Opinion
No. COA12–1424.
2013-08-6
STATE of North Carolina v. Ernie Lee WARRICK.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Laura E. Crumpler, for the State. Edward Eldred for defendant-appellant.
Appeal by defendant from judgment entered 12 July 2012 by Judge W. Russell Duke, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 22 April 2013. Attorney General Roy A. Cooper, III, by Assistant Attorney General Laura E. Crumpler, for the State. Edward Eldred for defendant-appellant.
BRYANT, Judge.
Where the trial court reversed its pre-trial ruling granting defendant's motion to suppress and during trial allowed the State to present evidence of defendant's statements to law enforcement, we affirm the trial court's ruling. Where defendant raises a constitutional argument that was not raised before the trial court, we dismiss defendant's argument. Where defendant cannot meet his burden of showing that he received ineffective assistance of counsel, we overrule defendant's argument.
On 10 October 2011, defendant Ernie Warrick was indicted on one count of first-degree statutory rape, four counts of first-degree statutory sex offense, three counts of taking indecent liberties with a child, and one count of disseminating obscene material to a minor under the age of thirteen. A trial was commenced during the 9 July 2012 session of Superior Court of Wilson County, the Honorable W. Russell Duke, Jr., Judge presiding.
Prior to trial, defendant filed a motion and affidavit to suppress statements made by him during an interview with law enforcement officers on 27 January 2011, the night that then Deputy Patrol Officer Chad Keen and Detective Joshua Bissette of the Wilson County Sheriff's Office received a report alleging that defendant had sexually assaulted four children. In his motion, defendant contended he was interrogated by law enforcement officers and that his statements were not “freely and voluntarily made” in that he was not informed of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436 (1996), and Missouri v. Seibert, 542 U.S. 600 (2004).
Det. Bissette and Det. Keen, who on 27 January 2011 had been a deputy patrol officer, testified at the pre-trial hearing on defendant's motion to suppress. Det. Bissette testified that he located defendant on 27 January 2011 and informed him that allegations of sexual assault had been made against him. Defendant was asked to accompany the law enforcement officers to the sheriff's office to discuss the matter. Det. Bissette testified that defendant agreed to speak with the officers; he was not handcuffed; and he rode in a vehicle with the officers because he did not have his own transportation. At the sheriff's department, Det. Bissette informed defendant he was free to leave at any time. The doors were unlocked, defendant was not restrained in any way, he was given the option of taking bathroom breaks, and on more than one occasion defendant was left alone in the interview room for a period of ten to fifteen minutes.
The interview began at 11:22 p.m. and concluded at 1:55 a.m. During the interview, defendant signed a written statement admitting to watching pornographic movies with and engaging in sexual acts in the presence of at least one of the minor children. The next morning, 28 January 2011, Warrick was charged with disseminating obscene material to a minor under the age of sixteen and two counts of taking indecent liberties with a child.
At the conclusion of the hearing on defendant's motion to suppress, the trial court heard arguments from counsel. Thereafter, the trial court ruled that a Miranda violation had occurred and entered an order granting defendant's motion to suppress.
The evidence presented at trial tended to show that defendant lived with Carol Flemming and her four children, Sara and Tara—both age eleven at the time of trial, and Tommy and Sally—both age six at the time of trial, between August 2009 and December 2010 in the Wilson County towns of Kenly and Fremont. The children's grandmother testified that on 27 January 2011, she was taking the children to “Chuck E. Cheese,” a children's food and entertainment venue, when Sara said that defendant had been “making her put her mouth on his privates, messing with her sister, [and] would pull her older sister down to the end of the bed every night and just tear her up.” Ms. Flemming was called, and she took her children to Wilson Medical Center to be examined. There, Ms. Flemming, Sara, Tara, Tommy, and Sally spoke with officers from the Wilson County Sheriff's Department including Detective Felicia Simmons—a sexual assault and child abuse investigator, Det. Bissette, and Deputy Patrol Officer Keen.
