Appeal by defendant from judgments entered 27 April 2006 by
Judge Jack A. Thompson in Robeson County Superior Court. Heard in
the Court of Appeals 29 March 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard L. Harrison, for the State.
Hartsell & Williams, P.A., by Christy E. Wilhelm, for
defendant.
BRYANT, Judge.
Judy Naylor McPhail (defendant) appeals from judgments entered
27 April 2006, pursuant to jury verdicts finding her guilty of one
charge of conspiracy to commit first degree murder, twenty-one
charges of forgery, and nineteen charges of uttering a forged
instrument. For the reasons below, we reverse defendant's
convictions of uttering a forged instrument in 04 CRS 51231 and 04
CRS 51245, but otherwise hold defendant received a fair trial, free
from error.
Facts
On 12 January 2004, Craig Hartman, the owner and operator of
Absolute Bus, returned from an out of country vacation to his homeand business at 1173 Kendrick Road in Lumberton, North Carolina and
was shot as he attempted to step outside of his vehicle. Hartman
subsequently determined that the checkbooks for his business and a
shotgun that he kept in his bedroom closet in the apartment above
his business were missing.
Hartman employed defendant as his secretary, and the next day,
he learned she had not been to work for a few days. Defendant took
care of all of the clerical aspects of his business, including
payroll. She had permission to write checks for the business, but
only Hartman was authorized to sign the checks.
After the incident, Hartman went to his banks, RBC Centura and
Lumbee Guaranty Bank in Lumberton, to check his bank records. He
determined that a total of twenty-one checks that he either didn't
write, sign or authorize were cashed against his accounts with RBC
Centura or Lumbee Guaranty Bank and signed affidavits of forgery
regarding these checks. The checks were cashed between 31 December
2003 and 9 January 2004, during the time Hartman was on vacation,
and were cashed for amounts ranging from $120.00 to $6,500.00.
Eighteen of the checks were made out to defendant and three of the
checks were made out to defendant's husband, Donald McPhail.
Further investigation by the Robeson County Sheriff's Office led to
the arrest of defendant and her husband on the charges of felony
conspiracy to commit first-degree murder, attempted first-degree
murder, forgery of endorsements, and uttering forged instruments.
Procedural History
On 12 April 2004, defendant was indicted for felony conspiracy
to commit first-degree murder, attempted first-degree murder,
twenty-one counts of forgery of endorsement, and nineteen counts of
uttering a forged instrument. Defendant was tried before a jury
during the 24-27 April 2006 Criminal Session of Robeson County
Superior Court, the Honorable Jack A. Thompson, Judge presiding.
On 27 April 2006, the jury found defendant guilty of all twenty-one
charges of forgery, all nineteen charges of uttering, and the
charge of felony conspiracy to commit first-degree murder.
Defendant was found not guilty of the charge of attempted murder
and this charge was subsequently dismissed by the trial court. The
trial court entered judgments consistent with the jury verdict on
27 April 2006, sentencing defendant to an active term of
imprisonment for a minimum of 200 months to a maximum of 249 months
for the conspiracy conviction, and a suspended term of six to eight
months, for the forgery and uttering convictions. Defendant
appeals.
_________________________
Defendant raises the issues of whether the trial court: (I)
erred in admitting defendant's statement into evidence; (II) erred
in entering judgment against defendant when there was insufficient
evidence as to the charge of conspiracy to commit first degree
murder and insufficient evidence as to two charges of uttering a
forged instrument; and (III) erred in admitting the statement of a
co-defendant during defendant's sentencing hearing.
I
Defendant first argues the trial court erred in admitting into
evidence at trial her statement made to the investigating officers
because it was procured by coercion. Defendant contends she was
coerced into making the statement because the investigating
detective questioning her forced her to speak with her abusive
husband during her interview. We disagree.
“
Miranda 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).
