Appeal by defendant from judgments entered 3 February 2006 by
Judge John E. Nobles, Jr., in New Hanover County Superior Court.
Heard in the Court of Appeals 16 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Anita LeVeaux, for the State.
Sofie W. Hosford for defendant-appellant.
Defendant Lloyd Graham Gray appeals from his convictions on
three counts of statutory rape, three counts of first degree rape
of a child, five counts of incest, one count of second degree rape,
and one count of first degree sexual offense against a child.
Defendant argues that the trial court erred in three respects: (1)
the court committed plain error in failing to declare a mistrial;
(2) the court erred in denying his motion to suppress his
inculpatory statements to detectives; and (3) the court abused its
discretion in allowing a licensed clinical social worker to testify
as an expert witness regarding child abuse. We disagree with eachof these contentions and, therefore, hold that defendant received
a trial free of prejudicial error.
The State's evidence tended to show the following facts. When
the victim, a female child, was 17 months old, defendant married
her mother. The State offered evidence of sexual contact or sexual
intercourse between defendant and the victim from the time that she
was pre-school age through the summer of 2004. In the fall of
2004, the victim discovered she was 26 weeks pregnant. Upon this
discovery, she disclosed to her mother that defendant had been
having sexual intercourse with her. DNA testing of the victim, her
baby, and defendant revealed that the probability of defendant's
paternity was 99.99%.
On 8 November 2004, in the afternoon, officers with the New
Hanover County Sheriff's Department arrested defendant at his place
of work, transported him to the sheriff's office, and conducted a
videotaped interview. After being advised of and then waiving his
Miranda rights, defendant made admissions, both oral and in a
written statement, that he had engaged in sex with the victim.
Defendant was indicted with one count of second degree rape;
three counts of statutory rape of a person who is 13, 14, or 15
years old; three counts of first degree rape of a child; five
counts of incest; and one count of first degree sexual offense. A
jury convicted him of all the charges, and the trial court imposed
two consecutive sentences of 192 to 240 months imprisonment.
Defendant timely appealed to this Court.
We first address defendant's argument that the trial court
erred by not declaring a mistrial sua sponte
. At trial, the victim
testified that her grandmother had once reported being raped by
defendant. Upon defendant's objection, the trial judge struck the
testimony and ordered the jury to disregard it. On appeal,
defendant argues that the testimony, although struck, was so
prejudicial as to require a mistrial. Recognizing that defense
counsel did not move for a mistrial, defendant argues that the
trial court's failure to declare a mistrial sua sponte
plain error. See
N.C.R. App. P. 10(c)(4).
It is, however, well established that review for plain error
is limited to errors regarding a trial court's jury instructions or
rulings on the admissibility of evidence. State v. Gregory
N.C. 580, 584, 467 S.E.2d 28, 31 (1996). This Court will not,
therefore, apply the plain error doctrine to the question whether
a mistrial should have been declared. See State v. Verrier
N.C. App. 123, 129, 617 S.E.2d 675, 679 (2005) (rejecting argument
that "trial court's failure to exercise its discretion ex mero motu
on the question of a mistrial" is reviewable under plain error
standard); State v. McCall
, 162 N.C. App. 64, 70, 589 S.E.2d 896,
900 (2004) (holding that plain error review is unavailable to
appellants contending that the trial court erred in failing to
declare a mistrial). Accordingly, we do not address this issue.
Defendant next contends the trial court erred in denying his
motion to suppress the inculpatory statements he made to the detectives. Defendant claims that these statements were
involuntary because he had taken medications that "left him
confused and caused anxiety."
We first note that the trial court, after conducting an
evidentiary hearing on defendant's motion to suppress, summarily
denied that motion without making findings of fact. N.C. Gen.
Stat. § 15A-977(f) (2005) specifically provides that when a
suppression hearing is held, "[t]he judge must set forth in the
record his findings of facts and conclusions of law." North
Carolina's appellate courts have, however, construed § 15A-977(f)
as setting forth a general rule that the trial court should
, as the
better practice, make findings of fact to show the basis of its
ruling if the evidence at the hearing is undisputed. State v.
, 158 N.C. App. 133, 143, 580 S.E.2d 405, 414 (2003), aff'd
, 358 N.C. 215, 593 S.E.2d 583 (2004). If, however,
there is a material
conflict in the evidence offered at the
hearing, then findings of fact are mandatory
at 149, 580
S.E.2d at 417 (holding that because the evidence was in conflict as
to the defendant's competency, "specific findings on the issue of
defendant's competency at the time he confessed were a prerequisite
to the admission of defendant's statements").
In this case, defendant presented both his own testimony and
that of his doctor in arguing that his oral and written statements
were involuntary and, therefore, should have been excluded.
Defendant does not, however, challenge on appeal the trial court's
failure to make findings of fact. Because, given defendant'sargument on appeal, any conflict in the evidence was not
"material," we do not address the trial court's failure. See id.
("[W]e conclude that the absence of findings here was harmless
beyond a reasonable doubt.").
