Appeal by defendant from judgments entered 25 February 2005 by
Judge Kenneth F. Crow in Craven County Superior Court. Heard in
the Court of Appeals 12 April 2006.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General R. Marcus Lodge and Assistant Attorney
General Susan K. Hackney, for the State.
M. Alexander Charns for defendant-appellant.
HUNTER, Judge.
Jason Wayne Gillikin (“defendant”) appeals from judgments
entered 25 February 2005 consistent with jury verdicts of guilty as
to attempted first degree murder, assault with a deadly weapon with
intent to kill inflicting serious injury, and robbery with a
dangerous weapon. For the reasons stated herein, we find no error.
The State's evidence tended to show that on 7 September 2004,
a man disguised with a mask entered the Riverdale Mini-Mart with a
gun shortly before the store's closing. The masked man ordered
Edna Broome (“Broome”), the assistant manager of the store, to put
the cash register money into a bag. Broome complied, and the
masked man then asked for the other money, which Broome understoodto be the money in the safe. Broome also removed the money from
the safe and handed it to the robber. A total of $620.00 was taken
from the store's register and safe.
The masked man then ordered Broome to kneel on the floor in
front of the safe, and Broome complied with the order. The masked
man came around the counter and shot Broome twice, once in the
spine and once in the hip. Broome was unable to move from the
floor, but was able to push the alarm for the police. Police and
rescue workers arrived shortly thereafter and Broome was evacuated
to Pitt County Hospital by helicopter. Broome's legs were
paralyzed and she remains confined to a wheelchair as a result of
the shooting.
During the crime scene investigation, one of the bullets fired
into Broome was recovered. The incident was also captured on the
store's digital recording surveillance system and digital photo
images were retrieved. The images revealed that the perpetrator
was a white male wearing shorts, with material covering his face
and a glove or sock covering his free hand. The man in the video
had no visible tattoos or markings on his legs. A gun was held in
the perpetrator's uncovered hand.
Jesus Meno (“Meno”) was a customer at the Riverdale Mini-Mart
on the evening of 7 September 2004, and contacted the police after
hearing of the robbery. Meno reported that he had noticed a dark-
colored mid-sized pickup truck parked about one hundred feet away
from the Riverdale Mini-Mart in front of the Fisher Oil offices.
Meno stated that the map light of the truck was illuminated, but hedid not see anyone inside the truck. When later shown pictures of
a pickup truck registered to defendant, Meno stated that the truck
looked similar to the one he had seen parked outside the Fisher Oil
offices.
On 19 September 2004, Lieutenant-Detective A. C. Ward
(“Detective Ward”), of the Carteret County Sheriff's Department,
interviewed defendant, who had been arrested the previous night
after refusing to stop his vehicle after an officer activated his
lights and siren. Detective Ward notified Craven County officials
that he had defendant in custody. Detective Ward interviewed
defendant using a form information sheet and advised defendant of
his rights while tape-recording the interview.
Around 11:00 a.m. on the same day, Detective John Whitfield
(“Detective Whitfield”) and Lee Thomas (“Thomas”), the primary
investigator on the case, arrived from the Craven County Sheriff's
Department to interview defendant. Defendant initially denied
knowledge of the Riverdale Mini-Mart shooting, and stated he felt
faint and needed to check his blood sugar, as he was diabetic.
Defendant was allowed to check his blood sugar level and was given
some crackers and soda. Defendant agreed to talk with the
detectives about the Riverdale Mini-Mart robbery, but asked to
first speak with his mother. Defendant's mother was summoned to
the interview room and arrived, along with defendant's aunt.
Defendant's mother brought defendant food.
Defendant then made a statement to the detectives with his
mother and aunt present. Defendant claimed that Tommy Gaskill(“Gaskill”) committed the robbery, and that defendant had driven
him to the Riverdale Mini-Mart and waited outside while Gaskill
went into the store. Defendant told the detectives that the .38
caliber gun Gaskill used in the robbery was in the woods near
defendant's mother's home. Defendant offered to show the
detectives the location. Defendant and the detectives drove to
Cedar Island and located the weapon, which later tests linked to
the bullet retrieved at the crime scene.
Gaskill was arrested at his residence. Detective Whitfield
noted that Gaskill was extremely thin, unlike the masked man
captured on the store's videotape. Gaskill offered an alibi,
corroborated by his girlfriend, that he had been attending his
daughter's birthday party at the time of the robbery. Gaskill also
had a large tattoo that covered his leg from his knee to his ankle,
and the detectives were convinced that Gaskill could not have been
the robber.
The detectives confronted defendant, who continued to insist
that he was telling the truth. Gaskill was brought into the
interrogation room and verbally confronted defendant, while
separated from defendant by two long tables and the detectives.
Defendant then admitted he had lied and gave another statement
admitting that he had robbed the Riverdale Mini-Mart and had shot
the clerk twice.
