An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 August 2006
STATE OF NORTH CAROLINA
Nos. 03 CRS 054523
03 CRS 054524
03 CRS 054525
PAUL DEVON JOYNER,
Appeal by Defendant from judgment entered 27 January 2005 by
Judge Robert H. Hobgood in Durham County Superior Court. Heard in
the Court of Appeals 19 April 2006.
Roy Cooper, Attorney General, by John C. Evans, Assistant
Attorney General, for the State.
L. Jayne Stowers for Defendant-Appellant.
Defendant appeals from the trial court's order denying his
motion to suppress statements he made to the police and from
judgment and sentencing upon conviction of two counts of assault
with a deadly weapon inflicting serious injury and one count of
assault with a deadly weapon. He brings forward assignments of
error one and three and voluntarily abandons the remaining
assignments. For the reasons which follow, we find no error.
I. FACTUAL AND PROCEDURAL BACKGROUND
The appeal in this case stems from a gun fight involving
Defendant during the late night hours of 26 August or the earlymorning hours of 27 August 2003. The evidence relevant to our
determination was presented at the 18 January 2005 suppression
hearing regarding statements made by Defendant to Durham police
officers while he was being treated for a gunshot wound, and a
trial between 19 January and 27 January 2005, which tends to show
On 26 August 2003, Kam Russell left his home between 9:30 p.m.
and 10:00 p.m. to walk to a local convenience store. On his way
back from the store, a car slowly approached him because the driver
wanted to speak with him. As the car approached Russell, he heard
someone in the back seat of the car ask the driver not to stop the
car, and to keep going because the back seat passenger had a beef
(See footnote 1)
Russell identified the voice as Defendant's and
then looked in the back seat of the car and was able to visually
confirm that Defendant made the statement.
After the car drove away, Russell continued walking home and
soon came upon a group of people gathering in an alley. There were
between seven and nine people in the group. Included in the group
were Ricky Alston and DaWayne Bailey. After stopping to talk for
ten to fifteen minutes, Russell continued to walk home. Soon after
Russell left the group, Defendant came from behind a tree, and with
a gun in his left hand, started to run at Russell.
(See footnote 2)
As Defendantapproached Russell, he stated, Don't move. When Russell saw that
Defendant had a gun, he backed up and reached to his right hip to
retrieve his gun. As Russell moved for his weapon, Defendant shot
at him. Russell shot back at Defendant and retreated towards the
crowd. During the gun battle, Russell was struck with a bullet, as
were Ricky Alston and DaWayne Bailey. As a result, Russell
suffered medical complications, including paralysis from the neck
down. DaWayne Bailey suffered a gunshot entry and exit wound to
his leg, and Ricky Alston was treated in the emergency room.
Defendant was also struck with a bullet and received medical
treatment at Durham Regional Hospital.
After receiving a report of the shooting in question, Officer
D.C. Reaves was dispatched to 57 Truman Street, Apartment B, where
he made contact with DaWayne Bailey. Bailey was conscious, alert,
talking, and did not appear to have any life-threatening injuries.
After leaving Bailey, Reaves was directed to report to Durham
Regional Hospital to investigate another shooting subject. He was
the first member of the Durham Police Department to arrive at the
hospital, where he investigated the status of Defendant.
Upon entering Defendant's room, Reaves observed Defendant
lying on a bed, but did not see any medical equipment attached to
him. However, Reaves did notice a bandage on one of Defendant's
feet. When Reaves spoke to Defendant, he introduced himself as
Officer Reaves, asked Defendant for identifying information, and
then asked Defendant what happened. Defendant informed Reaves that
a group of guys were hanging out in an alleyway between twobuildings. While they were there, an unknown vehicle drove up and
unknown occupants of the vehicle started shooting at them.
Defendant was unable to provide a description of the suspect, the
vehicle, or the vehicle's color. After leaving Defendant, Officer
Reaves responded to Duke University Medical Center to try to obtain
a statement from the other three shooting subjects.
Defendant was next interviewed by Investigator Shari
Montgomery, who had arrived at Durham Regional Hospital at
approximately 2:00 a.m. Investigator Montgomery testified that
before she arrived at the hospital, she was aware that Defendant
was not only a victim, but was also a suspect in the shooting.
When Montgomery entered Defendant's room, a nurse was present and
Defendant was lying on the bed with his right foot bandaged.
