STATE OF NORTH CAROLINA v. ARMANDO ORTEZ
Filed: 5 July 2006
1. Confessions and Incriminating Statements_Miranda warnings_flawed translation to
The Spanish translations of Miranda warnings used here contained grammatical errors, but
reasonably informed defendant of his rights.
2. Confessions and Incriminating Statements_knowing waiver of rights_borderline
IQ_Spanish only speaker
The trial court's unchallenged findings of fact support its conclusion of a knowing waiver
of rights by a defendant with borderline or low average intellectual function who spoke only
3. Criminal Law_motion for mistrial--jailhouse statement produced during trial
The trial court did not abuse its discretion by denying defendant's motion for a mistrial after
a prisoner came forward during the trial to report a jailhouse conversation with defendant. There
was no argument that the State violated discovery procedures, only that the statement contradicted
defense counsel's opening statement. While the prisoner's statement was materially adverse to
defendant's case, it did not cause substantial and irreparable prejudice.
Appeal by defendant from judgment entered 31 October 2003 by
Judge John R. Jolly, Jr., in Superior Court, Wake County. Heard in
the Court of Appeals 7 March 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-
Armando Ortez (defendant) was convicted of first-degree murder
under the felony murder rule. The trial court sentenced defendant
to life imprisonment without parole.
Defendant filed a motion for a pre-trial hearing "to determinethat . . . defendant [was] mentally retarded." The trial court
conducted a hearing on 14 July 2003 to determine whether defendant
was mentally retarded. At the hearing, Dr. Antonio Puente (Dr.
Puente) testified on behalf of defendant as an expert in
neuropsychology. Dr. Puente testified that he conducted a series
of intelligence tests on defendant in November 2002 and in March
2003. Dr. Puente testified that defendant's IQ scores ranged from
55 to 75 and that defendant's mean score on all the tests was 64.6.
Dr. Puente determined that defendant was mildly mentally retarded.
Dr. Puente testified that defendant's mental retardation manifested
itself before defendant reached the age of eighteen.
Dr. Patricio Lara (Dr. Lara) also testified on behalf of
defendant as an expert in forensic psychiatry. Dr. Lara testified
that he evaluated defendant on three different occasions in April
and June of 2003, and also reviewed Dr. Puente's findings. Dr.
Lara testified that defendant was mildly mentally retarded.
Dr. Jennifer Schnitzer (Dr. Schnitzer) testified for the State
as an expert in forensic psychology. Dr. Schnitzer testified that
she administered a series of intelligence tests to defendant. Dr.
Schnitzer testified that, based upon the results of one of the
tests, defendant's IQ was as high as 77. Dr. Schnitzer testified
that defendant was not mentally retarded. Rather, Dr. Schnitzer
testified that she diagnosed defendant with "borderline
Dr. Charles Vance (Dr. Vance) testified for the State as an
expert in forensic psychiatry. Dr. Vance testified that he did notthink defendant was mentally retarded. Dr. Vance further stated as
follows: "I cannot say for sure whether [defendant's] IQ falls in
the range of borderline intellectual functioning or low average,
but normal intellectual functioning -- and that's why we diagnosed
him with provisional -- the provisional diagnosis, borderline
The trial court found that defendant had failed to prove "by
clear and convincing evidence that he [was] mentally retarded and
that such [mental retardation] manifested itself before he became
[eighteen] years of age." The trial court also found "[t]hat the
State of North Carolina [was] not precluded from seeking the death
penalty against . . . [d]efendant."
Defendant also filed a pre-trial motion to suppress statements
made by defendant during an interrogation at the Raleigh Police
Department on 7 August 2002, the day of his arrest, citing the
(1) The defendant did not understand his
rights under Miranda v. Arizona, 38 U.S.
(2) The defendant did not knowingly and
intelligently waive his Miranda rights;
(3) The defendant did not voluntarily waive
his Miranda rights;
(4) The alleged statement the defendant gave
to the police was involuntarily given;
(5) The defendant's alleged statement is
(6) The defendant's alleged statement was
taken in violation of the Vienna Convention on
The trial court conducted a hearing on 24 July 2003 and 31
July 2003 on defendant's motion to suppress his statements. At the
suppression hearing, the State presented testimony of Raleigh
Police Detective Dale Montague (Detective Montague), Detective
Randy Miller (Detective Miller), and Officer Isaac Perez (Officer
Perez). Detectives Montague and Miller conducted an interrogation
of defendant and testified in detail regarding their interrogation.
