795 S.E.2d 625 (N.C.App. 2017), COA16-491, State v. Johnson

Docket Nº:COA16-491
Citation:795 S.E.2d 625
Opinion Judge:McGEE, Chief Judge.
Party Name:STATE OF NORTH CAROLINA v. BOBBY JOHNSON
Attorney:Attorney General Josh Stein, by Assistant Attorney General Alvin W. Keller, Jr., for the State. Marilyn G. Ozer for Defendant.
Judge Panel:McGEE, Chief Judge. Judges STROUD and INMAN concur. STROUD and INMAN, Judges concur.
Case Date:January 17, 2017
Court:Court of Appeals of North Carolina
 
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Page 625

795 S.E.2d 625 (N.C.App. 2017)

STATE OF NORTH CAROLINA

v.

BOBBY JOHNSON

No. COA16-491

Court of Appeals of North Carolina

January 17, 2017

Heard in the Court of Appeals, September 19, 2016.

NO PREJUDICIAL ERROR.

Attorney General Josh Stein, by Assistant Attorney General Alvin W. Keller, Jr., for the State.

Marilyn G. Ozer for Defendant.

McGEE, Chief Judge. Judges STROUD and INMAN concur.

OPINION

Appeal by Defendant from judgment entered 6 October 2015 by Judge Eric L. Levinson in Superior Court, Mecklenburg County, No. 11 CRS 247933.

McGEE, Chief Judge.

Anita Rychlik (" Anita" ) and her husband, David Rychlik (" David" ), were employees of the Thrift Motel in Charlotte (" the motel" ) when Anita was shot and killed in the early morning hours of 2 May 2007. David was outside in the parking lot in front of the motel talking to Brandy Davis (" Brandy" ), when three men (" the men" ), all dressed in black, approached from the left side of the motel as one faced the front of the building. At that time, Anita managed the motel and David acted as the security guard. Anita was asleep inside the motel. One of the men was holding a gun, and the man forcibly searched David and Brandy, taking some personal items from both of them, and a set of keys to the motel from David.

Brandy testified the men were African-American, that two of them were approximately five feet, six inches tall or five feet, seven inches tall and weighed about 150 pounds, while the third man was approximately six feet or six feet, one inch tall and weighed between 180 and 200 pounds. According to Brandy, the larger man was holding a small black gun. The men asked David where the safe was and they demanded keys. All three of the men were talking and demanding things. David was hit in the head with the gun during the altercation. Brandy described the man holding the gun as " the older gentleman," and " the tall one," and testified that he told one of the " younger guys" to stay with her and David, and to " shoot" them if they moved. Brandy could see the younger men's faces, and estimated them to be eighteen or nineteen years old. Brandy also testified that the man holding the gun had a " mask all the way down his face" which made it difficult to tell how old he was. One of the smaller, younger men remained with David and Brandy, while the other two men entered the motel. Brandy did not know if the younger man who remained with them had a gun. The two men then entered Anita's bedroom in the motel and there was a struggle. Brandy heard Anita give " a very panic-attack scream," and Anita was shot once in the back of her neck and killed. The men then fled from the scene.

James Rhymes (" Rhymes" ), who lived at the motel, testified that on the night in question he left his room upon hearing a strange noise. As Rhymes turned to head toward Anita's office, which was a very short distance from Rhymes' room, he was confronted by a man wearing a mask and holding a gun. Rhymes pushed the gun away from him and turned and ran away up a nearby hill. As he was running away, he heard two gunshots, but was not hit.

The three men escaped, and no one was charged with Anita's murder until 24 October 2011. However, during the course of the investigation Bobby Johnson (" Defendant" ) was identified as a suspect and, in 2007, he was placed in custody, read his Miranda rights, which he waived, and he voluntarily gave investigators an interview and a buccal swab for the purposes of collecting his DNA. DNA was also recovered from under Anita's fingernails, and these DNA samples were sent for testing and comparison. Results from the DNA analysis were returned to investigators in 2009. Although the DNA analysis indicated that only one in 16,600,000 African-Americans could have been the contributor of the DNA recovered from under Anita's fingernails, and that Defendant was one of those African Americans who could have contributed that DNA, the Charlotte-Mecklenburg Police Department did not attempt to locate Defendant until late 2011.

