Appeal by defendant from a judgment dated 14 April 2005 by
Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in
the Court of Appeals 7 February 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Tiare B. Smiley, for the State.
Leslie C. Rawls for defendant-appellant.
Ricky Kenard Royster (defendant) appeals from a judgment dated
14 April 2005, and entered consistent with a jury verdict finding
defendant guilty of first-degree murder. We find defendant
received a fair trial, free from error.
Facts and Procedural History
On the morning of 10 October 2002, the body of Roselyn Dethrow
was discovered at the edge of the woods at Old Town Park in
Winston-Salem, North Carolina. The previous evening, defendant and
his girlfriend, JoAnn Bizzell, had been interviewed at the park by
a police officer responding to a call reporting a suspicious
vehicle. Defendant's name had initially been brought to the attention
of police officers investigating a missing person report regarding
Roselyn Dethrow and made by her father on 9 October 2002. Ms.
Dethrow's father had indicated to police that defendant was Ms.
Dethrow's boyfriend, although their relationship had been troubled,
and that defendant was the last person to have seen her the night
she went missing. Officers contacted defendant on his cell phone
on 10 October 2002 and he said he had only spoken on the phone to
Ms. Dethrow a couple of nights before. Defendant agreed to come to
the station to give further information and arrived fifteen minutes
later. Ms. Dethrow's body was found minutes after defendant
During his interview with the investigating detectives,
defendant admitted to killing Ms. Dethrow and calling Ms. Bizzell,
asking her to help him dispose of the body. Ms. Bizzell was
interviewed at the same time as defendant and told detectives she
went to defendant's house on 8 October 2002. There, she found
defendant crying and he admitted to her he had killed Ms. Dethrow.
Defendant was arrested and subsequently indicted on the charge of
Defendant was tried before a jury during the 21 March 2005
Criminal Session of Forsyth County Superior Court, the Honorable
Ronald E. Spivey, presiding. On 11 April 2005, the jury returned
a verdict finding defendant guilty of first-degree murder. After
a subsequent capital sentencing hearing, the jury found a single
aggravating factor and sixteen mitigating factors, and recommendeda sentence of life imprisonment without parole. The trial court
entered judgment dated 14 April 2005, consistent with the jury
verdict and sentencing recommendation, sentencing defendant to life
imprisonment without parole. Defendant appeals.
Defendant raises the issues of whether the trial court erred
in: (I) denying defendant's motion to suppress his statements made
to the investigating detectives; (II) admitting evidence regarding
the in utero
fetus carried by Ms. Dethrow at the time of her death;
and (III) excluding statements attributed to defendant concerning
his state of mind.
Defendant first contends the trial court erred in denying
defendant's motion to suppress his statements made to the
investigating detectives. We disagree.
warnings protect a defendant from coercive custodial
interrogation by informing the defendant of his or her rights.
State v. Al-Bayyinah
, 359 N.C. 741, 749, 616 S.E.2d 500, 507
(2005), cert. denied
, __ U.S. __, 164 L. Ed. 2d 528 (2006). The
proper inquiry for determining whether a person is 'in custody' for
purposes of Miranda
is 'based on the totality of the circumstances,
whether there was a formal arrest or restraint on freedom of
movement [to] the degree associated with a formal arrest.' State
, 356 N.C. 316, 337, 572 S.E.2d 108, 123 (2002) (quoting
State v. Buchanan
, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001)),
, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). This Courtmust therefore determine whether, based upon the trial court's
findings of fact, a reasonable person in defendant's position would
have believed that he was under arrest or was restrained in his
movement to that significant degree. State v. Garcia
, 358 N.C.
382, 396-97, 597 S.E.2d 724, 736-37 (2004), cert. denied
, 543 U.S.
1156, 161 L. Ed. 2d 122 (2005). We review the facts and
circumstances together as a whole because the effect on a
reasonable person is best discerned from context. Id.
at 400, 597
S.E.2d at 738. In evaluating a trial court's ruling on a motion to
suppress, the trial court's findings of fact are binding on this
Court if supported by the evidence, the conclusions are questions
of law which are fully reviewable by this Court on appeal. State
, 335 N.C. 120, 129, 436 S.E.2d 106, 111 (1993), cert.
