An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-67

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

STATE OF NORTH CAROLINA

         v.                        Gaston County
                                Nos. 03CRS11597, 55888-89
JERRY WAYNE WHITESIDES,                55948
    Defendant.                    
    

    Appeal by Defendant from judgment entered 6 August 2004 by Judge Donald Bridges in Superior Court, Gaston County. Heard in the Court of Appeals 3 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley, Jr., for the State.

    Nancy R. Gaines, for defendant-appellant.

    WYNN, Judge.

    A statement made by a criminal defendant must be voluntary to be admissible at trial. State v. Campbell, 133 N.C. App. 531, 537, 515 S.E.2d 732, 737, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). In this case, after reviewing the record, we have determined that the trial court properly determined that Defendant's inculpatory statements, made to police officers after his arrest, were freely, voluntarily, and knowingly made. We, therefore, affirm the order of the trial court denying Defendant's motion to suppress, and hold Defendant received a fair trial, free from prejudicial error.
    Defendant was charged with assault with a deadly weapon withintent to kill inflicting serious injury, having attained habitual felon status, ethnic intimidation, and impersonating a law enforcement officer. Before trial, Defendant moved to suppress certain statements made to police officers after his arrest. This motion was heard by Judge Donald Bridges in the Gaston County Superior Court on 4 August 2004.
    The State's evidence at the suppression hearing tended to show that on 23 April 2003, Defendant and his girlfriend went fishing at a location called the “Hot Hole.” When they arrived, the two found a group of Hispanic men fishing there, whereupon a confrontation and a fight ensued. One of the Hispanic men was seriously injured and Defendant received minor injuries. Each of the parties gave statements to the police about the facts and circumstances surrounding the incident. These statements differ depending on the group asked, with each side accusing the other of sparking the altercation.
    On the day after the incident, Defendant was arrested and taken to the Gaston County Police Department, where he was advised of his Miranda rights. Defendant signed the Constitutional Rights form, which included a Waiver of Rights. Shortly after being advised of his rights and signing the Waiver of Rights, Defendant gave his first statement, written for him by Detective John Ferguson, a Gaston County Police Officer. Therein, Defendant stated that he had gone to the Hot Hole with his girlfriend to pick up fishing rods that he had left there on the previous day. Defendant stated that five Hispanic men were there, and picked upsticks and started to beat him on the head. Defendant began blacking out when he saw a “flash” of what he believed to be a knife. In response, Defendant grabbed the arm of the man holding the knife and wrestled him to the ground, whereupon the other Hispanic men jumped on him. To get the men off of him, Defendant “holler[ed]” for them to get off, stating that he was the police or an immigration official. Somehow Defendant extricated himself from the fray, and he and his girlfriend ran for his car. Defendant stated that he removed his license tag, because he saw one of the Hispanic men trying to get his tag number. When he got back to his residence, Defendant spray painted his car so no one could recognize it. Defendant also cut his hair and shaved his goatee, thinking that “the Mexicans would be after me.” This first statement was signed on 24 April 2003 at 3:21 p.m.
    Defendant subsequently admitted that his first statement was “not the entire truth.” He then gave a second statement, which was written by Detective Kevin Murphy, another Gaston County Police Officer. In that statement, Defendant acknowledged that upon discovering the Hispanic men at the “Hot Hole,” he became belligerent, telling the men that they had no business being there. Defendant told them that since they didn't have any green cards, they should “hit [the] road.” Defendant stated that he also demanded the Hispanic men's green cards, telling them that they were not Americans. In response, the Hispanic men started to pick up sticks and hit Defendant. Defendant stated that he let the men get close because he knew he had a knife in his possession. Whenone of the larger Hispanic men with a pony tail picked up a rock, Defendant stabbed him. The rest of the Hispanic men then jumped on Defendant, resulting in Defendant's fingers and leg being cut. Defendant's girlfriend helped to get the men off of Defendant. As in his first statement, Defendant detailed how he removed his license tag from his car, painted his car, and otherwise changed his personal appearance. Defendant explained to Detective Murphy, “All of this happened, because I'm 'Loco Diablo' Crazy Devil and I ain't got no use for those mother fucking Mexicans. They were fishing in my spot and those fuckers picked the wrong American to deal with, so I showed them who the b[ig] bad ass is and that's the truth.” Defendant's second statement was signed on 24 April 2003 at 3:56 p.m.
