Opinion
No. COA15-485.
01-19-2016
STATE of North Carolina, v. Evans AINE II, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Marilyn G. Ozer for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.
Marilyn G. Ozer for defendant.
Opinion
Appeal by defendant from Judgment entered 25 August 2014 by Judge James G. Bell in Cumberland County Superior Court. Heard in the Court of Appeals 19 October 2015.
ELMORE, Judge.
Evans Aine II (defendant) appeals from his first-degree murder conviction and sentence to life imprisonment without parole. After careful review, we find no error.
I. Background
At the time of the events in question, defendant and his wife had three children and lived in Cumberland County. Defendant met Shontice Demus (Demus) at Walmart and they had a brief affair. Shortly after the affair, Demus became pregnant and informed defendant that he was the father. Defendant denied Demus's claim but never requested a paternity test. Demus gave birth to Kaeden in March 2011, and defendant cared for Kaeden once in April 2011 and again in February 2012. Also in February 2012, Tanika Murray (Murray) became Kaeden's primary guardian. On Friday, 8 June 2012, Murray brought Kaeden to Demus's home for the weekend, and Demus asked defendant if he wanted to spend time with Kaeden. Defendant and his wife brought Kaeden back to their home and agreed to bring Kaeden back to Demus the following day around 7:30 p.m. Demus apparently did not answer defendant's calls on Saturday evening, and as a result Kaeden remained at defendant's home. On Sunday, Demus stated that Kaeden could stay with defendant for the week.
Defendant's testimony showed the following: On Sunday, 10 June 2012, when defendant was bathing Kaeden and his other three children in the shower, Kaeden stood up and hit his head on the corner of a tile. Defendant stated, “Everything was fine, you know. It was just bleeding.” On Monday morning, 11 June 2012, defendant's wife left the home at 8:00 a.m. to go to a doctor's appointment, and Kaeden woke up between 8:15 and 8:30 a.m. After Kaeden woke up, defendant “filled his sippy cup up,” and Kaeden “chugged it.” Defendant “was trying to tell him wasn't no more,” [sic] but Kaeden was “fussing at [him] a little bit.” Defendant “put some more in there, but he drank that too and then that's when he went off after my daughter's drink.” Defendant “[g]ot him at least calmed down,” and then defendant put a load of laundry in the washing machine. Defendant heard crying, so he walked toward the den and saw Kaeden crying. Defendant stated, “[M]y daughter began to walk towards me and Kaeden jumped up and, you know, was grabbing on her.” Defendant told his daughter to go in the other room and put a movie on for her thirteen-month-old brother and “[g]et him situated .” Defendant's four-year-old son followed.
Defendant testified that he took Kaeden outside to get some fresh air and that Kaeden “was a little fussy.” Kaeden was wearing a diaper and was barefoot. Defendant was on the steps to the house, and Kaeden was walking on the driveway when defendant “heard the head smack against the ground.” Defendant testified that when Kaeden got up, he started to stumble backward, lost his balance, tripped up, looked toward defendant, and then fell backward and hit the ground. Defendant stated that Kaeden had scratches on his forehead, his back, the back of his leg, and he had a busted lip, so defendant took him inside and put him into the bathtub. Defendant took Kaeden's diaper off and turned on the water. Kaeden was crying. Defendant ran to the kitchen to get a bottle of peroxide. Defendant stated that he cleaned Kaeden off, but “he still was crying, little whiney from the fall[.]” Defendant “[s]plashed some water on him” and “[t]hat woke him up immediately.”
The telephone rang, and defendant went into the kitchen to answer. Defendant talked for thirty seconds to one-and-a-half minutes. He started to walk back toward the bathroom with an ice tray when the telephone rang again. Defendant returned to the kitchen to answer. When defendant walked back to the bathroom, he stated that Kaeden was “sitting up but bent forward.” When defendant went to pick Kaeden up he was limp. Defendant applied some pressure and water came out of Kaeden's mouth. Defendant then sat Kaeden on defendant's bed, and defendant called his wife. When defendant returned to the bedroom, Kaeden was lying flat on his back. Defendant began to perform CPR, and Kaeden “had so much water coming out.” Defendant testified, “That's when I started hitting everywhere with everything I had. I want him to get up. I hit him with everything I had.”
