Appeal by defendant from judgment entered 2 August 2004 by
Judge Michael E. Beale in Union County Superior Court. Heard in
the Court of Appeals 24 January 2006.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Ronald M. Marquette, for the State.
Reita P. Pendry for defendant-appellant.
Michael Todd McClain (defendant) appeals from a guilty plea
to first degree murder entered 2 August 2004. For the reasons
stated herein, we affirm the trial court's denial of defendant's
motion to suppress.
The evidence tends to show that Timothy Mojzic (Mojzic), a
manager of a Wendy's located in Marshville, North Carolina, was
shot at that restaurant on the morning of 5 March 2002 in the
course of a robbery. The subsequent investigation led the police
to question defendant on 14 March 2002. Defendant agreed to go to
the sheriff's office and give a statement. Defendant was not
placed under arrest at that time, but sat at a table in a lobby of
the sheriff's office and gave a statement to Captain Bill Tucker(Capt. Tucker) regarding other charges pending against him, but
denied involvement in the robbery and shooting at the restaurant.
Capt. Tucker then took defendant, at defendant's request, to his
Defendant was arrested on 15 March 2002 and read his Miranda
rights. Defendant signed a waiver of rights. After questioning by
Capt. Tucker, defendant was left in the custody of Sergeant David
Linto (Sgt. Linto). Defendant initiated a conversation with Sgt.
Linto, and explained he had not been truthful in denying his
involvement to Capt. Tucker in the robbery and shooting at Wendy's.
Defendant stated that he had served as a look-out for the robbery,
and told Sgt. Linto that he could retrieve the gun used in the
shooting. Defendant, accompanied by officers, left the station and
directed the officers to the location of the buried weapon. They
then returned to the sheriff's office where Capt. Tucker reduced
defendant's statement to writing. Defendant was asked to read
along as Capt. Tucker read over the completed statement, and
defendant then signed each page and initialed at least one change.
Defendant also sketched a rough diagram of where co-defendants were
during the robbery.
On 16 March 2004, defendant again asked to see Sgt. Linto and
Capt. Tucker. After reading defendant his Miranda rights,
defendant again signed a waiver. Defendant explained he had not
told the entire truth in his earlier statement, and gave another
statement that he had gone inside the restaurant carrying the gun
and had accidentally shot Mojzic. Capt. Tucker again transcribedthe statement. Defendant reviewed the statement, made some
changes, and then signed the statement. Defendant also drew two
separate diagrams of the incidents.
On 18 March 2004, Capt. Tucker spoke with defendant again at
defendant's request. Capt. Tucker read defendant his Miranda
rights, which defendant waived. Defendant then told Capt. Tucker
about other robberies in which he had been involved.
On 7 July 2004, defendant moved to suppress the statements
made after waiver of his Miranda rights on the grounds that he was
mentally retarded, and as a result could not voluntarily,
knowingly, and intelligently waive his rights. Defendant reserved
his right to appeal if the motion to suppress was denied, and
subsequently pled guilty.
An evidentiary hearing was held on the motion to suppress.
Expert testimony was offered by both defendant and the State as to
whether defendant was mentally retarded. Testimony was also
offered by defendant and the officers who interviewed him in the
course of the investigation. In an order entered 29 July 2004, the
trial court found that [d]efendant had the ability to understand
and waive his Miranda rights[,] and denied defendant's motion to
Defendant entered a plea of guilty to the charge of first
degree murder on 2 August 2004 and was sentenced to life
imprisonment without parole. Defendant appeals.
Defendant first contends that the trial court erred in denying
defendant's motion for change of venue. We do not reach this issue
as we find it is not properly before this Court on appeal.
An appeal in criminal matters is purely a creation of statute.
Because defendant entered a guilty plea, his right to appeal is
limited to those issues found in N.C.G.S. §§ 15A-979 (1988)
(motions to suppress evidence) and 15A-1444 (Cum. Supp. 1996)
(sentencing). State v. Flowers
, 128 N.C. App. 697, 703, 497
S.E.2d 94, 98 (1998). Defendant's appeal as to venue is not
permitted by either statute, and is therefore not properly before
this Court for review.