Officer Perez, who was fluent in Spanish, testified that he served
as interpreter during the interrogation. Officer Perez testified
that he read defendant his Miranda rights in Spanish from a
pre-printed Miranda rights waiver form (the waiver form).
Detective Montague and Officer Perez testified that defendant
signed the waiver form.
At the suppression hearing, defendant presented testimony of
Eta Trabing (Ms. Trabing), a certified English and Spanish
interpreter. Ms. Trabing testified regarding the waiver form which
was read to defendant, and signed by him at the beginning of the
interrogation session. Ms. Trabing testified that the phrase
"corte de ley," used on the waiver form, had no meaning in Spanish.
Ms. Trabing also testified that the word "interrogatorio," used on
the waiver form as a translation for the word "questioning,"
"implie[d] something very formal and usually where the party that
[was] asking the questions [was] in a position of authority." Ms.
Trabing further testified that nothing on the waiver form informed
defendant that an attorney would be appointed for him if he was
unable to afford one. Rather, the waiver form, translated intoEnglish, read as follows: "[I]f you want a lawyer and cannot get
one, for you one will be named for you so that for you he can
represent you during the interrogatory."
Dr. Puente and Dr. Lara also testified at the suppression
hearing. Their testimony at the suppression hearing was
substantially similar to their testimony at the earlier hearing
regarding whether defendant was mentally retarded. However, Dr.
Lara also testified that defendant did not understand the Miranda
rights as they were read to him by Officer Perez.
The trial court denied defendant's motion to suppress,
concluding that defendant made his statements "freely, voluntarily,
and understandingly." The trial court made the following
uncontested findings of fact:
57. That . . . [d]efendant appeared alert and
did not appear to be impaired in any manner.
58. That . . . [d]efendant did not appear
59. That . . . [d]efendant appeared to
. . .
67. That the interview of . . . defendant
lasted approximately one and one half to two
68. That during the course of the interview,
. . . defendant requested food.
69. That the Detectives responded to the
request for food by immediately taking a 45
minute break during which time they provided
food and drink to . . . defendant.
70. That . . . [d]efendant's responses to the
questions asked by the Detectives were
reasonable and appropriate to the questionsposed.
. . .
72. That the interview was conducted in a
conversational tone and at no time did either
. . . [d]efendant or the officers raise their
73. That the officers did not threaten
. . . defendant with violence or make a show
of violence at any point during the course of
74. That the officers did not make promises,
offer rewards or any other inducements to get
. . . [d]efendant to make a statement.
. . .
77. That Officer Perez did not have difficulty
in communicating with . . . [d]efendant and
there were no long pauses between the
questions posed by Detective Montague through
Officer Perez and the responses provided by
. . . defendant.
78. That this was not . . . [d]efendant's
first experience with law enforcement
79. That . . . [d]efendant's prior experience
with law enforcement includes an incident with
the Apex Police Department.
80. That on June 30, 2002, Apex Police Officer
W.T. Allen arrested . . . [d]efendant for
Breaking and Entering a Motor Vehicle.
81. That after arresting . . . [d]efendant,
Officer Allen advised . . . [d]efendant of his
82. That . . . [d]efendant indicated to
Officer Allen on June 30, 2002 that he did not
speak English after being advised of his
Miranda rights (in English).
83. That as Officer Allen was transporting
. . . [d]efendant to jail for processing,
. . . [d]efendant apologized for what he had
done in English.
84. That on July 22, 2002, less than three
weeks from the August 7, 2002 interview,
. . . [d]efendant appeared in Wake County
District Court and entered a plea of guilty to
felony Breaking and Entering a Motor Vehicle.
85. That on July 22, 2002, . . . [d]efendant
was represented by a court appointed attorney.
86. That the District Court Judge specifically
found on July 22, 2002 that
. . . [d]efendant's plea was the informed
choice of . . . [d]efendant and that it was
made freely, voluntarily and understandingly.
