State v. Coplen

• Decision Date: 16 May 2000
• Docket Number: No. COA99-523.,COA99-523.
• Citation: 138 NC App. 48,530 S.E.2d 313
• Parties: STATE of North Carolina v. Patsy E. COPLEN, Defendant.
• Court: North Carolina Court of Appeals

530 S.E.2d 313

138 NC App. 48

STATE of North Carolina v. Patsy E. COPLEN, Defendant.

No. COA99-523.

Court of Appeals of North Carolina.

May 16, 2000.

Attorney General Michael F. Easley, by Assistant Attorney General Tina A. Krasner, for the State.

Mary March Exum, Chapel Hill, for defendant-appellant.

TIMMONS-GOODSON, Judge.

Patsy E. Coplen ("defendant") and Richard Martin ("the victim") lived together in a mobile home in the Oscar Long Subdivision of Leland, North Carolina. On 6 May 1996 at approximately 10:30 or 11:00 p.m., Betty Harper ("Harper"), a neighbor, heard defendant call for help. Defendant informed Harper that she had gone to the store to buy beer for her husband and that when she returned home, she found his body lying in a pool of blood.

Harper owned a .38 caliber Tahitian Tiger revolver which she had loaned to defendant approximately six months before the victim was shot. Harper asked defendant to return the weapon, but defendant had not returned the weapon prior to the date of the shooting. Defendant had worked as a law enforcement officer. In her duties as a police officer, defendant carried a .357 caliber Magnum revolver. Harper's .38 caliber revolver and defendant's .357 caliber revolver were found at defendant's residence.

Another neighbor, Norman Roberts ("Roberts") heard banging noises between 10:30 p.m. and 11:00 p.m. on 6 May 1996. Approximately ten minutes after he heard the noises, Roberts saw defendant's car entering the trailer park and headlights shone in his window. Roberts heard defendant screaming as she exited her home, "Oh my God; Richard's been shot." Roberts entered defendant's trailer and saw the victim in the bedroom. He noted that the bedroom window was shattered and glass covered the bed, but the window screen was still in place.

Terry Shambley ("Shambley"), who lived across the street from defendant heard a banging noise at approximately 11:00 p.m. when she was outside walking. Shambley did not see defendant's car at the time. Approximately ten to fifteen minutes after she heard the noise, Shambley saw defendant drive into defendant's driveway.

According to the owner of the Leland Grocery Store, defendant entered the store between 11:00 p.m. and 11:30 p.m. and bought a six-pack of beer. The grocery store is located approximately seven miles from defendant's residence.

Dr. Charles Garrett ("Dr. Garrett") of the Chief Medical Examiner's Office for the State of North Carolina performed an autopsy on the victim. The autopsy revealed that the victim had suffered gunshot wounds to the right arm, right leg, and to the head and that the victim had died from the gunshot wound to the head.

Special Agent Mike Garrett ("Garrett") with the State Bureau of Investigations ("SBI") conducted a crime scene search at defendant's residence. Garrett recovered .38 caliber revolver ammunition from the master bedroom of the mobile home. Additionally, Garrett discovered law enforcement paraphernalia, including handcuffs, a badge and a night stick holder. He also recovered cartridges from a gray Honda that was parked in front of the mobile home. There were no signs of forced entry or theft. A bag containing a six-pack of beer was located on the kitchen counter and the beers were cool to the touch.

Special Agent Eugene Bishop ("Bishop") of the SBI observed that the bullet fragments taken from the victim's body were consistent in design with the bullets taken from defendant's bedroom and from the Honda automobile. Bishop testified that both a .38 caliber weapon and a .357 caliber weapon could have fired all of the ammunition that was discovered in defendant's home and in the car, but that the bullet fragments taken from the victim's leg could not have been fired from the .357 revolver.

Tom Hunter, a detective with the Brunswick County Sheriff's Department, arrived at defendant's residence at 12:42 a.m. on 7 May 1996. He informed defendant that he was going to take her to the hospital to see her husband. Defendant replied, "Okay." As defendant walked to the car, she stated to a neighbor, "I guess I am going to jail." Defendant entered the car. She was not handcuffed, nor was she told she was under arrest.

In the waiting room at the hospital, Detective Hunter informed defendant he was "going to have to do a gunshot residue kit on her hands." Defendant initially refused, stating, "No, no. Don't I have the right to counsel?" A few minutes later, defendant submitted to the hand wiping.

