Opinion
No. COA07-1280.
Filed 7 October 2008
Johnston County No. 05 CRS 57876, No. 05 CRS 57917.
Appeal by defendant from judgments entered 8 May 2007 by Judge Robert F. Floyd, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 13 May 2008.
Attorney General Roy Cooper, by Assistant Attorney General John G. Barnwell, for the State. Marilyn G. Ozer, for defendant-appellant.
Marcus Dawnte Godwin ("defendant") appeals judgments entered upon jury verdicts finding him guilty of first-degree murder and robbery with a firearm. We find no error.
On 21 August 2005, Walter Bobbitt ("Bobbitt"), a friend of both Brandon Johnson ("the victim") and the defendant, visited the victim's residence and observed defendant loading a pistol. Later that day, Joseph Hinton ("Hinton"), an acquaintance of the victim, also saw the defendant with the victim outside the victim's residence. Defendant told the victim he needed a ride and the victim agreed to drive him down the road. Hinton watched defendant enter the victim's Ford Expedition ("the victim's vehicle"). Bobbitt saw the victim's vehicle stop in front of him. After observing flashes of gunfire, and hearing several gunshots inside the vehicle, Bobbitt witnessed the victim's body fall out of the vehicle. The victim died from a gunshot wound to the head.
On 22 August 2005, defendant drove the victim's vehicle to Kevin Pearce's ("Pearce") residence. Pearce and defendant drove to Goldsboro, North Carolina and purchased beer and marijuana. They later decided to drive to Fayetteville. While on the highway, Pearce noticed state troopers following them. Defendant admitted to Pearce that he shot the victim.
Trooper Mark Cole ("Trooper Cole") was driving a patrol car equipped with a video camera that automatically records upon activation of the vehicle's lights and siren. Trooper Cole received a transmission to watch for a car matching the victim's vehicle's description. Trooper Cole spotted the victim's vehicle and called for assistance. Trooper Anthony DiGiovanni ("Trooper DiGiovanni") joined the pursuit. After the troopers activated their blue lights and sirens, defendant accelerated the vehicle. Trooper Cole pursued defendant through the streets of Dunn at speeds of 55 to 60 miles per hour. During the chase, defendant used evasive maneuvers to navigate through traffic in Dunn and on I-95. Defendant avoided two sets of "stop sticks" that the highway patrol officers used attempting to slow down or stop the vehicle. After driving on I-295 toward Fayetteville, then reversing course to US 13, defendant was finally stopped. Defendant exited the vehicle, followed the troopers' directions and walked backwards towards them without stumbling. While defendant was read his Miranda rights, he not only repeatedly told the troopers that he shot the victim but also claimed he killed other individuals. After further investigation, law enforcement were unable to find evidence that defendant killed anyone other than the victim. Defendant was charged with, inter alia, first-degree murder of the victim.
Prior to trial, defendant's counsel moved to suppress defendant's statements to the troopers. The trial court denied the motion to suppress all but one of defendant's statements. The excluded statement was an affirmative response to a detective's custodial interrogation prior to the officer giving a new Miranda warning.
Trial was held on 30 April 2007 in Johnston County Superior Court before the Honorable Robert F. Floyd, Jr. ("Judge Floyd"). Although defendant objected, the trial court admitted evidence of the State Highway Patrol's video recording and defendant's statements to the troopers after his arrest. The jury returned verdicts finding defendant guilty of first-degree murder and robbery with a firearm. Defendant was sentenced to life imprisonment without parole for first-degree murder and a term of sixty-four months to eighty-six months for robbery with a dangerous weapon. Both sentences were to be served in the North Carolina Department of Correction. Defendant appeals.
I. Motion to Suppress
Defendant argues the trial court should have granted his motion to suppress his statements to the police because he did not knowingly waive his Miranda rights. We disagree.
