State v. Johnson , 251 N.C. App. 639 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-491
Filed: 17 January 2017
Mecklenburg County, No. 11 CRS 247933
STATE OF NORTH CAROLINA
v.
BOBBY JOHNSON
Appeal by Defendant from judgment entered 6 October 2015 by Judge Eric L.
Levinson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 19
September 2016.
Attorney General Josh Stein, by Assistant Attorney General Alvin W. Keller, Jr.,
for the State.
Marilyn G. Ozer for Defendant.
McGEE, Chief Judge.
Anita Rychlik (“Anita”) and her husband, David Rychlik (“David”), were
employees of the Thrift Motel in Charlotte (“the motel”) when Anita was shot and
killed in the early morning hours of 2 May 2007. David was outside in the parking
lot in front of the motel talking to Brandy Davis (“Brandy”), when three men (“the
men”), all dressed in black, approached from the left side of the motel as one faced
the front of the building. At that time, Anita managed the motel and David acted as
the security guard. Anita was asleep inside the motel. One of the men was holding
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a gun, and the man forcibly searched David and Brandy, taking some personal items
from both of them, and a set of keys to the motel from David.
Brandy testified the men were African-American, that two of them were
approximately five feet, six inches tall or five feet, seven inches tall and weighed
about 150 pounds, while the third man was approximately six feet or six feet, one
inch tall and weighed between 180 and 200 pounds. According to Brandy, the larger
man was holding a small black gun. The men asked David where the safe was and
they demanded keys. All three of the men were talking and demanding things. David
was hit in the head with the gun during the altercation. Brandy described the man
holding the gun as “the older gentleman,” and “the tall one,” and testified that he told
one of the “younger guys” to stay with her and David, and to “shoot” them if they
moved. Brandy could see the younger men’s faces, and estimated them to be eighteen
or nineteen years old. Brandy also testified that the man holding the gun had a “mask
all the way down his face” which made it difficult to tell how old he was. One of the
smaller, younger men remained with David and Brandy, while the other two men
entered the motel. Brandy did not know if the younger man who remained with them
had a gun. The two men then entered Anita’s bedroom in the motel and there was a
struggle. Brandy heard Anita give “a very panic-attack scream,” and Anita was shot
once in the back of her neck and killed. The men then fled from the scene.
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James Rhymes (“Rhymes”), who lived at the motel, testified that on the night
in question he left his room upon hearing a strange noise. As Rhymes turned to head
toward Anita’s office, which was a very short distance from Rhymes’ room, he was
confronted by a man wearing a mask and holding a gun. Rhymes pushed the gun
away from him and turned and ran away up a nearby hill. As he was running away,
he heard two gunshots, but was not hit.
The three men escaped, and no one was charged with Anita’s murder until 24
October 2011. However, during the course of the investigation Bobby Johnson
(“Defendant”) was identified as a suspect and, in 2007, he was placed in custody, read
his Miranda rights, which he waived, and he voluntarily gave investigators an
interview and a buccal swab for the purposes of collecting his DNA. DNA was also
recovered from under Anita’s fingernails, and these DNA samples were sent for
testing and comparison. Results from the DNA analysis were returned to
investigators in 2009. Although the DNA analysis indicated that only one in
16,600,000 African-Americans could have been the contributor of the DNA recovered
from under Anita’s fingernails, and that Defendant was one of those African-
Americans who could have contributed that DNA, the Charlotte-Mecklenburg Police
Department did not attempt to locate Defendant until late 2011.
A police detective “called [Defendant] and spoke to him a number of times and
made arrangements for him to come down to the station.” Detective William Earl
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Ward, Jr. (“Detective Ward”) testified that they “wanted to talk to him about the DNA
evidence.” Defendant voluntarily went to the police station on the morning of 24
October 2011, arriving at approximately 9:40 a.m. Defendant was escorted to an
interview room on the second floor, just outside the homicide office. The interview
room was behind doors that remain locked. Detective Ward and Detective Brian
Whitworth (“Detective Whitworth”), together (“the detectives”) began to interview
Defendant. Approximately four hours after entering the interview room, Defendant
was placed under arrest for murder, and approximately ten minutes later, after
additional conversation, he was read his Miranda rights and signed a waiver of those
rights. Approximately twenty-five minutes after that, Defendant began to discuss
his involvement in the crime. Defendant named brothers Antonio Chaney (“Tony”)
and Joshua Chaney (“Josh”) as the two other men involved, and stated that it was
Tony who shot and killed Anita.
Because the voluntariness of Defendant’s confession is an issue on appeal, we
examine in great detail Defendant’s interrogation on 24 October 2011 – from the
initiation of the questioning until Defendant admitted participating in Anita’s
murder. According to the video recording of Defendant’s interview, the questioning
began in a police interrogation room at approximately 9:50 a.m. Defendant told the
detectives that he had been “saved” recently, and Defendant was reminded that
Detective Ward had interviewed him back in 2007. At approximately 10:11 a.m., the
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detectives showed Defendant a forensic report stating DNA had been recovered from
under Anita’s fingernails,1 and that there was only a one in 16,600,000 chance that
the DNA would match any particular African-American, but that the DNA recovered
from under Anita’s fingernails matched Defendant’s DNA.
Detective Ward told Defendant that the 2007 interview had locked Defendant
into a statement and that, with the DNA report, they now had the “meat and
potatoes,” and that Defendant’s 2007 statement was coming back and “kicking you in
the ass.” Defendant was told that the crime was committed by three people, and that
one of those three people was Defendant. Defendant was told: “The fact is your DNA
is under [Anita’s] fingernails in her living quarters which you denied even being
there.” Defendant was told that he needed “to do the right thing by God,” and was
told the DNA analysis “puts you there[,]” that “[y]ou were there that night, you know
what happened.” Defendant was told he had not been at home like he had been telling
the detectives. Defendant was told, “you were there [at the motel], you were involved
in this crime, it’s as simple as that, I can’t put it more plainly, you can’t make this
stuff up. It’s a scientific fact.” “You were there. This puts you there. You understand
what this holds? This could be a capital murder case. This is a death penalty case.”
