Opinion
No. 07-1019.
Filed March 4, 2008.
Mecklenburg County No. 06CRS213894-95.
Appeal by Defendant from judgments entered 2 March 2007 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 February 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. Cheshire, Parker, Schneider, Bryan Vitale, by John Keating Wiles, for Defendant.
Abdul Haleem Bogar (Defendant) appeals from judgments entered 2 March 2007 convicting him of trafficking in cocaine and possession with intent to sell or deliver cocaine. We find no prejudicial error.
The evidence tends to show that on 23 March 2006, officers of the Charlotte-Mecklenburg Police Department executed a search warrant against the house in which Defendant resided. Officer Anderson Lee Royston (Officer Royston), among other officers, conducted the search. When Officer Royston first saw Defendant, Defendant was in a bedroom, on the bed with a woman. Defendant was wearing only "a T-shirt[.]" When Officer Royston entered the room,"[Defendant] immediately rolled off the bed onto the floor[.]" Defendant rolled "on his stomach facing away from" Officer Royston. Officer Royston also noticed that Defendant placed his "right hand . . . up under the bed" to his "elbow[.]" Officer Royston "immediately began [his] search under the bed where [he] saw [Defendant's] . . . hand[,]" finding a bag of crack cocaine. Officer Royston also searched the rest of the room and found "another bag of crack cocaine [lying] on top of" a black "flight jacket" and $1,334.00 in a pair of pants. Both the jacket and the pants were laying on the floor beside the bed on the side to which Defendant rolled when Officer Royston entered the room. Officer Royston discovered approximately forty-eight and one-half grams of cocaine under the bed and on the flight jacket. Officer Royston also discovered a "receipt in the back pocket" of the pants with the name, "Abdul Bogard[,]" written on it, for "THREE GRAND" in "cash[.]"
When officers placed Defendant under arrest in the kitchen of the residence, Defendant, "[w]ithout any prompting from the officers[,]" asked "can you get me some clothing[?]" Officer Anderson Lee Royston (Officer Royston) responded, "[W]here[?]" Defendant stated, "[I]n [my] bedroom there [is] a dresser drawer, a long sleeve shirt . . . socks and shoes."
On 26 October 2006, Defendant filed a motion to suppress, contending that Defendant's "statement was obtained by law enforcement personnel without the knowing, voluntary and understanding waiver of the Defendant's rights against self-incrimination[.]" Defendant argued that the statement was "a result of extensive police interrogation[.]" On 27 February 2007, the trial court denied Defendant's motion to suppress. On 2 March 2007, a jury found Defendant guilty of trafficking in cocaine and possession of cocaine with intent to sell or deliver. The trial court entered judgment sentencing Defendant to 35 to 42 months in the North Carolina Department of Correction on the conviction of trafficking, and 10 to 12 months incarceration on the conviction of possession with intent to sell or deliver, to be served consecutively, at the expiration of the trafficking sentence. From these judgments, Defendant appeals.
Miranda Rights
Defendant first contends that the trial court erred by denying his motion to suppress the statements he made to law enforcement in the kitchen of the residence because he had not first been informed of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). We disagree.
"It is well settled that Miranda warnings are required only when a defendant is subjected to custodial interrogation." State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253 (2001) (citations omitted). "`[I]nterrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980) (citations omitted). Factors that are relevant to the determination of whether police "should have known" their conduct was likely to elicit an incriminating response include: "(1) `the intent of the police'; (2) whether the `practice is designed to elicit an incriminating response from the accused'; and (3) `any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion. . . .'" State v. Smith, 160 N.C. App. 107, 115, 584 S.E.2d 830, 835 (2003) (quoting State v. Fisher, 158 N.C. App. 133, 142-43, 580 S.E.2d 405, 413 (2003)). "[T]o constitute an `interrogation' within the meaning of Miranda, the conduct of the police must involve a measure of compulsion." State v. Porter, 303 N.C. 680, 692, 281 S.E.2d 377, 385-86 (1981). "`Interrogation'" involves a procedure designed to elicit a statement from the individual at whom it is directed." Porter, 303 N.C. at 692, 281 S.E.2d at 386. "An officer's request in the heat of an emotional situation that the accused explain or clarify a volunteered statement is not a procedure designed to elicit an inculpatory response." Id. at 692-93, 281 S.E.2d at 386.
In evaluating a trial court's ruling on a motion to suppress, our standard review is that "the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quotation omitted).
In State v. Young, 65 N.C. App. 346, 347, 309 S.E.2d 268, 269 (1983), the police confronted the defendant with a brown paper bag containing a concealed pocketbook containing controlled substances, and asked the following:
Officer: "I wonder whose this is."
Defendant: "It ain't mine. You didn't get it from me."
Officer: "I wonder whose this is."
Defendant: "It ain't mine."
Officer: "It's yours or Duke's one."
Defendant: "It's mine, I'm not going to get Duke in trouble."
Id. The trial court concluded the exchange between the officer and defendant was interrogation.