The standard of review for an order granting or denying a motion to suppress is "strictly limited to determining whether the trial court's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the trial court's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). When a defendant has not assigned error to any of a trial court's findings of fact in connection with a motion to suppress, review of an order denying the motion is limited to the question of whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment. State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206 (2006). An appellate court accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony . . . and to weigh and resolve any conflicts in the evidence. State v. Hernandez, 170 N.C. App. 299, 303-04, 612 S.E.2d 420, 423 (2005) (citation omitted).
Here, defendant only assigned error to finding of fact number 103: that defendant was impaired but not so grossly impaired that he could not understand his rights because of
[his] expert driving during the chase; his immediate compliance with [Trooper] DiGiovanni's commands at the traffic stop; his ability to ambulate without staggering or stumbling; his compliance with [Trooper] Cole's instructions for the intoxilyzer; his appropriate responses to [Trooper] Cole's A.I.R. questions, [Trooper] McNeill's questions, and [Trooper] Gerrell's questions, and his consistency in his statements about [the victim]'s murder.
After careful review of the record, we conclude this finding is supported by competent evidence. State v. Parton, 303 N.C. 55, 69-70, 277 S.E.2d 410, 420 (1981), disavowed on other grounds by State v. Freeman, 314 N.C. 432, 437-38, 333 S.E.2d 743, 746-47 (1985). The trial court heard uncontroverted testimony that defendant eluded the State Highway Patrol in a high-speed chase where he maneuvered through traffic and avoided stop sticks set up by the troopers. Evidence was presented that when the troopers gave instructions at the traffic stop, defendant walked backwards without staggering, and followed the instructions to complete the Intoxilyzer test. More importantly, he told two state troopers similar accounts of the victim's murder.
Furthermore, the trial court's conclusions of law are supported by the findings of fact. Defendant challenges the conclusions of law that defendant implicitly waived his Miranda rights by his course of conduct, that defendant's statements were made voluntarily and are admissible, and that defendant's statements were obtained lawfully and in accordance with the North Carolina Constitution, the United States Constitution and are admissible. Defendant argues the evidence at the suppression hearing supported a finding that he was grossly impaired. Defendant also contends that the trial court erred in failing to find that defendant's statements were the result of a "drug-induced manic psychosis." Defendant asserts that, because the police investigation revealed that his statements regarding murdering other individuals where false, this mandates a finding defendant was too intoxicated to voluntarily waive his Miranda rights. We disagree.
"The mere fact that defendant was intoxicated at the time he made incriminating statements does not render such statements inadmissible where the intoxication does not amount to `mania.'" State v. Hamrick, 30 N.C. App. 143, 147, 226 S.E.2d 404, 407 (1976) (citations omitted).
The standard in North Carolina is whether or not, under the totality of the circumstances, the confession is made voluntarily. The inquiry to be conducted is whether the defendant is so impaired "`as to be unconscious of the meaning of his words,'" not whether he or she has consumed drugs or alcohol.
State v. Marion, 126 N.C. App. 58, 60, 483 S.E.2d 447, 448 (1997) (internal citations omitted). The trial court is in the best position to weigh the evidence and determine whether defendant was conscious of the meaning of his words. State v. Hernandez, 170 N.C. App. 299, 303-04, 612 S.E.2d 420, 423 (2005).
The order denying the motion to suppress made numerous findings of fact indicating that defendant was conscious of his answers and he acknowledged hearing his Miranda rights. Since defendant did not challenge these findings of fact, they are presumed to be supported by competent evidence. State v. Pendleton, 339 N.C. 379, 389, 451 S.E.2d 274, 280 (1994). Under the totality of the circumstances, defendant's behavior did not rise to the level of mania. The trial court's conclusion that defendant implicitly waived his Miranda rights is supported by findings that after being read his rights, he repeatedly volunteered statements without questioning. Waiver of rights can be inferred from a defendant's actions and words. State v. Connley, 297 N.C. 584, 588, 256 S.E.2d 234, 237 (1979) (citing North Carolina v. Butler, 441 U.S. 369, 375-76, 60 L. Ed. 2d 286, 292 (1979)). Therefore, the trial court did not err in denying the motion to suppress. See State v. George, 77 N.C. App. 580, 582, 335 S.E.2d 768, 769-70 (1985) (concluding competent evidence supported conclusion that defendant voluntarily waived his rights when, although defendant was noticeably impaired by sleeping pills, he was able to follow instructions and to read and sign the waiver form); State v. Wilson, 340 N.C. 720, 729-30, 459 S.E.2d 192, 197-98 (1995) (concluding competent evidence supported trial court's conclusion that defendant voluntarily waived her rights where she responded she understood all her rights and signed a waiver form despite being under the influence of drugs). We find no error.
