State v. Avery
| Citation | 768 S.E.2d 201 (Table) |
| Decision Date | 31 December 2014 |
| Docket Number | No. COA14–601.,COA14–601. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE of North Carolina v. Warren Jae AVERY. |
Roy Cooper, Attorney General, by Steven M. Arbogast, Special Deputy Attorney General, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
Warren Jae Avery (“Defendant”) appeals from his convictions of first-degree murder and conspiracy to commit first-degree murder. On appeal, he contends that the trial court erred in (1) denying his motion to suppress; and (2) allowing testimony from a witness for the State in violation of his rights under the Confrontation Clause. After careful review, we conclude that Defendant received a fair trial free from prejudicial error.
The State presented evidence at trial tending to establish the following facts: Defendant, Marco Davis (“Davis” a/k/a “Danger”), Kierra Thompson (“Thompson”), Antonio Dade (“Dade” a/k/a “Tre”), and Latia Landy (“Landy”) were all members of the “74” gang, also known as the “Gangster Disciples”—a subset of the “Folks” gang. Davis was the leader of the gang, which was organized in a hierarchical structure based on rank.
Palo Childress (“Childress” a/k/a “Suicide”) was a member of the “Rolling Sixties”—a subset of the “Crips” gang. Childress was initially on good terms with the members of the Gangster Disciples, including Defendant. However, over time Davis and Dade began to distrust Childress because “[he] was talking too much” and was “telling [the gang's] secrets.”
Several weeks prior to 9 August 2009, Defendant, Thompson, Dade, Davis, and Landy met at a bus stop on Beatties Ford Road in Charlotte, North Carolina to discuss Childress. Davis told the group that Childress “had to go.”
On 9 August 2009 around 12:00 p.m., Jasen Buchanan (“Buchanan”), who was friends with members of the Gangster Disciples but was not himself a member of the gang, was watching television at his house with Defendant, Davis, and Childress. After several hours passed, all four men went to the home of their friend “Big Unc” to visit with him. While at Big Unc's residence, Davis pulled Defendant off to the side, handed Defendant his .38 caliber pistol, and informed Defendant that Defendant “was going to be the one to kill Suicide.”
All four men then went to Davis' and Dade's apartment to play cards. Several other members of the Gangster Disciples were present at the apartment, including Thompson and Landy.
After they had been playing cards for a while, Davis and Defendant left the apartment with Childress under the pretext of procuring Childress a gun. The three of them began walking down a path off of Jennie Linn Road. After a few minutes had passed, Davis looked back at Defendant, which Defendant interpreted as “a signal for me ... to kill Suicide.” After walking a little further down the path, Defendant proceeded to pull out the gun given to him by Davis and shot Childress in the back of the head. Childress died as a result of the gunshot wound.
Defendant and Davis then returned to Davis' apartment, and Defendant changed into his work clothes and went to work. After Defendant left, Davis told Thompson that she could gain rank within the gang if she would go with him, Dade, and Landy to “get money out of [Childress'] pockets.” After walking to where Childress' body was located, Davis, Dade, and Landy illuminated Childress' body with the screens of their cell phones, and Thompson proceeded to retrieve the contents of Childress' pockets. The group then left the body where they had found it and returned to Davis' apartment.
A gang meeting called by Davis was held a few days after the death of Childress. At the meeting, Defendant was promoted to a higher rank within the gang, and he discussed how he had killed Childress. Thompson was also promoted for going “through [Childress'] pockets.”
Detective Miguel Santiago (“Detective Santiago”) with the Charlotte–Mecklenburg Police Department's (“CMPD”) Homicide Unit was assigned as the lead detective in the investigation of Childress' murder. During the course of his investigation, Detective Santiago determined that a connection existed between Defendant, Davis, and Childress. Detective Santiago ultimately determined that Defendant was a potential suspect in the death of Childress.
Detectives Henry McSwain (“Detective McSwain”) and Timothy Purdy (“Detective Purdy”) with the CMPD assisted Detective Santiago with his investigation into the murder of Childress. Upon obtaining information that Defendant was employed at a Walmart on Albermarle Road, Detectives McSwain and Purdy drove there at approximately 9:30 p.m. on 19 August 2009 in an attempt to locate him. Upon arrival, the detectives met with the assistant manager and inquired whether Defendant was there. The assistant manager told the detectives that Defendant was working that day and had them wait in an office while he located Defendant.
