State Carolina v. Grier
| Decision Date | 17 May 2011 |
| Docket Number | NO. COA10-1472,COA10-1472 |
| Parties | STATE OF NORTH CAROLINA v. BRIAN KEITH GRIER |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by defendant from judgment entered 4 June 2010 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Stephanie A. Brennan, for the State.
James H. Monroe for defendant appellant.
Brian Keith Grier ("defendant") appeals from judgment based on his convictions for felony breaking or entering a motor vehicle, misdemeanor possession of stolen goods and misdemeanor larceny. Defendant pled guilty to obtaining the status of habitual felon. The charges were consolidated and the trial court sentenced defendant to a presumptive-range sentence of 130 to 165 months in the North Carolina Department of Corrections.For reasons discussed herein, we find no error in part, vacate in part, and remand for resentencing.
On 12 June 2009 at around 8:00 a.m., Kim Harden, a teacher at Elizabeth Traditional School in Charlotte, North Carolina, pulled into the school parking lot for a teacher workday. Upon entering the parking lot, Ms. Harden noticed broken glass and that the car window of fellow teacher Courtney Pender had been shattered. Ms. Harden called the school to alert Ms. Pender to the situation.
While in the parking lot, Ms. Harden observed a black male standing behind a tree about fifteen feet away. The stranger called out, "hey you, hey you, what you got," to which she replied, "a cell phone and a 911 on it." As the man was walking away, Ms. Harden noticed that he was carrying a large black bag and what she recognized as Ms. Pender's white monogrammed tote bag. She again called the school to let Ms. Pender know that "he's out here I think" and that he is "getting away." Ms. Harden and the school then both called the police.
Once Ms. Pender got to the parking lot, she noticed that her camera and white tote bag were missing from her car. She then got into Ms. Harden's vehicle to look for the man. Ms.Harden told Ms. Pender to be on the lookout for "a ball cap and black pullover shirt." The two found the man a few blocks away behind a Jackalope Jack's restaurant and confronted him. Ms. Harden called 911 again and gave a detailed description, while Ms. Pender got out of the car. Ms. Pender asked for her things back and the man returned her white tote bag. She then asked where her camera was, and he pulled it out of the black bag. She took it from him and he proceeded to walk away. Ms. Pender got back in the car and the two attempted to follow the man, but ultimately lost him.
They encountered some police officers a few blocks away and gave a description of the man. The description was of a black male wearing a baseball hat, sunglasses, a black and gray Tommy Hilfiger shirt with a logo on it, blue jeans, and black Nike shoes with colored laces. The police apprehended a man fitting the description a few blocks away. About twenty to twenty-five minutes after first seeing the man in the Jackalope Jack's parking lot, Ms. Pender identified him at the location of his apprehension as the one she saw with her tote bag. Officers noted that defendant was cooperative at the time of his arrest.
At trial, Ms. Harden testified that there was no doubt that the man she first saw in the school parking lot was the same onethat she and Ms. Pender encountered behind Jackalope Jack's. She also identified defendant in court as the man involved in the crime, as the two "exchanged words in such close proximity that it was very easy to pick out facial features and things like that." Ms. Pender testified that defendant was the man she confronted with her bag and also the man she identified for the police.
On cross-examination, defense counsel asked Ms. Harden if she had seen defendant since the day of the incident, to which she responded that she thought she had seen him at a pizza restaurant between the time of his arrest and the trial. To bolster its mistaken identity defense, the defense called the Mecklenburg County Sheriff's Office record manager who testified that defendant was in custody from the time of his arrest to trial.
In rebuttal, the State recalled the interviewing detective, Thomas Houser. He testified that, after defendant was arrested, he gave defendant his Miranda warnings and proceeded to interview him. Detective Houser asked defendant to explain what happened. Defendant replied he found a white bag on the ground in the park next to the school and that later down the street Ms. Pender confronted him about her bag. He told her that hefound the bag and subsequently returned it. Detective Houser wrote down defendant's statement at the time of the interview. Upon writing down the statement, Detective Houser told defendant that his statement was a bunch of lies and asked defendant if he wanted to sign a statement and testify to a bunch of lies. Defendant never signed the statement as Detective Houser testified that defendant "got highly agitated at me and refused to talk to me anymore, and said he refused to sign the statement and said he didn't have anything else to say to me."