II. Admission of Evidence
Defendant argues the trial judge abused his discretion in allowing the State to play videotapes of defendant's admissions and the high speed chase. We disagree.
Defendant made a general objection to admission of Trooper DiGiovanni's videotaped recording of the high speed chase ("State's Exhibit No. 8"). Defendant also generally objected to admission of Trooper Taylor's vehicle surveillance VHS recording of the chase. ("State's Exhibit No. 19"). Trooper Taylor's recording also included statements defendant made after the chase. The jury reviewed State's Exhibit 8, Trooper Taylor's recording. Defendant argues admission of State's Exhibit No. 8 violated his constitutional rights because he did not voluntarily waive his Miranda rights to allow the statements. Since we conclude that the trial court did not err in denying the motion to suppress defendant's statements on the same grounds, we overrule this assignment of error.
Defendant next argues the trial court committed plain error when it admitted State's Exhibit No. 8 because it was unfairly prejudicial to the defendant.
Defendant did not object to the admission of State's Exhibit 8 on the basis of unfair prejudice and requests plain error review. However, "[w]hether or not to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion." State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995). "The North Carolina Supreme Court has specifically refused to apply the plain error standard of review `to issues which fall within the realm of the trial court's discretion.'" State v. Cunningham, ___ N.C. App. ___, ___, 656 S.E.2d 697, 700 (2008), quoting State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000). Therefore, this assignment of error is overruled.
III. Trial Court's Finding of Fact
Defendant next argues that the trial court violated N.C. Gen. Stat. § 20-138.1, his right against self-incrimination, and public policy. Defendant argues that the Intoxilyzer result, registering a .14, contradicts the court's finding that defendant drove in "an expert fashion." Defendant argues that the trial court based its Order denying the Motion to Suppress, at least in part, on this finding of fact and therefore mandates vacating his conviction. We disagree.
N.C. Gen. Stat. § 20-138.1(a)(1)(2) (2007) provides that a person commits the offense of impaired driving if he "drives any vehicle upon any highway, any street, or any public vehicular area within this State: (1) While under the influence of an impairing substance; or (2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more." Defendant also cites State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) for the proposition that the error was preserved because it was contrary to a statutory mandate. Defendant cites no other authority in support of this argument.
Assuming arguendo defendant preserved this argument for appellate review, nothing in the language of N.C. Gen. Stat. § 20-138.1 mandates a finding that defendant was "grossly impaired" nor does the statute preclude a finding that an impaired defendant could have engaged in "expert driving." Furthermore, under section I of this opinion, we determined this finding was supported by competent evidence. Accordingly, this assignment of error is overruled.
IV. Short Form Indictment
Defendant next argues his conviction of first-degree murder should be reversed because the short form indictment described only the elements of second-degree murder. We disagree.
"An attack on an indictment is waived when its validity is not challenged in the trial court." State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000) (citation omitted). "However, where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." Id.
The short form indictment alleges defendant "unlawfully, willfully, and feloniously and of malice aforethought did kill and murder [the victim]." This indictment conforms with N.C. Gen. Stat. § 15-144 (2007). See Wallace, 351 N.C. at 504-05, 528 S.E.2d at 341; State v. Glynn, 178 N.C. App. 689, 695, 632 S.E.2d 551, 555-56 (2006) ("The North Carolina Supreme Court has repeatedly held that the short form indictment which complies with N.C. Gen. Stat. § 15-144 is constitutionally and statutorily sufficient to charge first degree murder. . . ."). Accordingly, we find no error.
No error.
Judges WYNN and GEER concur.
Report per Rule 30(e).