STATE OF NORTH CAROLINA
No. 02 CRS 28008-25
WILLIAM GLENN BAREFOOT and 02 CRS 28026-42
TIMOTHY LEE JORDAN
Attorney General Roy Cooper, by Special Deputy Attorney
Generals Buren R. Shields, III and Alexander McC. Peters, for
Geoffrey W. Hosford, for defendant-Barefoot.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-Jordan.
Defendants (William Glenn Barefoot and Timothy Lee Jordan)
appeal judgments entered on their convictions for the following
offenses: attempted murder; felony breaking and entering; felony
speeding to elude arrest; assault with a deadly weapon with intent
to kill inflicting serious injury; robbery with a dangerous weapon;
assault by pointing a gun; assault with a firearm on a law
enforcement officer; larceny after breaking and entering; second
degree kidnaping; and assault with a deadly weapon. Barefoot also
appeals a judgment entered upon his conviction of possession of a
firearm by a felon. We find no error. The State's evidence at trial tended to show the following:
The Barefoot and Jordan families resided in a group of mobile homes
in a rural area in western Cumberland County, North Carolina. At
the time of the events resulting in defendants' indictments,
defendant Barefoot was thirty-six years of age (36) and defendant
Jordan was seventeen (17) years of age.
On 13 March 2001, Richard Allen found two men later identified as defendants at his airplane hangar. Allen observed that the personnel door was open and the alarm system damaged. Allen found two men inside who were wearing ski masks. Allen testified that one of the men put a .38 caliber handgun to his head and stated that he would blow [his] f[------] brains out. Allen was kicked in the head and tied up; had duct tape wrapped over his mouth; and was placed in the trunk of one of his vehicles. The men stole certain items of property, including Allen's black Jeep Cherokee vehicle. Before being placed in the trunk of a vehicle, Allen observed a sideways D tattoo on one of the men's upper arm. Law enforcement officers later discovered Allen's credit cards in the Jeep Cherokee.
Ronnie Jordan is defendant Jordan's uncle. He testified that, sometime in 2000, he tattooed a symbol that looked like a side ways D on defendant Jordan's upper arm.
On 30 March 2001, individuals later identified as defendants were involved in a series of property offenses in Robeson, Hoke, and Scotland Counties. At each home, defendants obtained entrythrough a door that was either kicked in or torn apart. The homes were searched for items such as guns, ammunition and electronics.
Numerous property-related offenses occurring on or about 30 March 2001 are briefly summarized as follows:
(1) The Elliot Residence - Betty Elliot noticed that someone had broken into their home. A gun, jewelry, and a heating pad were taken. The heating pad was later discovered by law enforcement in a Jeep Cherokee after a crash described in more detail below.
(2) The Carter Residence - It appeared that someone pushed a chair through glass French doors in the back of the home. No items were missing from the Carter residence.
(3) The Montgomery Residence - At approximately 10:00 a.m. on 30 March 2001, Courtney Montgomery returned home and observed a red Camaro on the side of the road and a black Jeep Cherokee in her driveway. When she heard her house alarm, Montgomery called law enforcement. As the Cherokee began to leave her residence, Montgomery followed the vehicle and observed that the license plate number began with the letters H-X. Montgomery alerted 911 about the car's direction of travel and the tag number. A safe was missing from Montgomery's home and later recovered by law enforcement officers. The Camaro parked on the road belonged to Dixie Jordan-McKinley. Agents found court papers inside the Camaro bearing the name Timothy Jordan.
(4) The Dew Residence - Joshua Dew was home alone when he heard banging at the back door of the home. He saw a man, approximately 6'2 and wearing a ski mask, kick the door in with his boots and enter with a gun. A second man entered behind him; this person was approximately the same height, but not as heavy. The second man was not wearing a mask, but had his collar pulled up to cover his face. Through a door, Dew observed the robber's dark blue or black vehicle. The man with the ski mask threatened Dew at gunpoint while the other man looted the house. The man with the mask handcuffed Dew to a chair before he and the other man left. Dew identified a ski mask, found near the location where the Jeep Cherokee later crashed, as similar to the one worn by the man who first entered his home. A Colt .38 caliber gun and jewelry box taken from the home were later found in the Cherokee.