“If you want to wear it on your own, that’s your decision. If you want to do the right
1 The DNA recovered was identified as having come from three separate individuals, one of
whom was Anita. Defendant was identified as the likely (one in over sixteen million chance)
contributor of the second profile. The third profile was never matched to anyone.
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thing and bring other people that were involved, that’s your decision.” The detectives
continued:
Your body parts, your cells, your DNA, are on her body.
How can that happen if you never touched her? There’s no
way. There’s no way your DNA can be spit in the wind and
land somewhere. It has to be her grabbing your hair or
grabbing your neck. That’s how it happens. It’s forever,
Bobby.2 Bobby, so you understand, where we’re coming
from is not “hey, we wanted to talk to you about this
murder case . . . .” Where we stand now as a law
enforcement agency . . . is that there’s no question
anymore. That’s the meat and potatoes right there for the
case [pointing at the DNA analysis]. That’s enough to
charge you with murder right now. Right now. My
suggestion to you is this. Stop with the “I wasn’t there,”
because this proves you were there.
The detectives told Defendant that if the shooting was an accident, if Anita
backed into the gun and “pow, holy sh*t, you didn’t mean for that to happen, now’s
the time to talk about it. If you stay silent about it, Bobby, you’re going to wear it.”
The detectives told Defendant that they knew what happened to Anita in her room,
but that Defendant was going to have to explain it. Defendant was then told again
that that the odds were one in 16,600,000 that any African-American person other
than Defendant could have contributed the DNA recovered from under Anita’s
fingernails.
2Throughout the interview, the detectives referred to Defendant as “Bobby.” At times,
Defendant referred to himself as “Bobby.”
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Referring to an earlier comment Defendant had made, Detective Ward stated:
“When you said [Anita] was shot in the back of the neck, only you, me, the victim, and
the coroner knew that. That was not publicized.” Detective Ward told Defendant: “I
have locked you in so hard to this story here, you can’t get out with a blow torch.” As
Defendant continued to deny being involved, the detectives stopped him from talking
and told him they knew he was lying. The detectives told Defendant:
You’re in a box right now. This is the . . . lock to the door
[Detective Ward was holding the DNA report in his hand].
If you want to wear capital murder on your own and let
them other two dipsticks go run free, that’s on you man. I
can’t help you with that. But if you want to be a hero, be a
real man, be a God saved man, then do the right thing.
The detectives told Defendant they could not promise him anything and people
had to pay for their crimes, but that Defendant was facing a capital murder charge
and he needed to do what was best for himself. They told Defendant the district
attorney would look at the people involved and work with those that they and the
detectives believed were being “honest and true.” Defendant was told he should
cooperate and get the truth “off his chest.” Defendant was told that “[p]eople need
. . . something to grab ahold of in a case when they’re . . . boxed in, and you’re boxed
in. You’re boxed in by the best evidence that is out there for any case today – DNA.”
Defendant was told that because of the DNA evidence, “I know you’re either my
shooter, or you’re someone who was with my shooter. We want the shooter.”
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Defendant was asked, in light of the DNA evidence, what he thought the jury
was going to think. Defendant answered that they would think he took part in the
crime. Defendant was told that DNA analysts do not make mistakes, and he needed
to “do the right thing.” Defendant was told that the DNA evidence was “pretty
damning, that puts you there.” Defendant responded “That put me there, man. That
right there just took my life. That right there just took my life.” Detective Ward
responded:
Yes, so, and I want you to understand that. That’s what
I’m trying to explain to you, that it’s over. This game is
over. This is the meat and potatoes of the case [touching
the DNA analysis], that’s what we need to lock folks up.
We thought well, we can go get a warrant, let’s not do that.
. . . But this isn’t going away, this is a done deal. It’s a done
deal.
Defendant responded: “I mean, I’m going to jail, so . . . .” Detective Ward interjected:
“Well, we’re not there yet, but it’s pretty close, ok? And if that will make you
understand. If that will make you a believer that’s, that’s a possibility. We’ll do what
we need to do.” Defendant replied, “I want to be on your team. I don’t want to be in
prison the rest of my damn life.” Detective Ward said: “I tell you that the DA works
with people . . . .” Defendant interjected that the issue was “not going away,” and told
the detectives he would try and help them out in the hope that the case against him
would be resolved in the best way possible. The detectives told Defendant: “We’re
going to need everybody that was involved, and what part they played, to help you.
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That’s the only thing that’s gonna help you. Saying what you’re saying right now,
that’s not gonna help Bobby a damn bit.”
Shortly after making this statement, at approximately 10:36 a.m., the
detectives asked Defendant if they could pat him down for weapons. Defendant
complied, and was frisked and asked to take off his hat. After the pat-down,
Defendant sat back in his chair and the interrogation continued. Defendant was
asked to talk about his experience of being “saved,” and was told that it was more
important to help others than to help himself. The detectives told Defendant that
there were three people involved, and that he was one of them. They told Defendant
he should help himself, that if he wanted to “wear this” by himself, then “God bless
you,” but that that would be crazy since there were two others involved. Detective
Ward said: “Sh*t, I wouldn’t go down by myself.”
