and
circumstances within their [the officers']
knowledge and of which they had reasonable
trustworthy information [are] sufficient in
themselves to warrant a man of reasonable
caution in the belief that an offense has been
or is being committed.
Coplen, 138 N.C. App. at 54, 530 S.E.2d at 318 (internal quotations
and citations omitted).
A gunshot residue test is a nontestimonial identification
procedure comparable to handwriting exemplars, voice samples,
photographs, and lineups. Id. at 54, 530 S.E.2d at 318. InCoplen, this Court upheld the trial court's denial of a motion to
suppress evidence obtained through a gunshot residue test based on
the existence of probable cause and exigent circumstances to
administer the test. Id. at 55, 530 S.E.2d at 318-319. The trial
court's unchallenged findings of fact in Coplen showed: (1) the
defendant made inconsistent statements to investigating officers
regarding the alleged shooting; (2) the victim was alive when she
left the home to get him some beer and she found him in a pool of
blood when she returned home; (3) expert testimony that gunshot
residue wipings must be taken within a four hour time frame,
measured from the time of shooting, in order to have any
evidentiary value when dealing with a live subject engaging in
normal activities; and (4) testimony that gunshot residue may be
easily removed or destroyed through normal activities such as
wringing hands, putting hands in pockets, or shaking hands . . .
[and] may be easily destroyed by a person wishing to destroy
evidence by such action as hand washing. Id. at 56-57, 530 S.E.2d
at 319-320. These findings are substantially similar to those at
Here, the trial court supported its conclusion that probable
cause and exigent circumstances existed by finding: (1) defendant
was the last admitted person to have seen the victim before the
shooting; (2) two females arrived on the scene following the
shooting and found defendant to be the only person present; (3)
defendant offered inconsistent statements to investigating officers
regarding his whereabouts during the shooting; (4) the Statepresented testimony from Investigator Jimmy Shackleford that the
test must be conducted within three to four hours of suspected
firearm use; and (5) the State presented testimony that evidence of
firing a weapon could be destroyed by wiping or washing hands.
The trial court's findings of fact support its conclusion that
under the circumstances known to the officers at the scene and the
conflicting stories told to them by the defendant,. . . probable
cause and exigent circumstances existed to conduct [the] procedure
without a court order of any type.
 Defendant argues no probable cause existed to conduct a
gunshot residue test without a court order. Even if no probable
cause existed, the gunshot residue test results may be admitted if
obtained by some [other] lawful procedure. Coplen, 138 N.C. App.
at 54, 530 S.E.2d at 318.
Consent . . . has long been recognized as a
special situation excepted from the warrant
requirement, and a search is not unreasonable
within the meaning of the Fourth Amendment
when lawful consent to the search is given.
For the warrantless, consensual search to pass
muster under the Fourth Amendment, consent
must be given and the consent must be
voluntary. Whether the consent is voluntary
is to be determined from the totality of the
Smith, 346 N.C. at 798, 488 S.E.2d at 213 (citations omitted).
Defendant's assignments of error relating to the denial of his
motion to suppress do not challenge the trial court's finding of
consent. He argues error in the trial court's conclusion of law
that the defendant consented to the [gunshot residue] testwillfully, understandingly and voluntarily. The trial found as a
fact, unchallenged on appeal, that defendant consented to the
gunshot residue test.
Deputy Mead and Investigator Shackleford, two officers who
participated in administering the test, testified that defendant
consented to the test, did not withdraw his consent, and continued
to cooperate during the administration of the gunshot residue test.
Even if defendant had objected to or challenged this finding of
fact, it is supported by the officers' properly admitted testimony.
Defendant did not object to the officers' voir dire testimony
regarding defendant's consent and cooperation. The trial court's
finding of fact supports its conclusion that defendant consented to
the gunshot residue test. This assignment of error is overruled.
C. Right to Counsel
 Defendant also argues that any consent he gave was not
knowingly or voluntarily made because he did not have counsel
present. In Coplen, this Court restated our Supreme Court's
holding in State v. Odom, 303 N.C. 163, 167, 277 S.E.2d 352, 355,
cert. denied, 454 U.S. 1052, 70 L. Ed. 2d 587 (1981), that there is
no right to have counsel present during a gunshot residue test.
138 N.C. App. at 57, 530 S.E.2d at 320.
However, under N.C. Gen. Stat. § 15A-279(d) (2003):
Any such person is entitled to have counsel
present and must be advised prior to being
subjected to any nontestimonial identification
procedures of his right to have counsel
present during any nontestimonial
identification procedure and to the
appointment of counsel if he cannot afford to
retain counsel. . . . No statement madeduring nontestimonial identification
procedures by the subject of the procedures
shall be admissible in any criminal proceeding
against him, unless his counsel was present at
the time the statement was made.
