Opinion
No. COA10-949
Filed 3 May 2011 This case not for publication
Appeal by Defendant from judgments entered 6 and 7 July 2009 by Judge James E. Hardin Jr. in Durham County Superior Court. Heard in the Court of Appeals 11 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Sarah Y. Meacham, for the State. Richard E. Jester for Defendant.
Durham County Nos. 07 CRS 52196-97.
Truevillon White (Defendant) appeals from judgments entered on his convictions for statutory rape, indecent liberties with a child, felonious restraint, and felony child abduction. For the following reasons, we conclude the trial court did not err as to its denial of Defendant's motion to suppress. Because Defendant did not file a written notice of appeal to challenge the SBM order, this argument is dismissed.
On 22 January 2008, Defendant was indicted on charges of statutory rape of a fifteen year old, second degree kidnapping, indecent liberties, felonious child abduction, and statutory sex offense against a fifteen-year-old. Defendant filed a motion to suppress statements made to law enforcement officers based on "[D]efendant's contention that he asked the investigator on at least five separate occasions to provide him a lawyer or at least give him the opportunity to talk to a lawyer and he was not given that opportunity." When the case came on for trial on 29 June 2009, counsel for both parties agreed to defer ruling on the suppression motion at the pre-trial motions hearing, treat it as a motion in limine, and conduct a motion to suppress hearing during the trial.
On 13 September 2007 — the date of the alleged offenses — K.S. was a student at the Durham Performance Learning Center. She first met Defendant on or about 11 September 2007 when she was on her way to school and spoke briefly with him. Defendant picked her up after school around 4:30 that afternoon, and K.S. left in his car. Defendant had identified himself to K.S. only as "T" but did not tell her how old he was. K.S. thought he was in his mid-twenties, but Defendant was thirty-six years old at the time. K.S., born on 11 November 1991, was fifteen.
The pseudonym K.S. is used to protect the identity and privacy of the minor victim.
Defendant again picked K.S. up from school a few days later and took her to eat at a restaurant. They were riding in Defendant's car when, around 6:00 p.m., K.S. asked him to take her home. Defendant told her that he would do so after he stopped by his apartment to change for work. After waiting in the car for approximately ten minutes, K.S. went to Defendant's door to ask for a drink. Defendant gave her some orange juice that "didn't taste right," and K.S. testified that she became "a little lightheaded" and "kind of woozy." After K.S. again asked Defendant to take her home, he said he would "in a little bit" and brought her into his bedroom. Defendant began to tug at her pants until he finally managed to pull them off, despite K.S.'s asking that he stop; climbed on top of her; and engaged in vaginal intercourse with her as she begged him to stop. Afterwards, Defendant started to watch a movie as K.S. got dressed. She told him to take her home, and he did so but not until "he finished watching the part of the movie that he wanted to watch." K.S. recalled getting home at about 8:00 or 8:30 that evening, taking a shower, and falling asleep without telling anyone what happened. When K.S. saw Defendant again the next Monday, she became upset and was crying when she told a friend that she had gotten raped. Her friend disclosed this information to the school principal, who called the police.
Investigators Darryl Brown and Karl Smith of the Durham Police Department arrived at the scene and learned the basic details from the responding officer, David Vereen. After K.S. was interviewed, she submitted to an examination and a rape kit. Subsequent forensic examination by SBI agents revealed no semen in K.S.'s vaginal sample but did find a semen stain on the shorts K.S. was wearing on 13 September 2007 that matched Defendant's DNA profile. K.S. identified Defendant from a photo array on 18 September 2007, and when police were executing a search warrant for Defendant's apartment the next day, they saw Defendant driving by. He was apprehended, placed under arrest for rape, handcuffed, and transported to police headquarters by Investigator Brown, who testified that Defendant was not questioned at all during that time. Rather, Investigator Brown "just told [Defendant] that [he] would speak to him when [they] got to police headquarters." Upon arrival, Defendant was brought to an interview room and read his Miranda rights. Investigator Brown testified that Defendant signed a Miranda waiver form and agreed to answer questions without a lawyer present. Investigators Smith and Brown were conducting the interview when Defendant "expressed surprise that his arrest had stemmed from [K.F.'s] allegations" and explained that they had gone out a couple of times. Investigator Smith testified that when Investigator Brown disclosed to Defendant that they were talking about a sex offense, he again "expressed surprise that the victim would describe their encounter as rape, and then great concern about her age." Defendant insisted on asking Investigator Brown how old K.F. was and then said, "[B]efore we go any further, she told me she was 18, she was getting her GED and going to Central next year." When Investigator Brown told Defendant the victim was fifteen, Defendant "dropped his head in his hands" and said, "[G]et the f — out of here. . . . I need a lawyer because that's not even rape, that's statutory, not like. . . ."
