State v. Matthews

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-109 NORTH CAROLINA COURT OF APPEALS Filed: 19 August 2014 STATE OF NORTH CAROLINA v. Mecklenburg County 11 CRS 219314 MEGAEL JERMAINE MATTHEWS Appeal by defendant from judgments entered 22 April 2013 by Judge C. Thomas Edwards in Mecklenburg County Superior Court. Heard in the Court of Appeals 4 June 2014. Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State. Tin Fulton Walker & Owen PLLC, by Matthew G. Pruden, for Defendant-Appellant. McCULLOUGH, Judge. Megael judgments Jermaine entered upon Matthews his ( Defendant ) convictions for appeals from attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious bodily injury, and discharging a firearm into occupied property inflicting serious bodily injury. following reasons we find no error. I. Background For the -2On the evening of 24 April 2011, Charlotte-Mecklenburg police responded to a report of a single vehicle accident at the intersection Charlotte. of West Sugar Creek Road and Hubbard Road in Officer Derrick Bowlin responded to the call, and when he arrived at the scene he found a single vehicle parked in the grass off of the road with several bullet holes in the side. When Officer Bowlin approached the car, the passenger in the driver s seat told him that he had been shot. Later, Officer Bowlin joined other police officers at an address in the 4500 block of Christenbury Hills Lane, about a mile and a half from the scene of the car accident, after reports had come in earlier that day that shots had been fired in that vicinity. Earlier Tiffany that Amaya same looked afternoon, through her upon hearing living room gun shots, window on Christenbury Hills Lane and observed two men walking toward the back of a house. She later described these men as black and approximately 5 9 in height. She described one of the men as in his early 20 s with short dreads and wearing a bright blue shirt. Based on information from neighbors, Detective Ritter and other officers were posted outside of 4542 Christenbury Hills Lane at approximately 10:00 p.m. when two men were seen exiting from that residence, one of whom was later identified as -3Defendant. As soon as Defendant exited the building, Detective Ritter placed him in handcuffs and frisked him for weapons. Immediately after, while still in handcuffs, Defendant placed in the back seat of a patrol car on the scene. was During the approximately forty-five minutes that Defendant was detained in the back of the patrol car an officer was present outside of the car. Defendant has testified that at this time he did not feel free to leave, but that he was told several times that he was not under arrest. After forty-five minutes in the police cruiser, Defendant was uncuffed and asked to exit so that a show-up identification could be performed. It was at this time that Ms. Amaya was asked to perform the show-up identification of a suspect. Ms. Amaya observed that the suspect, Defendant, was approximately 5 9 , had dreads, and was wearing a navy blue shirt, which she identified person as she a had different observed color walking from the behind shirt the worn house. by the She was unsure whether the suspect was the person that she had observed previously in the afternoon. At the scene, Detective Manassah questioned Defendant about what he had done that day, and then requested that he accompany the officers questioning. to the Law Enforcement Center ( LEC ) With Detective Manassah s permission, for Defendant -4called his father, who drove Defendant to the police station. to the scene and accompanied During the ride, Defendant was unrestrained, sat in the front seat, and used his cell phone. At the LEC, Defendant was placed in an interview room and the questioning began at 12:09 a.m. Defendant Eventually, gave several Defendant During the questioning, different confessed to accounts shooting of the his story. victim after discovering that the $100 bill the victim had paid Defendant in a marijuana transaction was counterfeit. At this time, 4:31 a.m., Defendant was placed under arrest and read his Miranda rights. During the interview, Defendant was left alone several times, and was told that there was a bathroom down the hall if he needed to use it. Defendant was also able to privately speak with his father in the interview room shortly after 3:00 a.m. Defendant was later indicted by a Mecklenburg County Grand Jury on one count of attempted first degree murder, one count of assault with a deadly weapon with intent to kill inflicting serious injury, one count of discharging a firearm into occupied property inflicting serious bodily injury, and six counts of discharging a firearm into a vehicle in operation. Prior to trial, Defendant moved to suppress the statements he made to -5police. A hearing on the motion to suppress was held on 11-12 April 2013. This motion was denied on 15 April 2013. On 15 April 2013, Defendant s case was called for trial in Mecklenburg Edwards, County Judge Superior the Honorable After presiding. Court, the State C. Thomas presented its evidence, Defendant moved for a dismissal, which was denied. Defendant presented no evidence, and the jury returned verdicts finding Defendant guilty of all charges on 22 April 2013. That same day, the trial judge sentenced Defendant to a term of 125 to 161 months in prison for the charge of attempted first degree murder, under which the judge consolidated the charge of assault with a deadly weapon with intent to kill inflicting serious bodily injury. consecutive The term of Judge 72 to also 96 sentenced months Defendant for the to charge a of discharging a firearm into occupied property inflicting serious bodily injury, and consolidated the remaining charges under this sentence. That day, 