Defendant was then asked again if he had shot Anita, or been with the person
who had, and Defendant again replied, “no.” Defendant was told that the detectives
did not believe him, and Defendant replied: “I know you don’t.” Defendant was told:
“So what you’re telling us, and what you’re telling the DA, is that you’re not willing
to help out.” Defendant was again reminded that it was a capital murder case with
DNA evidence implicating him. Detective Ward told Defendant they locked him into
a story in 2007, a story that was a lie, then they took the buccal swab to test his DNA,
and that if “Bobby doesn’t choose to help himself, then Bobby can wear it himself. All
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I can do is say that the smartest thing, based on my experience, is to cooperate. . . .
You and two other folks, two other people, have gotten away with murder since 2007.
That sucks.”
Detective Ward told Defendant they had shown the “meat and potatoes” to him,
but he was still not willing to help himself. Defendant was told: “We rely on facts.
We don’t rely on B.S. This right here [touching DNA report] is fact.” Defendant was
then told: “Bobby doesn’t know what we’ve done. He doesn’t know that we haven’t
already talked to the other defendants. You don’t know what other evidence we have,
or what other folks have said about what you did.” (Emphasis added).
Defendant was told: “We’ve done our homework. The ball’s in your court. The
time to get on the bus and get the best seat is now. I didn’t have this [the DNA
evidence]” in 2007. The detectives told Defendant that he was allowed to tell his lies
in 2007, but now they were showing him the truth. “It’s black and white.” The
detectives offered to go and get an assistant district attorney to see what offer
Defendant might get for cooperating, but Defendant declined. Defendant was told
that it was up to him to “save your own tail,” and that if he needed to throw others
“under the bus” he should do that. The detectives talked some more about Defendant
needing to get the best seat on the bus, and Defendant told them that he was trying
to. Defendant then started crying.
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The detectives said that “accidents happen,” and that Defendant should act in
a godly way. Defendant said that he felt “set up.” When Defendant again denied
having been at the murder scene, the detectives told him he could not keep denying
involvement. Defendant said: “I don’t have a life.” The detectives responded: “You
don’t,” and told Defendant he was lying, they knew the truth, that Defendant could
not deny what was in his heart, and that the only way to “take care of those tears”
was to get it all out in the open and “clean his heart, clean Bobby’s soul.”
The detectives then told Defendant his tears didn’t “mean sh*t,” that
Defendant was just crying because he was “trapped,” and that Defendant did what
he did and made his own choices. The detectives told Defendant they were giving
him the option to cut his losses, and that was all they could do. A few minutes later,
Defendant stated: “I want to help you bad” and started to cry again. Defendant then
hit himself in the head and began sobbing for over a minute. As Defendant
whimpered with his head on the table, he was told to wipe his face, and asked if he
had any regrets. Defendant was asked if the tears were for Anita or himself.
At approximately 11:09 a.m., Defendant told the detectives he was sick to his
stomach, and he was provided with a trash can and told that the only way to feel
better would be to start talking to them. Defendant was told that the best thing for
him, and what the jury would like to see, would be to show remorse. Defendant began
sobbing again and denied having killed Anita. Defendant continued sobbing for a
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couple of minutes and, at one point, his head fell to the table. Talking through sobs,
Defendant said he was “a free man right now,” then spit into a cup and said, “I’m
about to lose my life.”
The detectives kept telling Defendant he was making it hard on himself, and
to think about God. Defendant told the detectives he was trying to help, and that he
came voluntarily to talk. Defendant was then told that most people do not run, they
talk, and that “we didn’t call you and say hey Bobby I need to talk to you about this
murder case, you’re a suspect. Would you have come down? Probably not.”
Defendant was told the only way to “make it right” with God and with Defendant’s
children was to tell the detectives “how it went down.” Defendant was then asked:
“What you blubbering for?” “Bad news for you, Bobby, cause it’s your DNA hooked to
hers. Boom!” Defendant responded, crying, “I’m tore apart. I’m destroyed right now.”
Defendant was told: “There’s only one thing to do in this room,” and Defendant
responded: “I know there’s only one thing to do in this room.” The detectives told
Defendant that either he “goes down” or he “gives up the other two folks.” Defendant
continued crying with his head on the table and was told: “For us, this is the best
interview in the world. We got you. You know we got you.” The detectives then told
Defendant how making a plea agreement worked, that not all cases went to trial, and
that if Defendant wanted, they would go and get an assistant district attorney at that
moment. After a couple of minutes, Defendant stated that if he admitted to
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committing the crime, he would go to prison for life or get the death penalty. After
some more back and forth, Defendant was told, “you’re trying to find another lie to
tell me. You’re stuttering.”
Several minutes later, Defendant was told: “You know it’s over,” and he
responded: “I know it’s over.” The detectives then asked, “who else was with you that
night?” After another long pause, Defendant again denied involvement, cried some
more, and said, “that’s all I got.” After several minutes, the detectives told Defendant:
“You are almost there.” “We know what happened.” “We’re trying to be there for
you.” Detective Whitworth told Defendant: “I could have just come and locked you
up but I don’t do that to people because I’m an honorable man.” Defendant said he
could not keep repeating the same thing, and was told, “then don’t, repeat the right
thing.” Defendant began crying again and indicated he felt suicidal.
A couple of minutes later, Defendant was told it was not unusual for people to
come in “and lie like you.” Defendant cried some more and the detectives told him
that his continued lying made the “best case for DA – you lie to us once on tape, lied
again on tape – got your DNA.” Defendant then said: “I know I’m dead,” and the
detectives told him he had the choice to cooperate or not, and asked him, “are you
willing to wear this yourself?”
Detective Ward asked Defendant if he thought he was going to be able to go
home “today.” When Defendant answered that he did not, he was told: “Then you’re
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under arrest for murder.” Detective Whitworth told him: “If you don’t believe you can
get up and walk out of here, then I have no choice. You just told me you believe you’re
going to jail.” Detective Ward then asked Defendant: “Did you just say that, yes or
no?” Defendant responded: “Yes, sir.” Detective Ward responded: “Then I’m going to
have to place you under arrest and then I’ve got some stuff to do before I continue.”
