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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 17 April 2007
STATE OF NORTH CAROLINA
No. 05CRS1799, 50985, 50992
JOSEPH CASEY MCGHEE,
Appeal by Defendant from judgment entered 19 January 2006 by
Judge W. Osmond Smith, III, in Superior Court, Person County.
Heard in the Court of Appeals 6 March 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gayl M Manthei, for the State.
James N. Freeman, Jr., for Defendant-appellant.
This appeal arises from Defendant Joseph Casey McGhee's
convictions on the charges of possession of firearm by felon,
possession of weapon of mass destruction, and being a habitual
felon. We find no error in his trial.
The facts tend to show that during a license check point on 19
March 2005, Officer Angela Clay of the Roxboro Police Department
recognized the tag number on a white Dodge Spirit from a stolen
vehicle report filed by Defendant's wife. Officers Clay and Jason
Stewart pursued the vehicle which e ventually stopped, and Officer
Stewart told Defendant to get out of the car with his hands up.
Defendant complied. Officer Clay cuffed Defendant a nd placed him
in her vehicle whereupon she noticed a laceration on his lip and
asked, Who did that to your lip? Defendant replied, some guys. Thereafter, as Officer Stewart prepared to search the vehicle,
Officer Clay informed him that Defendant wanted to speak with him.
Officer Stewart asked Officer Clay to hold on for a minute but
Defendant persisted that he speak with Officer Stewart. Before
speaking with Defendant, Officer Stewart saw a sawed-off shot gun
and a box of ammunition on the passenger side of the vehicle.
Afterwards, Defendant informed him that he had something in his
vehicle he [was] not suppose to have. Officer Stewart informed
Defendant that they had already found what he was referring to,
which was the sawed-off shotgun.
At trial, the trial court granted Defendant's motion to
represent himself and appointed his trial counsel to serve as
standby counsel. Defendant did not cross examine any of the
State's witnesses, object to any of the State's evidence, nor make
any motions. Defendant also waived opening and closing arguments.
He was convicted of all charged offenses and sentenced as a
habitual felon to a term of 93 months to 121 months imprisonment.
On appeal, we address Defendant's arguments that the trial
court (I) committed plain error by allowing the officers to testify
regarding their conversations with Defendant after he was in
custody but before he was read his Miranda rights; (II) committed
plain error by allowing Officer Jones to testify regarding his
investigation and arrest of Defendant on an unrelated charge of
possession of crack cocaine from 1998; and (III) erred by not
dismissing the indictment against defendant for being an habitual
felon as one of its underlying felonies was the same felony used toconvict Defendant of the underlying charge of possession of firearm
Defendant first argues that the trial court committed plain
error by allowing Officers Clay and Stewart to testify regarding
their conversation with Defendant after he was in custody and
before receiving his Miranda Rights. We disagree.
Preliminarily, we note that Defendant did not raise an
objection to the testimonies of Officers Clay and Stewart or to the
admission into evidence entered as a result of their statements.
The failure to object to alleged errors precludes raising those
errors on appeal. N.C. R. App. P. 10(b)(1)(providing that [i]n
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). Since Defendant did not object to this
evidence at trial, he must show that "plain error" was committed by
demonstrating that absent the error the jury probably would have
reached a different verdict.
State v. Walker, 316 N.C. 33, 37-38,
340 S.E.2d 80, 82-83 (1986); State v. Riddle, 316 N.C. 152, 161,
340 S.E.2d 75, 80 (1986).
It is well established that Miranda warnings are required
only when a defendant is subjected to custodial interrogation."
State v. Johnston, 154 N.C. App. 500, 502, 572 S.E.2d 438, 440
(citing State v. Patterson, 146 N.C. App. 113, 121, 552S.E.2d 246, 253 (2001). Under the Miranda decision, custodial
interrogation is defined as questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612,
16 L.Ed.2d ,694, 706 (1966)). Furthermore, the United States
Supreme Court defined "interrogation" as "[a] practice that the
police should know is reasonably likely to evoke an incriminating
response from a suspect[.]" Rhode Island v. Innis, 446 U.S. 291,
301, 100 S. Ct. 1682, 1690, 64 L. Ed.2d 297, 308 (1980).
