Initially, we note defendants have failed to present
arguments supporting all of their assignments of error. Pursuant
to N.C.R. App. P. 28(b)(6), the assignments of error for which no
argument is made are deemed abandoned. Our review, therefore, is
limited to the assignments of error properly preserved by
defendants on appeal.
The issues on appeal are whether the trial court: (I) erred by
granting the State's motion for joinder and denying defendants'
motions for severance; (II) erred by denying Junior's motion to
suppress; and (III) committed plain error by allowing testimony
concerning Junior's willingness to take a polygraph test.
Both defendants contend the trial court erred in granting the
State's motion to join the cases for trial and denying defensemotions for severance made prior to trial and during trial. We
disagree.
N.C. Gen. Stat. § 15A-926 permits joinder of charges against
multiple defendants when “the offenses charged are 'part of the
same act or transaction' or are 'so closely connected in time,
place, and occasion that it would be difficult to separate proof of
one charge from proof of the others.'”
State v. Fink, 92 N.C. App.
523, 527, 375 S.E.2d 303, 306 (1989) (quoting N.C. Gen. Stat. §
15A-926(b)(2) (1988)). “There is a strong policy in North Carolina
favoring the consolidation of the cases of multiple defendants at
trial when they may be held accountable for the same criminal
conduct.”
State v. Barnes, 345 N.C. 184, 220, 481 S.E.2d 44, 63
(1997),
cert. denied 523 U.S. 1024, 140 L. Ed. 2d 473 (1998)..
However, N.C. Gen. Stat. § 15A-927(c)(2) (2003) requires severance
when it is necessary for “a fair determination of the guilt or
innocence of one or more defendants[.]” Whether the defendants
should be tried jointly or separately is a question within the
sound discretion of the trial judge and will not be disturbed on
appeal without a showing that joinder has deprived a defendant of
a fair trial.
State v. Tirado, 358 N.C. 551, 565, 599 S.E.2d 515,
526 (2004),
cert. denied Queen v. North Carolina, __ U.S. __, 161
L. Ed. 2d 285 (2005).
In the instant case, both defendants argue that joinder led to
the introduction of redacted statements that, in turn, led to “an
impermissible combat between defendants” because their defenses
were “not only antagonistic but irreconcilable.” Senior alsoargues joinder “deprived [him] of exculpatory evidence that would
have been admissible at a [separate] trial, and ultimately forced
[Senior] to forgo his Fifth Amendment rights and testify.” In
addition, Junior argues joinder led to a redacted statement that
distorted his role in the events. Defendants have failed to show
that the trial court abused its discretion in consolidating their
trials or that they did not receive a fair trial.
“The fact that defendants in a joint trial may offer
antagonistic or conflicting defenses does not necessarily warrant
severance.”
State v. Pendergrass,
111 N.C. App. 310, 315, 432
S.E.2d 403, 406 (1993).
Neither is severance appropriate “merely
because the evidence against one codefendant differs from the
evidence against another.”
Barnes, 345 N.C. at 220, 481 S.E.2d at
63. “The test is whether the conflict in defendants' respective
positions at trial is of such a nature that, considering all of the
other evidence in the case, defendants were denied a fair trial.”
State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979)
cert. denied, 446 U.S. 929, 64 L. Ed. 2d 282 (1980).
The focus is
whether the defendants suffered prejudice.
State v. Rasor, 319
N.C. 577, 583, 356 S.E.2d 328, 332 (1987).
“Prejudice would ordinarily result where
codefendants' defenses are so irreconcilable
that the jury will unjustifiably infer that
this conflict alone demonstrates that both are
guilty. . . .
Severance should ordinarily be
granted where defenses are so discrepant as to
pose an evidentiary contest more between
defendants themselves than between the state
and the defendants. . . . To be avoided is the
spectacle where the state simply stands by and
witnesses a combat in which the defendants
[attempt] to destroy each other.
Nelson, 298 N.C. at 587, 260 S.E.2d at 640 (1979).
We are not persuaded by defendants' assertion that their
antagonistic defenses mandated severance in the instant case. “No
prejudice results where the state presents plenary evidence of
defendant's guilt, apart from the co-defendant's testimony, and
where defendant has the opportunity to cross-examine the co-
defendant.”
Rasor, 319 N.C. at 583, 356 S.E.2d at 332. Here, the
State's evidence tended to show: the victim usually carried large
sums of cash on his person and money was missing; several weapons
were missing from the residence; both defendants were present when
the victim was wounded; and defendants were seen with large sums of
cash in the early morning hours following the victim's death. The
State also presented evidence that both defendants were seeking to
sell weapons. “Clearly this was not a case in which the state
stood idly by and relied on the testimony of each defendant to
convict the other or in which the jury was likely to infer from the
conflict that both defendants were guilty.”
