Opinion
No. COA07-622.
Filed February 19, 2008.
Anson County No. 05 CRS 51676-77 05 CRS 51679.
Appeal by defendant from judgment entered 22 January 2007 by Judge Michael E. Beale in Anson County Superior Court. Heard in the Court of Appeals 28 November 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Joseph Finarelli, for the State. Geoffrey W. Hosford, for defendant-appellant.
The trial court erred when it permitted the same sexual assault to serve as the basis for defendant's convictions of first-degree kidnapping and first-degree rape. The trial court did not err in denying defendant's motion to suppress where the violation of defendant's statutory rights was not substantial. The trial court did not err in denying defendant's motion to suppress where defendant failed to show that, but for the potential violation of his statutory rights, a different result would have been reached at trial.
I. Factual Background
On 2 August 2005, the Anson County Sheriff's Department took a report from a woman who had been robbed, kidnapped, and raped at a convenience store in Ansonville. The victim described her assailant as a young black male wearing dark clothes, boots, and a black stocking cap with the eyes cut out, and carrying a small-caliber handgun.
On 11 August 2005, Detective Steve Erdmanczyk (Detective Erdmanczyk) of the Anson County Sheriff's Department received a call regarding a reported rape. Detective Erdmanczyk responded to the Anson County Hospital, where he interviewed the victim, Samantha Shankle (Shankle). Shankle told Detective Erdmanczyk that a young male with a small handgun had forced his way into her home, dragged Shankle into her bedroom, and raped her. Shankle described her assailant as a young, thin male wearing dark clothes, white gloves, a ski mask with the eyes removed, and black Timberland boots with a white stripe. Shankle was examined by a Sexual Assault Nurse Examiner (SANE) nurse at the Anson County Hospital, and a Sexual Assault Evidence Collection Kit was completed.
Detective Erdmanczyk, the lead investigator in both the 2 August and 11 August crimes, spoke to James Edward Clark (Clark), an acquaintance of Christopher Patterson (defendant), on 11 August 2005. Clark told Detective Erdmanczyk that on 2 August 2005, defendant told Clark that he planned to commit a robbery at the convenience store later that night.
On 12 August 2005, Detective Erdmanczyk and Detective Walker went to defendant's home and obtained permission to search defendant's room from both defendant and his mother Detective Erdmanczyk located a shotgun and observed a pair of black Timberland boots in the bedroom. Defendant's mother told Detective Erdmanczyk that she had previously seen .22 caliber shells in defendant's room.
While he was returning the shotgun found in defendant's room to its owner, Detective Erdmanczyk spoke with Damien Harris, who told him that defendant had a .22 caliber pistol On 17 August 2005, Detective Erdmanczyk returned to defendant's home and asked defendant about the .22 caliber pistol. Defendant admitted that he had a .22 caliber pistol and stated that he had thrown the gun in the woods behind his house. This area was searched but no gun was found.
During the search for the gun, Detective Timothy Watkins of the Anson County Sheriff's Department (Detective Watkins) obtained consent from both defendant and his mother to take a saliva sample from defendant. The saliva sample was subsequently analyzed and compared by a State Bureau of Investigation ("SBI") DNA analyst to the semen retrieved from Shankle's Sexual Assault Evidence Collection Kit and was determined to be a scientifically conclusive DNA match .
On 7 November 2005, defendant was indicted for first-degree rape of Shankle, first-degree kidnapping of Shankle, second-degree kidnapping of Mkalya Green, Shankle's 6-year-old daughter, and second-degree kidnapping of Jaquan Shankle, Shankle's 8-year-old son. The trial court granted defendant's motion to dismiss the charge of second-degree kidnapping of Jaquan Shankle. The jury found defendant guilty of the remaining charges. The trial court found defendant to be a prior record Level I for felony sentencing purposes. The charges of first-degree rape and first-degree kidnapping were consolidated into one judgment and defendant was sentenced to a term of 240 to 297 months imprisonment. A second consecutive sentence of 25 to 39 months was imposed for the remaining second degree kidnapping charge. Defendant appeals.