“Because to be voluntary you’ve got to believe you can walk out of here.” Defendant
said he believed he could go home but that he wanted to help because he believed he
was the “star player.” Detective Ward told Defendant that if he felt like he could
leave, “we’re good,” but if he did not, “then we’ll have to do something different.”
Defendant was then asked if he thought he could get up and walk out at any time,
and Defendant responded, “not at any time, only after you free me to go.” A visibly
exasperated Detective Whitworth responded: “That’s different, Bobby.” He then
asked Defendant again if he thought he could walk out at that moment, and
Defendant responded in the affirmative. Defendant was then told: “Because if not,
then we’re going to have to go to the next level.” Defendant later said he had “faith”
that he could walk out, but also knew he could not provide what the detectives wanted
and that he was confused.
Defendant said, speaking about himself: “Right now it looks like Bobby did this
because Bobby has DNA under the victim[’s] . . . nails.” Several minutes later, the
detectives told Defendant: “You did what you did.” “You’re full of sh*t.” And: “You’re
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done.” The detectives again told Defendant they were certain they were talking to
the right person, that Defendant was “choosing not to help” himself, and that he was
lying. The detectives told Defendant: “All you can do is make it a little easier on you.”
They asked him: “Do you think it will go easier on you if you don’t talk?” Defendant
replied: “No[,]” and the detectives thanked him and said: “So you’re listening to us.”
The detectives reiterated they were certain they were “talking to the right person”
and that Defendant was not going to change their minds. The detectives told
Defendant to “cut your losses. Help yourself.”
At approximately 12:20 p.m., the detectives told Defendant there would be no
other interviews with him after that one, that someone would have to pay for the
crime, and the nature of the punishment would depend on the individual. Defendant
was told: “You told us things in these interviews that only the killer knows. It’s that
simple.” “So is Bobby willing to help Bobby?” Defendant was again told to “cut his
losses” and “get the best seat on the bus.” Several minutes later, Defendant was told
he had gotten away with murder for four years, was asked if he wanted to share the
blame, and was told that the “DA wants to know who didn’t cooperate; who did
cooperate.”
The detectives told Defendant they did not “think” he was lying to them, they
“knew” it. Defendant was told the “ball” was in his court and, after a long pause,
Defendant was again asked if he wanted an assistant district attorney to come and
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tell him what was in his best interest. Defendant was told that coming clean would
give him peace and closure, and that showing remorse would help “cleanse” his soul,
and put him at “a higher level.” At approximately 12:45 p.m., Defendant was told the
district attorney would look at who had cooperated; if only one of the three involved
had cooperated, the district attorney would go after the other two; if two of the three
had cooperated, the district attorney would go after the uncooperative one. Several
minutes later, the detectives asked: “Do you trust them that much?”
Defendant then put his head on the table and went silent for a very long pause.
One of the detectives touched Defendant, and Defendant said: “God,” which was
followed by minutes more of silence. At approximately 1:05 p.m. Defendant stated:
“I’m dead.” The detectives told him he would have to pay, but the question was how
much; that it would be a question of cooperation versus non-cooperation. Defendant
was again told it would be better for him if he cooperated. He was asked if he wanted
the detectives to get an assistant district attorney, and was told by Detective Ward
that, if he gave a truthful statement, “I’ll work for you.”
The detectives told Defendant his record was not that bad, other than his prior
murder conviction, and that the district attorney would consider that. Defendant was
again told the detectives knew they were talking to the right person, and that
Defendant knew he was the right person, too.
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The detectives left Defendant alone in the interrogation room at 1:15 p.m. and
Defendant began to pray out loud. A few minutes later Defendant got up and asked
if he could use the restroom, which he did, then returned to an empty interrogation
room where he sat alone until 1:57 p.m., when Detective Ward returned alone and
resumed talking to Defendant. Detective Ward showed Defendant two post-mortem
photographs of Anita at approximately 2:01 p.m.
At approximately 2:03 p.m., Detective Ward told Defendant he was placing him
under arrest for Anita’s murder, and Detective Ward had Defendant shackle himself
to chains set in the interrogation room floor. Although Detective Ward had not yet
given Defendant his Miranda warnings, he continued to talk to Defendant and listen
to him for approximately eleven more minutes. Defendant told Detective Ward he
could give him some answers if Detective Ward would allow him to call someone.
Detective Ward told Defendant that he was not going to listen to lies. Defendant was
told that he was not going to get to go home because murder suspects are generally
held without bail.
At approximately 2:14 p.m., Detective Ward began to read Defendant his
Miranda rights, and Defendant signed a waiver of those rights at approximately 2:17
p.m. Detective Ward continued to question Defendant and told him he was trying to
work with Defendant, and that cooperating would be the smartest thing. At
approximately 2:22 p.m., Detective Ward told Defendant: “I felt like I had to make
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you a believer, you weren’t believing us.” “I felt in my heart like the only thing that’s
going to make you understand that this isn’t going to go away is to charge you with
murder. So I charged you with murder.”
Several minutes later, Detective Ward assured Defendant he did not “have a
problem taking the stand on the behalf of a defendant.” Detective Ward told
Defendant that he could face either second-degree, first-degree, or capital murder and
“that’s why I’m . . . beating my head against the wall trying to explain to you, help
yourself. Put it into a better category for you.” Detective Ward told Defendant he
could not promise anything, but the district attorney would go easier on Defendant if
Defendant was truthful. Defendant was told to “cut his losses,” that if he was honest
about what he had done, it would help him. Defendant was told not to “wear” the
charge all by himself.
At approximately 2:38 p.m., Defendant began crying again and told Detective
Ward, “you have to get me a witness protection plan, though,” then began sobbing.
