State v. McKinney

• Decision Date: 18 October 2005
• Docket Number: No. COA04-1653.,COA04-1653.
• Citation: 619 S.E.2d 901
• Parties: STATE of North Carolina v. Glenn Devon McKINNEY.
• Court: North Carolina Supreme Court

619 S.E.2d 901

STATE of North Carolina v. Glenn Devon McKINNEY.

No. COA04-1653.

Court of Appeals of North Carolina.

October 18, 2005.

Appeal by defendant from judgment entered 16 April 2004 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 25 August 2005.

Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.

Paul F. Herzog, Fayetteville, for defendant-appellant.

TIMMONS-GOODSON, Judge.

Glenn Devon McKinney ("defendant") appeals his conviction for first-degree murder. For the reasons stated herein, we reverse.

The State's evidence presented at trial tends to show the following: On 17 May 2003, law enforcement officers from the Greensboro Police Department discovered the body of Jerry Louis Alston ("Alston") in the laundry room of his residence. Alston's body was inside a city-issued trash can, which had been covered with a towel and two candles. Beneath the candles and towel was a computer-generated note reading "Glenn Devon McKinney did this."

Greensboro Police Department Sergeant Jane Allen ("Sergeant Allen") was the first law enforcement officer to enter Alston's residence the day his body was discovered. Sergeant Allen had gone to Drexel Road in Greensboro, North Carolina, in an effort to investigate an "assault [that] was supposed[] to have taken place." Earlier that day, Greensboro Police Department Sergeant D.S. Morgan ("Sergeant Morgan") notified Sergeant Allen that "someone named Phoenix may have killed someone named Jerry somewhere on Drexel Road." Sergeant Morgan subsequently informed Sergeant Allen that an individual named Amy Millikan ("Millikan") "had said that her roommate had told her that her roommate's friend had told her that her boyfriend named Phoenix had advised that he had killed or assaulted an individual named Jerry on Drexel Road." As Sergeant Allen was approaching Drexel Road, she was informed that Alston's residence was "the house that seemed to match the description that was being given" by an individual named Aja Snipes ("Snipes"), as well as neighbors.

When Sergeant Allen arrived at Alston's residence, she noticed that the residence "appeared to be secure[,]" that the curtains or blinds of the residence were drawn, and that there was a small dog tied to a short leash near the rear of the residence. Sergeant Allen did not force entry into the residence at that time, because "[a]t that point [she] needed more to go on" and "didn't know for sure that an assault had occurred in there." Shortly thereafter, Sergeant Morgan notified Sergeant Allen that defendant was reported to be driving Alston's vehicle. Sergeant Allen noticed that the vehicle was not in Alston's driveway, and she began to speak to Irma Alston ("Irma"), Alston's sister. Irma told Sergeant Allen that Alston lived at the residence. Alston's brother, Ricky Alston ("Ricky"), subsequently arrived at the residence. Ricky informed Sergeant Allen that "he, like his sister, had not heard from [Alston] for at least several days . . . ." Sergeant Allen thereafter contacted Alston's employer. Although Ricky was "extremely concerned about the well-being of his brother[,]" based upon the information that had been presented to her, Sergeant Allen did not believe it was necessary to enter the residence. Instead, she believed she should continue her investigation in order to determine whether forced entry was necessary.

Sergeant Allen then "left briefly" to use the restroom. When she returned, Ricky had removed an air conditioning unit from a window and entered the residence. After Ricky "allowed" Sergeant Allen and Sergeant Morgan to enter, the officers walked through the residence. In a bedroom of the residence, Sergeant Allen observed "what appeared to be some dark spots on the wall." Sergeant Allen believed the spots were "some sort of high velocity spatter[,]" and she "considered the possibility" that the spots might be blood and that "some sort of an assault . . . might have taken place within the room." She noticed more dark colored liquid stains on the television, bed, chair, and carpet. Sergeant Allen asked Ricky whether he had seen the spots before. Ricky replied that he had not, and that he believed "perhaps maybe it was paint or something." Sergeant Allen thereafter "decided that a search warrant would be needed to proceed any further inside the residence." Sergeant Allen instructed Ricky to leave the residence, and she directed those officers outside the residence to secure the residence while she obtained a search warrant.