However,
“[f]ull comprehension of the rights to remain
silent and request an attorney [is] sufficient
to dispel whatever coercion is inherent in the
interrogation process,” and “[a] suspect who
knowingly and voluntarily waives his right to
counsel after having that right explained to
him has indicated his willingness to deal with
the police unassisted[.]”
State v. Hyatt, 355 N.C. 642, 657, 566 S.E.2d 61, 71 (2002)
(quoting
Davis v. United States, 512 U.S. 452, 460-61, 129 L. Ed.
2d 362, 372 (1994)). Our Supreme Court has established that “[t]he
State has the burden of showing by a preponderance of the evidence
that the defendant made a knowing and intelligent waiver of his
rights and that his statement was voluntary.”
State v. Thibodeaux,
341 N.C. 53, 58, 459 S.E.2d 501, 505 (1995) (citation omitted).
“Whether the confession was voluntarily made is a question of
law[.]”
State v. Leeper, 356 N.C. 55, 60, 565 S.E.2d 1, 4 (2002)
(citation omitted). When determining whether a defendant has
validly waived his rights, the court must look at the totality ofthe circumstances.
State v. Parker, 350 N.C. 411, 433-34, 516
S.E.2d 106, 122 (1999).
Here, there is no indication defendant made her statement
involuntarily and without making a knowing and intelligent waiver
of her rights. Defendant was interviewed by Detective Rory
McKeithan on 30 January 2004. At the beginning of the interview,
Detective McKeithan read defendant her constitutional rights in
anticipation of making an arrest that day, and defendant
subsequently signed a waiver of those rights. During the course of
the interview, defendant requested numerous times to see her
husband. Prior to Detective McKeithan's interview with defendant,
her husband had also sent a note through other law enforcement
officers to Detective McKeithan in which he asked to see defendant.
Defendant and her husband spoke briefly at the door of the
interview room, and neither appeared upset. No evidence was
presented regarding the content of any conversation held between
the defendant and her husband during the time he was in the
doorway. At the conclusion of defendant's interview with Detective
McKeithan, defendant insisted upon writing and signing her own
statement. Reviewing the totality of the circumstances surrounding
defendant's interview and statement, we hold that defendant made a
knowing and intelligent waiver of her rights and that her statement
was voluntary. This assignment of error is overruled.
II
Defendant next contends the trial court erred in denying her
motion to dismiss, due to insufficient evidence, the charge ofconspiracy to commit first-degree murder and two charges of
uttering a forged instrument. To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense and that the defendant is the perpetrator.
State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997).
“'Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.'”
Id. at 717,
483 S.E.2d at 434 (quoting
State v. Olson, 330 N.C. 557, 564, 411
S.E.2d 592, 595 (1992)). In considering a motion to dismiss, our
Supreme Court has held that:
the trial court must analyze the evidence in
the light most favorable to the State and give
the State the benefit of every reasonable
inference from the evidence.
The trial court
must also resolve any contradictions in the
evidence in the State's favor.
The trial court
does not weigh the evidence, consider evidence
unfavorable to the State, or determine any
witness' credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)
(internal citations omitted).
“Conspiracy to commit murder requires the defendant to enter
into an agreement with another person to commit murder with the
intent to carry out the murder.”
State v. Kemmerlin, 356 N.C. 446,
477, 573 S.E.2d 870, 891 (2002) (citation omitted). To prove
conspiracy it is unnecessary for the State to prove an express
agreement.
State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835
(1991).
The State must only present evidence tending to show a
mutual, implied understanding.
Id. Further,
[t]he existence of a conspiracy may be shown
with direct or circumstantial evidence. Theproof of a conspiracy may be, and generally
is, established by a number of indefinite
acts, each of which, standing alone, might
have little weight, but, taken collectively,
they point unerringly to the existence of a
conspiracy.
State v. Lawrence, 352 N.C. 1, 25, 530 S.E.2d 807, 822 (2000)
(internal citations and quotations omitted).
