State Of North Carolina v. Mohamed

• Decision Date: 20 July 2010
• Docket Number: No. COA09-943.,COA09-943.
• Parties: STATE of North Carolinav.Ahmed Babiker Ibrahi MOHAMED, Defendant.
• Court: North Carolina Court of Appeals

696 S.E.2d 724

STATE of North Carolinav.Ahmed Babiker Ibrahi MOHAMED, Defendant.

No. COA09-943.

Court of Appeals of North Carolina.

July 20, 2010.

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Appeal by defendant from judgment entered 11 February 2009 by Judge Kenneth C. Titus in Guilford County Superior Court. Heard in the Court of Appeals 11 January 2010.

Attorney General Roy Cooper, by Assistant Attorneys General Michael D. Youth and Derrick C. Mertz, for State.

Donald R. Vaughan and Angela Bullard Fox, Greensboro, for defendant.

ERVIN, Judge.

Defendant Ahmed Babiker Ibrahi Mohamed appeals his convictions for robbery with a dangerous weapon and obtaining property by false pretenses on the grounds that (1) his confession was obtained in violation of his constitutional rights against compulsory self-incrimination, (2) he received ineffective assistance from his trial counsel, (3) the interpreters utilized at his trial were inadequate, (4) his guilty plea to obtaining property by false pretenses was unlawfully accepted, (5) the trial court erred in admitting evidence of his involvement in another robbery, and (6) the evidence was not sufficient to support his robbery conviction. After carefully considering Defendant's challenges to his convictions in light of the record and the applicable law, we find no error of law, but remand this case to the trial court for correction of a clerical error.

I. Factual Background

A. Substantive Facts

1. State's Evidence

At trial, the State presented evidence tending to show that, at approximately 8:50 p.m. on 13 May 2007, Defendant approached Douglas Whitlock at a Greensboro carwash, took $20 and a credit card from him at gunpoint, and fled the scene on foot. At the time that he robbed Mr. Whitlock, Defendant was wearing a black baseball cap.

Approximately six minutes later, Defendant, who was still wearing the black baseball cap, entered a nearby Shell station and purchased cigarettes using Mr. Whitlock's credit card. Tewodros Tessma, the clerk in the Shell station who handled Defendant's transaction, knew Defendant's last name. Mr. Tessma also noted that the name on the credit card differed from Defendant's name and contacted the police immediately after Defendant left the premises. As a result of that call to the police, Mr. Tessma provided Officer B.J. Wingfield of the Greensboro Police Department with a description of the vehicle Defendant was driving and its license plate number. In addition, Mr. Tessma provided Officer Wingfield with a surveillance videotape depicting Defendant's purchase and a copy of the credit card receipt that Defendant had signed.

Officer J.P. McSweeney of the Greensboro Police Department ran the license plate number on the vehicle that Defendant was driving and discovered that the last name of the person to whom the vehicle was registered matched that of Defendant. Officer McSweeney spotted the car at approximately 12:15 a.m. on 14 May 2007, stopped the vehicle, and took Defendant into custody. At the time that Officer McSweeney stopped the vehicle, Defendant complied with Officer McSweeney's orders to turn the car off, step out of the car with his hands up, and walk backwards towards him. A search of the vehicle resulted in the discovery of a black baseball cap in the back seat and a spent .22 caliber shell in the ash tray; however, no firearm was found in the vehicle.

At approximately 3:45 a.m., Detective Eric Miller of the Greensboro Police Department read Defendant's Miranda rights to him at the police station. Detective Miller wrote the word “yes” next to each sentence that he read after receiving affirmation from Defendant that he understood its meaning. According to Detective Miller, Defendant was capable of communicating effectively in English. Defendant signed the Statement of Rights and Waiver of Rights form. Although Defendant spoke with an accent, Detective Miller testified that Defendant had no comprehension problems and that he did not request an interpreter prior to or during the interrogation.