22 April 2013, trial counsel for Defendant allegedly entered an oral notice of appeal in open court. The notice, however, was not recorded by the court reporter and does not appear in the transcript of the trial. II. Discussion Defendant raises the following issues on appeal: (1) whether the trial court erred in denying Defendant s motion to -6suppress statements made to the police during a period of questioning that occurred before Defendant was read his Miranda rights; (2) whether Defendant received ineffective assistance of counsel where his attorney did not raise a Fourth Amendment argument in his motion to suppress Defendant s statements to police; and Defendant s (3) whether motion to the dismiss trial court the charge erred of in denying discharging a firearm into an occupied vehicle in operation where there was no direct evidence that the vehicle was in operation at the time the shots were fired. A. Notice of Appeal Defendant appeals to this Court as of right under N.C. Gen. Stat. § 7A-27(b) and N.C. Gen. Stat. § 15A-1444(a). Now on appeal, Defendant contends trial counsel orally entered notice of appeal per Rule 4 of the North Carolina Rules of Appellate Procedure at trial. However, Defendant s oral notice of appeal does not appear in the transcript. In an attempt to remedy this situation, Defendant s trial counsel has filed an affidavit in the record that certifies he entered such oral notice of appeal at trial on 22 April 2013. Furthermore, Defendant points to State v. Williams, in which this Court held that it had jurisdiction to address the merits of a defendant s appeal where -7the record reflect[ed] that the State, the trial court, and Defendant s counsel all proceeded as if proper notice of appeal had been properly noted. Upon Defendant s request, the trial court appointed the Appellate Defender s Office to represent her, and stayed the execution of judgment pending resolution of the matter in the Court of Appeals. The trial court stated in its Appellate Entries form that [D]efendant has given Notice of Appeal to the N.C. Court of Appeals, and ordered that [Defendant] is allowed to appeal as an indigent. State v. Williams, 215 N.C. App. 1, 4, 714 S.E.2d 835, 837 (2011) (alterations in original), affirmed, 366 N.C. 110, 726 S.E.2d 161 (2012). In the case before us, all parties have proceeded as if notice of appointed appeal the had been Appellate properly noted: Defender s the Office trial to court represent Defendant, the trial court noted in its appellate entries that [t]he defendant has given Notice of Appeal to the N.C. Court of Appeals, and ordered that the defendant is allowed to appeal as indigent. Under these circumstances, in comporting with our holding in Williams, we hold that Defendant s right to appeal is preserved and this court has the appropriate jurisdiction to resolve this case on the merits.1 1 Out of precaution, Defendant has also petitioned this court for writ of certiorari. Having determined Defendant s right to appeal is preserved, we dismiss defendant s petition as moot. -8B. Motion to Suppress Confession Defendant first argues that denying his motion to suppress. the trial court erred in The North Carolina Supreme Court has previously held that: On review of a motion to suppress evidence, an appellate court determines whether the trial court s findings of fact are supported by the evidence and whether the findings of fact support the conclusions of law. The trial court s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. The conclusions of law, however, are reviewed de novo. State v. Haislip, 362 N.C. 499, 499-500, 666 S.E.2d 757, 758 (2008) (internal quotations and citations omitted). Furthermore, [w]here a defendant fails to challenge any of the trial court s findings of fact relating to the motion, our review is limited to whether the trial court s findings of fact support its conclusions of law. State v. Allen, 200 N.C. App. 709, 712 13, 684 S.E.2d 526, 529 (2009) (citations omitted). Here, the Defendant has not contested any of the findings of fact on appeal, merely the application of the law to the facts. Therefore, our review of the motion to suppress is on an entirely de novo basis. As the State notes in its brief, the law differentiates between the free to leave test under the Fourth Amendment for the purposes of the seizure of a person and the restraint of -9movement test found under the Fifth Amendment for the purposes of a detainment that rises to the level of a formal, custodial arrest. State v. Buchanan, 353 N.C. 332, 340, 543 S.E.2d 823, 828 (2001). In Miranda v. Arizona, the U.S. Supreme Court held that custodial interrogation involves questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706 (1966) (emphasis added). The Supreme Court later elaborated that a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a coercive environment. Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person s freedom as to render him in custody. -10Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977). In Mathiason, the Supreme Court held that even though a suspect was being voluntarily questioned at the police station behind closed doors, and where the police lied to the suspect and warned him about his truthfulness, the questioning was not custodial, and did not require Miranda warnings. Id. at 493, 50 L. Ed. 2d at 718. Finally, in California v. Beheler, the Supreme Court held that [a]lthough the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 1279 (1983) (quoting Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719). In the present case, the actions of the police do not appear tantamount to placing Defendant under custodial arrest. Defendant was initially placed in handcuffs for the safety of the officers. At that time he was in investigatory