State v. Jackson, COA03-733.

• Decision Date: 17 August 2004
• Docket Number: No. COA03-733.,COA03-733.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Willie Melvin JACKSON.

600 S.E.2d 16

165 NC App. 763

STATE of North Carolina v. Willie Melvin JACKSON.

No. COA03-733.

Court of Appeals of North Carolina.

August 17, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Steven F. Bryant, for the State.

Everett & Hite, L.L.P., by Kimberly A. Swank, Greenville, for defendant-appellant.

McGEE, Judge.

Willie Melvin Jackson (defendant) was convicted on 24 October 2002 of first degree murder, attempted robbery with a firearm, and conspiracy to commit robbery with a firearm. The trial court entered judgment and sentenced defendant to life imprisonment without parole for the murder conviction. The trial court further sentenced defendant to a minimum of 64 months and a maximum of 86 months in prison for the attempted robbery conviction and a minimum of 25 months and a maximum of 39 months in prison for the conspiracy conviction to run consecutively. Defendant appeals.

The State's evidence at trial tended to show that James Troutman (Troutman), manager of First Citizen's Bank (the bank) in Conway, and two women working as bank tellers, Vickie Howell (Howell) and Carolyn Watson (Watson), were working on the afternoon of 24 May 2001. Howell testified that at approximately 3:25 p.m. that afternoon, she was waiting on a customer, Marjorie Joyner (Joyner). Howell heard someone yell and she saw a "young guy" who had come into the bank with a "black mesh type thing on his face." Howell testified that the young male said, "don't push the f button" and then she heard a shot. Howell discovered Watson lying on the floor and told Troutman that Watson had been shot.

Joyner testified that while she was standing at Howell's teller window, she observed two young males enter the bank. One announced that he meant "business" and walked toward Watson's teller window, while the second male crouched down. Joyner heard gunfire and then saw that Watson had fallen.

Troutman testified that at about 3:20 or 3:25 p.m. that afternoon, he was working at his desk when he heard someone yell, "nobody touch that f______ button." Troutman looked up and saw a male with a pistol in his hand in the bank lobby. Troutman also saw a second male crouched down at the corner of the teller window. The male with the pistol passed by Troutman's office and walked toward Watson's teller window. After the male passed by his office, Troutman heard a gunshot. The two males fled the bank immediately after the gunshot. Watson died on the way to the hospital as the result of a single gunshot wound just below her chin.

Mae Woodard (Woodard) testified that she saw defendant and another male named Cody Hill (Hill) standing on the street corner outside the bank at around 3:20 p.m. that afternoon. (T p 70). Woodard, who had previously taught defendant and Hill in school, stopped to speak with them. Woodard then went into the bank to make a deposit, and when she left the bank, she observed defendant and Hill walking away from the bank. Shortly after arriving back at work, Woodard saw rescue squad vehicles and police cars outside the bank. She returned to the bank and heard that Watson had been shot. Woodard informed an officer at the scene that she had just been at the bank and had seen two of her former students, defendant and Hill, on the corner outside the bank. She gave a written statement at the Conway Police Department. Afterwards, Woodard was taken back to the bank and was asked to view a videotape from the bank's surveillance camera. Woodard identified the male with the gun as defendant and the other male as Hill.

Conway Chief of Police Billy Duke (Chief Duke) testified that at around 7:00 p.m. that evening, FBI Agent Fernando Fernandez (Agent Fernandez), who was assisting with the investigation, spoke with Hill's father. Agent Fernandez then asked Chief Duke to check out a car at the Arrowhead Trailer Park belonging to Toby Gary (Gary), a twenty-four-year-old man from New York. Chief Duke and Deputy Kevin Bird (Deputy Bird) searched the unlocked car, which was parked at Lot 107 of the Arrowhead Trailer Park. The officers found two caps in the car that matched the description of the caps worn by the two males at the bank. On the way back to the police station, the officers heard over the police radio that three suspects, Gary, Hill, and defendant, had been detained.