, 512 U.S. 1239, 129 L. Ed. 2d 865 (1994).
In the case at hand, the trial court's findings of fact were
supported by the following evidence. Defendant voluntarily went to
the Winston-Salem Police Department at the request of Deputy
Fleurette Phillips of the Forsyth County Sheriff's Office. Deputy
Phillips had called defendant and sought to question him regarding
the missing persons investigation underway concerning Ms. Dethrow.
Upon arriving at the police station, defendant was told he was free
to leave or wait for the detectives handling the investigation to
interview him. Defendant remained in the lobby until Detectives
Michael Rowe and Mark Smith of the Winston-Salem Police Department
arrived to interview him. Defendant was then taken to the
interview room and left in the room with the door open. Defendanthad not been arrested, had not been given any Miranda
was not in custody at this time.
During the interview by Detectives Rowe and Smith, defendant
was not restrained and was informed that he was free to leave at
any time. The initial interview was not recorded, although the
detectives took hand-written notes, and in the course of the
interview defendant confessed to killing Ms. Dethrow. A recorded
statement was subsequently taken from defendant during which
defendant again confessed to killing Ms. Dethrow. Defendant had
still not been placed under arrest and had not been given any
warnings at the time he gave the recorded statement. After
giving the recorded statement, defendant went to the restroom,
accompanied by Detective Smith. While in the restroom defendant
asked if he would be arrested. Defendant was told that decision
was up to the district attorney. Shortly thereafter the detectives
conferred with the district attorney and defendant was formally
Based upon a totality of the evidence, a reasonable person in
defendant's position would not believe he was under arrest or that
his freedom of movement was restrained to the degree of a formal
arrest until he was escorted to the restroom. Defendant had been
told that he was free to leave at any point and had been left in
the interview room with the door open and unlocked several times.
The detectives did not act in a manner indicating defendant was
under arrest until he was escorted to the restroom by Detective
Smith. Further, defendant never asked to leave the premises; nevergave any indication that he wished to leave; and never requested to
speak with anyone. Thus, the trial court did not err in concluding
that for the purposes of Miranda
, defendant was not in custody
during the time the statements were given. These assignments of
error are overruled.
Defendant next contends the trial court erred in admitting
evidence regarding the in utero
fetus carried by Ms. Dethrow at the
time of her death. Defendant specifically argues the trial court
erred in admitting testimony describing the fetus, and in admitting
evidence regarding the length of time it would take the fetus to
die. Defendant asserts the trial court erred because the testimony
was not relevant under Rule 401 of the North Carolina Rules of
Evidence, and was also unduly prejudicial and should have been
excluded under Rule 403. See
N.C. Gen. Stat. §§ 8C-1, Rules 401,
403 (2005). We disagree.
Rulings under North Carolina Rule of Evidence 403 are
discretionary, and a trial court's decision on motions made
pursuant to Rule 403 are binding on appeal, unless the dissatisfied
party shows that the trial court abused its discretion. State v.
, 359 N.C. 328, 348, 611 S.E.2d 794, 811 (2005). Our
Supreme Court has also held that
[e]vidence is relevant if it has any logical
tendency to prove a fact at issue in a case,
and in a criminal case every circumstance
calculated to throw any light upon the
supposed crime is admissible and permissible.
It is not required that evidence bear directly
on the question in issue[.]
State v. Arnold
, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973)
(internal citations omitted). Additionally, this Court has held
Rule 401 sets a standard to which trial judges
must adhere in determining whether proffered
evidence is relevant; at the same time, this
standard gives the judge great freedom to
admit evidence because the rule makes evidence
relevant if it has any
logical tendency to
prove any fact that is of consequence. Thus,
even though a trial court's rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the abuse
of discretion standard applicable to Rule 403,
such rulings are given great deference on
State v. Wallace
, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228
(1991) (internal citations omitted), disc. rev. denied
, 331 N.C.