The State's evidence tended to show the following: Defendant called 911 around 9:23 a.m. After over a minute describing his address, phone number, name, that he is watching somebody's child that “could be my child it might, it might not be,” and that “we were outside, we were walking on the cement,” defendant stated, “He's breathing, but he's not breathing that well.” After nearly two minutes, defendant stated that “his eyes are open right now but they are closing back.” Defendant then reported that Kaeden was not breathing. When the operator asked if the child had any injuries, defendant stated that “he fell face first onto the cement” and “he has scratches on his back.”
When paramedic Carl Strange arrived on the scene at 9:31 a.m., Kaeden was not breathing and did not have a pulse. Strange testified, “As I approached the child, I grabbed his leg to move him out of the way and I noticed his whole body moved with it, which told me it seemed like it was rigor.” Strange stated that rigor mortis sets in “from an hour to two hours onset.” Strange also testified that there was bruising around the face and the lower extremity, and “[t]he child was dry. I noted in my trip ticket that there was no fluid around the child, nothing on the floor. When I put the laryngoscope, which is a blade that we place into the airway to facilitate intubation, there was [sic] no secretions. There was no fluid inside the mouth at all.” Paramedics started life-saving procedures and transported Kaeden to the hospital.
Dr. Warees Muhammad, a doctor in the emergency pediatric department at Cape Fear Valley Hospital, testified that when Kaeden arrived at the hospital, he was not breathing by himself, his heart was not beating by itself, and “he was pretty much already stiff[.] ... You could lift him with one hand and his extremities were already in rigor[.]” Kaeden was pronounced dead at 10:05 a.m. Dr. Muhammad stated, “Rigor mortis or rigor is a state or condition when a person has been deceased for maybe two hours or above.” He stated that Kaeden had bruising on his lip, forehead, the back of his right arm, around his ribcage, his forearm, and his inner thighs, as well as two cuts above his right eyebrow, but no bruises or cuts on his hands or knees. He testified that in his opinion, the bruises “could not come from a simple fall. That's why we estimated it was probably most likely nonaccidental trauma or child abuse.”
Dr. Eric Duval, an expert in forensic pathology, testified,
The undersurface of the jaw was bruised and red and the lips showed evidence of blunt injury. They were lacerated or they were split and a bit swollen. The right side of the face exhibited red bruising and the posterior part of the head or back here exhibited some bruising as well.
Dr. Duval further stated, “[T]he back, the flanks and the shoulders were covered with innumerable bruises. Some of them were discrete and several of them were confluent. A lot of them had a linear type pattern to them. These are most prominent over the sides of the back and the shoulders.” The following occurred during Dr. Duval's testimony:
Q. What do you mean by linear?
A. Linear means a line. So some of these bruises had the shape of a line.
Q. You describe a tram track pattern. Can you tell the jury what that is?
A. Yes. A tram track pattern is a pattern of bruising that represents two parallel linear lines, sort of like a railroad track.
Q. Typically how do you see that being made?
A. These types of bruises are typically sustained when some type of long, straight, rigid object is used, like a rod or a stick or a pipe or a bat.
Dr. Duval also found a retroperitoneal hemorrhage, which “can occur when there's some type of blunt force trauma usually to the front of the abdomen which compresses the abdominal wall and the organs and impacts the spinal column.” When asked if there was anything in Kaeden's stomach, Dr. Duval stated there was about five milliliters of bile like fluid.
Murray testified that Kaeden did not have any marks, cuts, or bruises on his body on Thursday, 7 June 2012, the last day she saw Kaeden alive. Demus also testified that Kaeden did not have any cuts, bruises, or injuries on Friday, 8 June 2012, the day Kaeden went to stay with defendant.
Defendant was arrested on 28 June 2012 and indicted on 1 July 2013 for one count of first-degree murder and one count of felonious child abuse inflicting serious bodily injury. On 25 August 2014, a jury found defendant guilty of first-degree murder based on (1) malice, premeditation, and deliberation, and (2) the first-degree felony murder rule. It also found defendant guilty of felonious child abuse inflicting serious bodily injury. The trial court sentenced defendant to life in prison without parole based on the first-degree murder verdict, and it arrested judgment on the felonious child abuse inflicting serious bodily injury verdict.
