Opinion
No. COA08-984
Filed 7 April 2009
Appeal by Defendant from judgment entered 6 March 2008 by Judge Christopher M. Collier in Superior Court, Rowan County. Heard in the Court of Appeals 24 February 2009.
Attorney General Roy Cooper, by Assistant Attorney General M. Elizabeth Guzman, for the State.
Russell J. Hollers III for Defendant-Appellant.
Rowan County Nos. 05 CRS 57681-3
Christopher Martin Cotton (Defendant) was found guilty by a jury of first-degree kidnapping, common law robbery, and felony larceny of a motor vehicle on 6 March 2008. The trial court sentenced Defendant to a term of 100 months to 129 months in prison. Defendant appeals.
At trial, the State presented the following evidence: R.J., a fourteen-year-old boy, and his friend D.G., a seventeen-year-old boy, went to Wal-Mart in Salisbury to buy R.J. a bicycle around 11:30 p.m. on 28 May 2005. As R.J. and D.G. put R.J.'s bike into the trunk of D.G.'s car, Defendant and Eric McNeil (McNeil) approached them from behind. Defendant grabbed D.G. and took his car keys and cell phone. As D.G. ran away, he looked back and saw McNeil put R.J. into the trunk of the car, and then saw McNeil and Defendant drive away in the car.
R.J. testified that he found the trunk's release latch, opened the trunk, and observed that the car was traveling on the interstate. After R.J. opened the trunk, the car pulled over and one of the men told R.J. not to open the trunk again, and assured R.J. he would not be harmed. After traveling approximately forty minutes, the car stopped and Defendant and McNeil told R.J. to get out of the trunk. It was after midnight and R.J. did not know where he was. He was afraid he would be shot. The area was dark, lit only by a few street lights. After Defendant and McNeil drove away, a car pulled into a nearby residence and R.J. asked the occupants for help. They told R.J. that he was in Burlington and took him to a nearby Waffle House restaurant where they had just seen a police officer.
McNeil testified to the following. McNeil and Defendant were driving from Durham to Florida in the early morning of 28 May 2005. McNeil fell asleep driving and wrecked the car on the interstate near Salisbury. Defendant came up with a plan to steal a car to get them back to Durham. McNeil and Defendant went to Wal-Mart to "jack someone up for a ride [back to Durham]." They observed D.G. and R.J. and decided they looked like "the perfect people to hit." McNeil shoved R.J. into the trunk and Defendant closed the lid of the trunk.
Detective T. L. Wilsey (Detective Wilsey) of the Salisbury Police Department testified he met with Defendant and Defendant's attorney at the attorney's office in Durham on 29 September 2005. In the presence of his attorney, Defendant admitted to being a passenger in the car with McNeil at the time of the accident in Salisbury. Defendant was arrested, taken into custody, and transported to Salisbury. Detective Wilsey testified that while in the hallway of Defendant's attorney's office, Defendant spontaneously stated: "I'll talk to you, I'll talk to you. It's his fault. He wouldn't let me talk."
On the drive back to Salisbury, Detective Wilsey did not initiate any further conversation with Defendant. However, Defendant asked several questions about lowering his bond, getting out of trouble, and whether or not he could speak to the prosecutor without his attorney being present. Detective Wilsey explained to Defendant that he could not ask Defendant any questions without Defendant's attorney being present. Detective Wilsey allowed Defendant to call his attorney to ask for written consent to speak to Detective Wilsey without Defendant's attorney being present. Detective Wilsey spoke to Defendant's attorney on the phone and reiterated that he would not speak with Defendant without written consent from Defendant's attorney.
Defendant continued talking and asking questions. Detective Wilsey testified to Defendant's voluntary statements including Defendant's question: "So you have taken people in for worse charges than what I committed and they got a low bond?" Detective Brian Cooper (Detective Cooper) of the Salisbury Police Department corroborated Detective Wilsey's testimony. At the close of the State's evidence, Defendant moved to dismiss the first-degree kidnapping charge for insufficiency of the evidence. The trial court denied Defendant's motion. Defendant presented no evidence.
I.
Defendant argues the trial court committed plain error by allowing the State's witnesses to testify about Defendant's invocation of his right to remain silent and his right to have counsel present during questioning. "[A] criminal defendant has a right to remain silent under the Fifth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution." State v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (citing State v. Mitchell, 353 N.C. 309, 326, 543 S.E.2d 830, 840, cert. denied, 534 U.S. 1000, 151 L. Ed. 2d 389 (2001)). Because Defendant neither objected at trial to the State's questions nor moved to strike the challenged testimony, we review for plain error. See State v. Alexander, 337 N.C. 182, 195-96, 446 S.E.2d 83, 91 (1994). Under plain error review, Defendant must demonstrate the claimed error is a
" fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "`resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings[.]"
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
The trial court instructed the State regarding the boundaries of eliciting the testimony of Detective Wilsey. The trial court directed the State: "I don't want you to elicit anything about . . . [D]efendant exercising his right not to make a statement or why he did that or what his lawyer said to him. You can ask this witness what . . . [D]efendant told him about this incident." At trial, Defendant's attorney agreed with the trial court's instruction and did not object to Detective Wilsey's testimony.