After several minutes, Defendant walked into the office. Detective Purdy informed Defendant that he and Detective McSwain were detectives with the CMPD. Detective Purdy then asked Defendant whether he would be willing to accompany them to the Law Enforcement Center (the “LEC”) to answer some questions. Detective Purdy told Defendant he could give Defendant a ride there in his car. Detective Purdy also made it clear to Defendant that afterwards he would take Defendant back to work.
Defendant agreed, and he and the detectives went out to the parking lot and got into Detective Purdy's car. Defendant was not searched before getting into the car, opened the car door himself, and got into the vehicle without assistance. Defendant was not handcuffed or restrained in any way.
Upon arrival at the LEC, Defendant was taken to the second floor where the interview rooms are located. He was placed in one of the interview rooms with the door shut but left unlocked. Defendant was not searched prior to being placed in the interview room and was not restrained in any way. Defendant waited in the interview room for approximately three hours while Detective Santiago was interviewing other members of the Gangster Disciples, who were also at the LEC in nearby interview rooms. Detective McSwain checked on Defendant while he was waiting, offering Defendant a cigarette and a beverage and inquiring whether he wanted to use the restroom.
At approximately 1:30 a.m., Detective Santiago and Detective Terry Brandon (“Detective Brandon”) entered the interview room. Detective Brandon informed Defendant that he was not in custody, that he was free to leave at any time, and that he would be immediately transported back to work upon his request. Defendant acknowledged that he understood. The detectives proceeded to interview Defendant, and during the interview, he confessed to the murder of Childress. At the conclusion of the interview, Detective Santiago placed Defendant under arrest.
On 13 August 2012, Defendant was indicted on one count of first-degree murder and one count of conspiracy to commit first-degree murder. A pre-trial hearing was held in Mecklenburg County Superior Court on 27 August 2012 during which Defendant moved to suppress evidence of his confession to the murder. After the trial court denied Defendant's motion to suppress, Defendant's trial counsel moved to withdraw from his representation of Defendant and the trial court granted the motion, ordering that the case be continued and that substitute counsel be appointed for Defendant. A jury trial was held on 9 September 2013 before the Honorable Yvonne Mims Evans in Mecklenburg County Superior Court.
At trial, the State called Thompson as a witness. During her testimony, the State inquired about the conversation at the bus stop several weeks before the murder during which Davis had stated to members of the Gangster Disciples that Childress “had to go.” Defendant's counsel objected on hearsay and Confrontation Clause grounds based on the fact that Davis did not testify at trial, but the objection was overruled.
Defendant's attorney also objected when the State asked Thompson about the statements made by Davis in relation to Thompson retrieving the contents of Childress' pockets. After conducting a voir direhearing, the trial court overruled Defendant's objection and permitted Thompson to testify as to this matter.
The State also introduced into evidence the transcript of a recorded telephone conversation that Defendant had with his sister from prison. The transcript showed that during the conversation Defendant admitted to his sister that he was the one who had shot Childress and that Childress' murder had been planned in advance.
The jury convicted Defendant of both charges, and the trial court sentenced him to life in prison without the possibility of parole for the first-degree murder of Childress. In addition, Defendant was sentenced to 140–177 months for conspiracy to commit first-degree murder. This sentence was ordered to run consecutive to the first-degree murder sentence. Defendant gave notice of appeal in open court.
Defendant first argues that the trial court erred in denying his motion to suppress evidence of his confession to the murder of Childress. Specifically, Defendant asserts that (1) he was in custody at the time he confessed but was not advised of his rights under Miranda v. Arizona,384 U.S. 436, 16 L.Ed.2d 694 (1966) prior to making the confession; and (2) his confession was not voluntary in that it was induced by threats and promises made by Detectives Santiago and Brandon. We disagree.
Initially, we note that Defendant does not challenge any of the trial court's findings of fact concerning his motion to suppress. Instead, he limits his argument to the trial court's conclusions of law that he was not in custody when he confessed and that his confession was voluntary.
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...
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