290, 416 S.E.2d 398, cert. denied
, 506 U.S. 915, 121 L. Ed. 2d 241
We first note that no evidence was admitted concerning the
length of time it would take for the in utero
fetus to die. At
trial, the State did ask the Medical Examiner who conducted the
autopsy on Ms. Dethrow would the child have died immediately?
Defendant objected to this question and was overruled by the trial
court. However, the Medical Examiner responded, I don't know if
there are any studies that are showing how long a fetus can survive
if the mother is dead. So I don't know if I could accurately answer
that. Defendant again objected and moved to strike the Medical
Examiner's response, but was overruled by the trial court because
no opinion was stated as to the State's question. As no evidence
was admitted concerning the length of time it would take for the inutero
fetus to die, defendant cannot show he was prejudiced by the
trial court's decision to overrule his objections on this issue.
Defendant's argument as to whether the trial court erred in
admitting testimony describing the in utero
fetus is similarly
misplaced. At trial, the State elicited testimony from the Medical
Examiner as to the height and weight of the fetus and the fact that
it appeared to be otherwise normal. These autopsy facts are
relevant to motive. In his confession to the investigating
detectives, defendant admitted he strangled Ms. Dethrow to death
during an argument with her wherein she threatened to tell his
church about their sexual relationship and that she was pregnant
out of wedlock. Further, the limited testimony elicited by the
State concerning the in utero
fetus was not unduly prejudicial to
defendant. See State v. Cagle
, 346 N.C. 497, 506, 488 S.E.2d 535,
542 (Necessarily, evidence which is probative in the State's case
will have a prejudicial effect on the defendant; the question is
one of degree.), cert. denied
, 522 U.S. 1032, 139 L. Ed. 2d 614
(1997). Thus, the trial court did not err in admitting this
testimony. These assignments of error are overruled.
Defendant lastly contends the trial court erred in excluding
statements attributed to defendant concerning his state of mind.
We disagree. Rule 803(3) of the North Carolina Rules of Evidence
allows for the admission of
[a] statement of the declarant's then existing
state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive,
design, mental feeling, pain, and bodilyhealth), but not including a statement of
memory or belief to prove the fact remembered
or believed unless it relates to the
execution, revocation, identification, or
terms of declarant's will.
N.C. Gen. Stat. § 8C-1, Rule 803(3) (2005). The failure of a trial
court to admit such evidence, however, will not result in the
granting of a new trial absent a showing by defendant 'that a
reasonable possibility exists that a different result would have
been reached absent the error.' State v. Smith
, 357 N.C. 604,
610, 588 S.E.2d 453, 458 (2003) (quoting State v. Weeks
, 322 N.C.
152, 170, 367 S.E.2d 895, 906 (1988)). Further, [s]tatements that
merely recount a factual event are not admissible under Rule 803(3)
because such facts can be proven with better evidence, such as the
in-court testimony of an eyewitness. Smith
, 357 N.C. at 609, 588
S.E.2d at 457.
Defendant argues the trial court erred in excluding four
statements: (1) a statement by defendant's co-worker regarding an
April 2002 incident where defendant was upset after an argument
with Ms. Dethrow; (2) a statement by the barber of both defendant
and Ms. Dethrow regarding defendant's desire that Ms. Dethrow not
move in with him; (3) a statement by Ms. Dethrow's attorney and
long-time friend regarding defendant's telling her that Ms. Dethrow
came to his house unwanted and repeatedly called him; and (4)
defendant's statements in a Winston-Salem Police Incident Report in
which he said Ms. Dethrow kept coming to his residence after he
told her to stay away.
The last three statements are merely
statements of fact which are not admissible under Rule 803. The first statement, however, does address defendant's state
of mind regarding an argument defendant had with Ms. Dethrow five
months prior to Ms. Dethrow's murder, and may have been admissible
under Rule 803. However, given that testimony concerning
defendant's troubled relationship with Ms. Dethrow came in through
other witnesses, defendant cannot show that a reasonable
possibility exists that a different result would have been reached
had the first statement been admitted. This assignment of error is
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***