Opinion
No. 07-614.
Filed March 18, 2008.
Guilford County No. 05CRS72993.
Appeal by Defendant from order entered 21 June 2006 by Judge John O. Craig, III and from judgment entered 7 November 2006 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 10 December 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for the State. Brock, Payne Meece, P.A., by C. Scott Holmes, for Defendant.
On 22 March 2005, Defendant Quantine Alexander Little was arrested and taken into custody by Detective Shawn Hosier of the High Point Police Department for the murder of Kenneth Roberts. Defendant was read his Miranda rights when he arrived at the police station at approximately 1:16 p.m. Defendant waived those rights, agreed to make a statement, and was subsequently interviewed by Detectives Hozier and Kevin Ray. Throughout the course of the interview, Defendant gave numerous different, conflicting versions of the events that took place on the night of Kenneth Roberts' murder. In his final taped statement at 4:25 p.m., Defendant admitted to shooting the victim. Defendant was charged with capital murder. Defendant moved to suppress evidence obtained as a result of a search of Defendant's residence and to suppress evidence obtained as a result of the interview by law enforcement officers. A hearing on Defendant's motion was conducted on 31 May 2006, and in an order entered 21 June 2006, Defendant's motion to suppress evidence seized pursuant to the search warrant was granted, but his motion to suppress his confession was denied. The matter proceeded to trial and on 7 November 2006, the jury found Defendant guilty of second-degree murder. Thereafter, the trial court entered judgment on the jury verdict, sentencing Defendant to 251 to 311 months in prison. Defendant gave timely notice of appeal in open court.
By his first assignment of error, Defendant asserts that the trial court erred in denying Defendant's motion to suppress his statement to law enforcement officers because his rights under N.C. Gen. Stat. § 15A-501 (1), (2), and (5) were violated.
Upon the arrest of a person, with or without a warrant, but not necessarily in the order hereinafter listed, a law-enforcement officer:
(1) Must inform the person arrested of the charge against him or the cause for his arrest.
(2) Must, with respect to any person arrested without a warrant and, for purpose of setting bail, with respect to any person arrested upon a warrant or order for arrest, take the person arrested before a judicial official without unnecessary delay.
. . . .
(5) Must without unnecessary delay advise the person arrested of his right to communicate with counsel and friends and must allow him reasonable time and reasonable opportunity to do so.
N.C. Gen. Stat. § 15A-501 (2005).
Although Defendant claims on appeal that he was not immediately told of the charges against him upon arrest, in violation of N.C. Gen. Stat. § 15A-501(1), Defendant made no such allegation in his motion to suppress or at the suppression hearing. "It was [D]efendant's duty under [N.C. Gen. Stat. §] 15A-951(2) to state the grounds of the motion. Not having done so, the issue was not properly before the trial court[,]" State v. Curmon, 295 N.C. 453, 456, 245 S.E.2d 503, 505 (1978), and, thus, is not reviewable on appeal. N.C. R. App. P. 10(b)(1). ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make. . . .")
Defendant also contends that his right to be taken before a magistrate without unnecessary delay, as required by N.C. Gen. Stat. § 15A-501(2), was violated. Defendant was arrested at noon, given his Miranda warnings at 1:16 p.m., and signed a waiver of those rights. He was then interrogated for about two hours, during which time Defendant's account of his activities on the night of the crime changed frequently. After a break, Defendant was interrogated for about another hour. At about 4:25 p.m., the detectives began recording the interview, which concluded at 4:39 p.m. Shortly thereafter, Defendant was taken before a magistrate. The defendant in State v. Chapman, 343 N.C. 495, 471 S.E.2d 354 (1996), also contended that his right to be taken before a magistrate without unnecessary delay was violated. From 9:30 a.m. when Defendant was arrested until 8:00 p.m. when he was taken before a magistrate, a large part of the time was spent interrogating the defendant. The North Carolina Supreme Court ruled that "[t]he officers had the right to conduct these interrogations, and it did not cause an unnecessary delay for them to do so." Id. at 499, 471 S.E.2d at 356.
Likewise, in State v. Littlejohn, 340 N.C. 750, 459 S.E.2d 629 (1995), the North Carolina Supreme Court held that the defendant's statement was not obtained by a violation of N.C. Gen. Stat. § 15A-501(2) where there was a thirteen-hour delay between the time the defendant was taken into custody and the time he was taken before a magistrate. During this delay, the officers interrogated the defendant for ten hours before he confessed. The defendant argued that if he had been taken before the magistrate and advised of his rights earlier, he would not have made the statement. However, as the officers had fully advised the defendant of his constitutional rights before the interrogation began, the Court reasoned that even if the defendant had been taken before a magistrate, he would have been advised of those same rights. "We cannot hold that the defendant would have exercised his right to remain silent if he had been warned of this right by a magistrate rather than the officer." Id. at 758, 459 S.E.2d at 634.
