State Carolina v. Hartley, COA10–964.

• Citation: 710 S.E.2d 385
• Decision Date: 17 May 2011
• Docket Number: No. COA10–964.,COA10–964.
• Parties: STATE of North Carolinav.Kenneth Mark HARTLEY, Defendant.
• Court: North Carolina Court of Appeals

710 S.E.2d 385

STATE of North Carolina
v.
Kenneth Mark HARTLEY, Defendant.

No. COA10–964.

Court of Appeals of North Carolina.

May 17, 2011.

[710 S.E.2d 390]

Appeal by defendant from judgments entered 2 December 2008 by Judge D. Jack Hooks, Jr. in Sampson County Superior Court. Heard in the Court of Appeals 22 February 2011.

Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defenders Anne M. Gomez and Kathleen M. Joyce, for defendant-appellant.

HUNTER, ROBERT C., Judge.

Kenneth Mark Hartley (“defendant”) appeals from judgments entered after a jury found him guilty of three counts of first degree murder, attempted first degree rape, and first degree sexual offense. After careful review, we find no error.

Background

On the morning of 18 June 2004, the bodies of Gail Tyndall (“Gail”), her daughter T.B. (age nine), and her son R.B. (age 14) were discovered in their trailer in Sampson County, North Carolina.¹ Officers then began looking for defendant who was Gail's 21–year–old son and the half-brother of T.B. and R.B. At approximately 9:51 p.m., SBI Special Agent James Tilley and Captain Ricky Mattocks of the Sampson County Sheriff's Department saw defendant walking along Highway 421. The officers pulled over, approached defendant, and asked him if he knew about anyone being hurt at his home. Defendant responded that he did not know about the situation at his home. The officers asked defendant if he would accompany them to the investigation headquarters at the Plainview Fire Department and he agreed. In less than an hour after arriving at the Fire Department, defendant confessed to Special Agent Sheila Quick and Sergeant Julian Carr that he had killed Gail, R.B., and T.B. Defendant was then arrested and read his Miranda rights, which he waived. Defendant again confessed to the killings and signed a written confession.²

According to defendant's confession, his family members went to bed at around 12:00 a.m. on 18 June 2004. Defendant went to his bedroom and began watching television, but he “just started thinking about stabbing [his] mom.” Defendant did not know “where the thoughts came from”; he had never thought about stabbing her before and he was not angry with her. Defendant admitted to thinking about stabbing his mother for around 15 or 20 minutes. At approximately 1:30 a.m., defendant retrieved a knife he had recently purchased and then walked to his mother's bedroom door. He “waited a minute to make sure she was asleep” and then entered the bedroom. Defendant stated that his mother was lying in the center of the bed with her back to him when he began stabbing

[710 S.E.2d 391]

her with the knife. She awoke immediately and began screaming and trying to fight defendant. Defendant continued to stab her until she stopped screaming. At about the same time Gail stopped screaming, R.B. came into the bedroom and turned on the light. Defendant then began stabbing R.B. until he fell face forward into the doorway of the bedroom.

Defendant confessed that he then put the knife on the kitchen table, found some duct tape, and proceeded to T.B.'s bedroom. When he entered the room, T.B. awoke and asked him what he was doing. Defendant told her to put a piece of clothing from the floor into her mouth, which she did. He then used the duct tape to bind her hands behind her back and tape her mouth shut. Defendant then instructed T.B. to walk to his bedroom where he undressed her and himself. Defendant attempted to have sex with T.B. vaginally “for a few minutes[,]” but was unable to achieve penetration. Defendant then had anal sex with T.B. Defendant admitted that he tried to strangle T.B. with a shoelace, but “it wasn't working[,]” so he strangled her with his arm for about five minutes until she stopped moving.

Defendant told police that he then washed his arms in the bathroom sink and changed clothes. Defendant took all of the telephones in the house and placed them in the bathroom so that the victims could not find them “if they didn't die.” Defendant washed the knife and gathered a flashlight, portable television, and cash to take with him. He then began walking in the direction of Dunn, North Carolina.

Defendant was charged with three counts of first degree murder, one count of attempted first degree rape, and one count of first degree sexual offense. At trial, it was undisputed that defendant killed the three victims and perpetrated sexual acts on T.B.; however, defendant claimed that he was not guilty of the crimes charged due to his being insane. In support of his defense, defendant offered the testimony of two mental health experts, Dr. Manish Fozdar and Dr. Ann Burgess, who claimed that defendant suffered from pervasive developmental disorder (“PDD”), a type of neurodevelopmental disorder, and that due to his mental illness defendant did not have the capacity to differentiate between right and wrong or appreciate the nature of his actions. Dr. Charles Vance, an expert witness for the State, testified that while defendant likely suffered from schizoid personality disorder (“SPD”), and possibly PDD, defendant knew the difference between right and wrong and had the ability to form the specific intent to kill.

On 22 November 2009, the jury convicted defendant of three counts of first degree murder on the basis of malice, premeditation, and deliberation. The jury also convicted defendant of the first degree murder of T.B. pursuant to the felony murder rule, attempted first degree rape, and first degree sexual offense. The jury recommended that defendant receive life imprisonment rather than the death penalty. The trial court sentenced defendant to three terms of life imprisonment without the possibility of parole, 240 to 297 months imprisonment for the first degree sexual offense conviction, and 157 to 198 months imprisonment for the attempted first degree rape conviction. Defendant timely appealed to this Court.

Discussion I. Motion to Suppress Confession

Defendant argues that the trial court erred in denying his motion to suppress his confession to the murders of Gail, T.B., and R.B. Specifically, defendant argues that his confession was given while in custody prior to being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Although defendant argues on appeal that the trial court erred in denying his pre-trial motion to suppress the confession, defendant did not object at trial to the admission of his confession into evidence. It is well established that

a motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.... [A] pretrial motion to suppress, a type of motion in limine, is not

[710 S.E.2d 392]

sufficient to preserve for appeal the issue of admissibility of evidence.

State v. Grooms, 353 N.C. 50, 65–66, 540 S.E.2d 713, 723 (2000) (internal citation omitted), cert. denied, 534 U.S. 838, 122 S.Ct. 93, 151 L.Ed.2d 54 (2001); accord State v. Golphin, 352 N.C. 364, 449, 533 S.E.2d 168, 224 (2000), cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 149 L.Ed.2d 305 (2001). Nevertheless, defendant is entitled to relief if he can demonstrate plain error. Golphin, 352 N.C. at 449, 533 S.E.2d at 224.

[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] ... amounts to a denial of a fundamental right of the accused,” 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.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982)). We must determine whether, absent the alleged error, the “jury probably would have returned a different verdict.” State v. Davis, 321 N.C. 52, 59, 361 S.E.2d 724, 728 (1987).

The threshold issue to be decided is whether defendant was in custody when he first confessed to the murders prior to receiving the Miranda warnings, which “w[ere] conceived to protect an individual's Fifth Amendment right against self-incrimination in the inherently compelling context of custodial interrogations by police officers.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). “Although the United States Supreme Court has acknowledged that the Fifth Amendment prohibits the use only of ‘compelled’ testimony, it has interpreted the Miranda decision as holding that failure to administer Miranda warnings in ‘custodial situations' creates a presumption of compulsion which would exclude statements of a defendant.” Id. at 336–37, 543 S.E.2d at 826 (citing Oregon v. Elstad, 470 U.S. 298, 306–07, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222, 230–31 (1985)).

“[A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police 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 826–27 (quoting...