A police detective " called [Defendant] and spoke to him a number of times and made arrangements for him to come down to the station." Detective William Earl Ward, Jr. (" Detective Ward" ) testified that they " wanted to talk to him about the DNA evidence." Defendant voluntarily went to the police station on the morning of 24 October 2011, arriving at approximately 9:40 a.m. Defendant was escorted to an interview room on the second floor, just outside the homicide office. The interview room was behind doors that remain locked. Detective Ward and Detective Brian Whitworth (" Detective Whitworth" ), together (" the detectives" ) began to interview Defendant. Approximately four hours after entering the interview room, Defendant was placed under arrest for murder, and approximately ten minutes later, after additional conversation, he was read his Miranda rights and signed a waiver of those rights. Approximately twenty-five minutes after that, Defendant began to discuss his involvement in the crime. Defendant named brothers Antonio Chaney (" Tony" ) and Joshua Chaney (" Josh" ) as the two other men involved, and stated that it was Tony who shot and killed Anita.

Because the voluntariness of Defendant's confession is an issue on appeal, we examine in great detail Defendant's interrogation on 24 October 2011 - from the initiation of the questioning until Defendant admitted participating in Anita's murder. According to the video recording of Defendant's interview, the questioning began in a police interrogation room at approximately 9:50 a.m. Defendant told the detectives that he had been " saved" recently, and Defendant was reminded that Detective Ward had interviewed him back in 2007. At approximately 10:11 a.m., the detectives showed Defendant a forensic report stating DNA had been recovered from under Anita's fingernails,1 and that there was only a one in 16,600,000 chance that the DNA would match any particular African-American, but that the DNA recovered from under Anita's fingernails matched Defendant's DNA.

Detective Ward told Defendant that the 2007 interview had locked Defendant into a statement and that, with the DNA report, they now had the " meat and potatoes," and that Defendant's 2007 statement was coming back and " kicking you in the ass." Defendant was told that the crime was committed by three people, and that one of those three people was Defendant. Defendant was told: " The fact is your DNA is under [Anita's] fingernails in her living quarters which you denied even being there." Defendant was told that he needed " to do the right thing by God," and was told the DNA analysis " puts you there[,]" that " [y]ou were there that night, you know what happened." Defendant was told he had not been at home like he had been telling the detectives. Defendant was told, " you were there [at the motel], you were involved in this crime, it's as simple as that, I can't put it more plainly, you can't make this stuff up. It's a scientific fact." " You were there. This puts you there. You understand what this holds? This could be a capital murder case. This is a death penalty case." " If you want to wear it on your own, that's your decision. If you want to do the right thing and bring other people that were involved, that's your decision." The detectives continued: Your body parts, your cells, your DNA, are on her body. How can that happen if you never touched her? There's no way. There's no way your DNA can be spit in the wind and land somewhere. It has to be her grabbing your hair or grabbing your neck. That's how it happens. It's forever, Bobby.2 Bobby, so you understand, where we're coming from is not " hey, we wanted to talk to you about this murder case . . . ." Where we stand now as a law enforcement agency . . . is that there's no question anymore. That's the meat and potatoes right there for the case [pointing at the DNA analysis]. That's enough to charge you with murder right now. Right now. My suggestion to you is this. Stop with the " I wasn't there," because this proves you were there.

The detectives told Defendant that if the shooting was an accident, if Anita backed into the gun and " pow, holy sh*t, you didn't mean for that to happen, now's the time to talk about it. If you stay silent about it, Bobby, you're going to wear it." The detectives told Defendant that they knew what happened to Anita in her room, but that Defendant was going to have to explain it. Defendant was then told again that that the odds were one in 16,600,000 that any African-American person other than Defendant could have contributed the DNA recovered from under Anita's fingernails.

Referring to an earlier comment Defendant had made, Detective Ward stated: " When you said [Anita] was shot in the back...

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