"Interrogation" for Miranda purposes does not include "words or
actions . . . normally attendant to arrest and custody," and must
consist of "a measure of compulsion above and beyond that inherent
in custody itself." Id. at 300, 100 S. Ct. at 1689, 64 L. Ed.2d at
307-08 (holding that no Miranda warning was required for
admissibility of confession, even where police talked to each other
suggestively about the defendant's crime in his presence, because
the defendant was not subjected to the "functional equivalent" of
interrogation under such circumstances).
Here, while Defendant was in custody because he was cuffed and
placed in the back of Officer Clay's vehicle, see Johnston, 154
N.C. App. at 503, 572 S.E.2d at 441, the statements by Defendant
were not a product of an interrogation by the officers but were
voluntary statements by Defendant. We determine the voluntariness
of a statement by looking at the totality of the circumstances, and
considering the factors of: whether defendant was in custody,whether he was deceived, whether his Miranda rights were honored,
whether he was held incommunicado, the length of the interrogation,
whether there were physical threats or shows of violence, whether
promises were made to obtain the confession, the familiarity of the
declarant with the criminal justice system, and the mental
condition of the declarant. State v. Campbell, 133 N.C. App. 531,
538, 515 S.E.2d 732, 737 (1999) (citation omitted).
Here, Defendant made several requests to speak with Officer
Stewart. When Officer Stewart responded to Defendant's request, he
stated what's up, how can I help you, man? Defendant replied, I
have something in the vehicle that I'm not supposed to have because
some guys were after me. From this exchange, it is clear that
Defendant initiated this conversation and based on the factors
above, the statements were voluntary.
Because Defendant's statements were voluntary and not a
product of interrogation by the officers, we hold the trial court
did not err when it allowed the officers to testify as to
Defendant next argues that the trial court erred by allowing
Officer Jones to testify regarding his investigation and arrest of
Defendant on an unrelated charge of possession of crack cocaine
from 1998. He contends this bad act testimony had no relevance
whatsoever to any of the exceptions outlined under Rule 404(b).
We disagree. Under North Carolina law, the State was allowed to put on
evidence to show that Defendant violated section 14-415.1(a) of the
North Carolina General Statutes. See
State v. Leach, 166 N.C. App.
711, 603 S.E.2d 831 (2004)(holding that the plain meaning of N.C.
Gen. Stat. § 14-415.1 allows for the prosecution to admit into
evidence the defendants prior record when charged with possession
of a firearm by a felon).
Additionally, the State indicted Defendant as an habitual
felon pursuant to section 14-7.1 of the North Carolina General
Statutes. To prove Defendant is an habitual felon, the State must
show that the Defendant was convicted of or pled guilty to three
felony offenses. N.C. Gen. Stat. § 14-7.1 (2005). In the
indictment, the State listed three convictions which were the basis
for the habitual felon indictment; and within those three
convictions the State listed the 1998 possession of crack cocaine
charge. Thus, Defendant's contention that this conviction was
totally unrelated is without merit.
Moreover, the State must present substantial evidence of each
element of the crime charged. State v. Lindsey, 118 N.C. App. 549,
553, 455 S.E.2d 909, 912 (1995). Therefore, the State had to
present evidence to show that Defendant was convicted of
possession of crack cocaine in 1998. Because the State was
required to present evidence of Defendant's status as a felon, we
hold that the trial court did not error by allowing the officer to
testify as to his investigation and arrest of Defendant for
possession of crack cocaine.
Defendant also argues that this Court should reconsider our
Glasco which allows the State to use the same prior
felony as a basis for possession of firearm by a felon and to
support an habitual felon indictment. State v. Glasco
, 160 N.C.
App. 150, 585 S.E.2d 257(2003). We do not have the authority to do
so and, therefore, dismiss this assignment of error. In re Appeal
from Civil Penalty, 324 N.C. 373, 379 S.E.2d 297 (1989).
In sum, we find no error in these assignments of error, and we
have examined Defendant's remaining contentions and find them to be
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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