Id.
We also are not persuaded by Senior's argument that joinder
deprived him of exculpatory evidence. Senior argues “the joint
trial resulted in a substantial redaction of the substance of [his]
pre-trial statement [which] made clear that [he] had no intentional
involvement in the death of Lowry and that Junior was the culpable
party.” Although Senior argues his participation was passive, the
evidence against him at trial was sufficient to go to the jury on
a theory of acting in concert or aiding and abetting. “Any
passivity on the part of [Senior] was a consideration moreappropriate for sentencing.”
Barnes, 345 N.C. at 223-24, 481
S.E.2d at 65.
Junior argues his “description of being a largely passive
participant in the events that [led] to Mick[e]y's death and which
involved a robbery which Junior had no part of was unfairly
transformed” in the redacted statement, resulting in prejudice to
Junior. We find Junior's argument that he was deprived of a fair
trial unpersuasive as well. In Junior's redacted statement and the
full version which was admitted after Junior testified, he states
he in fact fired one shot at the victim. Such evidence does not
indicate Junior was “a largely passive participant”. The
assignment of error is overruled.
Junior also argues the trial court erred by denying his motion
to suppress his pretrial statement. We disagree.
The State has the burden of demonstrating the admissibility
of evidence at a hearing on a motion to suppress.
State v.
Tarlton, 146 N.C. App. 417, 420, 553 S.E.2d 50, 53 (2001). “In
reviewing the trial court's ruling on a suppression motion, we
determine only whether the trial court's findings of fact are
supported by competent evidence, and whether these findings of fact
support the court's conclusions of law.”
Id. (citations omitted).
Where the trial court's findings of fact support the court's
conclusions of law, the conclusions are binding on appeal.
Id.
On 5 November 2002, Junior filed a motion to suppress
statements he made to law enforcement officers alleging the
statements were illegally and unconstitutionally obtained becauseafter Junior invoked his right to counsel, law enforcement officers
initiated further communication with him. Junior also alleges his
ultimate decision to sign a waiver of his rights and make a
statement was the product of repeated threats to arrest his
girlfriend and have her children removed from the home by the
Department of Social Services.
The trial court conducted a
voir dire hearing on Junior's
motion to suppress. Special Agent Mitch Deaver (“Agent Deaver”) of
the North Carolina State Bureau of Investigation testified that on
7 January 2000 he and other law enforcement officers went to the
Locklear residence and took Junior and Senior to the Sheriff's
office for questioning. Junior requested to speak with an attorney
prior to speaking with the investigators. At Junior's request, the
officers contacted Attorney Musselwhite who advised Junior.
Following Junior's conversation with the attorney, Junior told
Agent Deaver the attorney had advised him not to say anything but
Junior also said, “I think I'll tell it, anyway.” Junior then
asked if he could visit with his fiancée, Beth Locklear who was at
the Sheriff's Department. After meeting with Ms. Locklear, Junior
stated that he did not wish to make a statement. Agent Deaver
informed Junior that Senior had made a statement and that based on
Senior's statement there was enough to charge Junior. Junior again
declined to make a statement. Agent Deaver then informed Junior he
was under arrest. After Junior was arrested, Agent Bullard was
asked by Junior if he could help him. Agent Bullard thought that
Junior asked him if he could assist him with the sentence. AgentBullard told Junior he could not make any assurances, and Junior
then stated that he was ready to talk; and Agent Bullard got Agent
Deaver. Junior was advised of his
Miranda rights and signed a
waiver.
Junior testified that his refusal to talk was met with
repeated comments containing threats to arrest his girlfriend Beth,
and to charge her even though she had no involvement in anything
and have her kids taken by DSS, and statements to the effect that
they would just let her go home if he told them what happened.
Junior testified that he asked Agent Bullard to come into the room
in response to Bullard's comments outside the door that Junior was
“sorry” for allowing law enforcement to question his girlfriend.
Junior contends the trial court failed to make adequate
findings of fact as to whether Junior initiated dialogue with the
investigating officers after having invoked his right to counsel
and, if so, whether he voluntarily waived his rights to silence and
counsel considering the totality of the circumstances as required
by
State v. Lang, 309 N.C. 512, 522, 308 S.E.2d 317, 322 (1983).
“The general rule is that, at the close of a
voir dire hearing
to determine the admissibility of a defendant's confession, the
presiding judge
should make findings of fact to show the basis of
his ruling.”