Defendant was found guilty of attempted first degree murder,
robbery with a dangerous weapon, and assault with a deadly weapon
with intent to kill inflicting serious injury. Defendant was foundto be a Prior Record Level III and was sentenced consecutively to
220 to 273 months for the charge of attempted first degree murder,
and 103 to 133 months for the charge of robbery with a dangerous
weapon. Defendant was also sentenced to 116 to 149 months for
felony assault, but the trial court arrested judgment on the
charge. Defendant appeals.
I.
Defendant first argues that the trial court erred by denying
defendant's motion to suppress his statement to law enforcement
authorities, contending he had signed a statement requesting an
attorney. In a related assignment of error, defendant contends
that the trial court erred as a matter of law in not granting
defendant's motion to dismiss all charges due to insufficient
evidence. We disagree.
A trial court's findings of fact are conclusive on appeal if
supported by competent evidence; however, a determination of
whether an interrogation is custodial is fully reviewable as a
matter of law.
State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d
830, 835 (2003). The totality of the circumstances is reviewed in
determining whether a confession is voluntary.
State v. Hyde, 352
N.C. 37, 45, 530 S.E.2d 281, 288 (2000).
Defendant contends that he did not waive his
Miranda rights
and requested an attorney, and further that the length of time
between the initial
Miranda warning and defendant's second
interrogation, the conduct of the second interrogation by officials
from a different jurisdiction regarding a different alleged crime,and defendant's state of mind due to physical ailments and threats
by a civilian, when considered in total, show that defendant's
confession was not voluntary.
Here, competent evidence supports the trial court's findings
that a clerical error was made by Detective Ward in completing the
interview sheet so that it erroneously indicated that defendant had
requested an attorney, when he had in fact waived his right to an
attorney. An audiotape of the conversation between Detective Ward
and defendant was admitted in which Detective Ward, after reading
the
Miranda warning, asked defendant if he wanted to answer
questions without an attorney, to which defendant responded in the
affirmative. The trial court found there was no evidence that
defendant later requested an attorney.
The trial court further found that, based on the audiotape,
defendant's responses to Detective Ward's initial interview were
logical, coherent, and articulate. Although the trial court noted
that defendant was taking certain medications for health reasons,
the trial court found that defendant did not appear to be
intoxicated or sleepy. Furthermore, the trial court found that
defendant was provided with food twice, and was offered soda. The
trial court finally found that defendant's interrogation was
intermittent and done in sessions, allowing defendant time and
opportunity for reflection. A review of the record shows competent
evidence to support these findings.
With regard to the second interrogation by the Craven County
officers, Detective Whitfield testified, and the trial court madefindings, that at the time of the later interrogation, defendant
continued to be sober, coherent, and rational, and that Detective
Whitfield again advised defendant of his right to an attorney.
Although a second written waiver was not executed, the trial court
found that Detective Whitfield had been advised that defendant had
previously executed a written waiver. The trial court found that
defendant indicated that he would be glad to talk to Detective
Whitfield without an attorney present, but that he would like to
have his mother present. Defendant's mother, who had been present
during prior questioning earlier in the day, was again summoned
back to the sheriff's department, and returned bringing food.
Defendant was also permitted to test his blood sugar and was given
soda and crackers. The trial court found that the interrogation
was not continuous and that defendant was not coerced or
threatened, and concluded that under the totality of the
circumstances, defendant made a knowing and intelligent waiver of
his rights.
Competent evidence supports the trial court's findings of fact
as to the circumstances surrounding defendant's waiver of rights
and statements to officers. We therefore review the trial court's
legal conclusion that defendant's statements were voluntarily made.
We note that defendant waived his
Miranda rights, defendant was not
threatened, defendant was offered food and an opportunity to check
his blood sugar levels, defendant was not interrogated continuously
and was allowed to have a family member present at his request when
answering questions from officers, and that defendant was sober andcoherent. In reviewing the totality of circumstances, we therefore
conclude that the trial court did not err in denying defendant's
motion to suppress. This assignment of error is overruled.
In a related assignment of error, defendant contends that,
assuming
arguendo defendant's statement to police was suppressed,
there would be insufficient evidence of all crimes. As the trial
court did not err in denying defendant's motion to suppress and
such evidence was properly before the jury for consideration, we
find no merit to this assignment of error.
II.
Defendant contends in related assignments of error that the
trial court committed plain error in allowing into evidence
testimony regarding defendant's other uncharged crimes, and also
erred in failing to order a mistrial based on comments related to
other crimes. We disagree.
The standard for plain error is well established, and must be
an error “'so fundamental as to amount to a miscarriage of justice
or which probably resulted in the jury reaching a different verdict
than it otherwise would have reached.'”
State v. Collins, 334 N.C.
54, 62, 431 S.E.2d 188, 193 (1993) (citation omitted). Prior bad
acts are admissible to show a chain of events or complete the story
of the crime for the jury.
See State v. Agee, 326 N.C. 542, 549-
50, 391 S.E.2d 171, 175 (1990).
Defendant here contends that statements made in testimony to
the jury by officers alluded to other crimes that defendant had
committed, and that such references were unduly prejudicial. Specifically, defendant refers to a comment made in response to a
question regarding whether defendant was continuously questioned,
where the testifying officer explained that defendant was “carried
over to the jail for processing on some non-related matters.”