In the case
sub judice, defendant admitted in her statement to
police that she and her husband discussed how to cover up their
crime of stealing money from defendant's boss by deciding to shoot
him. Defendant called the airline company to confirm when her boss
would be arriving upon his return from vacation. Defendant's
husband stole a shotgun from Hartman's apartment and they both
drove to a Wal-Mart where defendant's husband purchased shells for
the shotgun. Defendant and her husband then drove to Hartman's
house at the beach where they observed Hartman getting out of a
taxi. They both watched Hartman load his car and then followed
Hartman as he drove back to Lumberton. Upon their arrival at
Hartman's home and business, Hartman drove into the lot and
defendant drove past him as her husband fired three shots at
Hartman from the backseat of their car. Defendant then drove the
car a short distance down the road where her husband hid the
shotgun near a guardrail. This evidence is sufficient to overcome
defendant's motion to dismiss as to the charge of conspiracy to
commit first-degree murder. This assignment of error is overruled.
Defendant argues the State did not produce any evidence that
the two checks supporting the charges in 04 CRS 51231 and 04 CRS51245 were ever offered to a bank teller for cashing. Our review
of the record before this Court supports defendant's contention.
The offense of uttering a forged instrument “comprises three
essential elements: (1) the offer of a forged check or other
instrument to another; (2) with knowledge that the instrument is
false; and (3) with the intent to defraud or injure another.”
State v. Thompson, 62 N.C. App. 585, 586, 303 S.E.2d 85, 86 (1983);
see also N.C. Gen. Stat. § 14-120 (2005). At trial, the State did
introduce evidence that the checks supporting the charges of
uttering in 04 CRS 51231 and 04 CRS 51245 were in fact drawn on RBC
Centura Bank and were made payable to defendant. However, the
State offered no evidence that defendant cashed the checks or that
defendant directed anyone else to cash the checks. The State's
evidence raises only a suspicion or conjecture that defendant
caused the checks to be cashed and the trial court erred in failing
to dismiss the charges of uttering in 04 CRS 51231 and 04 CRS
51245.
See State v. Brayboy, 105 N.C. App. 370, 374, 413 S.E.2d
590, 593,
disc. review denied, 332 N.C. 149, 419 S.E.2d 578 (1992)
(when evidence only raises a suspicion or conjecture that the crime
was committed or that the defendant was the perpetrator, the motion
to dismiss should be granted). A careful review of the transcript
shows the State methodically presented specific evidence as to
defendant's forgery of all of the checks in this case, and specific
evidence of uttering as to all but these two checks. We thus
reverse defendant's convictions for uttering a forged instrument in
case numbers 04 CRS 51231 and 04 CRS 51245.
III
Defendant lastly contends the trial court erred in admitting
the statement of her husband, a non-testifying co-defendant, during
her sentencing hearing. Defendant specifically argues that, by
admitting the summary of her husband's statement over defendant's
objection, “the trial court committed reversible error which
substantially affected [defendant's] constitutional right to
confront the witnesses against her, and impeded her trial
attorney's ability to defend her during the sentencing hearing
effectively.” We disagree.
We first note that where a defendant has been convicted of a
felony and the minimum sentence of imprisonment falls within the
presumptive range of the defendant's prior record or conviction
level and class of offense, the defendant may not appeal as a
matter of right an issue concerning his sentence. N.C. Gen. Stat.
§ 15A-1444(a1) (2005). Further, this Court has recently declined
to extend the application of the Confrontation Clause and the
standard set forth by
Crawford v. Washington, 541 U.S. 36, 158 L.
Ed. 2d 177 (2004), to testimony given at a sentencing hearing in a
non-capital case.
State v. Sings, __ N.C. App. __, __, 641 S.E.2d
370, 371-72 (2007). This assignment of error is overruled.
Defendant does not present arguments on her remaining
assignment of error and thereby abandons it pursuant to N.C. R.
App. P. 28(b)(6).
No error in part; reversed in part.
Judges STEELMAN and LEVINSON concur. Report per Rule 30(e).
*** Converted from WordPerfect ***