At this point, the trial court interrupted the direct examination of Investigator Smith to conduct a voir dire hearing with respect to Defendant's motion to suppress. Outside the presence of the jury, Investigator Smith testified that "[i]mmediately after [Defendant] said, I need a lawyer, Investigator Brown and [himself] took that to mean he's revoking his waiver." Investigator Brown sought to clarify any ambiguity in Defendant's invocation of his right to counsel, asking, "[S]o you want a lawyer[?]" Defendant responded that yes, he "need[ed] a lawyer because she is 15 years old." At Investigator Brown's direction, Investigator Smith exited the interview room to find a patrol officer to take Defendant to jail pending the swearing of arrest warrants. Investigator Brown remained in the room with Defendant and sat silently without asking, saying, or doing anything to encourage Defendant to speak, but Defendant "continued to talk." Defendant communicated his failure to understand why K.S. would make these allegations and briefly described how their relationship began. After Defendant initiated conversation, Investigator Brown asked him some questions, and Defendant made several inculpatory statements in detailing what happened with K.S. at his apartment.
Meanwhile, Investigator Smith had not been able to find a patrol officer and returned to the interview room, observing that "Investigator Brown and [Defendant] were still speaking very casually and calmly." Investigator Smith "simply sat down and observed without trying to interrupt or stop anything that they had going on" and heard Defendant tell Investigator Brown that he never penetrated K.S. Following Defendant's recitation of the events on 13 September 2007, he again stated that he was "going to need a lawyer" because "it does not matter if the sex was consensual or not." Investigator Brown ceased questioning Defendant at that point, exited the interview room to prepare the arrest warrants, and left Investigator Smith with Defendant. Investigator Smith testified that he "sat with [Defendant] silently" and "didn't initiate anything with him." Defendant then began talking and said, "[I]f we did anything it was consensual." He again wondered aloud why K.S. would make the allegation and shared his suspicion with Investigator Smith that K.S. might have been alleging rape based on jealousy of Defendant's other girlfriend. Investigator Smith remained silent, simply nodding when Defendant would speak, and when Defendant mentioned another girl whom he had picked up and taken to school, Investigator Smith asked if he could talk to Defendant about that. Defendant said "sure" and described a girl named Tina who they called Star. Defendant then paused for several minutes before reinitiating the conversation by saying that K.S. looked like a pretty young girl and expressing his belief that she was really older than fifteen. Investigator Smith noted that Defendant appeared to be talking to himself when he said aloud that "negligence is no excuse" and "that his ignorance of her true age was `not enough' reason to prove him innocent." Declaring several times that he was "f — ed," Defendant acknowledged that he had "no excuse," that he was "wrong," and that K.S. was "a f — ing kid."
Defendant did not present any evidence on voir dire, and following the testimony of both investigators, the trial court suppressed the statements Defendant made to Investigator Brown but denied Defendant's motion as it related to statements made while alone with Investigator Smith. At the close of the State's evidence, the trial court granted Defendant's motion to dismiss the statutory sex offense charge. The jury found Defendant guilty of statutory rape, indecent liberties with a child, felonious restraint as a lesser included offense of the kidnapping charge, and felony child abduction. The statutory rape and indecent liberties convictions were consolidated for judgment, and the trial court imposed a sentence of 384 to 470 months. The offenses of felonious restraint and child abduction were consolidated for a sentence of 34 to 41 months. Additionally, the trial court found that Defendant was convicted of a reportable conviction, being an offense against a minor and a sexually violent offense, and ordered Defendant to register as a sex offender for his natural life and enroll in satellite-based monitoring upon his release from imprisonment.