Detective Wilsey testified that Defendant voluntarily said, "I'll talk to you, I'll talk to you. It's his fault. He wouldn't let me talk." During the drive from Durham to Salisbury Defendant asked: "Will I be able to talk with the district attorney without my lawyer?" Detective Wilsey testified he told Defendant that he could not give Defendant any advice, and that Defendant replied, "I feel like my attorney did me wrong." Detective Wilsey then testified to the following colloquy:
[Defendant]: "If I call my attorney and he allows me to talk to you, then can I talk about the case?"
[Detective Wilsey]: "I doubt he's going to let you talk with me."
[Defendant]: "Can you call him now and talk to him and see if he will let you talk to me, see if he'll let me talk to you, too?"
[Detective Wilsey]: "Sure, I will call him for you, but I still won't be able to talk to you unless I get something in writing from him."
Detective Wilsey testified that during Defendant's call to his attorney, Detective Wilsey spoke to Defendant's attorney and told him: "We're not speaking with your client until you fax me something stating that we have your consent to do so without [your] being present." Defendant continued talking and asking questions, including asking Detective Wilsey: "So you have taken people in for worse charges than what I committed and they got a low bond?" Detective Cooper's testimony corroborated that of Detective Wilsey.
Defendant fails to point to any testimony by the State's witnesses in which any witness commented on Defendant's silence, his refusal to answer questions, or his desire to have counsel present. Even as Detective Wilsey reminded Defendant that he would not discuss Defendant's case with him without written approval by Defendant's attorney, Defendant expressed a desire to speak with Detective Wilsey. Although Defendant was in custody, Defendant's statements were spontaneous and not in response to any interrogation by Salisbury police officers. The State's witnesses only testified to the voluntary spontaneous statements made by Defendant. The testimony from the State's witnesses was not related to Defendant's right not to make a statement nor to Defendant's desire to have counsel present, but rather to Defendant's desire to make a statement without his attorney present. Therefore, we find the trial court did not err in admitting this testimony. Defendant's assignment of error number six is overruled.
II.
Defendant next argues the trial court erred in denying Defendant's motion to dismiss the charge of first-degree kidnapping. Defendant contends the State did not present substantial evidence to meet the additional element that R.J. was not released in a safe place.
The standard of review for a motion to dismiss in a criminal trial is "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of [the] defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citing State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971)). "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Kraus, 147 N.C. App. 766, 769, 557 S.E.2d 144, 147 (2001) (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). "In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citing State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)).
The General Assembly created two degrees of kidnapping in enacting N.C. Gen. Stat. § 14-39.
There shall be two degrees of kidnapping as defined by subsection (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. . . . If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree[.]
N.C. Gen. Stat. § 14-39(b) (2007).
In the present case, the indictment alleged that R.J. had not been released in a safe place. Neither N.C.G.S. § 14-39 nor the pattern jury instructions define the term "safe place." State v. Sakobie, 157 N.C. App. 275, 280, 579 S.E.2d 125, 129 (2003). Our Courts have decided the issue of whether or not a victim was released in a safe place on a case-by-case basis. Id.
Defendant argues that the present case is similar to State v. White in which our Court vacated first-degree kidnapping judgments after determining there was insufficient evidence showing the victim had not been released in a safe place. State v. White, 127 N.C. App. 565, 492 S.E.2d 48 (1997). The victim in White was an adult female who was robbed, beaten, and sexually assaulted by the defendant and his accomplice. Id. at 566-67, 492 S.E.2d at 49. The victim was released in the middle of the afternoon in a motel parking lot near a major shopping area. Id. at 573, 492 S.E.2d at 53. The defendant and his accomplice gave the victim change to make a phone call. Id. Defendant argues that as in White, R.J. was voluntarily released in a public place and obtained help almost immediately. Although Defendant concedes that R.J. was released after dark and miles from home, he argues that White compels us to vacate the first-degree kidnapping conviction.
The State argues that the facts of the present case are more analogous to those of Sakobie than White. In Sakobie, the defendant stole a car in which a five-year-old child was seated. Sakobie, 157 N.C. App. at 277, 579 S.E.2d at 127. The defendant left the child at the back door of a trailer in a dark, unfamiliar and remote location. Id. at 278, 579 S.E.2d at 127. The defendant lied to the child, telling the child that his mother was in the trailer. Id. Although the child's mother was not inside the trailer and the occupants of the trailer did not know the child, the child was returned to his mother unharmed. Id. at 278, 579 S.E.2d at 127-28. Our Court concluded that the State had presented sufficient evidence that the child victim had not been released in a safe place. Id. at 283, 579 S.E.2d at 130-31.
In the case before us, R.J. was a fourteen-year-old who was pushed into the trunk of a car and driven approximately forty minutes from home. When R.J. was released from the trunk of the car, it was after midnight. He had no phone, did not know where he was, and the area was lit by only a few streetlights. R.J. had to approach strangers in the middle of the night in order to ask for assistance.
Although the evidence that R.J. was not left in a safe place is not as strong as in Sakobie, viewing the evidence in the light most favorable to the State, we hold the State presented sufficient evidence to allow a jury to find that R.J. was not released in a safe place. Therefore we conclude the trial court did not err in denying Defendant's motion to dismiss. Defendant's assignment of error number one is overruled. Defendant did not argue his remaining assignments of error and therefore they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
No error.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).