STATE OF NORTH CAROLINA
v
.
Durham County
No. 02 CRS 47701
KENNETH WILLIAM ROBERSON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Daniel P. O'Brien, for the State.
Winifred H. Dillon, for defendant-appellant.
JACKSON, Judge.
On 24 May 2004, Kenneth Roberson (“defendant”) was convicted
by a jury of assault with a deadly weapon with intent to kill
inflicting serious injury. Defendant was sentenced as a Level II
offender in the aggravated range, to a minimum of one hundred and
twenty-five months and a maximum of one hundred and fifty-nine
months imprisonment in the North Carolina Department of Correction.
Defendant now appeals his conviction and sentencing.
On 12 May 2002, the victim, Morris Bennett (“Bennett”) was on
a street corner in front of a convenience store in Durham, North
Carolina, when he was approached by defendant and two other men.
Several days prior, Bennett and a friend were on the same street
corner when they were shot at from a passing car. Bennetttestified at trial that he saw defendant in the car, but could not
determine who actually fired the shot. When defendant and Bennett
met on the corner on 12 May 2002, Bennett confronted defendant
about the shooting, and defendant denied that he had been involved.
Bennett then punched defendant in the face. At that moment, a shot
was heard, and Bennett was shot in the chest at point-blank range
with a Raven .25 semi-automatic handgun. Bennett told his friends
and officers, “Kenny shot me.” A K9 Officer who arrived on the
scene testified that bystanders informed him that the individuals
who had shot Bennett had run north on the street. Based on
Bennett's statement, and information obtained from bystanders,
police determined that the individuals had run to a particular
location.
Defendant, who ran from the scene, was found by police at his
girlfriend's house a few blocks from where the shooting occurred.
When police found defendant, they also found a Raven .25 handgun
under the couch in the apartment where defendant and his friends
had just been sitting. Defendant was arrested, read his juvenile
rights, and taken to the police station. Defendant waived his
Miranda rights by initialing a form indicating the waiver of his
right to have a parent, guardian or lawyer present, and his right
to remain silent.
Throughout the interrogation, defendant made multiple
statements to the police. In defendant's first statement, which he
wrote out himself, he indicated that he was not at the corner where
the shooting had occurred, but that he merely heard about ashooting as he and his friends were walking to his girlfriend's
apartment. After making the statement, defendant was informed by
Detective Jackson that he had been identified as being at the scene
of the shooting and that his friends also were being interviewed.
Defendant then made a second written and verbal statement to
Detective Jackson, in which he admitted to being on the corner and
getting into an altercation with Bennett. He admitted that he was
there when Bennett was shot, but stated that he did not do it.
Following defendant's second statement to Detective Jackson,
Detective Addison interviewed defendant. Detective Addison already
had interviewed Bennett, spoken with witnesses at the scene, and
interviewed one of the other men who was with defendant. During
the interview, Detective Addison told defendant that he did not
think defendant was being truthful in his statements. At the
conclusion of the interview, defendant signed a statement that was
written by Detective Addison, who had acted as a scribe and written
down defendant's statements. In the statement, defendant admitted
to shooting Bennett.
Prior to trial, defendant made a motion to suppress the third
statement he made to Detective Addison, on the basis that it was
made involuntarily and under duress. The trial court denied
defendant's motion to suppress the statement. During the State's
case at trial, the State discovered the weapon and shell casings
had not been scientifically tested, and immediately sent both the
weapon and the casings to the State Bureau of Investigation (“SBI”)
for testing. Immediately upon receiving the SBI's report, theState presented defense counsel with a copy of the ballistics
report. Defendant made two motions to continue based upon the
report, both of which were denied.
In his first assignment of error, defendant contends the trial
court erred by denying his motion to suppress, and to exclude from
evidence, the statement he made to Detective Addison. Defendant
contends that the statement was involuntary as it was improperly
obtained as a direct result of promises and threats made by the
detective.
At the voir dire on defendant's motion to suppress his third
statement, defendant testified, along with Detective Addison and
Detective Jackson. Defendant's testimony conflicted with that of
both detectives. Detective Addison and Detective Jackson both
testified that defendant was properly Mirandized, he waived his
rights, and he never asked for an attorney, parent, or guardian to
be present. Both detectives stated that at no point during their
interviews of defendant did they threaten, swear or yell at him, or
promise him anything. Detective Addison stated defendant was not
in handcuffs at any time once he was placed in the interview room.