At trial, the State's evidence tended to show that Nguyen
Truong (the victim) owned Brightwash Laundromat (the laundromat) in
downtown Raleigh. Michael Boone (Boone) went to the laundromat at
approximately 6:30 p.m. on 26 July 2002 and saw three Hispanic men
standing outside the laundromat. Boone went inside and then came
back out and sat down. One of the Hispanic men went inside the
laundromat and the other two men remained outside. Boone later
identified defendant as one of the two men who was outside the
laundromat. Boone left the laundromat about 7:00 p.m.
Devaughn Cros (Cros) also passed by the laundromat at
approximately 6:30 p.m. on 26 July 2002 and observed three
"Mexican" males standing outside the laundromat. A short time
later, Cros again passed by the laundromat and saw only two men
outside the laundromat.
Later that evening, neighborhood children noticed the victim's
truck, with its lights on, in the parking lot of the laundromat.
The inside of the laundromat was dark. One of the children looked
inside the laundromat and yelled that the victim was dead. The
children informed adults, who called 911. When police and paramedics arrived at the laundromat on 26
July 2002, they found the victim lying inside the laundromat in a
large pool of blood, with fifty-six "cutting type wounds" to his
torso, head, and arms. There was blood and blood splatter in
multiple places in the laundromat. Some of the blood was later
identified as matching that of the victim and some was identified
as coming from an unknown individual. Bloody shoe tracks were
found throughout the laundromat, and a bloody palm print was found
on a cooler inside the laundromat. The palm print was later
identified as defendant's print. A warrant was issued for
defendant's arrest on 2 August 2002 and he was arrested on 7 August
Detective Montague testified that he conducted an
interrogation of defendant. During the interrogation, defendant
admitted he was at the laundromat when the victim was killed but
denied participating in the actual murder. Defendant said he met
two Mexican men earlier that day, and that one of the men suggested
they rob the "Chinese man." Defendant said they did not plan the
robbery, but talked about the robbery for three or four minutes
before entering the laundromat. No one discussed murdering the
victim. Defendant also admitted that after he saw one of the men
stabbing the victim, defendant grabbed the victim's wallet and
watch. Defendant jumped over the counter to look for money, but
found none; instead, defendant stole some cigarettes. The three
men then tried to steal the victim's truck but were unable to
operate it, and fled on foot. Defendant threw the wallet in adumpster and kept the watch. During defendant's interview, when
asked about the watch, defendant reached into his pocket and
produced the watch.
The State's evidence further showed that between 7:00 p.m. and
8:00 p.m., on 26 July 2002, two Hispanic males approached Emily
Watkins (Watkins) and three other people, who were sitting on the
porch of her father's home, which was located within walking
distance of the laundromat. One of the men tried to sell Watkins
a gold necklace. However, Watkins saw blood on the necklace and
gave it back to the man. Watkins also noticed blood on the man's
shirt, shorts, and hand. Watkins later identified a necklace worn
by the victim in a photograph as being the same necklace that the
man had tried to sell to her. Watkins identified Gonzalo Garcia as
the man who had approached her with the necklace.
Crystal Evans (Evans) also testified that she was on the porch
with Watkins on 26 July 2002 when two Hispanic males approached and
tried to sell them a necklace. Evans testified that the necklace
had blood on it and that Watkins told the men to leave. Evans
testified the Hispanic males took the necklace and left. Evans
further testified that on 4 September 2003, she talked with her
brother, Adam Horton (Horton), who was then in custody at the Wake
County Detention Center on charges unrelated to the present case.
Evans testified that she told Horton she had been subpoenaed to
testify in a "murder trial between a Mexican and a Chinese man,"
about a murder that had occurred at the laundromat. Evans
testified that Horton indicated he had information about themurder.
During defendant's opening statement, defendant's counsel
presented a theory of defense that the evidence would prove that
someone other than defendant killed the victim. Horton testified
for the State that in September 2003, while he and defendant were
incarcerated on the ninth floor of the Wake County Detention
Center, defendant told Horton that defendant had stabbed the victim
"mucho times" in the face and had taken a chain from the victim's
neck. Horton testified that defendant told him this information
one night after midnight. Because Horton did not tell the State
that he had relevant information until 9 October 2003, defendant
was not notified of Horton's intent to testify until mid-trial.
Defendant filed a motion for mistrial on 13 October 2003. The
trial court denied the motion.