Montgomery asked Defendant if he was in any pain, his name,
date of birth, address, and what had happened. Although Defendant
indicated that he was in pain, he told Investigator Montgomery that
it was a drive-by shooting and an unknown person in an unknown
vehicle fired some shots at him. He told Montgomery that he
thought he had sprained his ankle while running away from the
scene, but later realized that he had been shot. As he was running
away, he flagged down a friend named Mako and asked for a ride to
the hospital. Once in the car, Defendant fainted and awoke at
Durham Regional Hospital. When Defendant informed Montgomery that
he had nothing else to say, she ended the conversation and left the
hospital room. At one point in their conversation, Montgomery stepped out of
Defendant's hospital room and saw Crime Scene Investigator Drew
King and Sergeant Jon Peter standing outside. Montgomery testified
that at any given time, there were four Durham Police Department
employees outside Defendant's hospital room. Although Montgomery
ended her questioning of Defendant, she remained at the hospital
until he was discharged and occasionally entered his room.
Sergeant Peter was the next member of the Durham Police
Department to interview Defendant. On the morning of the shooting,
Peter was supervising the Department's detective unit. When he was
apprised of the shooting, Sergeant Peter responded to building 57
of Truman Street, where he arrived at 2:00 a.m. After assessing
the situation and conducting some interviews, Peter reported to
Durham Regional Hospital. When he arrived at the hospital, at
approximately 3:30 a.m., Peter learned that Defendant had already
given a statement to Investigator Montgomery. Sergeant Peter,
however, continued with his plan to conduct an interview. Peter
testified that, although possibly repetitive, it is not unusual for
two to five different police employees to interview a gunshot
During the interview, Defendant told Peter that he and some
friends were drinking in the alley when a car drove by. The lights
on the car were very bright and he heard some gunshots as the car
approached. When Defendant heard the gunshots, he ran but was hit
in the ankle. Peter asked Defendant if he had any siblings andDefendant informed him that he had two brothers, Travaris
(See footnote 3)
Donte. When asked if he had recently fired a gun, Defendant told
Peter that he had not fired a gun, but that he and his nephew had
recently been shooting off fireworks. Peter obtained consent from
Defendant to perform a gunshot residue collection kit.
Over the course of the morning, it became apparent that the
doctors were going to release Defendant from the hospital.
Defendant, however, was finding it difficult to find a ride home.
When Peter ascertained that Defendant was having trouble, he told
Defendant that if he could not find a ride, the police would drop
him off somewhere.
Peter testified that although Defendant's leg was wrapped and
he had a bandage on his hand where an IV had previously been
inserted, Defendant appeared coherent, spoke fluidly without
slurred speech, and Peter did not notice Defendant nodding off
during the interview. Peter also stated that when Defendant moved,
he would wince in pain. When Peter informed Defendant that there
were other shooting victims, Defendant said that he did not want to
talk about anything else, and Peter ended the interview.
After Sergeant Peter obtained consent for a gunshot residue
collection kit to be performed on Defendant, Drew King, a crime
scene investigator for the Durham Police Department, responded to
Durham Regional Hospital. During the administration of the kit,
Defendant was conscious and alert. King did not ask Defendant anyquestions about the shooting and did not collect any items of
clothing from Defendant.
At approximately 5:00 a.m., Sergeant Peter informed Defendant
that warrants had been taken out for his arrest and that upon
discharge from the hospital, he would be taken to the magistrate's
office to be charged with assault with a deadly weapon inflicting
serious injury. When he was being escorted by Officer Reaves,
Investigator Montgomery and Sergeant Peter from the hospital to a
waiting patrol car, Defendant indicated that he wanted to speak
with Sergeant Peter. Without being given Miranda
Defendant provided a statement that Sergeant Peter wrote down
(See footnote 4)
Defendant told Peter:
Kam attempted to kill me on Wabash around
March or April when my wife --
I walked around the --
Kam, back in March or April of 2003, first
argument with Kam started over my girlfriend,
Tanya O'Neill . . . and Kam's girlfriend
Felicia. . . . . After that I was driving
Tanya's green Honda and Kam and Pokie were on
the outside and he fired about eight shots at
me. I didn't report it. Kam and Pokie are
Blood. I have seen him since then, but I
leave if I do. Tonight I was visiting Ricky,
and I get to the cut where everybody goes to
drink. I was by myself. I see Kam pull a gun
from his front right side. . . . . Kam's gun
was a large chrome semi-auto. He fired seven
times. He stated, I got your a** now. I
tried to take off behind a tree when the
bullet hit me in my right ankle. I fired back
with my gun, it was a 9 millimeter Glock. I
got it from one of my friends 30 minutes
earlier than the shooting, because I had seen
him, and he had seen me, coming from the Town
and Country on Ridgeway. Word was out that hewas looking for me, and I wasn't going to let
anybody kill me. I fired back four shots.