Special Agent Charles McClelland, Jr. of the SBI tested the gunshot residue kit that had been taken from defendant and discovered gunshot residue particles in samples taken from defendant's left palm.

At 6:30 a.m. on 7 May 1996, defendant called Harper and asked why Harper had informed law enforcement officers that defendant was in possession of Harper's revolver. Harper responded that she did not want either of them to get in trouble. Defendant informed Harper that she "had opened up a fine goddamned can of worms there," and hung up. On the morning of 7 May 1996, defendant also called Robby Robbins ("Robbins"), and requested that he meet her at McDonald's. At the restaurant, defendant informed Robbins that her husband had been shot the night before and that she thought she was a suspect in the crime. On 8 May 1996, she again requested to meet with Robbins. She informed him that she had done something which would make him angry: she had told the sheriff's department that the two of them had been target shooting. Robbins had never been target shooting with defendant.

Defendant was indicted on 20 May 1996 for murder. Prior to trial, on 11 July 1997, defendant filed a motion to suppress the gunshot residue test. After considering all of the evidence and arguments of counsel, the trial court denied defendant's motion. Defendant was tried noncapitally for first degree murder. Following a jury verdict of guilty of second degree murder, the trial court imposed an active sentence of a minimum of 120 months with the corresponding maximum of 153 months. Defendant appeals.

On appeal, defendant argues that the trial court erred in: (I) denying her motion to suppress the gunshot residue test; and (II) denying her motion to dismiss the case at the close of the evidence.

I. Motion to Suppress

By her first assignment of error, defendant argues that the trial court erred by denying her motion to suppress the gunshot residue test administered by Detective Hunter. Specifically, defendant argues that the trial court erred in concluding that North Carolina General Statutes section 15A-271 does not apply to gunshot residue evidence. While we agree with defendant that gunshot residue evidence is nontestimonial identification for purposes of section 15A-271, we believe the trial court properly denied defendant's motion to suppress the evidence.

Appellate review of a denial of a motion to suppress is limited to a determination of whether competent evidence supported the trial court's findings of fact and whether the findings of fact supported the trial court's conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). In the present case, defendant does not object to the findings of fact which the trial court made in the order denying defendant's motion to suppress. Defendant merely assigns error to the denial of the motion to suppress. Therefore, the issues before this Court are whether the trial court's findings of fact support its conclusions of law and whether its conclusions of law are legally correct.

The trial court made the following pertinent conclusions of law in the order denying defendant's motion to suppress the gunshot residue evidence:

1. N.C.G.S. 15A-271 et seq. does not apply to gunshot residue evidence in that gunshot residue is evidence found on a person's body and not evidence of a person's body such as hair or saliva.

2. If 15A-271 does apply to this type [sic] evidence, it is not the exclusive means by which this type of evidence may be collected by law enforcement officers.

. . . .

7. Under the totality of the circumstances, probable cause and exigent circumstances existed at the time the evidence in this case was seized.

Defendant argues that North Carolina General Statute section 15A-271 et seq. applies to gunshot residue evidence because such evidence is "nontestimonial identification." N.C. Gen.Stat. § 15A-271 (1999). As such, defendant contends that she was entitled to the benefit of the procedures outlined in section 15A-271 et seq., including the presence of counsel. According to that provision:

A nontestimonial identification order authorized by this Article may be issued by any judge upon request of a prosecutor. As used in this Article, "nontestimonial identification" means identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a suspect.

N.C.G.S. § 15A-271.

Article 14, in which North Carolina General Statutes section 15A-271, et seq. appears, was enacted in order to "provide the State with a valuable new investigative tool to compel the presence of unwilling suspects for nontestimonial identification procedures, even though insufficient probable cause existed to permit their arrest." State v. Watson, 294 N.C. 159, 164, 240 S.E.2d 440, 444 (1978) (emphasis omitted). In other words, Article 14 serves as a supplement to existing investigative procedures for use in cases where a lawful arrest is not yet warranted. State v. McDonald, 32 N.C.App. 457, 232 S.E.2d 467, disc. review denied, 292 N.C. 469, 233 S.E.2d 925 (1977).

Clearly, section 15A-271 does not set out exclusive procedures for obtaining nontestimonial identification. State v. McCain, 39 N.C.App. 213, 217, 249 S.E.2d 812, 815 (1978). "Nothing in [Article...