An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-345

NORTH CAROLINA COURT OF APPEALS

Filed: 17 May 2005

STATE OF NORTH CAROLINA

v .                         New Hanover County
                            Nos.    01 CRS 14075
ROBERT DAMONTE MILES,                01 CRS 14076
        Defendant.

    Appeal by defendant from judgments entered 15 August 2002 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 18 November 2004.

    Roy Cooper, Attorney General, by Assistant Attorney General William B. Crumpler, for the State.

    Paul M. Green for defendant-appellant.

    GEER, Judge.

    Defendant Robert Damonte Miles appeals from his convictions for armed robbery and first degree murder. Pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967) and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985), defendant's appellate counsel has filed a brief, stating that he "is unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal." He requests that this Court fully examine the record on appeal for any possible prejudicial error. The record indicates that counsel supplied defendant with a copy of the trial transcript, the superior court file, the record on appeal, and the appellant's brief filed by counsel. Further, counsel informed defendant in a letter dated 4 March 2004 that hehad a right to submit an informal brief raising any issues that defendant wished the Court to consider. Defendant's counsel has, therefore, complied with the requirements of Anders and Kinch. Defendant has chosen not to submit any additional arguments. After reviewing the record, we have identified no basis for reversing defendant's convictions.

Facts
     The State's evidence tended to show the following. At about 1:00 a.m. on 22 June 2001, Alton Edgerton was leaving his job at Russell's Quick Stop in New Hanover County with the week's receipts when defendant and Martez Simpson held Edgerton up at gun point. When defendant and Simpson fired at Edgerton, Edgerton _ who was also armed _ fired back. In the ensuing gun battle, Edgerton was fatally wounded and died at the scene. Before his death, he shot defendant twice, wounding him in the leg.
    Simpson drove defendant to the hospital. By canvassing local hospitals, investigators learned that defendant was being treated in an emergency room for two gunshot wounds. Upon his discharge from the hospital later that day, defendant was arrested on a Brunswick County warrant for failure to appear on two unrelated misdemeanor charges. Although the bullets had not yet been removed from defendant, he had been given pain medication and a prescription for more medicine.
    Following defendant's arrest, the police interrogated him at the police station. Investigators first read defendant his Miranda rights, and he signed a waiver of those rights. During the courseof the interrogation, which was videotaped, defendant admitted to killing the victim. Although defendant never complained that his medical condition affected his ability to continue with the interview, he did request pain medication on two occasions and, after indicating that he had not slept in 40 hours, asked to go to sleep. These requests were denied. The investigators, however, asked defendant if he was all right, and he responded either "I'm good" or "I'm okay." After two hours, the interview ended when defendant requested an attorney.
    Three days later, on 25 June 2002, after counsel had been appointed, defendant gave the jail staff a note stating, "I need to speak with Captain Maillard about a murder case. It's very, very urgent." When investigators arrived, they again read defendant his Miranda rights and obtained a second written waiver. They further informed defendant that counsel had been appointed to represent him, but defendant indicated that he wanted to talk with the investigators without counsel. During this interview, defendant again admitted to killing the victim, but asserted that Martez Simpson had been significantly involved. Defendant ultimately signed a written statement.
    The trial court denied defendant's motions to suppress the confessions obtained in both interviews. The jury found defendant guilty of armed robbery and first degree murder based both on premeditation and deliberation and on the felony murder rule. The trial court sentenced defendant to life imprisonment without parole. Defendant filed a timely appeal.
I
    Defendant's counsel has first pointed to the trial court's failure to suppress defendant's 22 June 2001 confession as a potential source of error. Upon review of the denial of a motion to suppress, "[i]f supported by competent evidence, the trial court's findings of fact are conclusive on appeal. . . . Further, the trial court's conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) .
    "When a person is in the custody of a law enforcement officer, 'the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.'" State v. Mlo, 335 N.C. 353, 363, 440 S.E.2d 98, 102 (quoting Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612 (1966)), cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841, 114 S. Ct. 2716 (1994). Even when, as here, a defendant waives his Miranda rights, "the ultimate test of the admissibility of a confession still remains whether the statement made by the accused was in fact voluntarily and understandably given." State v. Rook, 304 N.C. 201, 216, 283 S.E.2d 732, 742 (1981), cert. denied, 455 U.S. 1038, 72 L. Ed. 2d 155, 102 S. Ct. 1741 (1982).     In this case, the 22 June 2001 confession was obtained after defendant had been released from the hospital, but while he was still in great pain and had two bullets lodged in him. Our Supreme Court has stated, however, that "[t]he weight of authority appears to be that the admissibility of a confession is not, ipso facto, rendered involuntary because defendant was suffering from physical injuries and resulting pain at the time he made the confession. These are circumstances to be taken into consideration by the jury in weighing the evidence." State v. Williford, 275 N.C. 575, 579- 80, 169 S.E.2d 851, 855 (1969). In State v. McKoy, 323 N.C. 1, 24, 372 S.E.2d 12, 24 (1988), sentence vacated on other grounds, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990), the Court examined the voluntariness of a defendant's post-hospitalization confession and determined that "[t]he evidence did not indicate that defendant's blindness or injuries [to his head and buttocks] at the time of his confession had any bearing on the voluntariness of his waiver and statement," noting that the injuries "were not shown to have precluded understanding or a free exercise of the will."