Defendant asked: “I’m already dead, should I just kill myself all the way?” At
approximately 2:40 p.m., Defendant told Detective Ward, while sobbing, “I wasn’t the
gunman.” Defendant then told Detective Ward that Tony and Josh were the other
two men involved, asked Detective Ward for a hug, and sobbed on Detective Ward’s
shoulder. As indicated above, Defendant told the detectives that he had not killed
Anita, and that he assumed Tony had been the one who shot her.
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Acting on information obtained from Defendant, the detectives located Tony
and Josh and questioned them at the police station. Tony and Josh gave different
accounts from each other when questioned by the police, and then gave different
accounts when testifying at trial. When initially questioned, Josh told police he had
handled a gun that night, and that the gun belonged to him. Josh testified that he
first told the detectives that he shot Anita, but that this statement was not recorded.
Josh then told police Tony had killed Anita; that Tony had told him “he [Tony] shot
her[, but Tony] didn’t know if he killed her or not.” However, at trial, Josh testified
he never touched a gun, that Defendant brought the gun, and that he did not know
who shot Anita. Tony testified at trial that Defendant and Josh planned the robbery.
Tony also testified that Josh never had a gun, but admitted he had previously told
police that Josh “probably did have a gun[.]”
When Josh testified at trial, he said that he, Tony, and Defendant walked to
the motel and when they were beside the motel, Defendant pulled out a gun and said
they should rob a man and a woman who were standing in the parking lot. Josh and
Tony wore stocking caps, and Defendant wore a ski mask that covered his face. They
all approached the man and woman in the parking lot and Defendant threatened
them with his gun and told them to get on the ground; then Josh went through their
pockets. Josh put the items he recovered into his own pockets, except a set of keys,
which he gave to Defendant. Defendant told Josh to remain with the victims, and he
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and Tony went to the motel. Josh heard both a man and a woman screaming, and
some gunfire. Defendant and Tony returned a few minutes later and the three men
left together. Josh testified that Defendant attempted to rob another man who was
approaching the motel, but the man ran away and Defendant fired his gun at the
man, but missed. Defendant hid the gun under a brick beside an abandoned building.
Josh testified he never had a gun that night, and that he never saw Tony with a gun.
Tony’s testimony was that he, Josh, and Defendant left a friend’s house and
headed toward the motel with the intention of committing a robbery. According to
Tony’s testimony, Defendant and Josh had come up with the plan. However, Tony
then testified they all came up with the plan once they were at the motel. Tony
testified Defendant hit the man in the head with his gun, then saw Josh doing
something to the man and woman who were on the ground. Tony took the keys and
attempted to unlock to door to the motel, and finally managed to find the correct key.
He and Defendant went inside, and encountered a woman sleeping. Defendant went
to the woman, and when she woke up “she was trying to get him off[,] and “she was
screaming.” Tony said he left the room to rejoin Josh, then they heard a gunshot and
saw Defendant “coming out of the room running.” The three men then ran away from
the motel, but when they saw a man coming towards them, Defendant shot at the
man twice. They went behind a building where Defendant hid the gun under a brick.
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STATE V. JOHNSON
Opinion of the Court
Defendant filed a motion to suppress on 11 December 2014, arguing his
statements to police should be suppressed because they were not voluntarily made.
Defendant’s motion specifically argued that Defendant was subjected to custodial
interrogation before he was given his Miranda rights, and that Defendant’s
inculpatory statements were made pursuant to improper use of both threat and
promise.
Defendant’s motion was heard 28 September 2015, and was denied by order
entered 3 November 2015, nunc pro tunc, 29 September 2015. The trial court ruled
that Defendant “was not in custody until the time that he was advised that he was
under arrest and Mirandized at 2:14 p.m.” The trial court further ruled that
Defendant’s inculpatory statements were made voluntarily, and not “obtained as a
result of hope or fear instilled by the detectives.” Defendant was tried and found
guilty of first-degree murder on 6 October 2015. Defendant appeals.
In Defendant’s first argument, he contends the trial court erred in denying his
motion to suppress. We agree, but hold the error was harmless.
Our Supreme Court has stated the proper standard of review for denial of a
motion to suppress as follows:
The applicable standard in reviewing a trial court’s
determination on a motion to suppress is that the trial
court’s findings of fact “are conclusive on appeal if
supported by competent evidence, even if the evidence is
conflicting.” Any conclusions of law reached by the trial
court in determining whether defendant was in custody
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STATE V. JOHNSON
Opinion of the Court
“must be legally correct, reflecting a correct application of
applicable legal principles to the facts found.”
State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120–21 (2002) (citations omitted).
This Court has held:
We review de novo a trial court’s conclusions as to the
voluntariness of a defendant’s waiver of Miranda rights
and statements. “The State bears the burden of proving
that a defendant made a knowing and intelligent waiver of
his rights and that his statement was voluntary.” Where,
as here, “a defendant’s waiver of Miranda rights arises
under the same circumstances as the making of his
statement, the voluntariness issues may be evaluated as a
single matter. Whether a waiver and statements were
voluntarily made “must be found from a consideration of
the entire record[.]” “[T]he reviewing court applies a
totality-of-circumstances test.”
State v. Ingram, __ N.C. App. __, __, 774 S.E.2d 433, 442 (2015) (citations omitted).
There are a number of . . . relevant factors [in determining
the voluntariness of a statement]:
whether defendant was in custody, whether he was
deceived, whether his Miranda rights were honored,
whether he was held incommunicado, the length of the
interrogation, 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.