During his conversation with Detective Miller, Defendant reported making a purchase at the Shell gas station “with a credit card I found. I did not rob anybody.” Detective Miller pointed out that no one had mentioned a robbery and asked Defendant why he robbed Mr. Whitlock. Defendant became emotional and cried out, “I was broke.” Defendant later admitted:

I saw the guy outside his car. I told Maaz ¹ I was going to rob him and he said, “I don't care.” I got out of the car. [The] gun was in my pocket. I went up to the guy and pointed the gun at him and said “Give me the money.”.... He gave me $20.00 and a credit card. Then we went to the store.

Defendant stated that, after the robbery, he threw the gun and the credit card out of the car window. Defendant also provided a written statement to the police, in which he explained, “I want to same white gay and I poot the gun in has face and I take 20$ and cradet card and after that I went to the par[t]y.”

2. Defendant's Evidence

Defendant is the son of a Sudanese native who had been granted political asylum in the United States and whose family had also been allowed to enter the country in order to escape political persecution. Defendant speaks Classical Arabic, with a native dialect of Sudanese and a native tongue of Egyptian Colloquial Arabic or Donglawi. At the time of the alleged robbery, Defendant had been in the United States less than six months. Defendant's ability to speak and understand English at the time of his interrogation was limited. Although Defendant requested an interpreter at the beginning of the interrogation and during the questioning by Officer Miller, none was provided. Neither the events that led up to the waiver of Defendant's Miranda warnings nor the substantive interview that Detective Miller conducted with Defendant were recorded.

On the evening of 13 May 2007, Defendant was at home preparing to attend a wedding reception when his friend, Maaz Shogar, arrived. Defendant and Mr. Shogar left Defendant's residence in order to obtain gasoline for Defendant's car. Mr. Shogar provided Defendant with a credit card for use in making the necessary purchase. Subsequently Defendant was detained and arrested. Without an interpreter to assist him in the interrogation process, Defendant signed and dated the written statement at the behest of Detective Miller. According to Defendant, the statement that he provided to Detective Miller consisted of information that Mr. Shogar had provided to him about the origin of the credit card.

B. Procedural History

On 14 May 2007, warrants for arrest charging Defendant with obtaining property by false pretenses and robbery with a dangerous weapon were issued. On 2 July 2007, the Guilford County grand jury returned bills of indictment charging Defendant with robbery with a dangerous weapon and obtaining property by false pretenses. The cases against Defendant came on for trial before the trial court and a jury at the 9 February 2009 criminal session of the Guilford County Superior Court. Before the beginning of the trial, Defendant acknowledged on the record that he had consented to allow his trial counsel to admit his guilt of obtaining property by false pretenses. Prior to the beginning of the jury's deliberations, Defendant entered a guilty plea to obtaining property by false pretenses. On 11 February 2009, the jury returned a verdict finding Defendant guilty of robbery with a dangerous weapon. After determining that Defendant had no prior record points and should be sentenced as a Level I offender, the trial court consolidated Defendant's convictions for judgment and sentenced Defendant to a minimum term of 60 months and a maximum term of 81 months imprisonment in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgment.

II. Legal Analysis

A. Admission of Defendant's Inculpatory Statements

First, Defendant contends that the trial court committed plain error by failing to exclude the statement he provided to investigating officers following his arrest. In essence, Defendant contends both that the Miranda warnings that were given to him were inadequate and that he did not freely and voluntarily waive his Miranda rights. We disagree.

With commendable candor, Defendant acknowledges that his trial counsel failed to move to suppress his post-arrest statements and contends that, given the absence of such a contemporaneous objection, his challenge to the admission of his statements to investigating officers is subject to plain error 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. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation marks and citations omitted). “Under plain error review, ‘the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.’ ” State v. Doe, 190 N.C.App. 723, 732, 661 S.E.2d 272, 278 (2008) (citations omitted).

According to Defendant, the trial court should have suppressed the statements that he gave to investigating officers because of his age and status as a non-native speaker of the English language. More specifically, Defendant argues that, as an 18-year-old tenth-grader who...