Pseudonyms have been used to protect the identities of the juveniles.
At trial, all four children testified to various acts committed upon them by defendant. Sara testified that defendant took her into woods near their home on the outskirts of Kenly to go hunting. With a gun placed nearby, Sara testified that defendant touched her breasts, “had his private part out” and forced her to lick his “private part.” Sara testified that on another occasion, defendant “stuck his private part in. [m]y behind.” Sara testified that defendant asked her for forgiveness but told her that “he would kill my mom if I told anyone.” Sara also testified to observing defendant engage in sexual acts with Tara.
Tara testified defendant committed sexual acts upon her on average, more than once a week. She said that defendant pulled her into her mother's bedroom, pulled down her pants, and “[p]ut his private part in ... [her] butt.”
Q And was it always in the butt or was it in any other private?
A In the front too.
Tara testified that a “[c]ouple of times” defendant would show her movies where she “[saw] the private parts of the people” and the people were “touching each other's private parts[.]” Tara also testified that when her mother was in the hospital defendant “touched my private part and ... [h]e put his front part in my back private part.” When asked if defendant ever said anything afterwards, Tara testified that sometimes he would say “[t]hat if I told somebody that he would ... [h]e was going to get me.”
Sally, who was six years old at the time of trial, answered “[y]es” when asked whether defendant had gone inside her “back side private area[,]” “your butt, the part you sit on[.]”
Q Okay. Did he ever say what he would do if you told anyone?
A A whooping.
Q He said he'd whoop you if you told anyone?
A (Nods head up and down.)
Sally also testified that she observed defendant [putting] his private area into the back side private area of [Tommy][.]” Tommy, who was also six years old at the time of trial, testified that this happened “[a] lot of times.”
Defendant's nephew was called as a 404(b) witness. The nephew, who was thirteen at the time of trial, testified that in 2004, he was in a bathroom with defendant and that defendant “put his private part in my butt.”
.N.C. Rule of Evidence 404(b) allows evidence of other crimes if it is offered for a proper purpose. “Evidence of other crimes, wrongs, or acts ... may[ ]be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” N.C. R. Evid. § 8C–1, Rule 404 (2011).
Following the testimony of the five juveniles, as well as several other witnesses for the State, the trial court took a recess during which it announced that it would reverse its pre-trial ruling and would deny defendant's motion to suppress the statement he made to law enforcement officers. The trial court then gave defendant an opportunity to offer testimony or other evidence regarding the motion to suppress and defendant declined to offer any evidence in addition to the motion to suppress and attached affidavit previously submitted. The trial court denied defendant's motion to suppress and admitted into evidence State's Exhibit I, defendant's 27 January 2011 statement. The State then called Det. Keen and Det. Bisette. Det. Bissette read into evidence the statement defendant signed following his interview on 27 January 2011. In his statement, defendant admitted that he pulled Tara's pants down to spank her and that he watched pornographic movies in front of Tara. “I would make her bend over sometimes ... with pants pulled down.... I just wanted to look at her butt while I played with myself.”
At the conclusion of the State's case, defendant testified on his own behalf. Defendant stated that he had never taken any children into the woods, did not own a gun, and never had oral, anal, or vaginal sex with any of the children. On cross examination, defendant testified that he had made the incriminating statements to the detectives because he was scared, confused, and didn't know what to do.
At the conclusion of all the evidence, upon defendant's motion, the trial court dismissed the charges of dissemination of obscene material to a minor under thirteen.
The jury returned guilty verdicts on one count of first-degree statutory rape; four counts of first-degree sexual offenses; and three counts of taking indecent liberties with a child. Defendant appeals.
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On appeal, defendant raises the following questions: whether the trial court (I) committed prejudicial error by reversing its pre-trial ruling granting defendant's motion to suppress; (II) violated defendant's state and federal rights to due process of law by conducting an ex parte conference with the School of Government; and (III) committed plain error by allowing the State to introduce defendant's statement. Defendant also contends (IV) he was denied effective assistance of counsel.