Lang, 309 N.C. at 520, 308 S.E.2d at 321. Where
there is no conflict or immaterial conflicts in the evidence on
voir dire, the trial court is not required to make specific
findings; however, where there is a material conflict, “the judgemust make findings of fact resolving any such material conflict.”
Id.
In the instant case, we are persuaded the trial court's
findings resolve all material conflicts in the evidence.
The trial
court made the following findings of fact:
In the late evening hours of January 7th,
2000, Special Agent Mitchell Deaver, SBI
agent, along with other officers, acting upon
information received shortly before that time,
went to the defendant's residence to question
him and his father, Hezzie Randall Locklear,
Sr., about the robbery and murder of Mick[ey]
Lowry.
The officers located the defendant and
his father at the residence, along with other
persons.
. . .
[T]he defendant was taken by the officers from
his residence and transported to the Robeson
County Sheriff's Department and, thereafter,
questioned by Special Agent Deaver.
. . .
[T]he defendant Hezzie Randall Locklear, Jr.
indicated that he did not want to make a
statement until he spoke with his father.
. . .
[A]fter the defendant spoke with his father,
the defendant asked the officers to call an
attorney for him.
. . .
After two unsuccessful attempts to reach an
attorney, the officers were able to reach J.W.
Musselwhite, a[n] attorney who was
representing the defendant in a pending civil
matter.
. . .
The defendant spoke over the phone with J.W.
Musselwhite, whereupon Mr. Musselwhite advised
the defendant to not make a statement to the
officers.
. . .
Sometime thereafter, the defendant told the
officers that he would talk to them in spite
of Mr. Muselwhite telling him not to.
. . .
The defendant was thereafter allowed to speak
in private to his girlfriend, Elizabeth Ann
Locklear.
. . .
The defendant, thereafter, told Special Agent
Deaver that he had thought about it and
decided not to give a statement.
. . .
Thereafter, Special Agent Deaver read to the
defendant his
Miranda rights at 2:25 a.m., and
the defendant refused to sign the rights form
and again refused to make a statement to the
officer.
. . .
Special Agent Deaver informed the defendant
that he was under arrest for the robbery and
murder of Mickey Lowery.
. . .
[T]he defendant . . . remained in the
interview room for a period of time. While in
the interview room, he contacted Special Agent
Bullard, suggesting that he was ready to talk
to the officers.
. . .
Special Agent Bullard contacted Special Agent
Deaver, whereupon the officers again advised
the defendant of his rights at 3:15 a.m., and
the same was signed by the defendant.
. . .
Thereafter, the defendant made statements to
the officers that tended to incriminate
himself.
. . .
The defendant was thereafter taken to the
magistrate at 5:30 a.m.
The findings recited above indicate the trial judge resolved the
conflicts in the evidence against defendant.
See State v. Jenkins,
311 N.C. 194, 202-03, 317 S.E.2d 345, 350 (1984). We are bound by
the trial court's findings.
State v. Barnett, 307 N.C. 608, 614,
300 S.E.2d 340, 344 (1983). Based on the foregoing findings of
fact, the trial court concluded as a matter of law:
that while the defendant, Hezzie Randall
Locklear, Jr., was in custody during his
interrogation, that the defendant,
nevertheless, knowingly waived his right to an
attorney and gave a statement to the officers.
And that that statement was voluntary and not
coerced by any officer.
We conclude there was ample competent evidence to support the
trial court's findings of fact and the findings of fact support the
conclusions of law that Junior waived his right to an attorney and
that his statement was voluntary and not coerced. The assignment
of error is thus overruled.
Next, Senior contends the trial court committed plain error in
allowing evidence of Junior's willingness to take a lie detector
test. Under plain error review, Senior must establish that the
trial court committed a fundamental error and that absent the
fundamental error, it is likely the jury would have reached adifferent result.
State v. Jones, 355 N.C. 117, 125, 558 S.E.2d
97, 103 (2002).
“The results of polygraph testing have been held inadmissible
in North Carolina . . . . However, the mere mention of polygraph
testing does not necessitate appellate relief.”
State v. Mitchell,
328 N.C. 705, 711, 403 S.E.2d 287, 291 (1991).
In the instant case, Junior testified he wrote Captain
Patterson and requested to take a “lie detector” test to prove his
second statement to police was true. Senior's counsel questioned
Junior concerning his written requests to Captain Patterson. No
results of any polygraph test were introduced in evidence.
Assuming
arguendo that the trial court's decision to allow Junior's
testimony that he was willing to take a polygraph test was error,
we nevertheless conclude Senior has failed to meet the heavy burden
of plain error review by showing that absent the error, the jury
likely would have reached a different result. The assignment of
error is overruled.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
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