Defendant presented evidence at trial. Watkins, who had
testified for the State, testified that she did not recognize
defendant as one of the two men who had walked up to her father's
house with a necklace on 26 July 2002.
William Hensley (Hensley) testified that he owned a forensics
company, and was a retired crime scene agent for CCBI. Hensley
testified that in deaths involving multiple stab wounds, it was
very common for an assailant to cut himself and thereby become a
secondary bleeder. Hensley further testified that in the present
case, there was an unidentified secondary bleeder.
Wanda Strickland (Strickland) testified that she was an
administrative officer at the Wake County Detention Center. Strickland testified that records indicated Horton had been
transferred to the ninth floor of the Wake County Detention Center
between 2:00 p.m. and 3:00 p.m. on 4 September 2003. Strickland
also testified there was no way Horton could have slept on the
ninth floor on the evening of 3 September 2003 or in the early
morning hours of 4 September 2003. On cross-examination,
Strickland testified that Horton would have slept on the ninth
floor of the Wake County Detention Center after 2:00 p.m. on 4
September 2003. Strickland also testified that defendant was in
the same location as Horton as of 2:00 p.m. on 4 September 2003,
and that defendant had been in that location since 27 August 2003.
Defendant was convicted of first-degree murder on 22 October
2003, based on the felony murder rule. Because the jury could not
reach a unanimous decision as to whether defendant was mentally
retarded, the trial court entered judgment for first- degree murder
and sentenced defendant to life imprisonment without parole on 31
October 2003. Defendant appeals.
Defendant first argues the trial court erred in denying his
motion to suppress his statements because: (1) defendant was not
adequately advised of his Miranda
rights and (2) defendant did not
knowingly and intelligently waive his Miranda
also contends the trial court failed to make findings which
resolved disputed material facts concerning a waiver.
Our standard of review of an order granting or denying a
motion to suppress is "strictly limited to determining whether thetrial [court's] underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
[trial court's] ultimate conclusions of law." State v. Cooke
N.C. 132, 134, 291 S.E.2d 618, 619 (1982). A trial court's
conclusions concerning the voluntariness of a defendant's statement
are reviewable de novo
on appeal. State v. Hardy
, 339 N.C. 207,
222, 451 S.E.2d 600, 608 (1994). When a defendant's waiver of
rights arises under the same circumstances as the making of
his statement, the voluntariness issues may be evaluated as a
single matter. State v. Mahatha
, 157 N.C. App. 183, 194, 578
S.E.2d 617, 624, disc. review denied
, 357 N.C. 466, 586 S.E.2d 773
A. Adequacy of Defendant's Miranda Warnings
 The Fifth Amendment of the United States Constitution
prohibits compelling any person in a criminal case to incriminate
himself or herself. U.S. Const. amend. V. In Miranda v. Arizona
384 U.S. 436, 16 L. Ed. 2d 694 (1966),
the United States Supreme
Court articulated warnings to protect this constitutional right.
Prior to custodial interrogations, a person must be advised that he
has the right to remain silent, that anything
he says can be used against him in a court of
law, that he has the right to the presence of
an attorney, and that if he cannot afford an
attorney one will be appointed for him prior
to any questioning if he so desires.
. at 479, 16 L. Ed. 2d at 726. Without these warnings, any
statement made by a defendant during a custodial interrogation may
not be admissible at trial. Id
. In the present case, defendant challenges the adequacy of his
warnings. Specifically, defendant argues that the Spanish
translation of the Miranda
warning read to him was "inadequate to
convey to [defendant] the substance of his Miranda
Defendant contends that a phrase used, "corte de ley," has no
meaning in Spanish and takes issue with the use of it for a
translation of the phrase, "court of law." Defendant contends the
proper translation for "court" would be "tribunal de justicia."
Defendant also states that the Spanish translation read to him used
the word "interrogatorio" for the word "questioning." Defendant
contends "interrogatorio" refers to a "formal proceeding, such as
a court trial." Finally, defendant claims that the Spanish
translation of the Miranda
rights read to him did not properly
convey the right of an indigent defendant to have counsel appointed
before questioning. Although the Spanish translation of Miranda
warnings used by the Raleigh Police Department in this case
contained grammatical errors, we do not find these errors rendered
warnings inadequate. The United States Supreme
Court has never required Miranda
warnings to "be given in the exact
form described in that decision." Duckworth v. Eagan
, 492 U.S.