    Detectives Ferguson, Murphy, and John F. Holloway, a third Gaston County Police Officer, all testified that Defendant never requested medical treatment for his rather minor injuries. The detectives noted that Defendant never appeared to be in physical distress and the cut on his hand was not bleeding. They denied conditioning medical treatment of Defendant's injuries on his making a statement. The detectives also denied making any other threats or promises to Defendant during his interview. According to Detective Murphy, once he shared with Defendant what he thought to be the true statement of the facts, Defendant seemed proud of his actions -- raising his voice almost like “a preacher . . . to get his point across to his congregation.”
    Defendant did not offer any evidence at the hearing. Afterhearing the evidence and arguments of counsel, the trial court denied the motion to suppress. This matter proceeded to trial, where the jury found Defendant guilty of the lesser included offense of assault with a deadly weapon inflicting serious injury, ethnic intimidation and impersonating a law enforcement officer. Defendant thereafter admitted to having attained habitual felon status. After determining that Defendant was a prior record level III offender, the trial court sentenced Defendant by consolidated judgment to a presumptive term of 116 to 149 months imprisonment. Defendant appeals.
        _________________________________________
    On appeal, Defendant argues only that the trial court erred in denying his motion to suppress. “Our review of a ruling on a motion to suppress is limited to whether the trial court's findings are supported by competent evidence and whether those findings support its ultimate conclusions.” State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d 80, 83 (2003). In this case, our review is further limited, however, by Defendant's failure to assign error to any of the trial court's findings of fact. The court's findings are, therefore, presumed correct and are binding on this Court on appeal. See Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (“Where findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding.”). To that end, our review is limited toa determination as to whether the trial court's findings support its conclusions of law.
    It is well settled that a statement made by a criminal defendant must be voluntary to be admissible at trial. Campbell, 133 N.C. App. at 537, 515 S.E.2d at 737. The State has the burden of showing, by a preponderance of the evidence, that a defendant's confession is voluntary. State v. McCullers, 341 N.C. 19, 25, 460 S.E.2d 163, 167 (1995) (quoting State v. Corley, 310 N.C. 40, 52, 311 S.E.2d 540, 547 (1984)). In determining whether a statement is voluntary, a trial court must look at the totality of the circumstances. State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994) (citations omitted). The following factors are to be considered in making such a determination:
        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.
Campbell, 133 N.C. App. at 538, 515 S.E.2d at 737 (quoting Hardy, 339 N.C. at 222, 451 S.E.2d at 608). If “the confession is 'the product of an essentially free and unconstrained choice by its maker,' then 'he has willed to confess [and] it may be used against him'; where, however, 'his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.'” Hardy, 339 N.C. at 222, 451 S.E.2d at 608 (quoting Schneckloth v. Bustamonte, 412 U.S. 218,225-26, 38 L. Ed. 2d 854, 862 (1973)). In State v. Wallace, the North Carolina Supreme Court stated, “[t]o be considered improper and indicative of an involuntary confession, an inducement to confess must convey 'hope' or 'fear.'” 351 N.C. 481, 520, 528 S.E.2d 326, 350, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000).
    In the case sub judice, the evidence tends to show that Defendant was questioned by police officers after being arrested and read his Miranda rights. The Constitutional Rights form, which was signed by Defendant prior to questioning, was admitted into evidence at the suppression hearing. On that form, Defendant also wrote a “Y” after each enumerated statement of his rights, indicating that he had been read each statement and understood it. Defendant subsequently gave two statements -- with the second statement being more incriminating than the first. Officers testifying at the hearing denied threatening Defendant or making any promises to coerce him to give a statement. Defendant did not offer any testimony at the suppression hearing to show anything to the contrary.
    The trial court made the following findings of fact:
        1. In ruling upon this Motion, the Court has had an opportunity to observe the manner and demeanor of each witness and to determine the credibility of each witness. The testimony considered in ruling upon this Motion included the testimony of John Ferguson, Detective John Frederick Holloway, and Detective Kevin Murphy. Defendant did not testify or offer other evidence.