II. Analysis
A. Jury Instruction on Motive
Defendant argues that the trial court erred in refusing to instruct the jury on motive because the instruction he requested is a correct statement of the law. He claims for the first time that this is a violation of his constitutional rights, and the error was prejudicial because it prevented the jury from considering lack of motive as evidence tending to prove his innocence. The State claims that the trial court had no duty to instruct the jury on motive as it was a subordinate, not substantial, feature of the case.
We review de novo challenges to a “trial court's decisions regarding jury instructions.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009) (citations omitted). “Failure to instruct upon all substantive or material features of the crime charged is error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) (citations omitted). “In the absence of a special request the trial judge is not required to instruct the jury on subordinate features of a case.” State v. Lester, 289 N.C. 239, 243, 221 S.E.2d 268, 271 (1976). “It is well settled that the trial court must give the instructions requested, at least in substance, if they are proper and supported by the evidence.” State v. Craig, 167 N.C.App. 793, 795, 606 S.E.2d 387, 388 (2005). “[A] trial court's failure to submit a requested instruction to the jury is harmless unless defendant can show he was prejudiced thereby.” State v. Muhammad, 186 N.C.App. 355, 361, 651 S.E.2d 569, 574 (2007) (citing State v. Riddick, 340 N.C. 338, 343, 457 S.E.2d 728, 732 (1995)). “A defendant is prejudiced ... when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial[.]” Id. (quoting N.C. Gen.Stat. § 15A–1443(a)) (quotations omitted).
The “absence of motive is a subordinate feature of a first-degree murder case.” State v. Elliott, 344 N.C. 242, 273, 475 S.E.2d 202, 216 (1996). Motive is neither an element of first-degree murder nor is its absence a defense. State v. Gainey, 343 N.C. 79, 84, 468 S.E.2d 227, 230 (1996). While motive is not an essential element of murder, “motive or the absence of motive is a circumstance to be considered.” State v. Coffey, 228 N.C. 119, 127, 44 S.E.2d 886, 892 (1947).
Here, defendant requested that the trial court charge the jury on motive pursuant to North Carolina Pattern Jury Instruction 104.10. The State objected, and the trial court denied the request. After the jury was sent to deliberate, defendant requested that the jury be returned to the courtroom and read the pattern jury instruction on motive. The trial court again denied the request.
Although the requested pattern jury instruction was a correct statement of the law, defendant has failed to show he was prejudiced by its exclusion. While defendant argues that “the trial judge gave the jury no direction at all on how to consider absence of motive[,]” the trial court did not prevent the jury from actually considering motive. Defendant argued the absence of motive to the jury in his closing argument, stating the following:
Evans Aine had no motive, no reason, nothing going on in his mind that would cause him to kill Kaeden Demus, none whatsoever, zero, none. He simply had no motive to do it, none. What motive could anybody have? What motive could any rational person have to kill a 16–month–old? ... There were no eyewitnesses to the crime. That's something you can consider. That's something that can cast a reasonable doubt.
Accordingly, the jury was able to consider and weigh the factual circumstances related to the absence of motive in reaching its verdict.
Moreover, “[t]he evidence against the defendant was strong” and any “lapse in the charge could not have affected the jury verdict.” State v. Hales, 344 N.C. 419, 423, 474 S.E.2d 328, 330 (1996). The State presented substantial evidence of defendant's guilt, including multiple witnesses who testified as to Kaeden's unharmed condition before commencement of defendant's caretaking, uncontroverted medical evidence from two expert witnesses who concluded that Kaeden was abused and suffered “nonaccidental trauma,” and direct physical evidence of Kaeden's injuries. Furthermore, the jury found defendant guilty on two theories: he acted with malice, premeditation, and deliberation, and that he feloniously abused Kaeden. Defendant has failed to show that there is a reasonable possibility that, had the trial court instructed the jury on motive, a different result would have been reached at trial.