(5) and (6) The Matthews and Sandy Residences - Firearms, jewelry, handcuffs, food, money, and other items of property were taken from the Matthews home. The door of the Sandy home was split and shotguns, violins, money, and other personal property were missing. A Browning .22 caliber gun and case and a Department of Corrections uniform were taken from the Matthews and were found in the Cherokee, as were two violins belonging to the Sandys.
(7) and (8) The Nadeau and Warwick Residences - Jean Nadeau's neighbor, Catherine Warwick, observed two men at Nadeau's home at approximately 10:30 a.m. on 30 March 2001. When Warwick drove to Nadeau's home to investigate, two men shot at her. Warwick thought they left in a black van-type vehicle that may have been a Cherokee. As the vehicle drove away, the passenger fired a gun at her again. In addition, when Warwick returned to her own house, the door was left open. Jewelry and old coins were missing.
(8) The Cabell Residence - Cabell's neighbor phoned her to inform her that her home alarm was activated. The front door was forced in and a Sony Playstation and other games were missing. These items were later located by law enforcement inside the Cherokee.
Raeford Police officer Ronnie McGee observed a black Jeep Cherokee traveling at high speeds approximately five miles from the Warwick residence on the morning of 30 March 2001. McGee attempted to turn around, but could not do so because of heavy traffic. At that time he was not aware of a search for the Cherokee. At 11:18 a.m., McGee responded to a dispatch regarding the breaking and enterings, and shots fired, at the Nadeau/Warwick residences. During his investigation, McGee heard radio traffic from Major Dan Skamperele of the Scotland County Sheriff's Department requesting that a tag be run on a Jeep he observed on Route 211. Skamperele then radioed that shots were being fired at him. Skamperele chased the vehicle and its two occupants, later identified as defendants, at speeds as high as 90 miles per hour. During this chase, one manfrom the Cherokee fired shots from the sunroof of the vehicle. The driver of the Cherokee lost control of the vehicle through the parking lot of a grocery store before crashing into the door of a thrift shop. Skamperele rammed his vehicle into the back of the Cherokee, trapping it against the thrift shop door. Because of the impact, Skamperele's gun fell out of his hand and onto the ground. As he reached across the seat to retrieve his gun, the two men got out of the Cherokee. They went to Skamperele's driver side door and screamed at him to get out of the car. The door was jammed, but the two men managed to rip the door open. One man grabbed Skamperele by the leg and began pulling [him] out the door and shooting at [him]. The other man went around to the passenger side and hit Skamperele on the head. He grabbed Skamperele's gun from his hand. As Skamperele was pulled from the car, he heard one man say, I told you to kill him. Skamperele then saw a flash and felt a sting and felt his body go numb. The two men left in Skamperele's vehicle. At trial, Skamperele identified the two men as Jordan and Barefoot.
At approximately noon on 30 March 2001, Michael Parks observed the police vehicle crash into the rear of the Cherokee and the Cherokee crash into the door of a thrift shop. When he stepped outside of the store, Parks observed an officer reaching inside his car as a man descended from the top of the Cherokee and fired shots. Parks testified that Jordan was the shooter and the one originally seated on the passenger side of the Cherokee. Patricia Bullock testified. She observed the driver and passenger get out of the Cherokee at the grocery store. Both men approached Skamperele's car; opened the car door; and began firing at the officer. Bullock heard the Cherokee driver tell his passenger to shoot him. Bullock identified Barefoot as the driver of the Cherokee and Jordan as the passenger. Stephanie Miller was leaving the grocery store when a coworker entered, pushed her back inside the door, and told her there was a shooting going on outside. Miller also identified Barefoot as the driver, but could not identify the passenger.
John Shippioto also witnessed the events involving Skamperele. He observed two men at Skamperele's driver-side window making downward motions. He then heard shots and observed one of the men come around the passenger side of the officer's vehicle carrying a handgun.