I & III
Defendant argues that the trial court committed prejudicial error when it reversed its pretrial ruling granting defendant's motion to suppress. The State contends that because defendant failed to object to the trial court's ruling denying defendant's motion to suppress, any appellate review of this issue is barred. We agree. However, defendant in an alternative argument, asks that we review the trial court's ruling denying defendant's motion to suppress for plain error.
Pursuant to our Rules of Appellate Procedure, “[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C. R.App. P. 10(a) (2013).
Standard of Review
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said 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” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Lawrence, 365 N.C. 506, 516–17, 723 S.E.2d 326, 333 (2012) (citations omitted). It is defendant's burden to establish that a fundamental error occurred; to establish prejudice by showing “that, after examination of the entire record, the error ‘had a probable impact on the jury's finding that the defendant was guilty.’ “ Id. at 518, 723 S.E.2d 518.
Analysis
As previously stated, defendant's challenge to the trial court's reversal of its pretrial ruling on defendant's motion to suppress was not preserved. However, if we were to review defendant's contention we would find it to be without merit. “A ruling on a motion in limine is a preliminary or interlocutory decision which the trial court can change if circumstances develop which make it necessary. Thus, any ruling on a motion to suppress prior to trial is not final and the trial court may reverse its decision.” State v. McNeill, 170 N.C.App. 574, 579, 613 S.E.2d 43, 46 (2005).
The record currently before us reflects that following the pretrial hearing, the trial court granted defendant's motion to suppress statements he made to law enforcement officers during an interview on 27 January 2011. During the presentation of the State's case-in-chief, the trial court called for a recess and excused the jury. The court announced that it had reviewed the transcript from the pretrial suppression hearing “and at this time I'm going to reverse my ruling.” The trial court provided defendant an opportunity to present evidence on the issue, but defendant replied that he had no additional evidence other than his motion to suppress and the supporting affidavit. The jury was brought back to the courtroom and the State called as witnesses Detectives Keen and Bissette, who each testified without objection to statements defendant made during the interview. Following the conclusion of the trial, on 20 July 2012, the trial court entered a written order denying defendant's motion to suppress.
It is our determination that on this record, even if properly preserved, defendant's challenge to the trial court's actions would be rejected.
Defendant next argues it was plain error for the trial court to allow into evidence statements defendant made to Det. Bissette and Officer Keen during the 27 January 2011 interview. Defendant asserts his statements were obtained in violation of his Fifth Amendment rights because law enforcement officers failed to provide him with Miranda warnings. Defendant argues that the determinative issue is whether he was in custody at the time he gave a statement; that is, whether a reasonable person in his position would have believed he was free to leave.
It is well established that the standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. Additionally, the trial court's determination of whether an interrogation is conducted while a person is in custody involves reaching a conclusion of law, which is fully reviewable on appeal.
State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (citations and quotations omitted).
“[Law enforcement] officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Id. at 337, 543 S.E.2d at 827 (citation omitted). The Miranda warning “was conceived to protect an individual's Fifth Amendment right against self-incrimination in the inherently compelling context of custodial interrogations by police officers.” Id. at 336,543 S.E.2d at 826 (citation omitted). “Therefore, the initial inquiry in determining whether Miranda warnings were required is whether an individual was ‘in custody.’ “ Id. at 337,543 S.E.2d at 826. “The test for determining whether a person is in custody is an objective test as to whether a reasonable person in the position of the defendant would believe himself to be in custody or that he had been deprived of his freedom of action in some significant way.” State v. Greene, 332 N.C. 565, 577, 422 S.E.2d 730, 737 (1992) (citations omitted).