detention, which was warranted because the police had reasonable suspicion -11that a crime had been committed and that he had been involved. In North Carolina, [o]nly unreasonable investigatory stops are unconstitutional. An investigatory stop must be justified by a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. A court must consider the totality of the circumstances the whole picture in determining whether a reasonable suspicion to make an investigatory stop exists. The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. The only requirement is a minimal level of objective justification, something more than an unparticularized suspicion or hunch. State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 70 (1994) (internal citations and quotations omitted). Here, the police had specific articulable facts, including the fact that the house where Defendant left from was close to the shooting and there was a witness that saw two men walk into the home shortly after hearing gun shots. The investigatory detention, was though forty-five minutes long, not improper because during this time the police were checking Defendant s record and Defendant attempting was taken to out set of up a handcuffs show-up for identification. this show-up and -12remained out of handcuffs until his eventual arrest early the next morning. After the police uncuffed Defendant, he was told he was not under arrest; he was asked to come to the station for voluntary questioning; he was allowed to call his father and have his father accompany him to the police station; he rode in the front seat of the police vehicle; the door to the questioning room remained open until Defendant closed it himself; he was allowed to use the bathroom unaccompanied while at the station; and he was allowed to use his cell phone during breaks. these circumstances, it does not appear that In light of Defendant was restrained in his freedom of movement to a degree comparable to a lawful, custodial arrest. Although the questioning may have had coercive aspects, and the officers may have appeared tough on Defendant in questioning, this alone is not sufficient to require Miranda warnings. Therefore, Defendant was not under a custodial interrogation when he made his confession to the police, and Miranda warnings were not required. Further, the voluntariness of the questioning, and thereby the confession, were not tainted by the initial investigatory detention of Defendant because the police had reasonable suspicion to detain him at that time. C. Ineffective Assistance of Counsel -13Defendant next claims that he was denied effective assistance of counsel when his trial counsel did not argue a violation motion to of the Fourth suppress his Amendment confession. in support The of law Defendant s on claims of ineffective assistance of counsel is well settled and several precedential decisions dictate our scope of review. As to whether an ineffective assistance of counsel claim can be dealt with on appeal, [the Supreme] Court has stated, [i]neffective assistance of counsel claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing. Therefore, on direct appeal we must determine if these ineffective assistance of counsel claims have been prematurely brought. If so, we must dismiss those claims without prejudice to the defendant s right to reassert them during a subsequent motion for appropriate relief proceeding. State v. Campbell, 359 N.C. 644, 691, 617 S.E.2d 1, 30 (2005) (internal citations and quotations omitted). Further, when claims are ripe for review, this Court must be highly deferential and indulge a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance[....] Defendant may rebut this presumption by specifically identifying those acts or omissions that are not the result of reasonable professional judgment and the court determining, in light of all the -14circumstances, the identified acts [or omissions] were outside the wide range of professionally competent assistance. State v. Banks, 210 N.C. App. 30, 49, 706 S.E.2d 807, 821 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 689-90, 80 L. Ed. 2d 674, 694-95 (1984)) (alterations added). should recognize that counsel is strongly [T]he court presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695. When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel s conduct fell below an objective standard of reasonableness. State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985). North Carolina has adopted and followed the two-part test laid out in Strickland for determining whether counsel s conduct fell below such an objective standard: In order to meet this burden, a defendant must satisfy a two-part test: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. -15Campbell, 359 N.C. at 690, 617 S.E.2d at 29 (2005) (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693). In further defining these terms, the North Carolina Supreme Court followed Strickland in defining that [p]rejudice is established by showing that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. is a probability outcome. sufficient to A reasonable probability undermine confidence in the Id. at 690, 617 S.E.2d at 29-30 (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698). Furthermore, [b]oth prongs of this test must be met to prevail on an ineffective assistance of counsel claim. Id. at 690, 617 S.E.2d at 30. This Court has held that [c]ounsel is given wide latitude in matters of strategy, and the burden to show that counsel s performance fell short of the required standard is a heavy one for defendant to bear. Id. (quoting State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L. Ed. 2d 73 (2002)). Moreover, this Court indulges the presumption that trial counsel s representation is within the boundaries