James Gregorio, co-operator of the thrift store, observed a hunter's ski mask on the ground near the Cherokee after it crashed. He gave the mask to N.C. State Bureau of Investigation (SBI) Agent Charles Newcomb. Hair was retrieved from the Cherokee; this hair was determined to belong to Jordan. Hair from the ski mask matched Barefoot's hair.
Misty Whitley testified that she heard Barefoot and Jordan tell Brian Ratley about how they had been breaking into houses on 30 March 2001 and that someone had called the police after they fired their weapons at an old lady. They also said they had shot a cop. Plaster castings of footprints and tire prints were taken from the Elliot, Montgomery, and Nadeau residences. Tire prints around the Nadeau residence were consistent with the tire size and design on the Jeep Cherokee. The shoe impressions taken from where the Elliots' back door was kicked in measured approximately 13 to 14 inches long and were consistent with a boot. Foot prints taken from the Nadeau residence were also consistent with a size 13 boot. Bullets, fragments and casings retrieved from these crime scenes were fired from a .9 mm and a .357 or .38 caliber handgun. The bullets and fragment retrieved from Skamperele's thighs were consistent with a .38 or .357 caliber magnum type bullet.
Agent Mark Boodee, also of the SBI, collected blood samples from the Cherokee and Skamperele's police cruiser. Blood found in the front driver-side and rear passenger seats of the Cherokee belonged to Barefoot. Blood from inside of the passenger-side door of the Cherokee belonged to Jordan. Blood stains on the dashboard on the passenger side of Skamperele's car, and on a blue rag found between the two front seats, belonged to Jordan.
Neither defendant presented any evidence at trial. A jury convicted both defendants of one count of attempted murder; eight counts of felony breaking or entering; six counts of larceny after breaking and entering; one count of felony speeding to elude arrest; one count of assault with a deadly weapon with intent to kill inflicting serious injury; two counts of robbery with a dangerous weapon; one count of assault by pointing a gun; one count of assault with a firearm on a law enforcement officer; one countof second degree kidnaping; and one count of assault with a deadly weapon. Barefoot was also convicted separately of one count of possession of a firearm by a felon. Both defendants appeal.
An out-of-court statement that contains deleted references to a
co-defendant is admissible as long as the 'deletions [do] not
materially change the nature of [the] statement.' State v.Stafford, 150 N.C. App. 566, 570, 564 S.E.2d 60, 63 (2002) (quoting
State v. Giles, 83 N.C. App. 487, 494, 350 S.E.2d 868, 872 (1986)).
The statement admitted into evidence was generally inculpatory in that Barefoot acknowledged that he (1) broke into a number of homes, though he could not recall some of the specific houses; (2) drove another individual's black Jeep Cherokee; (3) was present not only during the events described by Warwick, supra, but also during the events as regards the crash and the shooting of Skamperele. In the statement, Barefoot also acknowledged having a gun in his possession but denied shooting at anyone. He stated that he was the driver of the Cherokee when it crashed, and that the gun fell out of his coat pocket and went off when he exited the Cherokee after the crash. Barefoot also explained his activities after the crash, including his taking Skamperele's vehicle and later ditching it, and his efforts to conceal his whereabouts before surrendering himself to law enforcement.
Barefoot's central argument is that, by omitting a portion of his original statement that implicated Jordan in the shooting of Skamperele, the statement made it appear as though all the shots came from his gun. The statement, however, included Barefoot's denial that he deliberately shot Skamperele. Moreover, numerous witnesses testified that two individuals exited the Cherokee and assaulted Skamperele. It was, in fact, uncontradicted that two individuals were involved in the Skamperele shooting, and numerous witnesses testified that two individuals were involved in the activities surrounding the break-ins. We conclude that thesanitized statement by Barefoot was not misleading and did not materially change the nature of the original statement. The relevant assignments of error are overruled.
Barefoot next argues that the trial court erred by failing to sustain his objection to the State's closing argument that the defendants were rouges [sic], scoundrels and thieves.