II. Sentencing
In his first argument, defendant contends that the trial court erred in sentencing him for both first-degree kidnapping and first-degree rape where the same sexual assault served as the basis for both convictions. We agree.
The offense of kidnapping is established upon proof of an unlawful, nonconsensual restraint, confinement or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2) facilitating flight from or the commission of any felony; or (3) terrorizing or doing serious bodily harm to the person.
State v. Smith, 160 N.C. App. 107, 119, 584 S.E.2d 830, 838 (2003) (citing N.C. Gen. Stat. § 14-39(a)). "If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree . . ." Id. (quoting N.C. Gen. Stat. § 14-39(b)). A defendant may not be punished for both the first-degree kidnapping and the underlying sexual assault. State v. Freeland, 316 N.C. 13, 23, 340 S.E.2d 35, 41 (1986).
The indictment in the instant case for first-degree kidnapping stated that: [D]efendant named above unlawfully, willfully and feloniously did kidnap Samantha Shankle, a person who had attained the age of 16 years, by unlawfully confining her, restraining her, and/or removing her from one place to another, without her consent, and for the purpose of facilitating the commission of a felony, first degree rape, doing serious bodily injury to her and terrorizing him. [sic] Samantha Shankle was sexually assaulted.
The jury was instructed by the trial court that, to find defendant guilty of first-degree kidnapping, it had to find that Shankle was restrained "for the purpose of facilitating [the] commission of first degree rape."
The rape served as the basis for the first-degree kidnapping conviction and the first-degree rape conviction. Principles of double jeopardy preclude defendant's conviction of both offenses, as the first-degree rape is a necessary element of the first-degree kidnapping. State v. Mason, 317 N.C. 283, 292, 345 S.E.2d 195, 200 (1986). The State acknowledges this defect.
We hold that defendant is entitled to a new sentencing hearing. Id. At this hearing, the trial court may 1) arrest judgment on the first-degree kidnapping conviction and resentence for second-degree kidnapping, or 2) arrest judgment on the rape conviction and resentence on the first-degree kidnapping conviction. Id. at 292-93, 345 S.E.2d at 200.
III. Saliva Sample Taken Without Court Order
In his second argument, defendant contends that the trial court erred in denying his motion to suppress saliva samples which were obtained without a court order. We disagree. At all relevant times, defendant was 16 years of age. Since defendant was under 18 years of age, he is a juvenile within the meaning of N.C. Gen. Stat. . 7B-1501(17), and N.C. Gen. Stat. . 7B-2103 is applicable. See State v. Fincher, 309 N.C. 1, 11, 305 S.E.2d 685, 692 (1983). N.C. Gen. Stat. . 7B-2103 provides in pertinent part:
[N]ontestimonial identification procedures shall not, be conducted on any juvenile without a court order, issued pursuant to this Article unless the juvenile, has been charged as an adult or transferred to, superior court for trial as an adult in which case, procedures applicable to adults, as set out in, Articles 14 and 23 of Chapter 15A of the General, Statutes, shall apply.
N.C. Gen. Stat. . 7B-2103 (2007). Pursuant to the statute, saliva samples are included in the term "nontestimonial identification." Id.
Detective Watkins did not obtain a court order before he collected a saliva sample from defendant, and the parties do not dispute that the saliva sample was obtained in violation of N.C. Gen. Stat. . 7B-2103. On 16 January 2007, defendant filed a motion to suppress the saliva samples obtained by Detective Watkins on the basis that his rights under N.C. Gen. Stat. . 7B-2103 were substantially violated. In an order signed 27 January 2007, the trial court concluded that the violation N.C. Gen. Stat. . 7B-2103 was not substantial. The court further concluded that:
there's no causal connection between any violations of the Defendant's statutory rights and the obtaining of the saliva sample because the evidence could have been obtained under procedure set forth in 7B-2103 and 15A-273 on August 17, 2005, or at any time thereafter, or it could have been obtained lawfully with the Defendant's consent on or after his arrest.
The trial court denied defendant's motion to suppress the saliva samples.
Defendant contends the trial court's conclusion of law was not supported by competent findings of fact or the evidence presented at trial. Defendant further claims that his rights under N.C. Gen. Stat. . 7B-2103 were substantially violated, and that he is entitled to a new trial.