195, 202, 106 L. E. 2d 166, 176 (1989). When reviewing the
adequacy of Miranda
warnings, an appellate court asks "simply
whether the warnings reasonably 'conve[y] to [a suspect] his rights
as required by [Miranda
. at 203, 106 L. Ed. 2d at 177
(quoting California v. Prysock
, 453 U.S. 355, 361, 69 L. Ed. 2d
696, 702 (1981)). In the present case, the warnings read to defendant in Spanish
reasonably conveyed to defendant his Miranda
rights and were
therefore adequate. While defendant argues the term "corte de ley"
has no meaning in Spanish, when defendant was asked in Spanish
whether he understood his rights, defendant answered in the
affirmative and signed the bottom of the waiver form. Moreover, a
material part of the Miranda
warning given _ that anything
defendant said could be used against him _ was preserved in the
Defendant also argues the term "interrogatorio" signifies a
more formal proceeding than the word "questioning." Defendant's
witness, Ms. Trabing, testified that the term "'interrogatorio'
implie[d] something very formal and usually where the party that
[was] asking the questions [was] in a position of authority." In
, the Supreme Court defined "custodial interrogation" as
"questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of
action in any significant way." Miranda
, 384 U.S. at 444, 16 L.
Ed. 2d at 706. This definition is very similar to the definition
of "interrogatorio" provided by Ms. Trabing. Defendant was clearly
subjected to custodial interrogation because defendant was: (1)
arrested, handcuffed, and brought into the Raleigh Police
Department in a police vehicle; (2) read his Miranda
Spanish; and (3) questioned in a room with three officers present.
While "interrogatorio" may be an imprecise translation of
"questioning," it does not render defendant's Miranda
Finally, defendant challenges the Spanish translation of his
right, which reads as follows: "If you want a lawyer
and cannot get one, for you one will be named for you so that for
you he can represent you during the interrogatory." Defendant
argues that because he was not informed that the "naming" of an
attorney could come without cost to him, the warning was
inadequate. We disagree.
Defendant relies upon United States v. Perez-Lopez
, 348 F.3d
839 (9th Cir. 2003). In Perez-Lopez
, the defendant was advised of
rights in Spanish. Id
. at 843. Translated into
English, the defendant received the following warning: "[Y]ou have
the right to solicit the court for an attorney if you have no
. at 847. The Ninth Circuit held that the warning was
constitutionally inadequate because it did not inform the defendant
that the government had an obligation to appoint an attorney for
him if he was indigent. Id
. at 848. The Perez-Lopez
explained that "[t]o be required to 'solicit' the court, in the
words of [the] warning, implies the possibility of rejection." Id
In the present case, the warning given to defendant did not
imply that defendant's request for an attorney could be rejected.
The warning given to defendant was broader than the warning in
, providing that a lawyer would be named for defendant
if he could not get one for any reason. Thus, the translation
reasonably conveyed to defendant his right to have counsel named
for him. Because the warnings given to defendant were sufficientto reasonably convey to defendant each of his Miranda
find no error.
B. Defendant's Waiver of his Miranda Rights
 Defendant argues that the evidence presented at the
suppression hearing did not support the trial court's conclusion
that defendant freely, knowingly, intelligently, and voluntarily
waived his Miranda
rights. Defendant further contends the trial
court erred by failing to make findings of fact resolving disputed
issues concerning defendant's waiver of his Miranda
A defendant may choose to waive his Miranda
384 U.S. at 479, 16 L. Ed.2d at 726. However, "unless and until
such warnings and waiver are demonstrated by the prosecution at
trial, no evidence obtained as a result of interrogation can be
used against [a defendant]." Id
. The State has the burden of
proving that a defendant's waiver of his Miranda
rights was knowing
and intelligent. State v. Simpson
, 314 N.C. 359, 367, 334 S.E.2d
53, 59 (1985). "Whether a waiver is knowingly and intelligently
made depends on the specific facts and circumstances of each case,
including the background, experience, and conduct of the accused."
. In considering the totality of the circumstances, we examine
the following: (1) a defendant's familiarity with the criminal
justice system, (2) the length of a defendant's interrogation, (3)
the amount of time a defendant was without sleep, (4) whether a
defendant was held incommunicado, (5) whether threats of violence
were made against a defendant, (6) whether promises were made to adefendant to obtain a statement, (7) whether a defendant was
deprived of food, and (8) a defendant's age and mental condition.