The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection. State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). We do not conclude that the trial court abused its discretion unless the ruling is so arbitrary that it could not have been the result of a reasoned decision. State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996). When applying the abuse of discretion standard to closing arguments, [we] first determineif the remarks were improper . . . . Next, we determine if the remarks were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court. Jones, 355 N.C. at 131, 558 S.E.2d at 106.
This argument was not properly preserved for appellate review because no ruling by the trial court was obtained. In order to preserve a question for appellate review, a party must have . . . obtain[ed] a ruling upon the party's . . . objection or motion. N.C.R. App. P. 10(b)(1). [We] will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal. State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814(1991). Here, the trial court never ruled on defendant's objection to the State's closing argument. After the objection, the attorneys approached the bench; this bench conference was not transcribed, and there were no objections stated on the record regarding this issue after the bench conference was completed. The record further reveals that the closing argument continued without any further reference by the State to defendants as rogues or the like. This assignment of error is overruled.
In a related argument, Barefoot contends that the trial court erred by not intervening ex mero motu to a portion of the State's closing argument that characterized Barefoot's statement to law enforcement as a bunch of self serving lies. We disagree.
The standard of review when a defendant fails to object at trial is whether the [closing] argument complained of was so grossly improper that the trial court erred in failing to intervene ex mero motu. In determining whether the prosecutor's argument was . . . grossly improper, this Court must examine the argument in the context in which it was given and in light of the overall factual circumstances to which it refers. [T]he impropriety of the argument must be gross indeed in order for this Court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.
State v. McCollum, 177 N.C. App. 681, 685, 629 S.E.2d 859, 861-62
(2006) (internal quotation marks and citations omitted).
Our Supreme Court has concluded that [w]ith reference to the prosecutor's argument that defendant had lied, we note that a prosecutor may properly argue to the jury that it should notbelieve a witness. State v. Scott, 343 N.C. 313, 344, 471 S.E.2d 605, 623 (1996)(citing State v. McKenna, 289 N.C. 668, 687, 224 S.E.2d 537, 550 (1976)); see also State v. Solomon, 340 N.C. 212, 218-20, 456 S.E.2d 778, 782-84 (1995) (no error where trial court did not intervene ex mero motu where prosecutor stated that defendant lied during his testimony), and State v. Ocasio, 344 N.C. 568, 580, 476 S.E.2d 281, 288 (1996)(no error when trial court failed to intervene ex mero motu, when, inter alia, the State implicitly called defendant a liar). We conclude that the State's isolated reference to Barefoot's statement as a bunch of self serving lies was not so grossly improper as to have required the trial court to intervene ex mero motu during the State's closing argument. This assignment of error is overruled.
Barefoot next contends that the trial court erred by denying his motion to suppress evidence seized pursuant to a search of his home. Contrary to the trial court's conclusion, Barefoot asserts that he did not give consent to the search.
Generally, an appellate court's review of a trial court's order on a motion to suppress is strictly limited to a determination of whether its findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion. State v. Allison, 148 N.C. App. 702, 704, 559 S.E.2d 828, 829 (2002). Where, however, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984). . . . Accordingly, we review the trial court's order to determine only whether the findings of fact support the legal conclusion[s]. . . .
State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36 (2004).
In the instant case, Barefoot has not challenged any of the trial court's findings of fact. They are, therefore, deemed supported by competent evidence and binding on appeal. We are therefore only left to determine whether the findings support the conclusions of law.
Concerning the inevitable discovery doctrine, the trial court concluded:
That even if the consent to search was involuntary, the State has proven by a preponderance of the evidence that the stolen property discovered at defendant's residence at 7842 Camden Road on April 4, 2001, would inevitably have been discovered by lawful means.
Pursuant to the doctrine of inevitable discovery:
evidence which is illegally obtained can
still be admitted into evidence as an
exception to the exclusionary rule when 'the
information ultimately or inevitably would
have been discovered by lawful means.' . . .