(Emphasis supplied). In Coplen, this Court explained the impact of
this statute on an assignment of error identical to that defendant
asserts here, Section 15A-279(d) 'addresses the implementation of
orders requiring submission for nontestimonial identification
procedures. . . . [and] the provision protects the defendant from
having statements made during the nontestimonial identification
procedure used against her at trial where counsel was not present
during the procedure.' 138 N.C. App. at 58, 530 S.E.2d at 320
(quoting State v. Young, 317 N.C. 396, 410, 346 S.E.2d 626, 634
(1986) (other citations omitted)).
Applying the statute to the Coplen facts, this Court noted the
defendant did not seek to suppress statements made during the
procedure but instead sought to suppress the results of the test.
Coplen, 138 N.C. App. at 58, 530 S.E.2d at 320 (emphasis supplied);
quoted in State v. Pearson, 356 N.C. 22, 36, 566 S.E.2d 50, 58,
reh'g denied, 356 N.C. 177, 569 S.E.2d 271 (2003), cert. denied,
537 U.S. 1121, 154 L. Ed. 2d 802 (2002). In Coplen, we held that
N.C. Gen. Stat. § 15A-279(d) did not afford defendant any relief
on the counsel issue. 138 N.C. App. at 58, 530 S.E.2d at 320.
Here, defendant neither identifies in the record nor assigns error
to the admission of any statements made during the administration
of the gunshot residue test to show a violation of defendant's
right to counsel. Our Supreme Court addressed the application of N.C. Gen. Stat.
§ 15A-279(d) and held [a]lthough it was error to deny defendant
counsel at the  procedure, such error was not prejudicial under
these circumstances. Pearson, 356 N.C. at 39, 566 S.E.2d at 60.
The Supreme Court held there was no prejudicial error and stated
[t]he physical evidence would have been seized from the defendant
even if counsel had been present . . . . Id. at 35, 566 S.E.2d at
Here, defendant was not denied counsel but was not advised of
his right to have counsel present. While this omission was error
under N.C. Gen. Stat. § 15A-279(d), see Pearson, supra, defendant
has failed to show any prejudice by demonstrat[ing] how the
presence of counsel when the evidence was taken would have further
protected his rights. Id.
Following this Court's precedent in Coplen and our Supreme
Court's holding in Pearson, defendant's assignment of error is
IV. Motion to Dismiss
 Defendant contends the trial court erred by denying his
motion to dismiss the charge of second-degree murder. We disagree.
In ruling on a motion to dismiss:
When a defendant makes a motion to dismiss
based on the insufficiency of the evidence,
the trial court must determine whether the
State presented substantial evidence of each
essential element of the offense and that the
defendant was the perpetrator of the offense.
State v. Vause, 328 N.C. 231, 236, 400 S.E.2d
57, 61 (1991). Substantial evidence is 'such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.' Id. (quoting State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980)). The
evidence must be considered in the light most
favorable to the State. State v. Powell, 299
N.C. 95, 99, 261 S.E.2d 114, 117 (1980).
Coplen, 138 N.C. App. at 58-59, 530 S.E.2d at 320-21.
Second-degree murder is defined as the unlawful killing of a
human being with malice, but without premeditation and
deliberation. State v. King, 353 N.C. 457, 484, 546 S.E.2d 575,
595 (2001) (citations and quotations omitted), cert. denied, 534
U.S. 1147, 151 L. Ed. 2d 1002, reh'g denied, 535 U.S. 1030, 152 L.
Ed. 2d 646 (2002). To prove malice, the State need only show that
defendant had the intent to perform the act . . . in such a
reckless manner as reflects knowledge that injury or death would
likely result, thus evidencing depravity of mind. State v.
Miller, 142 N.C. App. 435, 441, 543 S.E.2d 201, 205 (2001)
In defendant's statements to Deputy Mead, he admitted being
present at the scene when McNeill was shot. The State presented
evidence that defendant did not render assistance in reviving
McNeill or contact emergency personnel regarding the shooting.
Defendant's hands were shown to contain gunshot residue. We held
the admission of this evidence was not error. Additionally,
defendant's inconsistent statements regarding his location during
the shooting is circumstantial evidence of defendant's guilt. See
State v. Rick, 342 N.C. 91, 99, 463 S.E.2d 182, 186 (1995) (holding
the circumstantial evidence presented in this case, together with
the reasonable inferences which could be properly drawn therefrom,
is sufficient for the jury's consideration and determination). Resolving all inconsistencies in the evidence in the light
most favorable to the State, we hold the trial court did not err in
submitting the charge of second-degree murder to the jury. This
assignment of error is overruled.
The trial court did not err in denying defendant's motion to
suppress or motion to dismiss. Defendant received a fair trial
free from prejudicial errors he assigned and argued.
No Prejudicial Error.
Judges WYNN and MCGEE concur.
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