The jury returned verdicts of guilty on all three charges, and defendant appeals.
Defendant first alleges that his statement to Detective Houser constituted a confession and is only admissible where it was freely and voluntarily made and either signed or admitted by the accused. Defendant notes one exception where a written confession is admissible without defendant's acquiescence if it is a verbatim record of the questions asked and the defendant's answers. Defendant did not object to the admission of the statement at trial. Defendant contends that the "Adult Voluntary Statement" is a confession and because he did not sign or admitto the statement and it is not a verbatim record of the questions and answers, it should be suppressed. We disagree.
Where no objection or exception to the admission of evidence is made at trial, plain error analysis is the applicable standard of review. State v. Ridgeway, 13 7 N.C. App. 144, 147, 526 S.E.2d 682, 685 (2000). Under the plain error standard of review, a defendant is entitled to reversal "only if the error was so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
A confession is a statement of the accused containing an acknowledgment "of defendant's guilt of any of the charges against him or of any essential element thereof." State v. Jones, 294 N.C. 642, 659, 243 S.E.2d 118, 128 (1978). Generally, a " summary statement of an accused reduced to writing by another person, where it was freely and voluntarily made, and where it was read to or by the accused and signed or otherwise admitted by him as correct shall be admissible against him." State v. Boykin, 298 N.C. 687, 693, 259 S.E.2d 883, 887 (1979). However, defendant relies on the authentication requirements in State v. Walker, 269 N.C. 135, 152 S.E.2d 133 (1967), for his contention that, because he did not sign or acquiesce to the writtenstatement, then it should not have been admitted into evidence. "'If the transcribed statement is not read by or to accused, and is not signed by accused, or in some other manner approved, or its correctness acknowledged, the instrument is not legally, or per se, the confession of accused; and it is not admissible in evidence as the written confession of accused.'" Id. at 139, 152 S.E.2d at 137 (quoting 23 C.J.S., Criminal Law § 833(b)).
Defendant's "Adult Voluntary Statement" was never characterized as defendant's written confession. Detective Houser testified to his questioning of defendant and the fact that the statement was defendant's own statement, in defendant's words, and not the officer's interpretation. In the statement defendant did not admit to any of the charges against him or to any essential element of a charge. Defendant gave an alternative explanation as to why he was in possession of Ms. Pender's bag by stating that he found her bag in the park and gave it back when she confronted him. Although the statement conflicted with defendant's mistaken identity defense, it did not amount to a confession of the charges against him. Because the statement was never characterized as a confession, the requirements for authentication as laid out in Walker and State v. Wagner, 343N.C. 250, 470 S.E.2d 33 (1996), do not apply. See State v. Moody, 345 N.C. 563, 579, 481 S.E.2d 629, 637 (1997).
Even more, defendant contends that he did not acknowledge or acquiesce to the written statement. "However, acknowledgement or adoption was not necessary because ' [a] statement made by defendant and offered by the State against him is admissible as an exception to the hearsay rule as a statement of a party-opponent.'" Moody, 345 N.C. at 579, 481 S.E.2d at 637 (quoting State v. Gregory, 340 N.C. 365, 401, 459 S.E.2d 638, 658 (1995). Because the "Adult Voluntary Statement" is clearly a statement and not a confession, the statement also falls under the statement of a party-opponent exception to the hearsay rule. Consequently, defendant was not prejudiced by the admission of his statement, and the trial court did not err in admitting defendant's unsigned statement at trial.
In his second argument defendant contends that his Fifth Amendment right against self-incrimination was violated by Detective Houser's testifying that defendant refused to sign the "Adult Voluntary Statement" or continue the interview. Defendant did not...
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