State v. Phipps

• Decision Date: 25 June 1992
• Docket Number: No. 565A90,565A90
• Citation: 331 N.C. 427,418 S.E.2d 178
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Mickey Alton PHIPPS.

Page 178

418 S.E.2d 178

331 N.C. 427

STATE of North Carolina v. Mickey Alton PHIPPS.

No. 565A90.

Supreme Court of North Carolina.

June 25, 1992.

Lacy H. Thornburg, Atty. Gen., by Valerie B. Spalding, Asst. Atty. Gen., Raleigh, for the State.

D. Thomas Lambeth, Jr., June K. Allison, and Julie A. Risher, Burlington, for defendant-appellant.

WHICHARD, Justice.

Defendant appeals his convictions for first-degree murder and robbery with a dangerous weapon. In a capital trial, the jury found defendant guilty of first-degree murder on the basis of both premeditation and deliberation and the felony murder rule. The jury recommended a sentence of life imprisonment for the murder. The trial court imposed that sentence in addition to a forty-year sentence for the robbery conviction. We conclude that the trial court erred in failing to submit the charge of second-degree murder, but we hold the error to be nonprejudicial in light of the felony murder verdict. Because the first-degree murder conviction may be upheld only by virtue of the felony murder rule, however, we arrest judgment on the underlying felony, robbery with a dangerous weapon.

The State presented evidence tending to prove the following facts and circumstances On 7 May 1989, Janice Sheets was working as the manager of the Adams Seafood restaurant in North Wilkesboro. As manager, one of her duties was to make the night deposit at First Union Bank. Sheets left the restaurant at about 11:00 p.m. and drove her car to make the deposit. A night watchman in the vicinity of the bank saw Sheets' car in the parking lot at 11:40 p.m. and again at 12:40 a.m. A depositor discovered Sheets' car in the bank parking lot at approximately 1:20 a.m. and reported it to the authorities. Officers Burns and Bailey of the North Wilkesboro Police Department investigated the report and found the dead body of Janice Sheets.

The autopsy revealed both blunt and sharp force injuries to the victim's head and a defensive injury to one finger on the victim's right hand. The victim received as many as eighteen blows to the head, but the cause of death was an incised wound or a sharp force wound to the neck. This wound was approximately four inches long, one and one-half inches wide, and it involved a complete transection, or cutting, of the right jugular vein.

The murder investigation revealed that two bank deposit bags containing cash, checks, and credit card receipts totalling $9,556.65 were taken from Janice Sheets. Nineteen identifiable fingerprints were found in the victim's car, fifteen of which matched the victim's. The four remaining identifiable fingerprints did not match the victim's or defendant's, but were otherwise unidentified. Investigators found several other latent prints with insufficient ridge detail for proper identification. Forensic tests of blood and hair samples failed to identify a suspect.

Two witnesses testified that they saw an individual matching defendant's general description in the vicinity of the murder scene near the time of the crime. One identified defendant as the individual she saw that night.

As part of the murder investigation, SBI Special Agent Steve Cabe spoke with employees of the restaurant, including defendant, who worked as a cook and busboy. Agent Cabe first spoke with defendant on 8 May 1989. Defendant told Cabe he had left the restaurant at about 10:00 p.m. and gone to the Run-In, a nearby convenience store, and talked with Mark McNeill. In a second conversation with Agent Cabe, on 10 May 1989, defendant said he had bought a six-pack of beer and some gasoline at the Run-In. Defendant said he spoke with McNeill and then went straight home. After learning that investigators had interviewed his wife, defendant admitted that he had not gone straight home but instead had been with his cousin, Lois Bailey, until midnight. Defendant told Cabe that he had been seeing Lois for approximately four years, and that they parked his car in an alley that evening.

Lola Simpson, whose maiden name was Bailey, ¹ testified that she had known defendant for about seven years and that they had had an affair for about four years. Simpson testified that defendant called her on 12 May 1989 and told her he had given the police her name and that he needed an alibi for the time of Janice Sheets' murder. Defendant responded negatively when Simpson asked him if he had killed Sheets. He said that he needed the alibi because he had been out drinking with Tracy Dowell, who was underaged, and did not want to get Tracy in trouble. Simpson indicated to defendant that she needed to think about whether to provide him with an alibi. Tracy Dowell testified at trial that he was not with defendant on the evening of the murder.