State v. Kemmerlin
, 356 N.C. 446, 458, 573 S.E.2d 870, 880-81
(2002). "The presence or absence of any one of these factors is
not determinative." Id
"When there is a material
conflict in the evidence on voir
, the [trial court] must
make findings of fact resolving any
such material conflict." State v. Lang
, 309 N.C. 512, 520, 308
S.E.2d 317, 321 (1983). However, these findings of fact need not
summarize all of the evidence presented at the suppression
hearing. State v. Dunlap
, 298 N.C. 725, 730-31, 259 S.E.2d 893,
Defendant specifically argues that the trial court failed to
make findings of fact resolving disputed issues surrounding
defendant's level of intelligence and defendant's capacity to
understand and waive his Miranda
rights. However, there was not a
material conflict regarding defendant's level of intelligence. The
trial court found that defendant was of "borderline intellectual or
low average functioning" if not "mildly mentally retarded." In
evaluating whether a waiver was knowing and intelligent in a case
involving a mentally retarded defendant, we must look to the
totality of the circumstances, paying particular attention to the
defendant's personal characteristics and the details of the
interrogation. State v. Fincher
, 309 N.C. 1, 19, 305 S.E.2d 685,
696-97 (1983). "[A] defendant's subnormal mental capacity is a
factor to be considered when determining whether a knowing andintelligent waiver of rights has been made. Such lack of
intelligence does not, however, standing alone, render an
in-custody statement incompetent if it is in all other respects
voluntary and understandingly made." Id.
at 8, 305 S.E.2d at 690
(internal citations omitted).
In the present case, the trial court's unchallenged findings
of fact support the trial court's conclusion that defendant made a
knowing, intelligent, and voluntary waiver of his Miranda
The trial court found that defendant was read his Miranda
Spanish. The trial court found that defendant said he understood
his rights and wanted to give a statement to the officers.
Defendant's testing showed he had an IQ ranging from 55 to 77,
classifying him as mildly mentally retarded to borderline
intellectual or low average functioning. However, as stated above,
defendant's IQ alone does not mean defendant could not make a
voluntary, knowing and intelligent waiver of his Miranda
, 309 N.C. at 8, 305 S.E.2d at 690. Defendant had
previous experience in the criminal justice system, having been
arrested on 30 June 2002 on a charge of breaking into and stealing
from a car. In the prior case, defendant was read his Miranda
rights in English. He responded in Spanish that he did not
understand English. However, ultimately defendant entered a plea
of guilty to felony breaking and entering a motor vehicle and the
trial court found defendant made the plea freely, voluntarily and
In the present case, the unchallenged findings of fact alsodemonstrate that the length of the interrogation was not unusual or
excessive. Defendant was not deprived of sleep, nor were there any
threats of violence. When defendant indicated he was hungry, he
was given food and drink. When defendant was addressed in Spanish,
he did not indicate that he was confused or that he did not
understand what was happening. Rather, defendant appeared to
understand the questions asked and gave reasonable and appropriate
answers. There were no long pauses between the questions asked and
defendant's responses. We conclude that the trial court's findings
adequately support the trial court's conclusions:
4. That the statement made by
. . . [d]efendant to Officer Perez, Inspector
Montague and Inspector Miller on August 7,
2002, was made freely, voluntarily, and
5. That . . . [d]efendant was in full
understanding of his Constitutional right to
remain silent and right to counsel, and all
6. That . . . [d]efendant freely, knowingly,
intelligently, and voluntarily waived each of
those rights and thereupon made the statement
to the officers above-mentioned.
We overrule defendant's assignments of error grouped under this
 Defendant argues the trial court abused its discretion by
denying defendant's motion for a mistrial. Horton came forward in
the middle of defendant's trial, claiming to have information
related to defendant's case. Horton said he and defendant were
incarcerated together during September 2003. During that time,defendant told Horton that defendant and the other Hispanic males
robbed the victim, and that when the robbery went wrong, defendant
stabbed the victim "mucho times." When defendant learned of
Horton's intended testimony, defendant moved for a mistrial on the
basis that Horton's testimony conflicted with defendant's opening
statement and thus resulted in substantial and irreparable
prejudice to defendant's case. The trial court denied defendant's
motion for a mistrial.