Both Detective Addison and Detective Jackson stated that at all
times defendant appeared coherent, understood their questions, was
able to respond clearly, was willing to speak with them, and did
not appear to be under the influence of any drugs or other
substances.
Detective Jackson apprised defendant of his Miranda rights as
soon as defendant arrived at the police station. He used ajuvenile Miranda form, since defendant was over the age of fourteen
and under eighteen. As Detective Jackson read each of defendant's
rights and asked if defendant understood them, defendant initialed
the form indicating that he understood his rights. He also
initialed the portion of the form indicating that he wanted to talk
with the officers. The following statement appeared at the bottom
of the form:
I do wish to answer questions now without a
lawyer, parent, guardian, or custodian here
with me. My decision to answer questions now
is made freely and is my own choice. No one
has threatened me in any way or promised me
any special treatment. Because I have now
decided to answer questions, I am signing my
name below.
Defendant then signed and dated the Miranda form.
Detective Addison's statements on voir dire differ
substantially from those of defendant on voir dire. Detective
Addison stated that when he interviewed defendant, he told
defendant that he did not think defendant was being truthful, that
witnesses from the scene had identified him as the shooter, and his
friends had made statements implicating him as the shooter.
Detective Addison told defendant that if Bennett were to die, it
would be up to the District Attorney's office to decide with what
to charge him. He then discussed the repercussions of being
convicted of murder in North Carolina, including the various types
of punishment that could be imposed. Detective Addison stated that
at no point during the interview did he threaten defendant or
promise defendant a lesser charge if he would say the shooting was
done in self-defense or if defendant would sign a statementadmitting to the shooting. He also stated that at no point was
defendant in handcuffs once he got to the interview room, nor was
he handcuffed to the chair. Detective Addison stated that
defendant began to tell him what happened at the scene, at which
point the detective acted as a scribe and wrote down defendant's
statement. Detective Addison stated that when defendant was done
giving his statement, he read the statement back to defendant, who
did not make any corrections or ask any questions. Defendant then
signed the statement and the interview ended.
Defendant's recitation of the events surrounding his interview
with Detective Addison are very different. Defendant stated that
while he was in the interview room, he made multiple requests for
officers to call his mother, all of which were denied. He stated
his requests to use the restroom also were denied, and that at all
times while he was in the interview room he was handcuffed to the
chair. Defendant stated that when Detective Addison came in, the
detective told him that Bennett was going to die and defendant
would get a lethal injection. He also stated that the detective
came into the room with a statement already written out, and told
defendant to sign it and say he shot Bennett in self-defense, and
that he would get less time in prison. Defendant stated that at
this point, he felt he was going to go to jail, and he felt like
“since I'm going to jail anyway, I might as well sign the paper.”
Defendant stated he never read the statement, the detective never
reviewed it with him, and the statement was not comprised of his
statements at all. When ruling on a motion to suppress a statement for lack of
voluntariness, the trial court must determine whether the State has
met its burden of showing, by a preponderance of the evidence, that
the defendant's statement was given freely, voluntarily, and
knowingly. “Findings of fact made by a trial judge following a
voir dire hearing on the voluntariness of a confession are
conclusive upon this Court if the findings are supported by
competent evidence in the record.” State v. Hyde, 352 N.C. 37, 44,
530 S.E.2d 281, 287 (2000), cert. denied, 531 U.S. 1114, 148 L. Ed.
2d 775 (2001) (citation omitted). An appellate court may not set
aside or modify these findings if they are supported by competent
evidence. Id.; State v. Rook, 304 N.C. 201; 283 S.E.2d 732 (1981).
This remains true even when the evidence presented in voir dire is
conflicting. Id.
Following the voir dire, the trial court made the following
findings of fact:
COURT: [B]ased on the evidence presented at
the suppression hearing, there is
evidence from which a reasonable
fact-finder can conclude that
defendant understood his rights
pursuant to Miranda, and that
defendant knowingly waived those
rights.
The Court makes a further finding
that the defendant signed a
statement implicating himself, and
that this statement -- that a
reasonable fact-finder could find
that this statement was signed of
the defendant's own free will,
knowingly and voluntarily made.
Based on the testimony presented during the suppression hearing, we
conclude the trial court's findings were amply supported by
competent evidence in the record.