In Porter, 303 N.C. 680, 281 S.E.2d 377, the trial judge determined the admissibility of Porter's statement in a voir dire hearing, finding that the statements were "spontaneous utterances, voluntarily given," and not in response to an in-custody interrogation within the meaning of Miranda:
The conversation to which defendant Porter objects transpired immediately after both defendants were apprehended and handcuffed. Officer Wilson radioed his supervisor to inform him that two suspects had been taken into custody. The supervisor asked Officer Wilson if he had recovered a bank bag. Defendant Porter heard the question over the radio and stated, "The bank bag is in the car." Officer Wilson then asked "What bank bag?", to which Porter replied, "The bag from the robbery."
Porter, 303 N.C. at 691, 281 S.E.2d at 385. The Court provided the following analysis:
Porter's initial statement that "the bank bag is in the car" was clearly the type of volunteered statement expressly excluded from the Miranda holding. The question by Officer Wilson's supervisor was addressed to Officer Wilson, not to defendant. Porter's response was spontaneous and voluntary, and therefore admissible despite the fact that he had not yet been informed of his constitutional rights.
Id. at 692, 281 S.E.2d at 385. The Court further determined that the question Officer Wilson addressed to defendant — "What bag?" — did not "convert the dialogue into an `interrogation' within the meaning of Miranda[,]" because "`[a] voluntary in-custody statement does not become the product of an `in-custody interrogation' simply because an officer, in the course of appellant's narration, asks defendant to explain or clarify something he has already said voluntarily.'" Id. at 692, 281 S.E.2d at 385 (quoting State v. Haddock, 281 N.C. 675, 682, 190 S.E.2d 208, 212 (1972)).
In the instant case, the pertinent facts are analogous to those in Porter. The State concedes, and we agree, that Defendant was in custody and had not been advised of his Miranda rights when he made the incriminating statements. The central issue, then, is whether Defendant's statements to law enforcement officers inside the residence were made as a result of an "interrogation."
Here, Officer Royston walked to the kitchen where Defendant had been taken into custody by other officers. Officer Royston "advised him that he was under arrest," and Defendant said that "he would like a shirt, a long sleeve shirt[,] and socks and shoes." Officer Royston then asked Defendant "where I would find that[,]" to which Defendant responded, "[i]n his room." Officer Royston then asked Defendant "to direct me to that room[,] and [Defendant]directed me to [the] bedroom" in which Officer Royston earlier discovered the two bags of crack cocaine. Officer Royston then asked Defendant where the clothes were, and Defendant stated, "in the dresser drawer." Inside the dresser drawer, Officer Royston retrieved men's clothing, including a long sleeve shirt and socks.
We conclude the foregoing conversation between Officer Royston and Defendant was not an "interrogation" within the meaning of Miranda. Rather, Defendant's initial statement, that he would like to have clothes, was "[a] voluntary in-custody statement[.]" Porter, 303 N.C. at 692, 281 S.E.2d at 385. Moreover, "simply because [Officer Royston] . . . ask[ed] [D]efendant to explain or clarify something he has already said voluntarily[,]" we conclude that the conversation that followed Defendant's question regarding his clothes was also not an "interrogation" within the meaning of Miranda. Id. (quoting Haddock, 281 N.C. at 682, 190 S.E.2d at 212).
Even assuming arguendo the statements were the product of a custodial interrogation, in light of the overwhelming and incriminating evidence in this case, the statements were nonetheless harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2007); see also State v. Soyars, 332 N.C. 47, 58, 418 S.E.2d 480, 487 (1992) (stating that the "question is `whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction'").
The trial court's findings of fact are supported by competent evidence, and therefore, conclusive on appeal. We find no error in the trial court's decision to deny Defendant's motion to suppress his voluntary statements regarding the location of his clothes.
Exclusion of Evidence
Defendant next contends that the trial court erred by excluding the testimony of Officer Royston regarding Thurston Spruill and Devalis Perkins, who were present in the house at the time of Defendant's arrest, and their criminal history with controlled substances. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 403 (2007), states the following:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Id. "[A] trial court's decision to admit [or exclude] evidence under Rule 403 will not be grounds for relief on appeal unless it is `manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.'" State v. Durham, 175 N.C. App. 202, 207-208, 623 S.E.2d 63, 67 (2005) (quoting State v. Love, 152 N.C. App. 608, 614-15, 568 S.E.2d 320, 325 (2002)).
Here, the trial court excluded the following testimony of Officer Royston regarding Thurston Spruill and Devalis Perkins:
Q: And you were aware, were you not, that the subject matter of the person that the search warrant was based on was Pops or Thurston Spruill; is that correct?
A: Yes, sir. . . .
Q: Now, and the search warrant actually described . . . a black man named Pops in a wheelchair; is that correct?
A: Yes, sir. . . .
Q: And in fact, the information indicated that an informant had purchased a controlled substance from inside the address from the black male in the wheelchair known as Pops[;] . . . is that correct?
A: Yes, sir.
Q: And it further states that Pops would trade some items of crack cocaine for stolen items, both inside the residence and two hours before in the shed of the rear of the residence, correct?