Under this doctrine, the prosecution has the
burden of proving that the evidence, even
though obtained through an illegal search,
would have been discovered anyway by
independent lawful means.
State v. Woolridge, 147 N.C. App. 685, 689, 557 S.E.2d 158, 160-61 (2001) (quoting Nix v. Williams, 467 U.S. 431, 444, 81 L. Ed. 2d 377, 387-88 (1984)).
Barefoot does not challenge the trial court's conclusion that the stolen property discovered during the search would have been discovered independent of Barefoot's consent, and we observe that the trial court's detailed order, including 74 findings of fact,support this conclusion. Thus, even assuming arguendo the trial court erred by concluding Barefoot gave consent to search, the trial court order on the motion to suppress would still have been proper. This assignment of error is overruled.
Barefoot next contends that the trial court committed plain error by failing to declare a mistrial after learning that Barefoot's brother, Chad Barefoot, had spoken to two jurors about the case. This argument has not been preserved for appellate review.
Because defendant failed to object at trial, he now attempts to invoke plain error review pursuant to N.C.R. App. 10(c)(4). Plain error review is only available for errors in the admission of evidence and jury instructions. State v. Wolfe, 157 N.C. App. 22, 33, 577 S.E.2d 655, 663 (2003). In the instant case, as defendant's argument pertains neither to jury instructions nor evidentiary issues, plain error review is unavailable. Hence, as this issue was not properly preserved for appellate review, we reject this assignment of error. Accord State v. McCall, 162 N.C. App. 64, 70, 589 S.E.2d 896, 900 (2004) (plain error review unavailable to review failure to declare mistrial sua sponte after court learned that individuals in the courtroom had been signaling to the witness during testimony).
In Barefoot's final argument, he contends the trial court erred by denying his motion to suppress his statement to law enforcement because a multi-day crack binge rendered his statement unknowing and involuntary. We disagree. Barefoot has not challenged any of the trial court's findings of fact as regards his statement. They are therefore deemed supported by competent evidence and binding on appeal. State v. Euceda-Valle, __ N.C. App. __, __, 641 S.E.2d 858, 862 (2007). We are therefore only left to determine whether the findings support the conclusions of law.
The trial court found, in relevant part, that:
27. Several times during the interview, Defendant hesitated in answering questions and appeared not to be concentrating. Defendant would look at the floor or look past Agent Deaver as if he were looking at the wall. Agent Deaver would repeat the question a second time and Defendant would then answer.
Agent Deaver testified that Defendant appeared
tired throughout the course of the interview, but remained awake and coherent. Defendant's answers were appropriately responsive to the
28. Agent Deaver is currently assigned to the Narcotics Unit of the SBI and is familiar with controlled substances, specifically with crack cocaine. Agent Deaver has observed individuals who were high on crack cocaine during his law enforcement career and has received training on recognizing the signs of impairment from cocaine. Agent Deaver testified that Defendant did not appear to be impaired on crack cocaine or any other impairing substance. Defendant told Agent Deaver that he had last used a small amount of crack cocaine on Sunday morning, April 1, 2001. Agent Deaver specifically looked at Defendant's eyes and did not notice any jerking eye movements or avoidant behavior. In Agent Deaver's opinion, Defendant was not impaired. Agent Pinkston also testified that Defendant did not appear to be impaired on crack cocaine or any other impairing substance.
The court then observed and concluded: 4. That, although Defendant was tired during the interrogation, there is no evidence that Defendant suffered from the effects of sleep deprivation to a degree that would affect his ability to understand his rights or the consequences of waiving his rights. To the contrary, Defendant was alert, coherent, and rational during the advisement of his rights and interrogation.
5. That there is no evidence that Defendant was suffering from the effects of drug use or was in any way impaired during the advisement of his rights or interrogation.
. . . .
15. That Defendant freely, knowingly, voluntarily, and intelligently waived each of his Constitutional Rights and thereupon gave a statement to Agent Deaver, with a full
understanding of the consequences.
Because the trial court's findings support its conclusions of law, this assignment of error is overruled.
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