State v Davis
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NO. COA14-258 NORTH CAROLINA COURT OF APPEALS Filed: 21 October 2014 STATE OF NORTH CAROLINA v. Cumberland County No. 11 CRS 009135 ANTOINETTE NICOLE DAVIS Appeal by defendant from judgment entered 18 October 2013 by Judge James Floyd Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 27 August 2014. Attorney General Roy Cooper, by Assistant Attorney General Kathleen N. Bolton, for the State. Amanda S. Zimmer for defendant-appellant. HUNTER, Robert C., Judge. Antoinette Nicole Davis ( defendant ) appeals from judgment entered pursuant to her Alford plea to two counts of felonious child abuse and one count each of second degree murder, human trafficking, conspiracy to commit sexual offense of a child by an adult offender, first degree kidnapping, first degree sexual offense, sexual servitude, and taking indecent liberties with a minor. On appeal, defendant challenges the trial court s denial of her motion to suppress incriminating statements made to law -2enforcement personnel during interviews conducted in November 2009. Specifically, defendant argues that the trial court erred by concluding that: (1) defendant was not subject to custodial interrogation during these interviews, and (2) her confession was voluntarily and understandingly made. After careful review, we affirm the trial court s denial of defendant s motion to suppress. Background From 10 November 2009 through 14 November 2009, defendant was interviewed four times by law enforcement personnel at the Fayetteville City Police Department. She went to the police department voluntarily for each of the four interviews, with the stated purpose of helping the officers find her missing fiveyear-old daughter, S.D.1 A. The First Interview On 10 November 2009, defendant called 911 to report that S.D. was missing. She went to the police station and spoke with Detective Bowman Tracey ( Detective Bowman ). The first interview began at 8:54 a.m. and lasted approximately six hours and nine minutes. room 1 for long Defendant was left alone in the interview periods of time, with the door closed but To protect the privacy of the minor victim, we will refer to her using her initials. -3unlocked. Detective Bowman told defendant that she was keeping the door closed as a safety precaution because criminal suspects were inside the building. Defendant was allowed to take bathroom and cigarette breaks, but was accompanied by Detective Bowman during each. Department Defendant safety was Detective Bowman explained that a Police code offered required beverages that she several escort times defendant. throughout the interview and was given food to eat. In the first interview, defendant told Detective Bowman that she did not know what happened to S.D. or who could have taken her. At the time, defendant and S.D. were living in a trailer with defendant s sister, Brenda. Defendant claimed to have put S.D. to sleep in S.D. s brother s bedroom at around 5:00 a.m. that morning, and that at around 6:00 a.m., S.D. s brother told defendant that S.D. was no longer in the bed with him. When defendant discovered that no one in the trailer had seen S.D., she searched the front part of her neighborhood then called the police. Towards the end of the interview, defendant expressed frustration at being at the police station for so long, because she wanted to be out looking for S.D. Detective Bowman told her she could leave if she really wanted to, but defendant declined. -4Defendant left the station approximately six hours after arriving. B. The Second Interview The second interview began at 5:25 p.m. on 11 November 2009 and lasted approximately thirty minutes. During this interview, defendant told Detective Bowman that her boyfriend, Clarance Coe ( Coe ), had taken S.D. She claimed that he hit S.D. twice in the face in the early morning hours of 10 November 2009 after having an intense argument with defendant. Although defendant claimed that she tried to stop him, Coe took off in a car with S.D. be Defendant told Detective Bowman that she believed S.D. to somewhere around the Murchison Road area. After taking defendant s statement, Detective Bowman checked to see if there were any new developments in the case. Soon thereafter, defendant left the station. C. The Third Interview The third interview began at 8:38 p.m. on 12 November 2009 and lasted approximately forty-six minutes. initiated the interview by telling defendant Detective Bowman that defendant had been lying about what happened to S.D. she knew Detective Bowman yelled and cursed at defendant, repeatedly accusing her of lying. Defendant began to cry. Detective Bowman showed -5defendant a photograph of S.D. with Mario McNeil, also known as Mono, and asked defendant what she thought Mono would say when he was caught. previous day Defendant then