Upon a finding that the trial court's findings of fact were
supported by competent evidence in the record, we must determine
whether the trial court's conclusions of law are supported by its
findings. Hyde, 352 N.C. at 45, 530 S.E.2d at 288. “The trial
court's conclusion of law that defendant's statements were
voluntarily made is a fully reviewable legal question.” Id.; see
State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994). In
determining the voluntariness of a defendant's statement, the court
must apply a totality of the circumstances test. Id. The court
must consider a number of factors including:
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. (quoting Hardy, 339 N.C. at 222, 451 S.E.2d at 608).
Although the two sides of the story presented to the trial
court differed dramatically, the trial court's findings were
supported by the testimony of both detectives. The detectives
testified that from the time defendant arrived at the station until
the time he was taken to the magistrate's office was only a matter
of two hours. His Miranda rights were honored at all times, and at
no time did defendant invoke his right to counsel or to call aparent or guardian. Defendant was not threatened with force or
with punishment if he chose not to speak with police or make
statements. He appeared nervous at times, but was cooperative at
all times, and did not appear to be confused or scared of the
detectives.
Based on the totality of the circumstances, we hold that the
trial court's conclusions of law are supported by the findings of
fact, and the trial court did not err in concluding defendant's
statement was made voluntarily.
Defendant next asserts the trial court erred in denying his
request for a continuance of his trial so that he could have the
weapon and fired shell casing, used as evidence by the State,
tested by his own ballistics expert.
In State v. Barlowe, this Court held that “a motion for
continuance is ordinarily addressed to the sound discretion of the
trial court. . . . However, if the motion to continue is based on
a constitutional right, the trial court's ruling thereon presents
a question of law that is fully reviewable on appeal.” 157 N.C.
App. 249, 252-53, 578 S.E.2d 660, 662, disc. review denied, 357
N.C. 462, 586 S.E.2d 100 (2003) (quoting State v. T.D.R., 347 N.C.
489, 503, 495 S.E.2d 700, 708 (1998)). When a defendant's appeal
is based “upon an abuse of judicial discretion, or a denial of his
constitutional rights, to entitle him to a new trial because his
motion to continue was not allowed, he must show both error and
prejudice.” Id. at 253, 578 S.E.2d at 662 (quoting State v. Moses,
272 N.C. 509, 512, 158 S.E.2d 617, 619 (1968)). When the errorcommitted constituted a violation of the defendant's constitutional
rights, it will be found to be prejudicial unless the State can
show the error was harmless beyond a reasonable doubt. Id. at 253,
578 S.E.2d at 662-63; N.C. Gen. Stat. § 15A-1443(b) (2004).
Both the United States and the North Carolina Constitutions
protect a defendant's right to present evidence in his own defense.
The accused's right not only includes “the right to a fair
opportunity to defend against the State's accusations,” but also
the right to “confront and cross-examine witnesses and to call
witnesses in one's own behalf.” Id. at 253, 578 S.E.2d at 663
(citations omitted). When this Court reviews a trial court's
alleged constitutional error in denying a motion to continue, the
review involves a case by case review of the record and
determination. Id. Our courts have recognized various factors
which must be considered in determining whether a trial court erred
in denying a motion to continue. Those factors include:
(1) the diligence of the defendant in
preparing for trial and requesting the
continuance, (2) the detail and effort with
which the defendant communicates to the court
the expected evidence or testimony, (3) the
materiality of the expected evidence to the
defendant's case, and (4) the gravity of the
harm defendant might suffer as a result of a
denial of the continuance.
Id. at 254, 578 S.E.2d at 663.
In the instant case, defense counsel requested a continuance
on 19 May 2004, two days after receiving a copy of the ballistics
expert's report, and this request was denied. The State presented
the testimony of a firearms examiner from the State Bureau ofInvestigation, and at a break in his testimony, defense counsel
renewed the motion to continue two days later, stating that she had
found a ballistics expert who would not be able to review the State
expert's report and testify until 21 May 2004. Defense counsel
requested a continuance until 21 May 2004, when her expert would be
available to testify. The trial court denied this request as well.