B. The State's Closing Argument
Next, defendant argues that he “is entitled to a new trial because the court failed to intervene ex mero motu when the prosecutor's jury argument went beyond constitutionally permissible bounds.” Defendant contends that the State told the jurors that consideration of lack of motive would violate their oaths as jurors. The State argues that it only informed the jury that the State need not prove motive for the jury to find defendant guilty.
Where a defendant fails to object during a closing argument, “we review the remarks for whether they ‘were so grossly improper that the trial court erred in failing to intervene ex mero motu.’ “ State v. Murrell, 362 N.C. 375, 391, 665 S.E.2d 61, 73 (2008) (quoting State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002)). “ ‘To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.’ “ State v. Anthony, 354 N.C. 372, 423, 555 S.E.2d 557, 590 (2001) (quoting State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998)). “ ‘[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.” ’ Id. at 423–24, 555 S.E.2d at 590 (quoting State v.. Johnson, 298 N.C. 355, 369, 259 S.E.2d 752, 761 (1979)).
Here, in responding to defendant's closing argument regarding the absence of motive, the State argued the following during its own closing argument:
[M]otive is not an element of this crime, and I asked you[,] would you hold me to the burden of proof beyond a reasonable doubt or get back in the jury room and make things up that I didn't prove to you, a vain or fanciful doubt? Well, motive is not an element of this crime. And to get back in the jury room and say, well, [the State] didn't prove motive, we can't find the defendant guilty. You promised me on your oath as a juror you would not do that and I ask you to hold to that oath.
Although defendant argues that the State acted contrary to law, when taken in context, the State merely articulated to the jury that motive is not an element of the crimes alleged. After counsel for defendant argued to the jury that defendant did not have a motive to kill Kaeden, the State responded that it need not prove motive for the jury to find defendant guilty. Defendant emphasizes that the absence of motive is a circumstance to be considered by the jury. The State, however, did not forbid the jury from considering the absence of motive as a circumstance, and it did not suggest to the jury that such consideration would violate its oath.
Moreover, where a defendant invites a line of discussion by offering evidence on the subject, the State is permitted to respond. State v. Larrimore, 340 N.C. 119, 165, 456 S.E.2d 789, 814 (1995) (concluding that the prosecutor was permitted to respond to assertions made by the defendant in his closing argument); State v.. Cole, 147 N.C.App. 637, 641, 556 S.E.2d 666, 669 (2001) (noting that the State was allowed to respond when the defendant offered an alibi in his own closing argument). Here, the State's closing argument was not so grossly improper as to infect the trial with unfairness, and the trial court did not err in failing to intervene ex mero motu. Murrell, 362 N.C. at 391, 665 S.E.2d at 73.
C. Jury Instruction on Second–Degree Murder
Defendant argues that the trial court's failure to grant his request for a specific jury instruction on second-degree murder constituted prejudicial error. Defendant claims that the special instruction, rather than the generic instruction given, was specifically formulated for cases such as his where a child has died, there is little evidence of the manner of death, and the defendant claims the death was accidental. He states that if the special instruction was used, “one or more of the jurors may well have found second degree murder the appropriate verdict.”
“The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted). “As to the issue of jury instructions, we note that choice of instructions is a matter within the trial court's discretion and will not be overturned absent a showing of abuse of discretion.” State v. Nicholson, 355 N.C. 1, 66, 558 S.E.2d 109, 152 (2002) (citing State v. Steen, 352 N.C. 227, 249, 536 S.E.2d 1, 14 (2000)).
“When a party aptly tenders a written request for a specific instruction which is correct in itself and supported by evidence, the failure of the court to give the instruction, at least in substance, is error.” Maglione v. Aegis Family Health Ctrs., 168 N.C.App. 49, 56, 607 S.E.2d 286, 291 (2005) (quoting Faeber v.. E.C.T. Corp., 16 N.C.App. 429, 430, 192 S.E.2d 1, 2 (1972)) (quotations omitted). “However, the trial court need not give the exact instruction as requested, and will not be found to be in error so long as ‘the substance of the requested instruction’ is given.” Id. (quoting Parker v. Barefoot, 130 N.C.App. 18, 20, 502 S.E.2d 42, 44 (1998), rev'd on other grounds, 351 N.C. 40, 519 S .E.2d 315 (1999)).