    The Fourth Circuit addressed circumstances comparable to those in this case in United States v. Guay, 108 F.3d 545, 550 (4th Cir. 1997) . The court first explained:
            Although interrogation of a defendant in pain may be evidence tending to show an invalid waiver, Mincey v. Arizona, 437 U.S. 385, 396, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) (defendant had gunshot wound to hip, was in intensive care, hooked to tubes in his nose and throat, and repeatedly asked for interrogation to stop), a defendant mayvoluntarily waive his rights even when in the hospital, on medication, or in pain. United States v. George, 987 F.2d 1428, 1430 (9th Cir. 1993).
The Fourth Circuit then held that the trial court did not err in denying a motion to suppress _ even though the defendant was "in pain during his interview and having trouble breathing" _ because the trial court also found the defendant was aware of his right to end the interrogation and did not do so. Id.
    Similarly, the Fourth Circuit also affirmed the denial of a motion to suppress in United States v. Cristobal, 293 F.3d 134, 143 (4th Cir.), cert. denied, 537 U.S. 963, 154 L. Ed. 2d 319, 123 S. Ct. 396 (2002), even though the defendant confessed after having been shot in five places. The court relied upon the following facts: the defendant waived his Miranda rights prior to questioning, he never asked for the questioning to stop, he was not held incommunicado, he was not subjected to unrelenting questioning, his answers were lucid, and when asked how he was feeling, the defendant responded that he wanted to continue with the interview. Id.
     In this case, the trial court found that defendant asked whether he could stop the interview and the officer assured, "Yes, you can stop anytime you want to." The court further found that the "officers had paid attention to whether or not he had something to eat or drink or whether he could go to the bathroom." The court acknowledged that the officers did not provide any pain medication for defendant, but that "at one point, on the tape at any rate, the defendant was asked if he was okay. And this was near the end ofthe tape. And the defendant said yes, he was okay." Further, "[t]here is no indication that . . . his discomfort was such that it prevented him from understanding what he was doing at the time." These findings are supported by competent evidence, and w e hold that the findings are sufficient to support the trial court's denial of defendant's motion to suppress the 22 June 2001 confession.
II
     With respect to the 25 June 2001 confession, because counsel had been appointed at that point to represent defendant, "any subsequent statement resulting from interrogation initiated by law enforcement investigators would be inadmissible as a violation of his Fifth Amendment rights." State v. Boggess, 358 N.C. 676, 688, 600 S.E.2d 453, 460 (2004). Here, the evidence supports the trial court's finding that defendant initiated the contact with investigators by asking to speak with them so that he could "set the record straight [as to] his codefendant's participation in the murder . . . ." Because the 25 June 2001 statement was the result of defendant's request to speak to the investigators and a second Miranda waiver was signed, there was no violation of defendant's constitutional rights and the trial court did not err in denying the motion to suppress. Id.
III    
    Finally, counsel for defendant suggests that error may have arisen from his attorney's concession of his guilt. The North Carolina Supreme Court has held that a defendant must knowinglyconsent to his attorney's decision to admit guilt. State v. Harbison, 315 N.C. 175, 180, 337 S.E.2d 504, 507 (1985) ("When counsel admits his client's guilt without first obtaining the client's consent, the client's rights to a fair trial and to put the State to the burden of proof are completely swept away. . . . Counsel in such situations denies the client's right to have the issue of guilt or innocence decided by a jury."), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672, 106 S. Ct. 1992 (1986).
    Here, defendant signed a document stating that he gave his "attorneys permission and consent to acknowledge" both in the opening statement and the closing argument that he was "responsible for causing the death of Alton Edgerton and for robbing Alton Edgerton of the contents inside a bag located within his vehicle." Following jury selection, counsel for defendant asked the trial court to hold a hearing to ensure compliance with Harbison and provided the court with defendant's signed consent. During the trial court's questioning of defendant regarding his consent, however, defendant stated: "I'm only admitting to the cause of the death, but not admitting to first-degree murder." When the State expressed concern that this statement suggested that defendant was not aware that his admission established felony murder, which constitutes first degree murder, the court further questioned defendant to ensure that he comprehended the ramifications of his consent. T he judge ultimately asked, "Mr. Miles, knowing the serious ramifications of your lawyers making these admissions on your behalf, do you now authorize them to do that?" The defendantresponded in the affirmative, and when the judge asked whether he had any questions, he replied that he did not.
    Our review of the colloquy among the trial judge, the attorneys, and defendant reveals that no error occurred under Harbison. Further, the transcript of the trial indicates that defense counsel did not overstep the bounds of defendant's written consent.
    Accordingly, after review of the submissions of defendant's appellate counsel and an independent review of the record, we have identified no prejudicial error in defendant's trial.

    No error.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).

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