And then I ran. I didn't stay to see if I hit
him. There were around seven people with
them. I saw two or three red shirts. They
are all Bloods over there. I'm not in a gang.
I saw Mako in a Ford cream Taurus, and he
drove me to the hospital. I don't want to get
the dude in trouble who has the gun. It's not
Mako. I didn't mean to shoot nobody else.
After this statement was taken, Defendant was transported to the
magistrate's office where he was properly Mirandized
, and he signed
a statement indicating that what he had told Sergeant Peter outside
the hospital was true.
Before trial, Defendant moved to suppress the statements he
made in the hospital to Reaves,
Montgomery, and Peter prior to the
administration of Miranda
(See footnote 5)
After a voir dire
upon detailed findings of fact and conclusions of law, the trial
court denied Defendant's motion, in an order filed 18 January 2005.
The case proceeded to trial and at the end of the State's evidence
and again at the end of all evidence, Defendant moved to dismiss
the charges against him. These motions were denied. Defendant was
found guilty of two counts of assault with a deadly weapon
inflicting serious injury, as to victims Alston and Russell, and
assault with a deadly weapon as to victim Bailey. Defendant was
sentenced to consecutive terms of twenty-four to thirty-eight
months on the charge of assault with a deadly weapon inflicting
serious injury as to victim Russell, and twenty-four to thirty-eight months on the charges of assault with a deadly weapon
inflicting serious injury as to victim Alston and assault with a
deadly weapon as to victim Bailey. Defendant appeals.
II. QUESTIONS PRESENTED
By his first assignment of error, Defendant contends that the
trial court erred when it denied his motion to dismiss the charges
of assault with a deadly weapon with intent to kill inflicting
serious bodily injury on DaWayne Bailey (03 CRS 54524) and on Ricky
Alston (03 CRS 54523). Ordinarily, when a motion to dismiss is
made, the trial court must determine if the evidence presented,
when viewed in the light most favorable to the State, provides
substantial evidence (1) of each essential element of the offense
charged, or of a lesser offense included therein, and (2) of
defendant's being the perpetrator of such offense. If so, the
motion is properly denied. State v. Fritsch
, 351 N.C. 373, 378,
526 S.E.2d 451, 455, cert. denied
, 531 U.S. 890, 148 L. Ed. 2d 150
(2000) (quoting State v. Powell
, 299 N.C. 95, 98, 261 S.E.2d 114,
117 (1980)(citations omitted)). As grounds for his argument on
appeal, Defendant asserts that the charges should not have been
submitted to the jury because the evidence was insufficient to show
that he shot Alston or Bailey. Because Defendant alleged lack of
specific intent and lack of serious injury at trial, this
assignment of error is not properly before this Court. See, e.g.,
State v. Sharpe
, 344 N.C. 190, 473 S.E.2d 3 (1996), cert. denied
350 N.C. 848, 539 S.E.2d 647 (1999). On the contrary, and
reasons which follow, this assignment of error is overruled. The North Carolina Rules of Appellate Procedure govern the
preservation of error for appellate review. The applicable rule
In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion. Any
such question which was properly preserved for
review by action of counsel taken during the
course of proceedings in the trial tribunal by
objection noted or which by rule or law was
deemed preserved or taken without any such
action, may be made the basis of an assignment
of error in the record on appeal.
N.C. R. App. P. 10(b)(1). Our Supreme Court has long held that
where a theory argued on appeal was not raised before the trial
court, the law does not permit parties to swap horses between
courts in order to get a better mount in the appellate courts.
State v. Holliman
, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685
(2002) (citations and quotations omitted); see also State v.
, 323 N.C. 318, 372 S.E.2d 517 (1988). When a party changes
theories between the trial court and an appellate court, the
assignment of error is not properly preserved and is considered
In the instant case, Defendant has impermissibly changed
theories between the superior court and this Court. At the close
of the State's evidence, the following exchange occurred between
the trial judge and Defendant's attorney: THE COURT: All of the jurors have now departed
Any motion by the defendant?
MR. CAMPBELL: Yes, Judge.