Here, defendant requested that North Carolina Pattern Jury Instruction 206.35, “Second Degree Murder (Child Beating) Covering Involuntary Manslaughter as a Lesser Included Offense,” be given. The State objected to defendant's requested instruction, and defense counsel responded as follows:
THE COURT: ‘Cause—I guess the only way they could find him not—guilty of second-degree would be if they find him not guilty of the felony child abuse and then not guilty of the felony murder and not guilty of the premeditated and went down to the second-degree murder; but, I don't see where I need to instruct them as some lesser offense within that second-degree....
MR. IVARSSON: I understand what you're saying....
THE COURT: Either it was a felony-child felony abuse or it wasn't.
MR. IVARSSON: Right.
THE COURT: Right off the bat, that's the first question.
MR. IVARSSON: Yes, sir.
THE COURT: If I put something in here about a lesser child abuse, I might be causing confusion in the first instruction.
MR. IVARSSON: I understand what you're saying. I believe that the evidence being brought—the evidence being potentially subject to different interpretation may create confusion, and that's just the way it is. It's nobody's fault....
THE COURT: Anything else we need to—so, I guess I've denied 206 .35.
Later, defendant stated, “I'll object for the record.” The trial court read the jury the following instruction, in pertinent part:
Second degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation....
In order for you to find the defendant guilty of second degree murder, the state must prove beyond a reasonable doubt that the defendant intentionally and with malice wounded the victim with a deadly weapon thereby proximately causing his death.
The trial court ultimately concluded it might confuse the jury to give the instruction requested by defendant, and defendant indicated agreement with that reasoning. The trial court instructed the jury in substance on the lesser included offense of second-degree murder. It attempted to clarify the issues and did not abuse its discretion in determining, after hearing argument from defendant, that the general instruction on second-degree murder would be least confusing to the jury. See Nicholson, 355 N.C. at 67, 558 S.E.2d at 152 (“The trial court commits no error by giving the instruction in substance even if it does not use the exact language requested.”).
D. Eye Contact with Jurors
Next, defendant claims that the trial court violated his constitutional rights to confrontation, due process, and a fair trial by not allowing him to look at the jury, which impacted the jury's judgment on whether defendant was worthy of belief. Defendant states plain error review applies. The State argues that this constitutional claim should not be considered on appeal as it was not raised at the trial court, and plain error review is not appropriate.
“In order to preserve an issue 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.” N.C.R.App. P. 10(a)(1) (2009). “A constitutional issue not raised at trial will generally not be considered for the first time on appeal.” Anderson v. Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (citations omitted). “In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4) (2009). “[T]he plain error standard of review applies on appeal to unpreserved instructional or evidentiary error.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012).
Here, the following occurred at trial:
MR. GURNEE: Your Honor, I'd like to address—put it on the record and make an objection. The defendant is nodding at the jurors, trying to have inappropriate contact with the jury. I think it needs to be of the record, and I would ask the Court to instruct him to stop it. I've seen it happen before; and, today, he was nodding at several jurors, looking, trying to make eye contact specifically—and going down the line. When they left, he did the same thing—trying to get their attention, look at them, nod at them; and, I think it's totally inappropriate.
The trial court told defendant, “So, what I need to instruct you is to not have eye contact with the jurors, nodding when they're coming or going, or nodding towards the jury.... I am telling you, you can look at them and talk to them as you're testifying.” Because defendant failed to object at trial, he has not preserved this issue for review. N.C.R.App. P. 10(a)(1). Additionally, we cannot review defendant's constitutional claim for plain error.
E. Motion to Suppress
Lastly, defendant argues that the trial court erred by failing to suppress evidence found in the warrantless search of his home. Defendant claims, “The only issue in this case was whether the jurors believed [defendant's] version of how [Kaeden] was injured or the State's theory of the events. His credibility was paramount to the jury's decision. Allowing the jurors to be shown marijuana and a cookbook about baking with marijuana was grossly prejudicial[.]” The State argues that the marijuana cigarettes and cookbook were in plain view, the evidence itself was not admitted at trial and “was only mentioned in passing[,]” and defendant waived any complaint of the mention of marijuana when defendant testified before the jury that he used marijuana on Saturday, 9 June 2012.