admitted that she had lied the and disappearance. that Coe had nothing to do with S.D. s Detective Bowman told defendant that her false statements lead to Coe s arrest and incarceration and that lying to a federal agent is a federal offense punishable by up to five years in prison. During the interview, Detective Bowman left the room and closed the door as a safety precaution due to other prisoners being in the building. Defendant asked for and received a glass of water, at which time Detective Bowman told defendant that they needed to work together to get S.D. back safely. told Detective Bowman that defendant s sister, Brenda. a bathroom break and was Mono had a Defendant relationship with Defendant was then allowed to take left alone in the interview room. Before defendant left the police station, Detective Bowman told her that she did not know what would happen as a result of defendant s lies, and that [a]ll we care about right now is finding your daughter. Defendant thanked Detective Bowman and left the police station. D. The Fourth Interview -6The fourth and final interview began at 11:53 a.m. on 14 November 2009 and lasted approximately five hours and thirty minutes. was Rather than speaking with Detective Bowman, defendant interviewed Pollard ) and by Detective Sergeant Chris Carolyn Pollard ( Detective Corcione ( Sgt. Corcione ). Defendant was seated in the back corner of the interview room, with Detective Pollard and Sgt. Corcione between her chair and the door. After approximately two hours of discussing defendant s personal background, defendant indicated that her stomach hurt. Detective She told the officers that she was pregnant. Pollard suggested that defendant go to the Health Department for an examination, but defendant refused and said [m]y next step is to finish trying to find my daughter. Defendant then began S.D. s disappearance. anyone had been the events surrounding She awoke on the morning of 10 November 2009 to find S.D. gone. if recounting Defendant asked her sister s boyfriend in the house, and he replied Mono. However, defendant claimed that she did not see or hear anyone in the house and reiterated that she had nothing to do with S.D. s disappearance. Defendant admitted to Detective Pollard and Sgt. Corcione that she lied in previous interviews and put it all on [Coe]. However, defendant said that she lied because -7Detective Bowman scared her something she didn t know. and tried to make her know Detective Pollard asked defendant if she was scaring her, and defendant said that she was not. Defendant then said that she wanted to tell the truth after she learned that Coe had been arrested because of her previous lies. Sgt. Corcione told defendant that he wanted her to tell the truth, because Mono was in jail and had already informed the police that defendant knew what happened to S.D. The officers told defendant that they already knew what happened but that they needed to hear it from her; they repeatedly asked defendant to stay on the right track by telling the truth. told the officers that Mono wanted to have sex with her. came to the trailer Defendant because he Sgt. Corcione advised defendant to stay on the right track, and said that no matter what she said she would walk out of here. Eventually, defendant said that she owed Mono $200.00, and that he wanted either the money that was owed or sex to repay the debt. Sgt. Corcione told defendant that Mono was going to tell the truth to save himself, so she needed to be entirely truthful about what happened next. He told defendant I got to hear it from you so we can put that monster away. Defendant emotionally confessed to the officers that Mono took S.D. to a -8motel room with defendant s consent with the understanding that [a]ll he was supposed to do was have sex with her. She said that this arrangement would settle her $200.00 debt. Defendant then claimed that the plan was for Mono to take S.D. to a motel for another individual to have sex with her, but she did not know whom the third party was. After giving these statements to the officers, defendant requested and was allowed to take a cigarette break. When she returned, defendant was asked regarding the arrangement she had with Mono. details Defendant denied knowing the specifics of Mono s plan for S.D. then left in the interview room alone. for Defendant was She asked Sgt. Corcione how much longer she was going to be there, to which he responded [n]ot too much longer. Defendant took another bathroom and cigarette break and asked Detective Pollard to join her outside. After returning, defendant took one more bathroom break, then was left alone in the interview room for approximately thirty minutes. Detective Bowman then entered the room and advised defendant that she was under arrest and was no longer free to leave. On 16 November 2009, S.D. s body was found