On appeal, Defendant argues that the trial court violated his constitutional rights by: (1) denying his motion to suppress statements he allegedly made to police officers; and (2) ordering Defendant to enroll in satellite-based monitoring.
I. Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress statements made during the interview following his arrest where he had invoked his Miranda right to counsel and everything he said thereafter should have been excluded. Because the statements admitted by the trial court were the product of communications initiated not by the investigators but by Defendant following his request for counsel, we disagree and conclude the trial court properly denied Defendant's suppression motion.
Our scope of review of the trial court's ruling on a motion to suppress "is strictly limited to determining whether the trial judge'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 judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
During a custodial interrogation, all police questioning must immediately cease if the suspect invokes his right to counsel and may not resume in the absence of an attorney unless further communication originates from the suspect's own initiative. In Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378 (1981), the United States Supreme Court ruled that although an accused, after being advised pursuant to Miranda,
may himself validly waive his rights and respond to interrogation, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.
Edwards, 451 U.S. at 484, 68 L. Ed. 2d at ___ (internal citations omitted) . Where "not every statement obtained by police from a person in custody is considered the product of interrogation," this Court has defined interrogation "as either express questioning by law enforcement officers or conduct on the part of law enforcement officers which constitutes the functional equivalent of express questioning." State v. Fisher, 158 N.C. App. 133, 142, 580 S.E.2d 405, 413 (2003) (internal quotation marks and citations omitted); see also Rhode Island v. Innis, 446 U.S. 291, 299, 64 L. Ed. 2d 297, 307 (1980). Edwards further held "that an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at ___ (emphasis added); see also State v. Dix, 194 N.C. App. 151, 155, 669 S.E.2d 25, 28 (2008) ("It is well settled that, during custodial interrogation, once a suspect invokes his right to counsel, all questioning must cease until an attorney is present or the suspect initiates further communication with the police.").
Defendant argues that the trial court's limited oral findings of fact following voir dire are insufficient to support its ruling on his suppression motion. Defendant notes that "[a]lthough the trial court requested [that] the District Attorney draft an order, there is no such order in the court file," and we acknowledge that none appears in the record on appeal. However, despite the rule that an order setting forth the trial court's findings of fact and conclusions of law is generally required on a motion to suppress, the lack thereof is not fatal in this case.
While N.C. Gen. Stat. § 15A-977(f) (2009) provides that "[t]he judge must set forth in the record his findings of facts and conclusions of law[,]" our Courts have interpreted this statute to mandate specific findings of fact only when there is a material conflict in the evidence introduced at the suppression hearing. See State v. Leach, 166 N.C. App. 711, 715, 603 S.E.2d 831, 834 (2004).
"The general rule is that, at the close of a voir dire hearing to determine the admissibility of a defendant's confession, the presiding judge should make findings of fact to show the basis of his ruling." If there is a material conflict in the evidence on voir dire he must do so in order to resolve the conflict. If there is no conflict in the evidence on voir dire, it is not error to admit a confession without making specific findings of fact, although it is always the better practice to find all facts upon which the admissibility of the evidence depends. In that event the necessary findings are implied from the admission of the confession into evidence.
Fisher, 158 N.C. App. at 143-44, 580 S.E.2d at 414 (internal citations omitted). In State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983), the case relied upon by Defendant,
our Supreme Court construed Edwards v. Arizona, 451 U.S. 477, 68 L.E.2d 378 (1981) and Oregon v. Bradshaw, 462 U.S. 1039, 77 L. Ed. 2d 405 (1983), to require, in cases like Lang: (1) "a finding of fact as to who initiated the communication between the defendant and the officers which resulted in his inculpatory statement while in custody and after he had invoked the right to have counsel present during interrogation," and (2) "findings and conclusions establishing whether the defendant validly waived the right to counsel and to silence under the totality of the circumstances."