. . . . Furthermore, for a waiver of Miranda rights to be
valid, it “must be . . . given voluntarily ‘in the sense that it
was the product of a free and deliberate choice rather than
intimidation, coercion, or deception[.]’” “[W]here it appears
that an incriminating statement was given under any
circumstances indicating coercion or involuntary action,
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STATE V. JOHNSON
Opinion of the Court
that statement will be inadmissible.” “[T]he question of
whether Defendant’s incriminating statements were made
voluntarily turns on an analysis of the circumstances
Defendant was subjected to before making his
incriminating statements and the impact those
circumstances had upon him.”
Id. at __, 774 S.E.2d at 442–43 (citations omitted).
In the present case, the trial court made the following relevant findings of fact:
3. Det. Ward and another CMPD detective, Brian
Whitworth (“Det. Whitworth”) sought to make contact with
the Defendant on October 19, 2011.
4. The Defendant came to the police department
headquarters on his own, without police escort, on October
24, 2011.
5. The Defendant was not told he was under arrest.
6. The Defendant was not shackled or handcuffed.
7. At times, during the interview with Det. Ward and Det.
Whitworth, both detectives left the interview room.
8. There was not a guard or police officer stationed at the
door to the interview room.
9. The Defendant was in possession of his personal cell
phone while inside the interview room.
10. The Defendant was offered, and accepted, food and
drink.
11. The Defendant was not hesitant to engage with, or
otherwise speak to, the detectives.
12. At no point was the Defendant made any specific
promises.
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STATE V. JOHNSON
Opinion of the Court
....
18. At no time did the Defendant ask detectives to obtain
for him, or to give him the opportunity to speak with, a
defense lawyer.
19. The Defendant was emotional at times.
20. The Defendant cried at times.
21. The Defendant expressed concern with his ability to
“keep food down.”
22. The Defendant was 37 years old at the time of the
interview.
23. The Defendant is high-school-educated through the
11th grade and obtained his GED.
24. The Defendant is articulate, intelligent, literate, and
knowledgeable about the criminal justice system and its
processes.
25. Det. Ward had previously interviewed the Defendant,
in 1993, about a murder unrelated to the above-captioned
case.
26. While there were no specific promises or threats made
by law enforcement, the detectives conducting the
interview did represent to the Defendant that the District
Attorney “might look favorably” at the Defendant if he
made a confession.
27. At one point, the Defendant was patted down, as a
matter of course, for safety purposes.
28. Det. Ward had previously interviewed the Defendant,
in 2007, about the above captioned case.
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STATE V. JOHNSON
Opinion of the Court
29. During his 2007 interview, the Defendant did not admit
any involvement in the above-captioned case.
30. The Defendant had self-interest in staying and
engaging with police in 2011.
31. The Defendant offered to help, offered to wear a wire,
and offered to do whatever else he could to assist the
detectives.
Defendant argues the trial court’s findings of fact “seem to intentionally
downplay the influence of hope and fear.” Defendant specifically contends that
findings of fact five, nineteen, twenty, twenty-one, and twenty-six are incorrect or
incomplete.
Defendant argues that finding five: “Defendant was not told he was under
arrest,” “is at best an incomplete finding as [Defendant] was told he would be arrested
if he did not state that he was there voluntarily. [Defendant] was also told that he
was guilty of murder and would ‘pay the price.’” In order to evaluate Defendant’s
arguments, we have reviewed the relevant parts of the video recordings of
Defendant’s interview on 24 October 2011, which are set forth above. We note that
Defendant was told that he was under arrest at approximately 2:03 p.m. Concerning
the time prior to formal arrest, when Defendant was being interrogated, we agree
with Defendant that whether or not he was specifically told he was under arrest, the
detectives’ statements to Defendant, along with the attendant circumstances, made
Defendant’s position akin to a formal arrest at a point early in the interview.
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STATE V. JOHNSON
Opinion of the Court
Findings of fact nineteen, twenty, and twenty-one are all supported by
competent evidence, though we agree with Defendant that finding Defendant “was
emotional at times,” and “cried at times” tends to understate Defendant’s emotional
state during much of the interview. Concerning Defendant’s ability to keep food
down, our review of the video interrogation demonstrates that Defendant did tell the
detectives he felt sick to his stomach, and that he rejected an offer of food at one point,
stating that he worried he would not be able to “keep it down.” Defendant also on
occasion spit into a cup in a manner indicating stomach upset. Finally, though we
may agree with the wording of finding of fact twenty-six that “there were no specific
promises or threats made by” the detectives (emphasis added), we agree with
Defendant that viewing the totality of the circumstances, Defendant was induced by
both fear and hope to make inculpatory statements to the detectives.
Defendant was asked to “voluntarily” show up at the police department for an
interview. What Defendant did not know at that time was that the police had
received DNA evidence suggesting the overwhelming likelihood that Defendant’s
DNA had been recovered from underneath Anita’s fingernails. Defendant did not
know this at the time he was asked to “voluntarily” submit to an interview at the
police station, so at the time Defendant arrived at the police station, a reasonable
person in Defendant’s situation would not have “believed that he was under arrest or
was restrained in his movement to the degree associated with a formal arrest.”
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STATE V. JOHNSON
Opinion of the Court
Barden, 356 N.C. at 337, 572 S.E.2d at 123 (citation omitted). What is clear to this
Court, however, is that Defendant was not going to leave the police station that day
without being placed under arrest for Anita’s murder.
As the State acknowledges:
Both the United States Supreme Court and this Court have
held that Miranda applies only in the situation where a
defendant is subject to custodial interrogation. Miranda v.
Arizona, 384 U.S. at 444, 16 L.Ed.2d at 706; State v.
Gaines, 345 N.C. 647, 661, 483 S.E.2d 396, 404 (1997). The
proper inquiry for determining whether a person 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.’” In this case, we must examine
“whether a reasonable person in defendant’s position,
under the totality of the circumstances, would have
believed that he was under arrest or was restrained in his
movement to the degree associated with a formal arrest.”