Defendant also points to a question asked of a Craven County
officer regarding how he came to question defendant while in
Carteret County custody, where the testifying officer explained
that “Carteret County had called the Sheriff's Office and let us
know that they had a suspect in custody that we may be interested
in talking to . . . we . . . talked with the detectives, to get
kind of up to speed about how he was arrested that night prior.”
Defendant also cites a question asked regarding the search for the
gun, which referenced a gap in time where defendant took officers
to other areas “concerning matters other than this case[.]”
Finally, defendant references Exhibit 29, defendant's confession
given to investigators, which, in unredacted form, contained
references to other crimes defendant had committed. However, the
record indicates that the trial court admitted the Exhibit in
redacted form, excluding material related to other matters.
The trial court's admittance of this testimony and exhibit was
not error, as the limited comments were necessary to complete the
story of the crime for the jury. The testimony specifically
related to the investigation and capture of defendant and explained
how defendant, while in the custody of the Carteret County
Sheriff's Department, gave a confession to Craven County officials.
As we find no error in the admittance of this evidence, we need notreach the issue of plain error. This assignment of error is
overruled.
In defendant's related assignment of error, he contends that
the trial court erred in denying defendant's motion for mistrial
based on the evidence discussed
supra, as well as a response made
by Detective Ward that he interviewed defendant because “[w]e had
had a string of robberies, breaking and entering and armed
robberies in Carteret County.”
The grant of a motion for mistrial is within the sound
discretion of the trial court and will only be disturbed for abuse
of discretion.
State v. Wood, 168 N.C. App. 581, 583, 608 S.E.2d
368, 370,
disc. review denied, 359 N.C. 642, 614 S.E.2d 923 (2005).
As discussed
supra, we find no error in the admission of the
contested statements as evidence necessary to complete the story of
the crime. We further note that the record reveals that the trial
court specifically instructed the jury to disregard Detective
Ward's statement regarding the string of armed robberies. We find
no abuse of discretion in the trial court's denial of the motion
for mistrial. This assignment of error is overruled.
III.
Defendant next contends that the trial court committed plain
error by allowing testimony as to what appeared in a videotape. We
disagree.
Defendant contends that testimony by witnesses regarding
images viewed on the surveillance tape from the Riverdale Mini-Mart
violated the best evidence rule. Rule 1002 of the North CarolinaRules of Evidence states that, “[t]o prove the content of a
writing, recording, or photograph, the original writing, recording,
or photograph is required, except as otherwise provided in these
rules or by statute.” N.C. Gen. Stat. § 8C-1, Rule 1002 (2005).
Here, however, the surveillance videotape was introduced into
evidence for both illustrative and substantive purposes.
Defendant's assignment of error is without merit. Our Supreme
Court has recognized that video evidence may be used to
“'illustrate competent and relevant testimony of a witness[.]'”
State v. Strickland, 276 N.C. 253, 260-61, 173 S.E.2d 129, 134
(1970) (citation omitted). Further, we find no merit to
defendant's argument that such evidence violates defendant's right
to confrontation, as the videotape itself was not testimonial in
nature, and as defendant had ample opportunity to cross-examine the
witnesses regarding their testimony.
See Strickland, 276 N.C. at
260, 173 S.E.2d at 134 (citation omitted), (noting that “'[t]alking
motion pictures of an accused in a criminal action are not per se
testimonial in nature'”). Defendant's assignment of error is
overruled.
IV.
Defendant finally contends that defendant's trial counsel
provided ineffective assistance in failing to request recordation
of all bench conferences, opening and closing statements, and jury
selection. We disagree.
The standard for ineffective counsel, conduct below an
objective standard of reasonableness, is well established.
Statev. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)
(citing
Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed.
2d 674, 693 (1984)). N.C. Gen. Stat. § 15A-1241(a) (2005) governs
recording of criminal proceedings in superior court and exempts
from recording jury selection, opening and closing statements, and
arguments of counsel on points of law. In
State v. Hardison, 326
N.C. 646, 392 S.E.2d 364 (1990), our Supreme Court held that the
mere failure to request recordation of these elements of the trial
did not rise to the level of ineffective assistance of counsel.
Id. at 661-62, 392 S.E.2d at 373.
Here, as in
Hardison, defendant argues only that the failure
to request recordation of the jury selection, opening and closing
arguments, and bench conferences “make[] it impossible for
appellate counsel to weigh the full impact of defense attorney's
failure to object to repeated references to outstanding warrants
and the other crimes[.]” Defendant has argued these issues on
appeal as addressed
supra, and assigns no further error to the jury
selection process or to statements raised in opening and closing
arguments. As in
Hardison, we conclude that these arguments fall
“far short of satisfying the burden set forth in
Strickland[.]”
Id. at 662, 392 S.E.2d at 373. Defendant's assignment of error is
overruled.
As the trial court did not err in denying defendant's motion
to suppress and motion for mistrial, and as we find no error in the
trial court's admission of testimony illustrated by a properly
admitted videotape, or ineffective assistance of counsel forfailure to request recordation of certain portions of the trial, we
find no error in defendant's conviction and judgment.
No error.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
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