on the side of Walker Road outside of Fayetteville. Medical examiners -9concluded that S.D. s cause of death was asphyxiation. Blood was found on anal and vaginal swabs, indicating sexual trauma. Defendant was charged with human trafficking, felonious child abuse, felony conspiracy, first degree kidnapping, first degree murder, rape of a child by an adult offender, sexual servitude, and taking indecent liberties with a child. She filed a motion to suppress the incriminating statements made to Detective Pollard and Sgt. Corcione during the fourth interview, but did not move to suppress any statements made in the other three interviews. After hearing the parties on defendant s motion to suppress, the trial court entered an order denying the motion. In exchange for dismissal of the rape charge and a reduction from first to second degree murder, defendant entered an Alford plea on 18 October 2013. Pursuant to the plea agreement, she was sentenced to 210 to 261 months imprisonment. Defendant timely appealed from judgment, but failed to give notice during plea negotiations as to her intent to appeal the denial of her motion to suppress. (2013). See N.C. Gen. Stat. ยง 15A-979 Furthermore, defendant s notice of appeal failed to identify the specific court to which the appeal was taken, in violation of Rule 4 of the North Carolina Rules of Appellate -10Procedure. In our discretion, we grant defendant s petition for writ of certiorari to reach the merits of her appeal. See N.C. R. App. P. 21(a)(1) (2013); State v. Franklin, __ N.C. App. __, __, 736 S.E.2d 218, 220 (2012). Discussion I. Custodial Interrogation Defendant address first whether a argues that reasonable the person trial in court failed defendant s to position would have believed she was under arrest or restrained to a significant degree, and therefore erred by concluding that defendant was not subject to custodial interrogation during the fourth interview. We disagree. We review the trial court s legal conclusions in an order denying a motion to suppress de novo. State v. Parker, 137 N.C. App. 590, 594, 530 S.E.2d 297, 300 (2000). We also review the legal conclusions for whether they are supported by the trial court s findings of fact. 701 S.E.2d 615, 631 (2010). State v. Waring, 364 N.C. 443, 467, [A] trial court s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. 632 (citation deemed omitted). supported by Id. at 469, 701 S.E.2d at Unchallenged competent evidence findings and are of fact binding are on -11appeal. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). The Fifth Amendment to the United States Constitution guarantees that no person . . . shall be compelled in any criminal case to be a witness against himself. amemd. V. Fifth U.S. Const. The United States Supreme Court has held that the Amendment bars statements resulting from custodial interrogation from being used against a defendant unless the defendant was administered certain procedural safeguards before responding, specifically being advised of the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney[.] Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706-07 (1966). However, the Court has emphasized that 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. Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977) (per curiam). -12The definitive inquiry in determining whether a person is in custody for Miranda purposes is whether, based on the totality of the circumstances, there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405 (1997) (citing Stansbury v. California, 511 U.S. 318, 128 L.Ed.2d involves standard, 293 an (1994) objective and is to (per test, be curiam)). based applied This upon on a a determination reasonable person case-by-case basis considering all the facts and circumstances. State v. Hall, 131 N.C. App. 427, 432, 508 S.E.2d 8, 12 (1998) (quotation marks omitted). whether While no single factor controls the determination of an individual is in custody for purposes of Miranda[,] State v. Garcia, 358 N.C. 382, 397, 597 S.E.2d 724, 737 (2004), our appellate courts have considered such factors as whether a suspect is told he or she is free to leave, whether the suspect is handcuffed, whether the suspect is in the presence of uniformed officers, and the nature of any security around the suspect, State v. Waring, 364 N.C. 443, 471, 701 S.E.2d 615, 633 (2010) (internal citations omitted). Defendant argues that the trial court s conclusion of law that she was not subject to custodial interrogation during the -13fourth interview is erroneous for two reasons: (1) the trial court used a contravention subjective of rather long-standing than objective precedent, and test, (2) the in trial court s findings of fact are unsupported by competent evidence, and those findings in turn do not support the conclusion that a reasonable person in defendant