The appellate courts are deferential to a trial court's ruling on a motion to suppress, and review of the trial court's ruling is "strictly limited to a determination of whether [its] findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion." State v. Hernandez, 170 N.C. App. 299, 304, 612 S.E.2d 420, 423 (2005) (citations omitted). However, we review de novo the court's conclusions of law. Id.
In State v. Norris, this Court held that "the procedural standards for juveniles must be at least as strict as those for adults" and extended to juveniles the protections found in N.C. Gen. Stat. . 15A-974 of the Criminal Procedure Act. State v. Norris, 77 N.C. App. 525, 529, 335 S.E.2d 764, 766 (1985), disapproved of on other grounds by In re Stallings, 318 N.C. 565, 350 S.E.2d 327 (1986). Under N.C. Gen. Stat. . 15A-974, when evidence has been obtained in an unlawful manner, it must be excluded if "[i]t is obtained as a result of a substantial violation of the provisions of this Chapter." N.C. Gen. Stat. . 15A-974(2) (2007).
In determining whether a violation is substantial, the court must consider all the circumstances, including:
a. The importance of the particular interest, violated;
b. The extent of the deviation from lawful conduct;
c. The extent to which the violation was willful;
d. The extent to which exclusion will tend to, deter future violations of this Chapter.
Id. "[I]f the challenged evidence would have been obtained regardless of violation of Chapter 15A, such evidence has not been obtained `as a result of' such official illegality and is not, therefore, to be suppressed by reason of G.S. 15A-974(2)." State v. Richardson, 295 N.C. 309, 323, 245 S.E.2d 754, 763 (1978).
In its 27 January 2007 order, the trial court considered the factors set forth in N.C. Gen. Stat. . 15A-974. The trial court made the following findings of fact:
(3) That the officers acted in good faith when they, obtained consent from the Defendant, because the, consent was obtained with the Defendant's mother, present, and only after her written consent was, obtained. That in so doing, the officers were, following the spirit of the directions of, 7B-2101(A)(3) regarding the interrogations of juvenile, offenders. That violating a Defendant's statutory, rights in obtaining a saliva sample is not nearly as, fundamental a violation as violating a juvenile's, custodial interrogation rights which are established, to protect the Defendant's constitutional rights, against self incrimination.
(4) That on August 17, 2005 . . . there was, sufficient evidence to establish (1) that there was, probable cause to believe that a felony had been, committed, (2) that there was reasonable grounds to, suspect that the Defendant committed the offense, and, (3) that the result of the procedure would be a, material aid in determining whether the Defendant, committed the offense.
(5) . . . To exclude forensic evidence obtained not, only in good faith, but also after positive steps were, taken by officers to protect the rights of a, 16-year-old defendant would not be in the interest, [sic] of justice. Furthermore, this evidence could, have been obtained on August 17th pursuant to a, nontestimonial identification order, or any time, thereafter during this investigation. Moreover, unlike, custodial interrogations, the factual scenario, presented in this case is extremely rare, and the, deterrent effect on future cases would be minimal, and, 7B-2109 provides an adequate deterrent by making it a, Class I misdemeanor to wilfully violate GS 7B-2103.
The trial court's findings of fact are supported by competent evidence. Detective Watkins explained to defendant and his mother that they were investigating a sexual assault, that the purpose of the saliva sample was to potentially eliminate defendant as a suspect, and that it was voluntary. Detective Watkins described the procedure he would use to obtain the sample, and presented to defendant and his mother a consent to search form, which Detective Watkins had modified to indicate that a saliva sample was being obtained In addition, the trial court's findings support its conclusion that the statutory violation was not substantial and that suppression of the evidence was not warranted. The parties agree that there was no attempt to procure a court order, and the deviation from lawful conduct under 7B-2103 was complete. See Norris, 77 N.C. App. at 530, 335 S.E.2d at 767. However, the court found that the violation of defendant's statutory right was "not nearly as fundamental a violation as violating a juvenile's . . . constitutional rights against self incrimination." Further, the court found that the officers acted in good faith. Although good faith on the part of the police does not preclude a conclusion that the violation was willful, See id. at 530-31, 335 S.E.2d at 767, there is nothing in the record to suggest that Detective Watkins' "words and conduct were intended to accomplish anything other than to scrupulously honor defendant's rights." See State v. Fisher, 158 N.C. App. 133, 143, 580 S.E.2d 405, 413 (2003). The court's finding of good faith, coupled with the unusual factual scenario of this case, supports its finding that suppression of the evidence would not significantly deter future violations of 7B-2103. See State v. Simpson, 320 N.C. 313, 322, 357 S.E.2d 332, 337 (1987).