At the close of the State's evidence, I will
make the following motion: Move to dismiss as
to each of these counts the assault with
intent to kill, first, as to all three of
those. I would argue that these are specific
intent crimes, that there has been no
evidence, even taking the evidence in the
light most favorable to the state, that there
was any specific intent to kill. And I would
ask that portion of the charge be dismissed as
for _- in each separate count.
. . . .
THE COURT: All right. Motion is denied. Move
to the next motion.
MR. CAMPBELL: Judge, as to the inflicting
injury portion of the charges for DaWayne
Bailey and Ricky Alston, I would argue to the
court there is insufficient evidence to go to
the jury as to serious injury _- inflicting
serious injury. . . . . I would argue, based
on his testimony from the witness stand, that
it does not rise to the level of serious
injury as contemplated by the law in the State
of North Carolina.
I would also argue the same as to Mr. Alston
who did not testify, and based on the evidence
that we have, we don't know that he suffered
any complications, that he was required to
have a number of follow-up, in fact, the
custodian, Ms. Daniels, indicated that from
her review of the records he was only at the
emergency room that one morning, that his
medical records were substantially shorter or
smaller than Ricky Alston's (sic) because it
was 20 pages as opposed to the 40 pages of
Ricky Alston. We have no evidence of any
broken bones. No evidence of surgery, no
evidence of any permanent disability, lasting
effect from the gunshot wound, and for that
reason I would also argue that does not rise
to the level of inflicting serious injury as
contemplated by North Carolina law.
After this statement, the court again denied Defendant's motion to
dismiss. Defendant renewed his motions at the close of all
evidence and the trial court once again denied the motions.
Based on the statements of Defendant's counsel, it is clear
that to support his motion to dismiss, Defendant argued to the
trial court that the State failed to present adequate evidence of
specific intent or the presence of serious injury, that is, that
the State failed to prove these essential elements of the crimes
charged. Before this Court, however, Defendant contends that the
State failed to present sufficient evidence that Defendant was the
person who shot DaWayne Bailey and Ricky Alston, that is, that
Defendant was the perpetrator of the offenses charged. In his
brief to this Court, Defendant states, [t]he State used the theory
of transferred intent to supply the element of intent to kill, but
offered no evidence as to who actually shot Bailey or Alston. The
brief continues, [i]n this trial, evidence was missing that Joyner
shot either Dawayne [sic] Bailey or Ricky Alston, intentionally or
otherwise[,] and [w]ithout substantial evidence that Defendant
Joyner shot Ricky Alston and Dawayne [sic] Bailey, there was
insufficient evidence to survive Defendant's motion to dismiss the
assault charges allegedly committed by Joyner on Alston and
Clearly, Defendant argues a different theory for his motion to
dismiss on appeal than he presented to the trial court. This he
cannot do. Benson, 323 N.C. at 321, 372 S.E.2d at 519 (citationomitted). Accordingly, Defendant has waived this assignment of
By his third assignment of error, Defendant contends that the
trial court erred when it denied his motion to suppress statements
he made to the police while being treated for his gunshot wound at
Durham Regional Hospital.
When this Court evaluates a motion to suppress, the trial
court's findings of fact are conclusive on appeal if those findings
are supported by competent evidence. State v. Buchanan
, 353 N.C.
332, 543 S.E.2d 823 (2001); State v. Earwood
, 155 N.C. App. 698,
574 S.E.2d 707 (2003). This is true, even if the evidence before
the lower court is conflicting. Id.
(Citations and quotations
omitted). Making a determination of whether a defendant was in
custody and whether the defendant's statements were voluntary,
however, are questions of law that are fully reviewable by an
appellate court. Id.
In its order denying Defendant's motion to suppress, the
trial court made the following pertinent findings:
2. Durham police investigator, Shari
Montgomery, responded to a call to Durham
Regional Hospital at 2:00 a.m. on 27 August,
2003. There, she spoke to Paul Joyner in room
TR-10. Paul Joyner was lying in the bed and
told her his name and date of birth.
3. At the time that Paul Joyner made those
statements to investigator Shari Montgomery,
Officer Reaves was outside that hospital room
in the hall.
4. Paul Joyner had an injury to his foot that
had been bandaged; there was visible to Shari
Montgomery, however, a hole in the bottom of
Paul Joyner's foot.
. . . .
7. While in the hospital room, Paul Joyner
stated to Investigator Shari Montgomery that
it was a drive-by shooting from an unknown
vehicle; that he had fired some shots; that a
friend had brought him to the hospital, and
that he had nothing else to say.