s position would not have felt constrained to the same degree as with a formal arrest. We disagree with both contentions. First, there is no indication that the trial court utilized a subjective rather than objective test in its conclusions of law regarding interrogation. whether defendant was subject to custodial The trial court concluded that: The Defendant was not subjected to custodial interrogation during the interviews of November 10, 2009, November 11, 2009, November 12, 2009 and November 14, 2009 until about 5:25 p.m. on November 14, 2009 when Det. Bowman told her that she was under arrest. The Defendant was not in custody until that point in time because the Defendant had not been formally arrested or otherwise deprived of her freedom of movement of the degree associated with a formal arrest until that moment. (Emphasis added.) This conclusion of law tracks verbatim language found in applicable opinions issued by this Court and our Supreme Court regarding the test for whether an individual was subject to custodial interrogation. See State v. Buchanan, -14353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001) ( [T]he appropriate inquiry in determining whether a defendant is in custody for purposes of Miranda is, based on the totality of the circumstances, whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. ) Although the trial court did find as fact that defendant believed she was free to leave at various points of the interview, it also entered numerous findings of fact detailing the objective circumstances of the interview. There is no indication that the trial court supported its conclusion that defendant was not subject to custodial interrogation with the finding of fact that she subjectively felt free to leave; that finding of fact could have properly been considered in the trial court s conclusion regarding the voluntariness of her confession. Thus, because the trial court s conclusion that defendant was not subject to custodial interrogation makes no reference to defendant s subjective state of mind, but does determine the appropriate inquiry as set out in Buchanan, we conclude that the trial court did not operate under a misapprehension of law. Defendant s argument is overruled. -15Additionally, we hold that the trial court s findings of fact are supported by competent evidence, and those findings support its conclusion of law that defendant was not subject to custodial interrogation. First, the trial court s finding of fact that defendant was not threatened is supported by competent evidence. Although defendant was told by Detective Bowman in the third interview that lying to a federal officer was punishable by up to five years in prison, neither Detective Pollard nor Sgt. Corcione threatened her with arrest or imprisonment during the fourth interview. defendant Rather, that Detective they were Pollard and unconcerned Sgt. with Corcione the told potential consequences of her previous lies and wanted to get to the truth of what happened so that they could find S.D. Because the only interview dismiss fourth subject interview, to defendant s Detective motion Bowman s to prior was the statements to defendant do not render the trial court s finding of fact that defendant was not threatened erroneous. Second, competent evidence supports the trial court s finding of fact that defendant was not restrained during the fourth interview. handcuffed or Defendant physically concedes restrained in that she any way. was not However, -16defendant contends that her freedom of movement was restricted to the degree associated with a formal arrest because she was seated in the corner of the interview room and was crowded by Detective Pollard and Sgt. Corcione, who were seated on either side of defendant, between her and the door. Although we do not dispute defendant s characterization of the seating arrangement inside the interview circumstances mobility. bathroom room, amounted we to do a not find that these on her restraint Defendant requested and was allowed to take multiple and interviews. cigarette breaks throughout each of the four Although she was escorted by an officer for each of these breaks, our Supreme Court has noted that it is unlikely that any civilian would be allowed to stray through a police station, indicating an unwillingness to consider a police escort for a bathroom break as weighing in favor of a contention that a defendant was in custody. S.E.2d at 634. Waring, 364 N.C. at 472, 701 During the fourth interview, Detective Pollard even suggested that defendant leave and go to a medical center when defendant indicated that she felt pain and stomach illness due to her pregnancy. Defendant declined to leave; she elected to continue speaking to the officers with the hope that they would help her find S.D. Thus, because the record demonstrates -17that defendant