A: Yes. . . .
Q: And do you know if Pops was charged with any controlled substance violation?
A: Yes, sir, he was. . . . [M]aintaining a dwelling and a possession.
Q: How about Devalis Perkins? . . .
A: He was [also] charged with maintaining a dwelling [and] PWISD cocaine[.]
The trial court excluded the foregoing evidence on the basis that the evidence would contribute to "confusion of the issues, or misleading the jury[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (2007).
The record reveals that the trial court conducted a voir dire hearing, suggesting that it carefully weighed whether the evidence would mislead or confuse the jury. The court allowed Officer Royston's testimony that Devalis Perkins and Thurston Spruill were in the residence when Defendant was arrested. Officer Royston's testimony also revealed that the utility bills were in the name of "Thurston D. Spruill." Officer Royston testified that he also found cocaine "on the chessboard" in the kitchen of the residence. Although the court might properly have admitted the testimony regarding Thurston Spruill and Devalis Perkins, we cannot say that the court's determination to exclude such testimony was manifestly unsupported by reason.
Moreover, even if Defendant had been permitted to question Officer Royston regarding Devalis Perkins and Thurston Spruill's history with controlled substances, the State's evidence against Defendant was overwhelming. Officer Royston discovered Defendant with his arm extended under the bed, where Officer Royston discovered crack cocaine. Officer Royston also discovered "another back of crack cocaine [lying] on top of" a black "flight jacket" and $1,334.00 in a pair of pants, both of which were lying on the floor beside the bed upon which Defendant lay. There was a "receipt in the back pocket" of the pants, upon which was written the name, "Abdul Bogard[.]"
We conclude that Defendant has failed to show that any error in excluding the testimony in question prejudiced defendant. See N.C. Gen. Stat. § 15A-1443(a) (2007). This assignment of error is overruled.
Finally, we have reviewed the Defendant's argument that the court's exclusion of the foregoing evidence violated Defendant's constitutional right to present a defense, and we conclude that Defendant did not properly preserve this issue. See State v. Forte, 360 N.C. 427, 441, 629 S.E.2d 137, 146-147 (2006) (stating that "because defendant failed to make this constitutional argument at trial, we will not consider it on appeal") (citing State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)).
Jury Instruction
Defendant argues that the trial court erred by failing to include a jury instruction on identification of Defendant as perpetrator of a crime. We conclude that the trial court did not err.
A request "for special instructions to the jury must be[:] [i]n writing, . . . [e]ntitled in the cause, and . . . [s]igned by counsel submitting them.'" N.C. Gen. Stat. § 1-181(a) (2007). "Where a requested instruction is not submitted in writing and signed pursuant to [N.C. Gen. Stat. § 1-181(a)], it is within the discretion of the [trial] court to give or refuse such instruction." State v. Harris, 67 N.C. App. 97, 102, 312 S.E.2d 541, 544 (1984).
It is well settled that "if a `request be made for a special instruction, which is correct in itself and supported by evidence, the court must give the instruction at least in substance.'" State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988) (quoting State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956)); see also State v. Penland, 343 N.C. 634, 656, 472 S.E.2d 734, 746 (1996) (citing State v. Dodd, 330 N.C. 747, 753, 412 S.E.2d 46, 49 (1992)) (stating that "[s]o long as the requested instruction is given in substance, the trial court is not required to give it verbatim even when it is a correct statement of the law"). In the instant case, Defendant does not contest that his request for a special instruction was made orally; accordingly, our standard of review is abuse of discretion. If we find the trial court abused its discretion, Defendant is entitled to a new trial only if there is a reasonable possibility that, had the abuse of discretion not occurred, a different result would have been reached at trial. See N.C. Gen. Stat. § 15A-1443(a) (2007).
Defendant argues the trial court erred by not giving the following instruction: N.C.P.I. ___ Crim. 104.90, which states the following:
I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. That means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.
The trial court did not give the foregoing instruction, but rather stated the following:
The defendant has been charged with possessing cocaine with the intent to sell or deliver it. For you to find the defendant guilty of this offense, the State must prove two things beyond a reasonable doubt. First, that the defendant knowingly possessed the cocaine. Cocaine is a controlled substance. A person possesses cocaine when he is aware of its presence and has either by himself or together with others both the power and intent to control the disposition or use of that substance. And second, that the defendant intended to sell or deliver the cocaine.
If you find from the evidence beyond a reasonable doubt that . . . the defendant knowingly possessed cocaine, and he intended to sell or deliver it, it would be your duty to return a verdict of guilty of possession of cocaine with the intent to sell or deliver.
The foregoing jury instruction does not repeat verbatim Defendant's request that the trial court instruct the State's burden of "[p]roving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt[,]" but the instruction was given in substance. The trial court instructed, "the State must prove . . . beyond a reasonable doubt [that] . . . defendant knowingly possessed the cocaine . . . [a]nd second, that the defendant intended to sell or deliver the cocaine[.]" We find no error warranting a new trial.
For the foregoing reasons we find that Defendant had a fair trial, free from prejudicial error.
No error.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).