        2. Defendant was arrested in his home on April 24 (sic) 2004. Law enforcement officers hadreceived a report of a stabbing of a Hispanic man at the “Hot Hole” on the previous day and located the Defendant through a combination of physical description and a license plate number from his vehicle. Upon his arrest, Defendant was handcuffed by Officer Ferguson, whereupon Defendant asked him to be careful, because he had been finned by a catfish “yesterday at the Hot Hole, fishing” Defendant did not request medical attention for his injury at any time.

        3. Defendant was transported to the Gaston County Police Department, where he was advised of his rights. At approximately 2:00 p.m., Defendant signed a waiver of his rights and advised that he was willing to provide a statement. Defendant then gave a statement, in which he stated that he had been assaulted at the Hot Hole by a group of Mexicans and that he had been in fear for his life. He also asserted that he was able to speak in and understand Spanish and that he had understood certain of the threats made against him.

        4. Officers then arranged for Detective John Frederick Holloway to speak with the Defendant in order to determine the extent of his fluency in Spanish. Detective Holloway is fluent in Spanish and routinely provides services as a Spanish language interpreter within the Department.

        5. Detective Holloway spoke to Defendant in Spanish and in English, using common Spanish terms, including street slang for threats of assault, robbery and rape to gauge the Defendant's reaction. In the opinion of Detective Holloway, Defendant did not demonstrate any fluency in Spanish at all, being able to say only that the Mexicans had considered him to be a “Loco Diablo,” or crazy devil.

        6. Based on the opinions of Detective Holloway as well as other evidence in the case, Detective Murphy then confronted Defendant with the assertion that Defendant was not being truthful and proceeded to tell Defendant what he thought had actually happened. Upon hearing Detective Murphy's version, Defendant stood up, became agitated and said “Hell,yeah, I will tell you what happened.” Defendant then gave another statement, in which he admitted that the Hispanic men had been fishing in his spot, that he told them he was from immigration and they would have to leave, that he pulled a knife on them and when they picked up sticks, that he stabbed one of them. He also said that he removed his license plate from his car and later made some changes to the car to disguise its appearance.

        7. During the conversations between Officer Ferguson, Detective Hooloway [sic] and Detective Murphy with the Defendant, neither Officer Ferguson, Detective Hooloway [sic], Detective Murphy nor anyone else made any threats or promises to the Defendant, nor was the Defendant told that he would be helped by making a statement

        8. Upon arrival at the Police Department, Officer Ferguson asked if Defendant was thirsty and took him to a vending machine to purchase a soft drink.

        9. At no time did the Defendant indicate to either of the officers that he wished to stop answering questions or that he wished to have an attorney present during questioning.

        10. Based upon the credible and believable evidence, no threats or promises were made to the Defendant in order to induce him to make a statement concerning his involvement in the present charge.

        11. Defendant did not offer any evidence at the suppression hearing.

Based upon those findings of fact, the trial court concluded:
        1. None of the defendant's constitutional rights, either Federal or State, was violated by his interrogation or statement;

        2. No promises, offers of reward, or inducements for defendant to make a statement were made;

        3. No threat or suggested violence or show of violence to persuade defendant to make a statement were made;        
        4. Each of the statements made by defendant to Officer Ferguson, Detective Holloway and Detective Murphy on April 24, 2004, was made freely, voluntarily, and understandingly;

        5. The defendant fully understood his constitutional right to remain silent and his constitutional right to counsel and all other rights;

        6. The defendant freely, knowingly, intelligently, and voluntarily waived each of those rights and thereupon made the statement to the above-mentioned officers.
The trial court, therefore, denied Defendant's motion to suppress. Though Defendant contends that the trial court erred in so ruling, we disagree.
    The record is devoid of any circumstances that would improperly induce a defendant to make an involuntary statement. Evidence of the presence of three officers in the room while Defendant made his statement, without more, does not necessitate a finding of a threat or coercion. See State v. Thompson, 224 N.C. 661, 664, 32 S.E.2d 24, 26 (1944). Further, Detective Murphy's statement to Defendant that he did not believe Defendant, and the detective's recitation of events as he believed them to have happened is also not sufficient to induce “hope” or “fear,” so as to overcome Defendant's will. See State v. Stephenson, 144 N.C. App. 465, 477, 551 S.E.2d 858, 866, disc. review denied, 354 N.C. 227, 554 S.E.2d 829 (2001) (noting that “an officer's telling a defendant that he could not 'buy' one of the defendant's statements and that the defendant should tell the truth did not amount to coercion”). Significantly, Defendant failed to produce anyevidence at the suppression hearing to support his claim that his statement was not freely, voluntarily, or knowingly made. In any regard, the trial court's findings are unchallenged on appeal, and therefore, are binding and conclusive on this Court on appeal. In light of those findings, the trial court's conclusions of law are proper. Accordingly, the trial court did not err in denying Defendant's motion to suppress.
    Having so concluded, we hold that Defendant received a fair trial, free from prejudicial error.
    Affirmed.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***