Under N.C. Gen. Stat. § 15A-1061 (2005), a trial court "must
declare a mistrial upon the defendant's motion if there occurs
during the trial an error or legal defect in the proceedings, or
conduct inside or outside the courtroom, resulting in substantial
and irreparable prejudice to the defendant's case." The decision
to grant or deny a motion for mistrial is within the sound
discretion of the trial court, and the motion will be granted "only
when there are such serious improprieties as would make it
impossible to attain a fair and impartial verdict under the law."
State v. Calloway
, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982).
Defendant does not argue that the State violated any discovery
requirements because the State did not learn that Horton had
potentially relevant information until mid-trial. Rather,
defendant alleges that the admission of Horton's testimony
contradicted the theory of defense staked out by defense counsel in
defendant's opening statement.
Defendant relies upon State v. Moorman
, 320 N.C. 387, 358
S.E.2d 502 (1987), in which our Supreme Court held that thedefendant received ineffective assistance of counsel. Id
. at 402,
358 S.E.2d at 511-12. Our Supreme Court recognized that "[a]
cardinal tenet of successful advocacy is that the advocate be
unquestionably credible. If the fact finder loses confidence in
the credibility of the advocate, it loses confidence in the
credibility of the advocate's cause." Id
. at 400, 358 S.E.2d at
510. However, Moorman
is distinguishable from the case before us.
, during the defendant's opening statement to the trial
court, defense counsel promised to "prove that [the] defendant was
physically and psychologically incapable of rape[.]" Id
. at 393,
358 S.E.2d at 506. However, no such evidence was ever presented.
. In addition, defense counsel in Moorman
was found to have
committed several other egregious acts during the course of the
trial, such as failing to prepare for trial, appearing disheveled
and rumpled, having mood swings, using and abusing multiple drugs,
and falling asleep during the defendant's testimony. Id
394-96, 358 S.E.2d at 507-08. No such acts by counsel are alleged
In the present case, defense counsel conceded during
defendant's opening statement that defendant was present at the
laundromat during the killing, but argued that defendant only
removed property and took no part in the murder. Specifically,
defense counsel stated that "the physical evidence in this case
shows you that it was another man and not [defendant] who stabbed
[the victim]." The physical evidence alluded to in this statement
_ evidence of a third person's blood found in the laundry, on thevictim's truck, and behind an abandoned building _ was introduced
at trial. Thus, although Horton's testimony contradicted
defendant's assertion that defendant did not murder the victim,
defense counsel kept its "promise" to the jury that the physical
evidence would point to another, unidentified person as the actual
In addition, during defendant's opening statement, defense
counsel stated that "there's going to be significant evidence that
[defendant] told police that he never agreed with these other men
to commit a robbery. You are not going to hear anything that says
he planned or agreed to a killing, or that he had any idea that
that would take place." Once again, the evidence introduced at
trial corroborated defendant's opening statement. There was
evidence introduced that defendant's statement to police did not
indicate a plan to rob the victim and there was no evidence
introduced that defendant had planned to kill the victim. However,
defense counsel never stated there would be no evidence at all that
defendant had not planned to rob the victim. Thus, Horton's
information did not cause defense counsel to break counsel's
"promise" to the jury.
Moreover, defendant was not convicted of first-degree murder
on a theory of premeditation or deliberation. Rather, defendant
was convicted under the felony murder rule. Although defendant
told police that he and the other men had not planned the robbery,
defendant also said they had talked about the robbery for three or
four minutes before entering the laundromat. Defendant admittedstealing several items from the laundromat and defendant's palm
print was found inside the laundromat. There was overwhelming
evidence of defendant's guilt on a theory of felony murder.
Horton's statements concerning defendant, although materially
adverse to defendant's case, did not cause "substantial and
irreparable prejudice" to defendant's case. We conclude the trial
court did not abuse its discretion in denying defendant's motion
for mistrial, and we therefore overrule this assignment of error.
Defendant did not set forth arguments pertaining to his
remaining assignments of error and we deem them abandoned pursuant
to N.C.R. App. P. 28(b)(6).
Judges BRYANT and CALABRIA concur.
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