Defendant first contends that the court erred by allowing the
State's motion to amend the indictments so that they alleged that
the offenses occurred "October 2002 through December 2002" instead
of "December, 2002," as originally stated. Although N.C. Gen.
Stat. § 15A-923 (2003) provides that a bill of indictment may not
be amended, our Supreme Court has held that this prohibition
applies only to changes that would "substantially alter the charge
set forth in the indictment." State v. Price, 310 N.C. 596, 599,
313 S.E.2d 556, 558-59 (1984). When time is not an essential
element of the crime, "an amendment in the indictment relating to
the date of the offense is permissible since the amendment would
not substantially alter the charge set forth in the indictment."
State v. Campbell, 133 N.C. App. 531, 535, 515 S.E.2d 732, 735,
disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). A change
in the date of the offense may be material and prohibited if it
deprives the defendant of an opportunity to adequately present his
defense. Id.
In this case, although defendant objected to the proposed
amendment, he conceded at trial that the amendment would notprejudice the preparation of his defense: "I object. I feel like
I should object. I cannot necessarily express any prejudice that
would cause me in my defense of Mr. Pittman."
Defendant did not
seek to present an alibi defense at trial that would have been
impacted by the expanded time frame and defendant has not, on
appeal, pointed to any other manner in which his defense was
actually prejudiced apart from the general statement that the
"unfair surprise[]" prevented him from relying on other unspecified
defenses. This assignment of error is, therefore, overruled.
Defendant next contends that the court erred by discharging a
juror and replacing her with an alternate juror. The record shows
that during the State's case in chief, the court recessed for the
evening at 4:55 p.m. The court directed the impaneled jurors to
return the next morning at 9:25 a.m. When proceedings resumed the
next morning at 9:40 a.m., juror number 6 was not present. The
clerk called the juror's home and the juror answered the telephone.
Upon learning that the juror lived in Havelock, the court announced
that in its discretion it was discharging the juror and replacing
her with the alternate juror. The juror ultimately arrived at
court at 10:15 a.m., explaining that she had overslept.
"It is within the trial court's discretion to excuse a juror
and substitute an alternate at any time before final submission of
the case to the jury panel." State v. Nelson, 298 N.C. 573, 593,
260 S.E.2d 629, 644 (1979), cert. denied, 446 U.S. 929, 64 L. Ed.
2d 282, 100 S. Ct. 1867 (1980). The court's decision is reviewedfor an abuse of discretion. Id. Defendant has not shown any abuse
of discretion and we can discern none. This assignment of error
is, therefore, overruled.
Defendant's final contention is that the court erred in
denying his motion to suppress his statement. He argues the
statement should have been excluded because it was made after he
had invoked his right to counsel.
Review of a trial court's denial of a motion to suppress is
limited to a determination whether the trial court's findings of
fact are supported by competent evidence and whether those findings
support the trial court's ultimate conclusion of law.
State v.
Thompson, 154 N.C. App. 194, 196, 571 S.E.2d 673, 675 (2002). The
trial court's findings are conclusive 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).
The trial court found the following facts. On 13 January
2003, Investigator John Whitfield of the Craven County Sheriff's
Department drove to defendant's home and arrested him. Whitfield
transported defendant to the interrogation room of the sheriff's
department and asked to speak to defendant regarding the
allegations that had been made against him. Defendant indicated
that he wished to talk to an attorney. Whitfield ceased
interrogation and permitted defendant to call his attorney, but his
attorney was not available to take defendant's call. Whitfield
then proceeded to take defendant to the magistrate's office for thesetting of bond and to the booking room for fingerprinting. As
Whitfield prepared to take defendant's fingerprints, defendant
stated, "I can't believe I've done this . . . I can't believe I've
hurt the people I love . . . I have done things before when I
didn't remember what I've done." Defendant asked to speak further
to Whitfield, who advised defendant that he could talk with him
only after he advised defendant of his rights and defendant
executed a waiver of rights. Whitfield then read defendant his
Miranda rights and asked defendant whether he understood each
right. Defendant responded affirmatively to each one. Whitfield
next asked defendant whether he was willing to waive his rights and
to speak to him about the matter at hand. Defendant executed and
signed a written waiver of rights form and gave an inculpatory
statement.
Based upon these findings of fact, the court concluded that
defendant made the statement freely, voluntarily, and
understandingly; that defendant fully understood his constitutional
rights; and that defendant freely, knowingly, intelligently, and
voluntarily waived each of the rights.
"Both the United States Supreme Court and [the North Carolina
Supreme Court] have held that during a custodial interrogation, if
the accused invokes his right to counsel, the interrogation must
cease and cannot be resumed without an attorney being present
'
unless the accused himself initiates further communication,
exchanges, or conversations with the police.'"
State v. Golphin,
352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (quoting
Edwards v.Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386 (1981)),
cert.
denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1380 (2001).
Even when the accused initiates the communication after he has
invoked the right to counsel, the defendant must also knowingly and
intelligently waive the right to counsel and the right to remain
silent in order for a post-invocation inculpatory statement to be
admissible.
State v. Lang, 309 N.C. 512, 521-22, 308 S.E.2d 317,
322 (1983). Therefore, prior to denying a motion to suppress a
statement made after the defendant invoked the right to counsel,
the court must find (1) that the defendant initiated the
communication or exchange and (2) that the defendant knowingly and
intelligently waived his rights before giving the inculpatory
statement.
State v. Tucker, 331 N.C. 12, 33, 414 S.E.2d 548, 560
(1992).
We conclude the court made the requisite findings of fact and
conclusions of law in this case. These findings are supported by
competent evidence and are, therefore, binding on appeal.
State v.
Peterson, 347 N.C. 253, 255, 491 S.E.2d 223, 224 (1997). While
defendant suggests that he was not, in fact, the one to initiate
the communication that led to the inculpatory statement, the trial
court's finding that he did is supported by competent evidence.
Accordingly, we hold that the trial court did not err in denying
the motion to suppress.
No error.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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