Defendant called Simpson again on 18 May 1989 to ask whether the police had spoken with her. He again said he wanted her to tell the police that he was with her between 10:30 and 11:00 p.m. on the evening of the murder. Police officers spoke with Simpson the next day, and she told them she had been at her mother's house on the evening of 7 May and defendant had not been with her.

Defendant spoke with SBI Special Agent William Foster at the police department on 19 May 1989. According to Foster, defendant said he had "told some fabrications" because he did not have an alibi for the night of Janice Sheets' murder. In this interview, defendant told Foster that Sheets had asked him to put a cardboard box in her car just before he left work. Defendant complied with that request and then told Sheets he was leaving. Defendant went to the Run-In and then waited in the alley for Lola Simpson. Defendant drank a couple of beers, drove around for a while, and then went home.

Less than a month later, defendant admitted his responsibility for the death of Janice Sheets. SBI Special Agent Jonathan Jones testified that defendant made the following inculpatory statement to him on 8-9 June 1989:

I got of [sic] work at Adams Seafood and Steakhouse around 10:30 p.m. Sunday night. I called my mother from the pay phone at Adams Seafood and Steakhouse. Jan asked me to put a box in the car. I used Jan's keys to unlock her car and put the box on the front seat. I think the box contained papers. I locked Jan's car and gave Jan her keys back. I got in my car and smoked pot and drank beer and rode around. At approximately 10:45 p.m., I went back to Adams and sat in my car and drank beer. Jan came out and asked me to ride with her to make the deposit. I got in Jan's gray Buick and ask [sic] Jan how much money did they take in. Jan said thirty-some hundred. I asked Jan--excuse me--I asked could I have the money and Jan said, "No." We drove to the bank and I said, "Janice, I really need this money because I am about to lose my house." She said, "Hell, no!" Jan started out of the car and I grabbed her by the hair and pulled her into the car. She smacked me in the face. I hit her around the head with my hand. Jan had a ratchet that was silver chrome. She tried to hit me with it. I blocked it. It fell to the floor. I picked it up and hit Jan in the head with the ratchet several times. It stung her, but didn't knock her out. Jan came up with a knife and Jan tried to cut me. We wrestled and I got the knife and stabbed Jan in or around the neck. She was bleeding a lot. I picked up everything I had my hands on and the money bag and the ratchet or bar and her keys and ran, ran towards my car at Adams.

The State also presented evidence that defendant was in dire financial straits. Shortly before the murder, defendant unsuccessfully sought loans of more than one thousand dollars from two financial institutions, and he faced foreclosure on his residence. Yet, within a week after the murder and robbery, defendant made up two delinquent house payments with $2,137.75 in cash. He also made up delinquencies on two other loan accounts and a Duke Power Company account. Further, he made retribution in cash of almost $100 worth of bad checks he had written.

Defendant presented no evidence at the guilt stage of the trial. The jury returned a verdict of guilty of first-degree murder, based on both the felony murder rule and a finding of premeditation and deliberation, and robbery with a dangerous weapon. The jury recommended that defendant receive a sentence of life imprisonment for the murder. The trial court sentenced defendant to life imprisonment for the murder conviction and to a consecutive forty-year term for the robbery conviction.

In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress certain inculpatory statements. During the investigation, law enforcement officials questioned defendant at least ten times. The questioning culminated in the 8-9 June confession described above. Defendant argues that his motion to suppress the inculpatory statements should have been granted because the statements were obtained prior to his having been advised of his constitutional rights and under such circumstances that the statements were made unknowingly, unintelligently, and involuntarily. We disagree.

Judge Rousseau denied defendant's motion to suppress on the grounds that

all statements given by the Defendant to the officers or to Officer Cabe on May the 8th, and 10th, to Chief Miller on May the 10th, to Detective Jarvis on May the 10th, May the 19th, June the 2nd, June the 5th, and June the 8th, were freely and voluntarily given; that at no time was the Defendant arrested or in custody, and that he was not entitled at that time to any Miranda warnings....

The Court further concludes that no reasonable person would have believed that he was in custody prior to 2:00 a.m. on June 9, 1989, and therefore, the defendant was not entitled to any Miranda warnings prior to that time.

The Court further concludes that the Defendant freely and voluntarily went to the SBI office in Hickory with North Wilkesboro police officers and that at that...