Here, fewer than five hours passed between Defendant's arrest and his appearance before a magistrate, significantly less delay than in either Chapman or Littlejohn. Furthermore, as in Chapman and Littlejohn, a majority of this time was spent interviewing Defendant. As stated in Chapman, "[t]he officers had the right to conduct these interrogations, and it did not cause an unnecessary delay for them to do so." Chapman, 343 N.C. at 499, 471 S.E.2d at 356. Furthermore, like the defendant in Littlejohn, Defendant here was given Miranda warnings before he was interviewed and "[w]e cannot hold that [D]efendant would have exercised his right to remain silent if he had been warned of this right by a magistrate rather than the officer." Littlejohn, 340 N.C. at 758, 459 S.E.2d at 634. Accordingly, as in Chapman and Littlejohn, we hold that there was no unnecessary delay between the time Defendant was arrested and the time he was taken before a magistrate.
Defendant also alleges the officers did not advise him of his right to communicate with friends in violation of N.C. Gen. Stat. § 15A-501(5). Defendant testified that as soon as he arrived at the High Point police station, he asked the arresting officers if he could call his grandmother. He claimed he was told he would have to wait until after he got to the jailhouse. Defendant also testified that after the interrogation began, he asked to call a friend but was again told he would have to wait until he got to the jailhouse.
In Curmon, 295 N.C. 453, 245 S.E.2d 503, the defendant argued that his case should have been dismissed because his arresting officers allegedly failed to inform him of his right to communicate with friends pursuant to N.C. Gen. Stat. § 15A-501(5). However, the Court stated that "[a] mere technical error will not entitle a defendant to a new trial; rather, it is necessary that the error be material and prejudicial." Id. at 457, 245 S.E.2d at 505. Thus, the Court held that, "in view of the findings that defendant was informed of his Miranda rights, waived these rights, and voluntarily submitted his statement to police, we do not see how defendant could have suffered prejudice had he actually been denied his statutory right to communicate with friends." Id. at 456-57, 245 S.E.2d at 505.
In Chapman, 343 N.C. 495, 471 S.E.2d 354, the Court found, and the State conceded, that the defendant was not advised of his right to communicate with friends. However, as the defendant had been given his Miranda warnings before he confessed to committing several crimes, the Court, "based on the language of Curmon, [concluded] that the defendant was not prejudiced by the failure to advise him of his right to communicate with his friends." Id. at 499, 471 S.E.2d at 356.
Assuming, arguendo, that Defendant in this case was not advised of his statutory right to communicate with friends, like the defendants in Curmon and Chapman, Defendant suffered no prejudice as a result of this "mere technical error [.]" Curmon, 295 N.C. at 457, 245 S.E.2d at 505. Defendant was advised of his Miranda rights and voluntarily waived those rights. The trial court specifically found that Defendant's subsequent confession was not the product of coercion or promise of benefits and there is no evidence that Defendant would not have confessed had he spoken to his grandmother. Accordingly, we hold, based on Curmon and Chapman, that Defendant was not prejudiced by the failure to advise him of his right to communicate with his friends. In light of this, we conclude that the trial court did not err in denying Defendant's motion to suppress his statement because his rights under N.C. Gen. Stat. § 15A-501 were not violated.
By his next assignment of error, Defendant contends the trial court erred in sustaining the State's objection to Defendant's cross-examination of a witness regarding a pending charge of probation violation. The State called Andre Little, Defendant's cousin, to testify to what Defendant had told him about Defendant's involvement in the murder. On cross-examination, defense counsel presented evidence that Little had pled guilty to trafficking in cocaine but was given probation instead of an active prison term for that offense because he had provided the State with "substantial assistance" in Defendant's case. Thereafter, defense counsel had Little admit that he had subsequently pled guilty to four breaking and entering charges, two larcenies, and speeding to elude arrest with two aggravating factors. Defense counsel then asked:
Q: In May of this year, they filed a probation violation report against you?
Asst. Dist. Atty: Objection.
Court: Sustained.
Q: Well, as you're sitting here now, you have a pending probation violation matter to contend with, don't you?
A: Yes, sir.
Q: That's one of the things that you're facing; right?
A: Yes, sir.
Q: You're now looking at least that 35 months that you didn't get originally for the trafficking in cocaine; right?
A: Yes, sir.
Defendant argues that by sustaining the State's objection, the trial court violated Defendant's Sixth Amendment right to confront adverse witnesses because bias was an important area of examination. Even had the trial court erred in sustaining the objection, Defendant suffered no prejudice as a result because the evidence he was attempting to elicit was immediately admitted in response to another question. See State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982) (explaining that no prejudice arises from the erroneous exclusion of evidence when the same or substantially the same testimony is subsequently admitted into evidence). Accordingly, there was no prejudicial error in sustaining the State's objection to Defendant's cross-examination, and Defendant's assignment of error is overruled.
We hold Defendant received a fair trial, free of prejudicial error.
NO ERROR.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).