Chief Ted Sumner (Chief Sumner) of the Gaston Police Department testified that he took Gary and defendant into custody that evening and transported them to the Conway Police Department with defendant in the front passenger's seat and Gary in the rear passenger area. Later that evening, the Conway Police Department asked Chief Sumner to check his car for a gun. Chief Sumner did so and found a handgun beneath the passenger's seat. Expert testimony at trial established that Watson was shot by the handgun found under the passenger's seat of Chief Sumner's patrol car.

The State also offered evidence of three statements defendant made to police. In defendant's first statement, made on the evening of 24 May 2001, defendant stated that Gary and Hill went into the bank on the afternoon of 24 May 2001 while defendant waited for them. While Gary and Hill were in the bank, defendant went to a thrift store and then waited for them in the car. In his second statement that evening, defendant admitted that he shot Watson, but defendant claimed that the shooting was an accident. Defendant also made a third statement on 7 June 2001 to Detective Charles Barfield (Officer Barfield) of the Northampton Sheriff's Department. In his third statement, defendant stated that he was with Gary and Shawn Garris (Garris) on the evening of 23 May 2001 when a man was robbed by Gary and Garris. Defendant further stated that they had attempted to get a gun "to do a job." Defendant presented no evidence.

We note at the outset that defendant has failed to present an argument in support of assignments of error numbers two, four through seven, ten, fourteen, fifteen, twenty, twenty-one, twenty-three through twenty-six, twenty-nine, and thirty-two through thirty-five. Therefore, those assignments of error are deemed abandoned pursuant to N.C.R.App. P. 28(b)(6).

Defendant first argues in assignments of error numbers sixteen through eighteen that the trial court erred in denying his motion to suppress his 7 June 2001 statement because it was obtained as a result of custodial interrogation after defendant had been formally charged. Accordingly, defendant asserts that he is entitled to a new trial because his constitutional rights under the Fifth and Sixth Amendments of the United States Constitution were violated. For the reasons stated below, we disagree.

In a written motion dated 22 October 2002, defendant moved to suppress "all evidence of written or oral statements made by him" to law enforcement. However, on appeal, the only statement at issue is the statement defendant made to Officer Barfield on 7 June 2001. We note that

[o]ur review of a denial of a motion to suppress by the trial court is "limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law."

State v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), cert. denied, 538 U.S. 1040, 123 S.Ct. 2087, 155 L.Ed.2d 1074 (2003). "However, the trial court's conclusions of law `must be legally correct, reflecting a correct application of applicable legal principles to the facts found.'" State v. Strobel, ___ N.C.App. ___, ___, 596 S.E.2d 249, 253 (2004) (quoting State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)).

In the case before our Court, voir dire was held during trial to determine the admissibility of defendant's 7 June 2001 statement to Officer Barfield, as well as statements defendant made to other officers. Evidence at voir dire tended to show that Officer Barfield testified that after defendant's 7 June 2001 court appearance, Officer Barfield and Officer Shelton Skinner (Officer Skinner) sat with defendant as they waited for juvenile authorities to transport defendant elsewhere. Officer Barfield did not make any statements to defendant, but he described defendant as being "very talkative." Officer Barfield testified that when defendant saw the cap which had been presented into evidence, defendant "spontaneously stated, `I know where that cap came from.'" Officer Barfield simply responded, "so do I." Officer Barfield further testified that defendant then "went on to say, `well I can tell you some stuff that you don't know about.'" Officer Barfield responded, "yeah[,]" and defendant "proceeded at that time talking and disclosing to me of a robbery committed in Roanoke Rapids by him and some others." When asked whether he initiated any conversation with defendant at any point, Officer Barfield responded negatively. On cross-examination during voir dire, Officer Barfield stated that the only thing he would have asked defendant was for defendant to "be more specific about something." Officer Barfield also specifically testified that he did not tell defendant he had a right not to say anything.

Officer Skinner testified at voir dire that he was present when defendant made the 7 June 2001 statement to Officer Barfield. Officer Skinner testified that defendant "just decided to talk" while they were waiting for defendant to be transferred. Officer Skinner stated that he did not ask defendant anything during this time and that Officer Barfield "may have asked [defendant] to specify what he was talking about[.]" Officer Skinner further testified that neither he nor Officer Barfield gave defendant any Miranda warnings. Defendant did not testify during voir dire concerning the motion to suppress.

At the conclusion of voir dire, the trial court...