In requesting the continuance, defense counsel stated she had
not spoken with the ballistics expert about the details of
defendant's case, nor could she provide a forecast for the court as
to the substance of the expert's testimony. She was unable to show
the court how the expert's testimony would in any way contradict
the testimony of the State's expert. Defendant asserts that by
denying the motion to continue, the trial court denied him an
opportunity to cross-examine the State's ballistics expert
effectively. This argument fails, however, in that nothing in the
court's denial of the continuance prevented defense counsel from
speaking with any ballistics experts in order to prepare for cross-
examination. In addition, defendant did not begin to present
evidence until 20 May 2004, so defendant had ample time to present
his own ballistics expert, as his case did not conclude until 24
May 2004 - several days after the date defense counsel had
indicated defendant's ballistics expert would be ready and
available to testify.
Therefore, we hold that defendant was not prejudiced by the
trial court's denial of the motion to continue, and further that
the trial court did not abuse its discretion. Defendant had ampleopportunity to present his witness and evidence, and to cross-
examine the State's witness effectively.
Defendant next contends his Sixth Amendment right to a jury
trial was violated, when the trial court imposed a sentence in the
aggravated range based on facts which were not admitted by him or
found by a jury beyond a reasonable doubt, in violation of the U.S.
Supreme Court's ruling in Blakely v. Washington, 542 U.S. 296, 159
L. Ed. 2d 403 (2004).
Defendant also argues that the imposition of an aggravated
sentence based on an aggravating factor not charged in the
indictment also violated his Sixth Amendment rights. Our courts
have held repeatedly that aggravating factors need not be alleged
in the indictment. See, State v. Allen, 359 N.C. 425, 438, 615
S.E.2d 256, 265 (2005); State v. Blackwell, 359 N.C. 814, 819-20,
618 S.E.2d 213, 217 (2005); State v. Speight, 359 N.C. 602, 607,
614 S.E.2d 262, 265 (2005). Therefore, defendant's argument on
this issue fails.
In Blakely v. Washington, the United States Supreme Court held
that the “'statutory maximum' for any offense is 'the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.'” State
v. Harris, 166 N.C. App. 386, 394, 602 S.E.2d 697, 702 (2004)
(quoting Blakely, 542 U.S. at 303, 159 L. Ed. 2d at 413 (2004)).
The Blakely Court further explained that “the relevant 'statutory
maximum' is not the maximum sentence a judge may impose after
finding additional facts, but the maximum he may impose without anyadditional findings.” Blakely, 542 U.S. at 303-04, 159 L. Ed. 2d
at 413-14. “Thus, any additional findings that may be used to
increase a defendant's sentence, but not found by the jury, are
otherwise made in violation of defendant's Sixth Amendment Right to
trial by jury.” Harris, 166 N.C. App. at 394, 602 S.E.2d at 702
(citing Blakely, 542 U.S. at 305, 159 L. Ed. 2d at 414-15).
Our courts have adopted the holding in Blakely, and applied it
to our sentencing scheme and a trial court's enhancement of a
defendant's sentence by finding aggravating factors. State v.
Allen, 166 N.C. App. 139, 601 S.E.2d 299 (2004), aff'd in part and
modified in part, 359 N.C. 425, 615 S.E.2d 256 (2005). In Allen
our Court held, pursuant to Blakely, that the defendant was denied
his Sixth Amendment right to a jury trial when the trial court
unilaterally found an aggravating factor. Allen, 166 N.C. App. at
150, 601 S.E.2d at 306. In State v. Harris, this Court followed
Allen and Blakely, in holding that
pursuant to Allen and Blakely, should the
court at any new trial use a factor in
aggravation to impose a sentence beyond the
presumptive term for which defendant has been
found guilty, the fact must be found by the
following: beyond a reasonable doubt by the
jury, stipulated to by defendant, or defendant
shall have waived his right to a jury such
that judicial fact finding would be
appropriate.
State v. Harris, 166 N.C. App. at 394-95, 602 S.E.2d at 702.
In the instant case, defendant was sentenced in the aggravated
range, after the trial court found the aggravating factor that:
The Offense was committed for the benefit of,
or at the direction of, any criminal street
[gang], with the specific intent to promote,further, or assist in any criminal conduct by
gang members, and the defendant was not
charged with committing a conspiracy.
Defendant did not stipulate to this fact, nor was it presented to
the jury. Therefore, the trial court made this finding of fact on
its own initiative, and did so in violation of defendant's Sixth
Amendment right to a jury trial.
No error at trial, remand for resentencing.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).
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