could have left the fourth interview had she desired to do so and generally had the freedom to take breaks whenever trial she requested court s finding them, of competent fact that evidence supports defendant s the freedom of movement was not restrained. Given that competent evidence supports the trial court s factual findings that defendant was neither threatened nor restrained during the fourth interview, we find no error in its legal conclusion purposes of that Miranda. defendant In was addition not to in custody for the above, we the find competent evidence to support the trial court s findings of fact that: (1) defendant voluntarily went to the police station for each of the four interviews; (2) she was allowed to leave at the end of the first three interviews; (3) the interview room door was closed but unlocked; (4) defendant was allowed to take multiple bathroom and cigarette breaks; (5) defendant was given food and drink; and (6) defendant was offered the opportunity to leave the fourth interview but refused. Our Courts have consistently held that similar circumstances do not amount to the level of custodial interrogation. See, e.g., Gaines, 345 N.C. 647, 658-63, 483 S.E.2d 396, (holding that a defendant was not in State v. 402-06 (1997) custody where he -18voluntarily went to the police station, was not told that he was under arrest, was interviewed in a room at the police station but was not handcuffed, was offered food, and the officer did not answer him when he asked if he could leave); State v. Deese, 136 N.C. (holding App. that 413, a 417-18, defendant 524 was S.E.2d not in 381, custody 384-85 where (2000) he was permitted to arrange the interview at a time convenient to him, was told that he was free to leave, was not physically threatened or restrained, and was left alone in the interview room for periods of time); State v. Waring, 364 N.C. 443, 471, 701 S.E.2d 615, 633-34 (2010) (holding that the defendant was not in custody where officers told him he was not under arrest, he voluntarily went with officers to the police station, was never restrained, was given bathroom breaks, was left alone in an unlocked interview room, and was not deceived, misled, or threatened). We conclude that under the totality of the circumstances, a reasonable person in defendant s position would not have believed that she was formally arrested or restrained to the degree associated with a formal arrest at the time defendant gave incriminating statements during the fourth interview. -19Therefore, we affirm the trial court s conclusion that defendant was not subject to custodial interrogation. II. Voluntariness of Confession Defendant next argues that the trial court erred by concluding that her statements made in the fourth interview were freely and voluntarily given, when in fact they were coerced by fear and hope. We disagree. The Fourteenth Amendment to the United States Constitution requires that a defendant s confession be voluntary for it to be admissible. State v. Thompson, 149 N.C. App. 276, 281, 560 S.E.2d 568, 572 (2002). If, looking to the totality of the circumstances, the confession is the product of an essentially free and unconstrained choice by its maker, then he has willed to confess and it may be used against him; where, however, his will has been overborne and his capacity for self-determination critically impaired, the use of his confession process. State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994) (quotations and brackets omitted). offends due Our Supreme Court has identified a number of relevant factors to consider in this analysis, such as: whether defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the -20interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and the mental condition of the declarant. Id. However, [t]he presence or absence of any one or more of these factors is not determinative. State v. Kemmerlin, 356 N.C. 446, 458, 573 S.E.2d 870, 881 (2002). Here, defendant argues that she was coerced into confessing because: (1) Sgt. Corcione promised her that she would walk out of the fourth interview regardless of what she said,; (2) the officers lied to her about what information Mono had given them; and (3) she was mentally unstable and unfit to give a voluntary child, confession being due pregnant, to the and stress being of having implicated a missing in S.D. s disappearance. First, we do not believe that Sgt. Corcione s promise that defendant would walk out regardless of her statements rendered defendant s previously that his confession addressed confession in was involuntary. Thompson, This where involuntary the where argument defendant the was argued interviewing officer promised him that he would not be arrested regardless of what he said. 572. Thompson, 149 N.C. App. at 282, 560 S.E.2d at This Court held that the officer s promise