8. Drew King, a crime scene investigator for
the Durham Police Department, responded to the
call of a shooting on Truman Street on 27
August 2003. He went to Durham Regional
Hospital, and after confirming that consent
had been given, went to Paul Joyner's room and
proceeded with a gunshot residue test. He
explained to Paul Joyner what he was doing,
and Joyner was conscious and alert at that
time. Paul Joyner made no statements to Drew
King and Drew King did not collect any
clothing from Paul Joyner. Upon completing
the gun residue kit collection, Drew King
returned to police headquarters.
9. Durham police officer, D.C. Reaves,
responded to a call to Durham Regional
Hospital on 27 August, 2003 and spoke there
with Paul Joyner. Officer Reaves was the
first police officer to arrive at the
10. Officer Reaves introduced himself to Paul
Joyner, asked his name and date of birth and
asked essentially what had happened.
11. Paul Joyner said to Officer Reaves that he
was taken to the hospital by Macos [sic]; that
a group of guys were hanging out in the alley
between two buildings off Truman Street; that
an unknown vehicle pulled up and started
12. Officer Reaves at no time read to Paul
Joyner his Miranda rights. Officer Reaves did
see a bandage on Paul Joyner's foot.
13. Sergeant Jon Peter of the Durham Police
Department was on duty 27 August, 2003, and
was called out in response to a shooting at
14. Sergeant Jon Peter had Investigator
Montgomery go to the hospital, and Sergeant
Peter arrived at the hospital at approximately
15. Sergeant Peter first saw Paul Joyner at
the hospital at 3:40 a.m. Sergeant Peter
identified himself to Paul Joyner. Paul Joyner stated to Sergeant Peter that his name
was Paul Joyner; that he was spending time
with friends; that he heard shots; that he
ran; and that he was hit in the ankle.
16. Sergeant Peter advised Paul Joyner that
law enforcement officers would drop him off
somewhere. Paul Joyner said that he would take
a gunshot residue test and sign a waiver to
take the gunshot residue test. After the
gunshot residue test, Sergeant Peter asked
Paul Joyner if he had shot a firearm, and Paul
Joyner responded that he had not, but that he
had fired off fireworks on 26 August, 2003.
Based on a thorough review of the transcript and record herein, we
believe that the trial court's findings of fact are fully supported
by competent evidence. Thus, we are bound by these findings.
We turn next to the issues of custody and voluntariness.
First, Defendant argues that he was in custody and his statements
should be suppressed because he was not given Miranda warnings.
While it is uncontested that Defendant was not given Miranda
warnings, we are satisfied that he was not in custody when he
made the statements in question. Consequently, Miranda warnings
were not necessary.
In Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, reh'g
denied, 385 U.S. 890, 17 L. Ed. 2d 121 (1966), the United States
Supreme Court determined that in order for the prosecution to use
statements made by a defendant during a custodial interrogation,
the police first have to give the defendant a warning that he has
the right to remain silent, that any statement he makes can be used
against him, and that he has the right to have an attorney present
during questioning. However, Miranda warnings are only required
when the person being interviewed is in custody. Buchanan, 353N.C. at 337, 543 S.E.2d at 826. To determine if a person is in
custody, the Court must evaluate whether a reasonable person in
defendant's position, under the totality of the circumstances,
would have believed that he was under arrest or was restrained in
his movement to the degree associated with a formal arrest. Id.
at 339-40, 543 S.E.2d at 828.
In State v. Thomas, 22 N.C. App. 206, 206 S.E.2d 390, appeal
dismissed, 285 N.C. 763, 209 S.E.2d 287 (1974), this Court
determined that when a defendant was interviewed by the police in
the emergency room (after an automobile accident), he was not in
custody for Miranda purposes, and therefore, Miranda warnings were
unnecessary. The Court relied in part on the fact that the
atmosphere and physical surroundings during the questioning
manifest a lack of restraint or compulsion. Id. at 211, 206
S.E.2d at 393. The same is true here. In this case, the police in
no way restrained Defendant or kept him in the hospital against his
will. They simply interviewed him while his gunshot wound was
being treated and while he was awaiting release from the hospital.
Moreover, when Sergeant Peter learned that Defendant was having
difficulty finding a ride home, Sergeant Peter told Defendant that
the police would take him home if necessary. Based on the
circumstances, we do not believe that a reasonable person would
have believed that he was under arrest or that Defendant was
restrained in his movement to the degree associated with a formal
arrest. Accordingly, we hold that Defendant was not in custody
for Miranda purposes. Next, Defendant contends that his statements were not
voluntary, and thus, are inadmissible. When evaluating the
voluntariness of a statement, this Court must review the totality
of the circumstances under which the statement was made. State v.