Id. (citations omitted); see also J.D.B. v. North Carolina, 564 U.S. 261, 269–71, 180
L. Ed. 2d 310, 321-22 (2011).
Approximately twenty minutes into the interview, Defendant was shown the
DNA analysis indicating that his DNA had been recovered from under Anita’s
fingernails. This evidence, if true, placed Defendant not only at the scene of the
murder, but in close physical proximity to the victim. We hold that at that time, “a
reasonable person in [D]efendant’s position, under the totality of the circumstances,
would have believed that he was under arrest or was restrained in his movement to
the degree associated with a formal arrest.” Barden, 356 N.C. at 337, 572 S.E.2d at
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STATE V. JOHNSON
Opinion of the Court
123. A reasonable person, who had previously denied ever having had contact with
a murder victim, when confronted with DNA evidence recovered from underneath
that murder victim’s fingernails, would not believe he was free to exit a police
interrogation room and go home. At that point in time, Defendant should have been
informed that he was under arrest and should have been provided his rights under
Miranda. Id.
We note that the detectives continued to reinforce the position that Defendant
was not free to leave through their subsequent and continuing interrogation. At
approximately 10:12 a.m., Detective Ward told Defendant that the DNA evidence
locked Defendant in on charges of armed robbery and murder. The detectives told
Defendant at approximately 10:16 a.m. that this case would be a capital murder case,
and, unless Defendant wanted “to wear” the whole charge, Defendant needed to tell
them who else was involved. In the next few minutes, the detectives told Defendant
that his DNA under Anita’s fingernails provided enough probable cause to charge
Defendant for murder, and showed that Anita had grabbed Defendant’s arm or his
hair before she was murdered. Approximately thirty-one minutes into the interview,
the detectives told Defendant that he should stop denying his participation, because
he was so locked into the charges that he could not “get out with a blow torch.”
Detective Ward again told Defendant that this case would be a capital case, but
Defendant could help himself by cooperating, and that district attorneys “will work
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STATE V. JOHNSON
Opinion of the Court
with people who are honest and true.” Defendant was challenged in this manner for
over four hours, as thoroughly set out above, until he was finally told he was under
arrest. Though we do not apply a subjective test, we note that Defendant was
eventually placed under arrest and Mirandized, even though he had continued to
deny involvement in Anita’s murder from the time his interrogation began until he
was placed under arrest.
Defendant argues that Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643
(2004), renders his inculpatory statements involuntary. In Seibert, the United States
Supreme Court stated that the “technique of interrogating in successive, unwarned
and warned phases raises a new challenge to Miranda.” Id. at 609, 159 L. Ed. 2d at
653. In Seibert, detectives first questioned the defendant without Miranda warnings
until he confessed, then detectives got the Mirandized defendant to repeat his
confession. This technique was
a police protocol for custodial interrogation that calls for
giving no warnings of the rights to silence and counsel until
interrogation has produced a confession. Although such a
statement is generally inadmissible, since taken in
violation of Miranda, the interrogating officer follows it
with Miranda warnings and then leads the suspect to cover
the same ground a second time.
Id. at 604, 159 L. Ed. 2d at 650 (citation omitted). The Supreme Court held:
By any objective measure, applied to circumstances
exemplified here, it is likely that if the interrogators
employ the technique of withholding warnings until after
interrogation succeeds in eliciting a confession, the
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STATE V. JOHNSON
Opinion of the Court
warnings will be ineffective in preparing the suspect for
successive interrogation, close in time and similar in
content. After all, the reason that question-first is catching
on is as obvious as its manifest purpose, which is to get a
confession the suspect would not make if he understood his
rights at the outset; the sensible underlying assumption is
that with one confession in hand before the warnings, the
interrogator can count on getting its duplicate, with trifling
additional trouble. Upon hearing warnings only in the
aftermath of interrogation and just after making a
confession, a suspect would hardly think he had a genuine
right to remain silent, let alone persist in so believing once
the police began to lead him over the same ground again.
A more likely reaction on a suspect’s part would be
perplexity about the reason for discussing rights at that
point, bewilderment being an unpromising frame of mind
for knowledgeable decision. What is worse, telling a
suspect that “anything you say can and will be used against
you,” without expressly excepting the statement just given,
could lead to an entirely reasonable inference that what he
has just said will be used, with subsequent silence being of
no avail. Thus, when Miranda warnings are inserted in
the midst of coordinated and continuing interrogation, they
are likely to mislead and “depriv[e] a defendant of
knowledge essential to his ability to understand the nature
of his rights and the consequences of abandoning them.”
By the same token, it would ordinarily be unrealistic to
treat two spates of integrated and proximately conducted
questioning as independent interrogations subject to
independent evaluation simply because Miranda warnings
formally punctuate them in the middle.
Id. at 613–14, 159 L. Ed. 2d at 655-56 (citations omitted).
We agree that the detectives in the present case used the same objectionable
technique considered in Seibert. However, unlike in Seibert, Defendant in the present
case did not confess until after he was given his Miranda warnings. For this reason,
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STATE V. JOHNSON
Opinion of the Court
our analysis is whether the entirety of the interrogation, from when Defendant first
should have been Mirandized, up until his inculpatory statements, rendered
Defendant’s inculpatory statements involuntary, even without Defendant having
confessed prior to having been Mirandized.
We hold that resolution of the present case is determined by precedent, which
is partially analyzed in State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975). In Pruitt,
there was
plenary evidence that the procedural safeguards required
by the Miranda decision were recited by the officers and
that defendant signed a waiver stating that he understood
his constitutional rights, including his right to counsel.
Even so, the ultimate test of the admissibility of a
confession still remains whether the statement made by
the accused was in fact voluntarily and understandingly
made.