did not make -21the confession involuntary because it could not have led the defendant to believe that the criminal justice system would treat him more favorably if he confessed to the robbery. at 282, 560 S.E.2d at 573. previous cases where Id. In so holding, the Court contrasted officers promises of assistance or leniency in future prosecutions were held to be unduly coercive. See, e.g., State v. Fox, 274 N.C. 277, 293, 163 S.E.2d 492, 503 (1968) (holding that a suggestion that the defendant might be charged with accessory to murder rather than confessed rendered the confession involuntary). statements are almost identical to those murder if he Sgt. Corcione s made in Thompson. Thus, in accordance with Thompson, we hold that Sgt. Corcione s promise that regardless of involuntary. defendant would what said she walk did not out of render the her interview confession Without more, Sgt. Corcione s statements could not have led defendant to believe that she would be treated more favorably by the criminal justice system if she confessed to her involvement in S.D. s disappearance and subsequent death. Second, there is no indication that the officers lied about what information Mono provided. the suppression hearing No evidence was presented at regarding what Mono told law enforcement, and there is nothing to support defendant s claim -22that Detective Pollard and Sgt. Corcione lied to defendant about the information Mono provided. However, even assuming that the officers were untruthful, the longstanding rule in this state is that [t]he use of trickery by police officers in dealing with defendants is Jackson, (1983). 308 not illegal N.C. as 549, a matter 574, of 304 law. S.E.2d State 134, v. 148 Specifically, our Supreme Court has held that [f]alse statements by officers concerning evidence, as contrasted with threats and promises, have been tolerated in confession cases generally, because such statements do not affect the reliability of the confession. Id. that or Sgt. Corcione Thus, because there is no indication Detective Pollard lied to defendant regarding the information Mono provided law enforcement, we find her argument unpersuasive. Even assuming that they did lie, this interrogation tactic would not affect the reliability of the confession, id., and therefore would still be insufficient to support a conclusion that the confession was coerced or involuntary. Finally, we do not believe that defendant s mental state rendered her confession involuntary and coerced. Although defendant did tell Detective Pollard and Sgt. Corcione that she had not slept in five days due to the stress of S.D. being -23missing, the trial court found as an uncontested finding of fact that defendant appeared to be coherent, did not appear to be impaired in any way, . . . appeared to understand what was being said during the interview[,] and the majority of her answers were reasonable and were being taken in relationship to the question. to stop Detective Pollard offered defendant the opportunity the interview and go to the Health Department, but defendant declined, indicating that her next step would be to help the officers find S.D. In sum, nearly all of the relevant factors identified by the Hardy Court weigh in favor of the State. As discussed above, defendant was not in custody when she made incriminating statements to Detective therefore, her Miranda Pollard rights and were Sgt. not Corcione, implicated. Buchanan, 353 N.C. at 337, 543 S.E.2d at 827. and See Furthermore, competent evidence supports the trial court s findings of fact that defendant was neither threatened with prosecution for lying nor physically restrained during the fourth interview. She was not held incommunicado, as demonstrated by the fact that she was able to access her cell phone multiple times during the fourth interview. allowed to She was offered water and food in addition to being take bathroom or cigarette breaks whenever she -24requested them. violence used There were no threats of force or shows of against her. She was a competent, literate, twenty-five-year-old woman who clearly understood the English language and responded clearly and reasonably to the questions asked. When given the opportunity to leave the fourth interview, she chose to stay in an effort to help the officers find her missing daughter. Given the totality of these circumstances, we hold that defendant s confession was the product of an essentially free and unconstrained choice by its maker, Hardy, 339 N.C. at 222, 451 S.E.2d at 608, and we affirm the trial court s conclusion of law that defendant s statements were not the product of hope or induced by fear. Conclusion For the foregoing reasons, we affirm denial of defendant s motion to suppress. AFFIRMED. Judges DILLON and DAVIS concur. the trial court s
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