STATE OF NORTH CAROLINA
v. Beaufort County
No. 04 CRS 1295
JERRY JEROME TERRANCE, II,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Vaughn S. Monroe, for the State.
Anne Bleyman for defendant.
ELMORE, Judge.
Jerry Jerome Terrance, II (defendant) appeals from his
convictions for breaking and entering and larceny after breaking
and entering. For the reasons stated below, we find no error.
At trial, the State presented evidence tending to show the
following: On 25 March 2003, defendant and Alphonso Gibbs were
riding in a Jeep driven by Michael Esser when they decided to break
into a tattoo shop. After breaking and unlatching a window of the
shop, Gibbs crawled through the window and opened the door for the
other two men. They took tattoo equipment and supplies along with
various other items. During a search of defendant's home that began during the late
night hours of 26 June 2003 and concluded during the early morning
hours of 27 June 2003, Chief Deputy Erving Elks and another officer
took defendant into custody for resisting, delaying, and
obstructing. Officer Jerry Davis began interviewing defendant at
3:35 a.m. on 27 June 2003, and asked defendant specifically if he
was involved in the tattoo shop break-in. After defendant denied
any involvement, Officer Davis did not ask him any further
questions about that break-in.
At approximately 5:30 p.m. on 27 June 2003, Deputy Elks also
interviewed defendant and asked him questions unrelated to the
tattoo shop break-in. When Deputy Elks testified that defendant
had mentioned the tattoo shop during the interview, defense counsel
objected and the trial court conducted a voir dire hearing. Deputy
Elks then testified that defendant was under arrest at the time of
his interview, but that he was not under arrest for the tattoo shop
break-in. He stated that defendant was initially uncooperative
with officers and was placed in the same jail as Gibbs and Esser.
Deputy Elks described how the men began yelling to one another in
the jail, and how each of them began to think that the others were
telling on them. Later that day, defendant asked to speak with
Deputy Elks.
After he was brought to Deputy Elks' office and advised of his
Miranda rights, defendant signed a rights waiver at 5:45 p.m.,
indicating that he did wish to speak with Deputy Elks. Deputy Elks
questioned defendant about an unrelated case, and defendant statedthat he was just the lookout for the tattoo shop break-in. Deputy
Elks called Officer Davis and allowed defendant to speak with him
on the telephone, and Deputy Elks heard defendant tell Officer
Davis that he was just a lookout and did not actually go into the
building. Deputy Elks then proceeded to question defendant further
about unrelated cases.
At the conclusion of the voir dire hearing, the trial court
asked defense counsel if there was “[a]nything further with regard
to whether or not [defendant] was properly advised of his
rights[?]” Defense counsel responded in the negative and indicated
that he was not going to pursue the matter. Upon the jury's
return, Deputy Elks testified about his interview of defendant in
substantial conformity with his voir dire testimony. At the close
of the State's evidence, defendant moved to dismiss the charges.
The trial court denied the motion, and it denied the motion again
when defendant renewed the motion at the close of all of the
evidence. After receiving the trial court's instructions, the jury
found defendant guilty of felonious breaking and entering and of
larceny after breaking and entering. The trial court imposed
consecutive sentences with a combined term of twenty to twenty-four
months' imprisonment. From the trial court's judgments, defendant
appeals.
Defendant contends that the trial court committed either error
or plain error by admitting his custodial oral statements, the
rights waiver, and related testimony. He argues that his oral
statements are inadmissible because police officers did notscrupulously honor his invocation of his Fifth Amendment right to
remain silent. We disagree.
Before assessing whether the trial court committed plain
error, we must first determine whether there was error at all. See
State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986). In
ruling on a motion to suppress a custodial statement, “[t]he trial
court makes the initial determination as to whether an accused has
waived his right to counsel.” State v. Peterson, 347 N.C. 253,
255, 491 S.E.2d 223, 224 (1997). Pursuant to N.C. Gen. Stat. §
15A-977(f), the trial court “must set forth in the record [the]
findings of facts and conclusions of law” supporting its
determination. N.C. Gen. Stat. § 15A-977(f) (2005). In this case
the trial court failed to make any written findings and conclusions
regarding defendant's motion. However, “[i]f there is no material
conflict in the evidence on voir dire [sic], it is not error to
admit the challenged evidence without making specific findings of
fact . . . . In that event, the necessary findings are implied
from the admission of the challenged evidence.” State v. Phillips,
300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980) (citations omitted).
Because there was no material conflict in the evidence presented
during voir dire, the trial court did not err by failing to make
written findings of fact in support of its admission of the
evidence.
Nothing in the record before this Court shows whether Officer
Davis advised defendant of his Miranda rights prior to questioning
him at 3:35 a.m. on 27 June 2003. Nor was there any showing ofwhether defendant invoked his Miranda rights at that time. The
record only shows that Officer Davis ceased questioning defendant
about the tattoo shop break-in after he denied involvement in it.
Assuming arguendo that defendant did invoke his Fifth Amendment
rights at the conclusion of this first interview by Officer Davis,
defendant waived those rights when he initiated further
communication with Deputy Elks fourteen hours later. See State v.
Boggess, 358 N.C. 676, 688, 600 S.E.2d 453, 461 (2004) (holding
that a defendant's Fifth Amendment rights are not violated when
“the record . . . reflects that the genesis of [a] statement was
[a] defendant's request to speak with the investigators”).
Although defendant asserts that his subsequent waiver of
rights was limited to questioning about an unrelated charge, he
provides no authority to support this assertion. It is “[t]hrough
the exercise of his option to terminate questioning [that an
individual] can control the time at which questioning occurs, the
subjects discussed, and the duration of the interrogation.”
Michigan v. Mosley, 423 U.S. 96, 103-04, 46 L. Ed. 2d 313, 321
(1975) (emphasis added). From the record before this Court, it
appears that defendant volunteered the additional information about
the tattoo shop break-in during questioning about unrelated cases.
If Deputy Elks did, in fact, initiate the inquiry about the break-
in of the tattoo shop, defendant failed to exercise his option of
terminating the interview. The rights waiver form signed by
defendant was therefore relevant to the admissibility of the
statements about the tattoo shop break-in, which defendant made toDeputy Elks and to Officer Davis on the telephone. Defendant also
waived any objection to related testimony by failing to object to
it. See N.C.R. App. P. 10(b)(1) (2007). We therefore find no
error, much less plain error, in the trial court's admission of
defendant's custodial statements, the rights waiver and the related
testimony.
Defendant has failed to set out his remaining assignments of
error in his brief. Because he has neither cited any authority nor
stated any reason or argument in support of those assignments of
error, they are deemed abandoned. See N.C.R. App. P. 28(b)(6)
(2007).
No error.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).
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