of acceptable professional conduct. Id. (citing State v. Fisher, 318 N.C. 512, 532, 350 S.E.2d 334, 346 (1986)). -16In the case before us, it does not appear that Defendant has met the heavy burden of proving that trial counsel was ineffective. The absence of a Fourth Amendment argument as to the admissibility of Defendant s statement does not, by itself, render counsel s reasonableness. assistance below an objective standard of Defendant would have to prove (1) that the performance of his trial counsel was deficient, and (2) that this deficiency worked a prejudice against his defense. The defense s argument that trial counsel s performance was deficient is based on the assumption that suppression of the confession was warranted due to the unlawful detention Defendant during the time of the show-up identification. discussed above, detention was we do unlawful, not and find that therefore this it of As we investigatory would have been unnecessary, and indeed unfruitful, if trial counsel had pursued it. As Defendant has failed under the first Strickland test, we need not discuss the second. would seem clear that prong of the However, it Defendant cannot be prejudiced by the absence of an unfruitful argument, and this Court s confidence in the outcome of the case is in no way undermined as a result of the absence of said argument. -17Because this Court is required to indulge in a strong presumption [that] counsel s conduct falls within the wide range of reasonable professional assistance, we do not Defendant has met the burden of proving this case. find that Furthermore, it is appropriate to decide this issue at this time because the cold record reflects all of the relevant facts and there does not appear to be any reason for instigating an investigation into trial counsel s conduct. Defendant counsel. did Trial not counsel receive is given ineffective a wide assistance latitude in of trial strategy, and Defendant has not proven that the absence of a Fourth Amendment argument below an was a argument decision objective to that standard accompany rendered of a Fifth counsel s reasonableness Amendment performance or that the absence of such an argument worked a prejudicial effect into the outcome of the trial. D. Motion to Dismiss In Defendant s final argument on appeal, Defendant contends that the trial court erred in denying his motion to dismiss the charges of discharging a firearm into a vehicle in operation. The standard of review for an appellate court s review of a motion to dismiss for insufficient evidence is well settled. Evidence is sufficient to sustain a conviction when, viewed in the light most -18favorable to the State and giving the State every reasonable inference therefrom, there is substantial evidence to support a jury finding of each essential element of the offense charged, and of defendant s being the perpetrator of such offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility. Evidence is not substantial if it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, and the motion to dismiss should be allowed even though the suspicion so aroused by the evidence is strong. This Court reviews the denial of a motion to dismiss for insufficient evidence de novo. If substantial evidence, whether direct, circumstantial, or both, supports a finding that the offense charged has been committed and that the defendant committed it, the motion to dismiss should be denied and the case goes to the jury. State v. Bettis, 206 N.C. App. 721, 728-29, 698 S.E.2d 507, 512 (2010) (quoting State v. Wilkerson, 196 N.C. App. 706, 708-09, 675 S.E.2d 678, 680 (2009)) (internal citations and quotations omitted). Our Supreme Court has held that: When determining the sufficiency of the evidence to support a charged offense, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. A -19defendant s motion to dismiss must be denied if the evidence considered in the light most favorable to the State permits a rational jury to find beyond a reasonable doubt the existence of each element of the charged crime and that defendant was the perpetrator. Whether the evidence presented is direct or circumstantial or both, the test for sufficiency is the same. Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence supports a reasonable inference of defendant s guilt based on the circumstances, then it is for the [jurors] to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty. State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998) (internal citations and quotations omitted). Here, taking all inferences in the light most favorable to the State, the denial of the motion to dismiss was appropriate. Although there is no direct evidence that the vehicle was in operation at the time of the shooting, it is a reasonable inference that arises from the other undisputed facts, such as the fact that the victim s car was found crashed on the side of the road with tire tracks being found behind it, spent shell casings were found at the intersection of Emma Lynn Court and Christenbury Hills Lane, and a bullet was found in the road, as -20well as several other bullets found in the victim s driver s side door. With the evidence standing as such, it is for the [jurors] to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty. of evidence appropriate of an here The denial of the motion to dismiss for lack essential because element the of a charged circumstantial crime evidence was was sufficient to provide the jury with a reasonable inference of Defendant s guilt. III. Conclusion For the reasons stated above, this Court finds no error in the findings or holdings of the Superior Court of Mecklenburg County. No error. Judges STEPHENS and STROUD concur. Report per Rule 30(e).

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