Defendant next contends the trial court erred in its denial of
his motion to suppress. We disagree.
We first address the State's contention that this matter is
not properly before us on appeal. As noted supra
right to appeal is limited. Our statutes expressly permit a
defendant to appeal from a denial of a motion to suppress when a
guilty plea is entered. N.C. Gen. Stat. § 15A-979(b) (2005).
However, our Supreme Court has held that when a defendant intends
to appeal from a suppression motion denial pursuant to G.S.
15A-979(b), he must give notice of his intention to the prosecutor
and the court before plea negotiations are finalized or he will
waive the appeal of right provisions of the statute. State v.
, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979). Here, the State contends defendant failed to give notice of
his intention to appeal the suppression motion until after the
acceptance of the guilty plea. We find the case of State v.
, ___ N.C. App. ___, 612 S.E.2d 420 (2005), instructive.
, this Court noted that the defendant's motion to
suppress explicitly stated '[n]otice is given that defendant
reserves the right to appeal if this motion is denied and there is
a subsequent plea of guilty.' Id.
at ___, 612 S.E.2d at 423.
Further, the Court found that the hearing on the motion to suppress
preceded the acceptance of the plea, entry of judgment, and oral
notice of appeal by only one day. Id
. Finally, the Court observed
that no objection was made to the notice of appeal made in open
court by defendant. Id
held that, under those
circumstances, the defendant had given notice of his appeal
sufficient to preserve the issue for review. Id
Here, defendant also explicitly stated in his motion that he
reserved his right to appeal the motion to suppress. Defendant's
motion to suppress was denied three days prior to the acceptance of
defendant's guilty plea and entry of judgment. Further, no
objection was made to defendant's statements regarding appeal of
the motion to suppress made during the sentencing phase. As we
find defendant properly gave notice of his appeal to preserve the
issue, we proceed to the merits of the argument.
N.C. Gen. Stat. § 15A-977(f) (2003) requires a trial court to
make findings of fact and conclusions of law to support its order
granting or denying a defendant's motion to suppress evidence.State v. Duff
, ___ N.C. App. ___, ___, 615 S.E.2d 373, 377,
supersedeas denied and disc. review denied
, 359 N.C. 854, 619
S.E.2d 853 (2005). Where a defendant contends that his confession
to law enforcement officers was involuntary, '[s]uch findings and
conclusions must be determinative on the issue of voluntariness.'
. (quoting State v. James
, 321 N.C. 676, 685, 365 S.E.2d 579, 585
(1988)). 'The standard of review in evaluating a trial court's
ruling on a motion to suppress is that the trial court's findings
of fact are conclusive on appeal if supported by competent
evidence, even if the evidence is conflicting.' State v. Smith
160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003) (citations
omitted). 'However, the conclusions of law drawn from the
findings of fact are reviewable by the appellate courts.' Duff
___ N.C. App. at ___, 615 S.E.2d at 377 (citation omitted).
Defendant contends that the trial court erred in its finding,
based on the totality of the evidence, that the Defendant is not
mentally retarded[,] and thus erred in finding that defendant
knowingly waived his right to remain silent. A review of the
record shows that conflicting evidence was offered by experts who
testified at the hearing as to whether defendant was mentally
retarded or malingering. The record further shows that competent
evidence supports the trial court's finding that defendant was not
mentally retarded, in the form of expert testimony, test results,
prior school records, and defendant's own testimony before the
trial court. As competent evidence supports the trial court's
finding, and the trial court made additional findings as to thevoluntary nature of defendant's confession to officers, we
therefore find no error in the trial court's denial of defendant's
motion to suppress.
As defendant's appeal as to change of venue is not properly
before this Court, and as the trial court's findings are supported
by competent evidence in denial of defendant's motion to suppress
evidence, we affirm the judgment.
Judges WYNN and JACKSON concur.
Report per Rule 30(e).
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