Defendant relies solely upon his medication in arguing that
his statements were involuntary. In State v. Cheek
, 351 N.C. 48,
63, 520 S.E.2d 545, 554 (1999) (internal quotation marks omitted),
, 530 U.S. 1245, 147 L. Ed. 2d 965, 120 S. Ct. 2694
(2000), our Supreme Court observed: "[T]he United States Supreme
Court has declined to create a constitutional requirement that
defendants must confess their crimes only when totally rational and
properly motivated, in the absence of any official coercion by the
State." Further, "while they are factors to be considered,
intoxication and subnormal mentality do not of themselves
necessarily cause a confession to be inadmissible because of
involuntariness or the ineffectiveness of a waiver." State v.
, 345 N.C. 184, 245, 481 S.E.2d 44, 78 (1997), cert. denied
523 U.S. 1024, 140 L. Ed. 2d 473, 118 S. Ct. 1309 (1998). Instead,
"the confession 'is admissible unless the defendant is so
intoxicated that he is unconscious of the meaning of his words.'"
State v. Tuck
, 173 N.C. App. 61, 72, 618 S.E.2d 265, 273 (2005)
(quoting State v. Oxendine
, 303 N.C. 235, 243, 278 S.E.2d 200, 205
(1981), superseded by statute on other grounds as stated in State
, 315 N.C. 352, 338 S.E.2d 310 (1986)). See also State
, 323 N.C. 1, 22, 372 S.E.2d 12, 23 (1988) ("While
intoxication is a circumstance critical to the issue ofvoluntariness, intoxication at the time of a confession does not
necessarily render it involuntary. . . . The confession is
admissible unless the defendant is so intoxicated that he is
unconscious of the meaning of his words." (internal quotation marks
omitted)), vacated on other grounds
, 494 U.S. 433, 108 L. Ed. 2d
369, 110 S. Ct. 1227 (1990).
Here, defendant makes no argument in his brief that his
statements were obtained through coercion, but rather that the
medications that he took _ including antibiotics, Lipitor, Effexor,
and Ambien _ "impaired his judgment," "left him confused," and
"caused anxiety." He points to (1) his own testimony regarding the
effect of the medications on him, (2) testimony of a detective that
defendant appeared to have difficulty finding the words to use, and
(3) testimony from his doctor that Ambien had a known side effect
In the evidentiary hearing, defendant testified that the
medications "blocked" his mind so that he could not remember, at
times, what words to use and that they caused him to experience
"confusion," depression, and ongoing anxiety. Defendant conceded,
however, that although he had taken Ambien the night before and his
other medications at about 6:00 a.m., he had driven his car to work
that day and performed his job as a press operator until arrested
in the afternoon without any problems. His treating physician
testified at trial that amnesia was a rare side effect of Ambien,
but that none of his patients had experienced that problem. Defendant's physician also testified that defendant had never
complained to him about the medications.
Defendant does not argue how this evidence reaches the
standard set forth in Tuck
, or Oxendine
. Although defendant
states in his appellate brief that the medications "impaired his
judgment," defendant points to no evidence in support of that
assertion. Neither defendant's own testimony nor that of his
physician addresses the exercise of "judgment." Further, he does
not explain how difficulties in recalling what words to use,
depression, confusion, and anxiety transform an otherwise voluntary
statement into an involuntary statement. Instead, these conditions
were circumstances relating to the credibility of the statements
and, therefore, were issues for the jury:
"Unless a defendant's intoxication amounts to
mania _ that is, unless he is so [intoxicated]
as to be unconscious of the meaning of his
words _ his intoxication does not render
inadmissible his confession of facts tending
to incriminate him. The extent of his
intoxication when the confession was made,
however, is a relevant circumstance bearing
upon its credibility, a question exclusively
for the jury's determination."
State v. Fisher, 171 N.C. App. 201, 209, 614 S.E.2d 428, 433-34
(2005) (quoting State v. Logner, 266 N.C. 238, 243, 145 S.E.2d 867,
871, cert. denied, 384 U.S. 1013, 16 L. Ed. 2d 1032, 86 S. Ct. 1983
(1966)), cert. denied, 361 N.C. 223, __ S.E.2d __ (2007). We hold,
therefore, that the trial court did not err in denying defendant's
motion to suppress.
Lastly, we address defendant's argument that the trial court
erred in allowing Shelly Chambers, a licensed clinical socialworker, to testify as an expert in the dynamics of child abuse.
Defendant asserts that Ms. Chambers "did not possess the requisite
qualifications to offer her opinions in this matter." It is
established that "[w]here a judge finds a witness qualified as an
expert, that finding will not be reversed unless there was no
competent evidence to support the finding or unless the judge
abused his discretion." State v. Young, 312 N.C. 669, 679, 325
S.E.2d 181, 188 (1985).
As Ms. Chambers explained at trial, she holds a masters degree
in social work from East Carolina University and is also a licensed
clinical social worker. She interned for a year in the child
psychiatry program at East Carolina University's School of
Medicine. To maintain her license, she participates in 20 hours of
professional training per year. In the course of her daily work,
she provides therapy to children and families, and most of her
patients are children under the age of 18. During her career, she
has been involved in several hundred cases involving child sexual
Based on Ms. Chambers' education and professional experience,
the trial judge allowed her to provide expert testimony on the
general behavioral characteristics of a child who had endured long-
term abuse. Given Ms. Chambers' education and experience, we
cannot conclude that the trial judge's decision to allow her to
testify as an expert witness was manifestly unreasonable.
Accordingly, we hold that the trial judge did not abuse his
discretion, and this assignment of error is overruled.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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