In the instant case, the trial court concluded that “Defendant's freedom was not restrained in a manner that is similar to the restrictions imposed by formal arrest” and that “Defendant was not placed in a position which would lead a reasonable person to believe that he was under arrest or its functional equivalent[.]” This conclusion was premised on unchallenged findings of fact which we summarize as follows: defendant was asked to accompany a detective to the sheriff's office to give a statement or answer questions regarding allegations of sexual assault; defendant was told that he would be transported from the sheriff's department upon his request; at no point during his transit to the sheriff's office or during his interview with law enforcement officers was defendant restrained; prior to being interviewed defendant was informed that he was not under arrest and was free to leave at any time; defendant was informed that the interview room doors were unlocked; defendant was offered opportunities to use the restroom and get water; there were breaks in the interview that lasted fifteen minutes during which defendant was left alone; and defendant never requested to leave. Because the unchallenged findings of fact support the trial court's conclusion that defendant was not in custody, the trial court did not err in admitting defendant's statement.
As defendant was not the subject of a custodial interrogation, the failure to provide him with a Miranda warning did not violate his Fifth Amendment right against self-incrimination. Therefore, we affirm the trial court's order denying defendant's motion to suppress.
Defendant further argues that he was prejudiced by the admission of his statement where the admission “allowed the State to use [defendant's] statement against him to shred his credibility on cross-examination” and “[t]he State also used the statement to eviscerate [defendant's] contention that he only gave the statement out of fear[.]” Notwithstanding defendant's argument, we review the admission of defendant's statement for plain error only. Thus, it is defendant's burden to show that the error alleged is so prejudicial as to have had an impact on the jury verdict. Defendant is unable to make such a showing. We do not reiterate the testimony of the five juvenile witnesses—four child victims who testified to the charges before the jury, and one 404(b) witness—regarding the specific acts of sexual assault committed upon them by the defendant. However the jury heard the testimony and viewed videotaped interviews of the children as they revealed the extent of the sexual abuse. There was also evidence from medical professionals who corroborated the statements of the children. Even absent defendant's statement, there was sufficient evidence to convict him, and no probability of a different outcome. Accordingly, we overrule defendant's arguments.
II
Defendant next argues that the trial court violated his state and federal rights to due process of law and a fair trial by conducting an ex parte conference with a faculty member of the School of Government without informing defendant of the nature of the discussion or providing him with a meaningful opportunity to respond. We dismiss this argument.
Acknowledging that he has raised before this Court a constitutional argument not raised before the trial court, defendant requests that we invoke Rule 2 of our Rules of Appellate Procedure in order to reach the merits of his argument. See State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982) (“[A] constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal.”)
Given our review and discussion of the trial court's ruling on defendant's motion to suppress, we decline to invoke Rule 2 to reach the merits of this issue. Accordingly, we dismiss this argument.
IV
Lastly, defendant argues that he was denied his constitutional right to effective assistance of counsel. We disagree.
In order to establish ineffective assistance of counsel, a defendant must meet a two part test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's error were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation and emphasis omitted).
In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal. [Ineffective assistance of counsel] claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required....
In re C.W.N., Jr., ––– N.C.App. ––––, ––––, 742 S.E.2d 583, 585 (2013) (citations and quotations omitted).
Defendant's sole contention in support of his ineffective assistance of counsel argument is that his attorney's failure to object and otherwise challenge the trial court's ruling regarding the admission of defendant's statement to law enforcement was so deficient as to deprive defendant of a fair trial. However, defendant does not specify how he was prejudiced by his trial counsel's failure to object. Further, we have reviewed defendant's arguments alleging error in the trial court's denial of his motion to suppress and the admission of defendant's statement and find no error in the actions of the trial court. Therefore, upon this record defendant has failed to carry his burden of establishing prejudice by trial counsel's failure to object. Accordingly, we overrule this argument.
Affirmed in part; dismissed in part. Chief Judge MARTIN and Judge DAVIS concur.
Report per Rule 30(e).