The record reveals that there was sufficient evidence for law enforcement to have obtained the type of nontestimonial identification order required by 7B-2103. There was sufficient evidence to establish (1) probable cause to believe a felony had been committed, (2) reasonable grounds to suspect that defendant committed the offense, and (3) the result of the procedure would be a material aid in determining whether defendant committed the offense. See N.C. Gen. Stat. . 15A-273 (2007). We hold that suppression of the evidence was not warranted because it was not obtained `as a result of' the illegal conduct. The causal connection between the unlawful conduct and the evidence sought to be suppressed was therefore insufficient to justify its suppression. See Richardson, 295 N.C. at 323, 245 S.E.2d at 763.
The trial court properly considered all of the circumstances surrounding the procurement of the evidence and concluded that suppression was unwarranted. The findings of fact support the trial court's conclusion. This argument is without merit.
IV. Saliva Sample Not Taken by Qualified Member of the Health Professions
In his final argument, defendant contends that the trial court erred in denying his motion to suppress saliva samples which were not taken by a healthcare professional. We disagree.
In his pre-trial suppression motion, defendant argued that Detective Watkins was not the proper person to obtain the saliva swab, but was unable to cite any statutory authority for this proposition either in his motion to suppress or at the suppression hearing. The court denied the motion and found that Detective Watkins' qualifications went to the weight, not the admissibility, of the evidence. On appeal, defendant cites N.C. Gen. Stat. . 15A-279(a) (2007) as authority for his claim that Detective Watkins was not the proper person to obtain the saliva sample, and as a consequence of Detective Watkins' actions, defendant's statutory rights were violated.
N.C. Gen. Stat. . 15A-279(a) provides that "[n]ontestimonial identification procedures may be conducted by any law-enforcement officer or other person designated by the judge issuing the order." However, the statute further provides that "[t]he extraction of any bodily fluid must be conducted by a qualified member of the health professions . . ." Id.
The State argues that N.C. Gen. Stat. . 15A-279(a) does not apply due to the absence of a nontestimonial identification order. The State further asserts that, assuming Article 14 of Chapter 15A applies, the statute applies only to adults who are subject to nontestimonial identification orders, and not to juveniles.
Without deciding whether N.C. Gen. Stat. . 15A-279(a) applies to juveniles, we hold that any potential violation of this statute on the facts of this case was harmless. See N.C. Gen. Stat. § 15A-1443(a) (2007).
In the instant case, Detective Watkins followed the procedures for which he had been trained by a medical professional, namely a SANE nurse at Anson County Hospital, as well as at Stanly Community College. Milea Broadway, R.N., a SANE nurse, testified that obtaining a cheek swab is a "very simple" process. As he had been trained to do, Detective Watkins put on gloves, took the two sterile swabs from their packaging, rubbed one on the inside of defendant's right cheek, another on the inside of his left cheek, and packaged them into an envelope once they had dried. As previously discussed, the physical evidence was not obtained as a result of the statutory violation in this case since there was sufficient probable cause to obtain a nontestimonial court order. Further, defendant has not met his burden of showing that a different result would have been reached at trial had the saliva samples been obtained by a health care professional. See N.C. Gen. Stat. § 15A-1443(a). We hold that the trial court did not err in denying defendant's motion to suppress on this matter.
Defendant failed to argue his remaining assignments of error in his brief and they are deemed abandoned. See N.C.R. App. P. 28(b)(6) (2007).
Affirmed as to the trial court's denial of defendant's motion to suppress; Remanded for a new sentencing hearing on the charges of first-degree rape and first-degree kidnapping.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).