“ ‘[A] pretrial motion to suppress, a type of motion in limine, is not sufficient to preserve for appeal the issue of admissibility of evidence.... [Therefore, a] defendant waive[s] appellate review of this issue by failing to object during trial to the admission’ of the challenged evidence.” State v. Kostick, ––– N.C.App. ––––, ––––, 755 S.E.2d 411, 416 (Mar. 18, 2014) (No. COA13–873) (quoting State v. Grooms, 353 N.C. 50, 66, 540 S.E.2d 713, 723 (2000), review denied, 367 N.C. 508, 758 S.E.2d 872 (2014)). “Where evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.” State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985) (citing State v. Maccia, 311 N.C. 222, 229 316 S.E.2d 241, 245 (1984) (concluding that defendant waived his objection to the question when the prosecutor subsequently returned to the subject without objection from the defendant); State v. Chapman, 294 N.C. 407, 413, 241 S.E.2d 667, 671 (1978) (noting that if error was committed, it was cured shortly after when the witness, without objection, repeated the earlier testimony)).
Here, defendant filed a motion to suppress and a motion in limine to suppress marijuana evidence, and the trial court denied both motions. During the trial, defendant objected to Lieutenant Reyes and Sergeant Brown's testimony regarding marijuana found in defendant's home, and the trial court overruled the objections. Later, during defendant's testimony, counsel asked defendant what he did when Demus did not answer her phone on Saturday, 9 June 2012. Defendant responded, “That's when I took a walk and, you know, as I told Officer Williams, I roll a blunt, took a walk, came back home, worked on some music, went to sleep.” Although defendant initially objected to testimony regarding marijuana, defendant later testified in his own defense and blatantly stated that he “roll[ed] a blunt.” Defendant waived his right to appeal the admissibility of testimony regarding marijuana.
Assuming arguendo that defendant did not waive his objection, his argument fails. “When reviewing a trial court's ruling on a motion to suppress evidence, an appellate court determines whether the challenged findings of fact are supported by (1) competent evidence and (2) whether those findings support the trial court's conclusions of law. However, the trial court's conclusions of law are reviewed de novo and must be legally correct.” State v. Johnson, 204 N.C.App. 259, 262, 693 S.E.2d 711, 714 (2010) (citing State v. Hernandez, 170 N.C.App. 299, 304, 612 S.E.2d 420, 423 (2005); State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). “ ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [trial court].” ’ Id. at 262–63, 693 S.E.2d at 714 (quoting In re Appeal of the Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
In the order denying defendant's motion to suppress, the trial court found, “Defendant later that day was interviewed in a patrol car by Det Williams. Defendant was not arrested or handcuffed at that time. Defendant, after the interview in the car, walked through the residence with Det Williams and Lt Reyes through the residence unrestricted where marijuana cigarettes were observed in the bedroom[.]” Based on this finding, the trial court concluded that defendant's constitutional rights were not violated, and it denied defendant's motion to suppress.
There was competent evidence to support the trial court's findings. Defendant not only consented to but led the officers to the room containing marijuana. “Generally, searches inside a home without a warrant are unreasonable unless lawful consent to the search is given.” State v. Early, 194 N.C.App. 594, 602, 670 S.E.2d 594, 601 (2009) (citing State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997)). “Consent to a search or seizure need not be express and it is ordinarily sufficient where the officers reasonably believe that consent has been given.” Id. Here, defendant does not contest the fact that he consented to the officers walking with him through his home after his interview. Moreover, he does not argue that his consent was not voluntarily given or that it was the product of duress or coercion. Accordingly, the trial court's findings of facts were supported by competent evidence, which in turn support its conclusion that defendant's constitutional rights were not violated.
III. Conclusion
The trial court did not err in refusing to give defendant's requested jury instructions or in failing to intervene ex mero motu in the State's closing argument. Defendant has not preserved his constitutional argument regarding eye contact with jurors, and defendant has waived his objection regarding the mention of marijuana.
NO ERROR.
Chief Judge McGEE and Judge INMAN concur.
Report per Rule 30(e).