Brewington, 352 N.C. 489, 532 S.E.2d 496 (2000), cert. denied, 531
U.S. 1165, 148 L. Ed. 2d 992 (2001). 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.' State v. Hardy, 339 N.C. 207,
222, 451 S.E.2d 600, 608 (1994) (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 225-26, 36 L. Ed. 2d 854, 862 (1973)(quoting Culombe
v. Connecticut, 367 U.S. 568, 602, 6 L. Ed. 2d 1037, 1057-58
(1961))). When evaluating the voluntariness of a statement,
factors to consider are (1) whether the defendant was in custody,
(2) whether the defendant was deceived, (3) whether the defendant's
Miranda rights were honored, (4) whether the defendant was held
incommunicado, (5) the length of the interrogation, (6) whether
physical threats or shows of violence were made by the
interrogators, (7) whether promises were made to obtain the
confession, (8) the familiarity of the declarant with the criminal
justice system, and (9) the mental condition of the declarant. Id.
Defendant argues that the number of interviews conducted by
the police, the presence of several Durham Police Departmentemployees at the hospital, the fact that the police viewed him as
a suspect, and his condition as a gunshot victim make his
statements involuntary. We disagree.
Defendant relies on Mincey v. Arizona, 437 U.S. 385, 57 L. Ed.
2d 290 (1978), to support his position. However, the facts in
this case are plainly distinguishable from those in Mincey, and
consequently, Mincey does not control. In Mincey, the Supreme
Court determined that statements a defendant made were not
admissible, even for impeachment purposes, because the statements
were not 'the product of his free and rational choice.' Id. at
401, 57 L. Ed. 2d at 306 (quoting Greenwald v. Wisconsin, 390 U.S.
519, 521, 20 L. Ed. 2d 77, 80 (1968)). In making this
determination, the Mincey Court found that the defendant had been
wounded a few hours earlier and was in the intensive care unit
during the officer's interrogation. Id. Additionally, the
defendant was not able to think clearly and while he was being
questioned, he was in a hospital bed, encumbered by tubes, needles
and a breathing apparatus. Id. Moreover, the defendant's injuries
were so serious that he remained in the hospital for almost a
month. Id. In sum, the Mincey Court found that [t]he statements
at issue were thus the result of virtually continuous questioning
of a seriously and painfully wounded man on the edge of
consciousness. Id. at 401, 57 L. Ed. 2d at 305.
The circumstances surrounding the statements made in this case
are not similar to those in Mincey. In the current case, Defendant
was not as seriously injured as the defendant in Mincey. In fact,he was released from the hospital within hours of being shot.
Additionally, there is no evidence that Defendant was receiving any
medication or that he was encumbered in any way by medical
equipment. Moreover, Sergeant Peter testified that Defendant was
lucid and spoke clearly without slurred speech during their
conversation. This testimony is uncontradicted.
In addition to Defendant's case being distinguishable from
Mincey, using the Hardy factors, we hold that Defendant's
statements were not involuntary. As established earlier, Defendant
was not in custody; accordingly, he had no Miranda rights to be
honored. Moreover, there is no evidence that Defendant was
deceived into making his statements or that the police threatened
him or made promises to secure the statements. Further, the
presence of the officers at the hospital as well as the number of
interviews conducted by the officers was not unusual practice when
responding to and investigating a crime involving gunshot victims.
Finally, the Defendant was lucid and spoke clearly during
conversations with police personnel.
Based on a review of the totality of the circumstances
surrounding Defendant's statements, we cannot say that his will was
overborne or that the statements were not the product of his own
free will. Since Defendant was not in custody and his statements
were voluntary, we hold that the statements were properly admitted
in evidence. This assignment of error is overruled. For the reasons stated, we hold that Defendant received a fair
trial free of error.
Judge MCGEE and HUNTER concur.
Report per Rule 30(e).
During his testimony, Russell described a beef as a
conflict involving more than a verbal confrontation.
Russell testified that he had seen Defendant with a gun on a
previous occasion and that during a verbal confrontation in July
2002, Defendant stuck a gun in Russell's face.
The trial transcript spells the name of Defendant's brother
as Travaris and Tavaris.
Defendant did not move to suppress this statement.
Defendant did not move to suppress other statements made to
Sergeant Peter that were recorded on the back of the Miranda
and signed by the Defendant as his statement.
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