After obtaining a search warrant, Sergeant Allen returned to Alston's residence with Greensboro Police Department Detective David Spagnola ("Detective Spagnola"). While crime scene technicians investigated the bedroom, Sergeant Allen and Detective Spagnola noticed a large, city-issued trash can in the laundry room of the residence. The officers believed it was unusual for the trash can to be inside, and Detective Spagnola attempted to lift it. After Detective Spagnola was unable to lift it, Sergeant Allen believed that there might be a victim inside the trash can. The officers thereafter asked the crime scene technicians to photograph the trash can and its contents. When the officers opened the trash can, they discovered Alston's body inside.

Greensboro Police Department Corporal Michael McIntosh ("Corporal McIntosh") was speaking with Snipes while Alston's residence was being searched. Corporal McIntosh had learned that Snipes was defendant's girlfriend, and that defendant was living with Alston at the residence. During their ensuing conversations, Snipes informed Corporal McIntosh that she had spoken with defendant earlier that week and that defendant had admitted killing Alston. Snipes also informed Corporal McIntosh that defendant called her to apologize for "g[etting] her involved in the situation" and to request that she wire him money in Florida. Corporal McIntosh thereafter asked Snipes to aid him in convincing defendant to turn himself over to the police.

Defendant subsequently turned himself over to the Greensboro Police Department and, on 21 July 2003, he was indicted for the first-degree murder of Alston. Defendant's trial began the week of 12 April 2004. Prior to trial, defendant filed a motion to suppress the evidence seized during the search of Alston's residence. Following a hearing on 8 April 2004, the trial court denied defendant's motion. At trial, defendant testified that he and Alston had been fighting the night of Alston's death, and that he killed Alston in self-defense. On 16 April 2004, the jury found defendant guilty of the first-degree murder of Alston. After finding that defendant had a prior felony record level III, the trial court sentenced defendant to life imprisonment without parole. Defendant appeals.

The dispositive issue on appeal is whether the trial court erred by denying defendant's motion to suppress the evidence found during the search of Alston's residence. Defendant argues that the police officers' initial entry into the residence was unlawful, and that the subsequent search warrant was based upon "fruit of the `poisonous' tree." We agree.

We note initially that while defendant filed a pretrial motion to suppress the evidence seized during the search of Alston's residence, he failed to object at each instance during the trial when this evidence was presented. Although our legislature has recently amended the Rules of Evidence to provide that "[o]nce the [trial] court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal[,]" N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) (2003), this Court has more recently held that this amendment was unconstitutional as it is inconsistent with N.C.R.App. P. 10(b)(1). State v. Tutt, ___ N.C.App. ___, ___, 615 S.E.2d 688, 692-93 (2005). Nevertheless, recognizing that the amendment to Rule 103 went into effect before the instant case went to trial, and that therefore defense counsel was operating under an assumption of its constitutionality, in our discretion pursuant to N.C.R.App. P. 2, we have chosen to review defendant's argument.

Our review of a trial court's denial of a motion to suppress is "strictly 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Although our case and statutory law encourages trial courts to be specific in their orders regarding suppression motions, see, e.g., State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984) ("Findings and conclusions are required in order that there may be a meaningful appellate review of the decision.") and N.C. Gen.Stat. § 15A-977(f) (2003) (requiring the trial court to "set forth in the record [its] findings of fact and conclusions of law" regarding a suppression motion), our Supreme Court has previously stated that "[i]f there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact . . . . In that event, the necessary findings are implied from the admission of the challenged evidence." State v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995) (citations omitted).

In the instant case, the transcript of the suppression hearing reflects that, after eliciting testimony from Sergeant Allen, the State argued that defendant had no standing to object to the initial warrantless entry of Alston's residence, and, in the alternative, that there were sufficient exigent circumstances authorizing law enforcement officials to enter the residence. The trial court thereafter concluded that "in its...