Fisher, 158 N.C. App. at 144, 580 S.E.2d at 414 (quoting Lang, 309 N.C. at 521-22, 308 S.E.2d at 321-22).
However, just as Lang was not controlling in Fisher, it is likewise inapposite here "because in Lang, material conflicts existed in the evidence presented on voir dire, particularly with respect to who initiated the contact between defendant and the police after defendant first invoked his right to counsel." Id. Our review of the transcript in the case sub judice reveals no conflict in the evidence presented during voir dire, material or otherwise, and the Defendant, while arguing that "[t]he trial court's limited findings do not resolve all of the conflicts in issues [sic]," directs us to no discrepancy in the investigators' testimony. As such, the factual evidence presented in response to Defendant's motion to suppress was entirely uncontroverted. Thus, "[t]he only conflict concerned the legal conclusions to be drawn from the evidence presented," and "[t]herefore, it was not necessary for the trial judge to make a specific finding of fact on this issue." Id.; see also State v. Shelly, 181 N.C. App. 196, 205, 638 S.E.2d 516, 523 (2007) (holding the trial court was not statutorily required to make written findings of fact when it denied defendant's motion to suppress inculpatory statements, where the court provided its rationale from the bench and there were no material conflicts in the evidence, only in the interpretation of the evidence related to the defendant's assertion of his right to counsel). Here, Defendant presented no evidence during voir dire or at trial to contradict the investigators' testimony, unlike Lang, where the defendant's testimony sharply conflicted with that of the police witnesses as to the circumstances surrounding his invocation of right to counsel and subsequent communication.
In any event, the trial court, when providing its rationale from the bench, did make specific findings related to Defendant's initiation of the custodial conversation, stating:
From the point that Investigator Smith and Investigator Brown are with the defendant in the interrogation room, the impression I get from what was testified to is that at the point the defendant says, "I need a lawyer," that Investigator Smith leaves the interrogation room, attempts to locate a uniformed patrol officer to act as a transport officer of the defendant to the magistrate's office. At that point Investigator Brown is with the defendant exclusively and the defendant makes certain statements to him during that time period.
Investigator Smith then comes back and sits with the defendant for some period of time. Investigator Brown leaves the interrogation room to type warrants and at that point the defendant makes numerous statements to Investigator Smith. . . . .
. . . .
As it relates to the statements made by the defendant to Investigator Brown while he was alone with the defendant and in the absence of Investigator Smith at the point where Investigator Brown asked the defendant whether he took the victim to eat at Red Robin, as it relates to statements that follow from that question, the defendant's motion to suppress is allowed.
As it relates to statements made by the defendant to Investigator Smith in the absence of [Investigator] Brown, the [c]ourt finds that even though the defendant had made an unequivocal request for counsel, that the defendant was not asked questions, was not interrogated by Investigator Smith, and that spontaneously and in a manner made freely and voluntarily and understandingly made statements to Investigator Smith which were not prompted by any questions or anything to be considered interrogation as defined by the Miranda decisions [sic] and its progeny.
Although Defendant describes the custodial interrogation as "egregious" in his brief, he elicited no testimony to support such characterization, and there is no indication in any of the evidence that Defendant did not, in fact, initiate communication with the investigators after invoking his right to counsel each time.
Defendant also argues that Investigator Brown "opened the floodgates" by questioning him and that "[t]his violation led to the next one," tainting the admissibility of Defendant's statements to Investigator Smith. Defendant continues that the bases for suppressing his statements made to Investigator Brown "poisoned the well" and "opened the door for [Investigator Smith]," who "didn't need to ask any questions" because Defendant's "continued `chatting' with [the latter] was a natural outflow of Brown's interrogation." We conclude, however, that although the trial court did exclude the statements made to Investigator Brown while alone with Defendant and the State does not challenge this suppression on appeal, the entirety of the evidence demonstrates that Defendant's own initiation of conversation with Investigator Brown entitled the officer to resume the interrogation without an attorney present. The uncontradicted evidence shows that after Investigator Brown disclosed K.S. `s age to Defendant and Defendant advised the officers that he needed a lawyer, they "ceased questioning." Investigator Brown continued to stay in the room and sit there with Defendant in silence until Defendant "continued to talk." The transcript reveals that the only questions Investigator Brown asked after Defendant reinitiated the conversation were related to what restaurant he took K.S. to, who Tina was, and whether he ever asked K.S. for her ID or offered her a drink, each time in response to something Defendant had voluntarily stated. See State v. Haddock, 281 N.C. 675, 682, 190 S.E.2d 208, 212 (1972) ("[A] voluntary in-custody statement does not become the product of an `in-custody interrogation' simply because an officer, in the course of defendant's narration, asks defendant to explain or clarify something he has already said voluntarily."). Investigator Brown also testified that when Defendant stated that he was going to need a lawyer a second time, he did not initiate questioning with him at any point thereafter, emphasizing that "[e]ach time he said I need a lawyer, we just ceased conversation." It was Defendant who, following both requests for an attorney, "would just continue to talk and re-initiate his conversation, continue to talk and speak to [the investigators]." Thus, the evidence is uncontroverted that, shortly after Defendant first said he needed a lawyer, Defendant spontaneously resumed communication with Investigator Brown about picking K.S. up after school, "which led to a free flow of conversation." State v. Crawford, 83 N.C. App. 135, 138, 349 S.E.2d 301, 302 (1986) (holding Defendant initiated conversation after indicating that he did not want to give a statement but later responded to further questioning where he voluntarily commented on the events surrounding his arrest).
Furthermore, the facts and circumstances surrounding the entire interview show that Defendant knowingly, intelligently, and voluntarily waived his Miranda rights. As we must also determine that the defendant knowingly and intelligently waived his rights, under the totality of the circumstances, pursuant to Lang, our inquiry does not end with a determination that Defendant reopened the dialogue with the authorities subsequent to invoking his right to counsel. However, an express written or oral statement of waiver is not required, but a waiver of a suspect's right to counsel may be inferred from actions and words. North Carolina v. Butler, 441 U.S. 369, 60 L. Ed. 2d 286 (1979). While Defendant was "highly upset" at the time he signed the waiver form, there was nothing unusual that "would cause [the officers] to believe that he was impaired in any way . . . or had been taking drugs or alcohol." Investigator Smith testified that they were "polite and respectful to [Defendant]" and made absolutely no "threats to him in any way or try to intimidate him or encourage him to answer [their] questions one way or the other." The lack of any coercion is uncontradicted, and there is no indication that Defendant did not understand his rights when he spontaneously resumed communication with Investigator Brown. While Investigator Brown did not re-read Defendant his Miranda rights or secure another written waiver at that time, Defendant was adequately advised of his rights when he arrived at police headquarters, and the facts and circumstances wholly demonstrate that Investigator Brown did not violate Defendant's right to counsel by participating in dialogue initiated by Defendant. And while the trial court may have excluded the statements made to Investigator Brown out of an abundance of caution, the officers' questions were proper and did not taint the voluntariness of Defendant's communications with Investigator Smith. Accordingly, the trial court's denial of Defendant's motion to suppress statements made to Investigator Smith is affirmed.
II. Satellite-Based Monitoring
Defendant makes several contentions regarding the constitutionality of both the satellite-based monitoring (SBM) program facially and the imposition of SBM on Defendant in this case. The record, however, does not reflect that Defendant filed a written notice of appeal from the SBM order. While several of our recent SBM-related opinions have invoked Rule 2 to consider a defendant's appeal that was not properly noticed, the appeals in those cases preceded our Court's decision in State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518 (2009), holding SBM is a civil remedy. Where Defendant's appeal was filed thereafter, it is governed by the authority established in Bare, and his failure to file a written notice of appeal precludes us from reviewing this argument.
Accordingly, we affirm the trial court's ruling on Defendant's motion to dismiss and dismiss his SBM argument.
Affirmed in part, Dismissed in part.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).