Id. at 454, 212 S.E.2d at 100 (citation omitted). Our Supreme Court in Pruitt
reasoned:
Another case factually similar to the case now before us is
State v. Stevenson, 212 N.C. 648, 194 S.E. 81. There the
evidence tended to show that the defendant had started to
make a statement while in jail and was told by an officer
that he need not lie because the officer already had more
than enough evidence for his conviction. The defendant
thereupon confessed. This Court awarded a new trial on
the ground that the confession was not a free and voluntary
confession but was instead a product of unlawful
inducement on the part of the law enforcement officer.
In State v. Drake, 113 N.C. 625, 18 S.E. 166, the facts
showed that while the defendant was being carried from
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STATE V. JOHNSON
Opinion of the Court
the place of his arrest to a Justice of the Peace, a law
enforcement officer said to him, ‘If you are guilty, I would
advise you to make an honest confession. It might be easier
for you. It is plain against you.’ At that time the defendant
denied his guilt, but after the Justice of the Peace had
committed him to jail, he confessed. The Court again held
the confession to be involuntary and, in part, stated:
“. . . The assertion of his innocence, in reply to the
proposition that he should confess and thus make it
easier for him, does not at all prove that the offer of
benefit from the officer who had him in charge did not
find a lodgment in his mind. If so, what could be more
reasonable than that when he found himself on the way
to prison in charge of the author of this hope that a
confession would alleviate his condition, he should be
tempted to act then upon a suggestion that he had
rejected when the prospect did not seem to him so dark,
and make a confession. It may have proceeded from this
cause, from this hope so held out to him. If it may have
proceeded from that cause, there is no guaranty of its
truth, and it must be rejected.”
In State v. Livingston, 202 N.C. 809, 164 S.E. 337, the
defendants were arrested, and after measuring their shoes
and tracks at the scene of the crime, the officers told
defendants that “it would be lighter on them to confess”
and that “it looks like you had about as well tell it.” The
defendants forthwith confessed to the crime charged.
There the Court . . . held that the confessions were
involuntary and inadmissible in evidence. Accord: State v.
Fox, Supra (Officer told defendant that it would be better
for him in court if he told the truth and that he might be
charged with a lesser offense of accessory to the homicide
charge rather than its principal.); State v. Fuqua, 269 N.C.
223, 152 S.E.2d 68 (A police officer told the incarcerated
defendants that he [the officer] would be able to testify that
they cooperated if they aided the State in its case.); State
v. Woodruff, 259 N.C. 333, 130 S.E.2d 641 (Officer obtained
favors and concessions on the part of State officials to
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STATE V. JOHNSON
Opinion of the Court
induce defendant to aid in solving the homicide and
promised that if the evidence obtained involved defendant,
he would try to help defendant.); State v. Davis, 125 N.C.
612, 34 S.E. 198 (Officer told defendant that he had
“worked up the case, and he had as well tell all about it.”).
The rule set forth in Roberts has been consistently followed
by this Court. The Court has, however, made it clear that
custodial admonitions to an accused by police officers to tell
the truth, standing alone, do not render a confession
inadmissible. Furthermore, this Court has made it equally
clear that any improper inducement generating hope must
promise relief from the criminal charge to which the
confession relates, not to any merely collateral advantage.
In instant case the interrogation of defendant by three
police officers took place in a police-dominated atmosphere.
Against this background the officers repeatedly told
defendant that they knew that he had committed the crime
and that his story had too many holes in it; that he was
“lying” and that they did not want to “fool around.” Under
these circumstances one can infer that the language used
by the officers tended to provoke fright. This language was
then tempered by statements that the officers considered
defendant the type of person “that such a thing would prey
heavily upon” and that he would be “relieved to get it off
his chest.” This somewhat flattering language was capped
by the statement that “it would simply be harder on him if
he didn’t go ahead and cooperate.” Certainly the latter
statement would imply a suggestion of hope that things
would be better for defendant if he would cooperate, i.e.,
confess.
We are satisfied that both the oral and written confessions
obtained from defendant were made under the influence of
fear or hope, or both, growing out of the language and acts
of those who held him in custody. We hold that both the
oral and the written confessions obtained in the Sheriff’s
Department on 9 October 1973 were involuntary and that
it was prejudicial error to admit them into evidence.
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STATE V. JOHNSON
Opinion of the Court
Id. at 456–58, 212 S.E.2d at 101–03 (citations omitted). We hold that the
circumstances in the present case were at least as coercive as those in Pruitt. In the
present case, Defendant was questioned for hours after he should have been
Mirandized and, throughout this questioning, the detectives repeatedly told
Defendant they knew he was lying; that they had DNA proof of Defendant’s guilt;
that only a guilty person would have known Anita was shot in the back of the neck;
that this could be a capital case, and that Defendant’s treatment would depend on his
cooperation; that the district attorney’s office would usually work with those who
cooperated; that Detective Ward would consider testifying on Defendant’s behalf;3
that Defendant would feel better if he confessed and did right by God and his children;
and that Defendant should get the “best seat on the bus” by giving statements against
the two other men involved. It is also clear that the detectives decided to arrest
Defendant at the time they did in order to shake him up and, in Detective Ward’s
words: “I felt in my heart like the only thing that’s going to make you understand
that this isn’t going to go away is to charge you with murder. So I charged you with
murder.”4
3See State v. Flood, 237 N.C. App. 287, 297, 765 S.E.2d 65, 73 (2014), disc. review denied, 368
N.C. 245, 768 S.E.2d 854 (2015) (citing State v. Fuqua, 269 N.C. 223, 228, 152 S.E.2d 68, 72 (1967)
“(statements inadmissible where an officer offered to testify on the suspect’s behalf if he cooperated).”
4See Pruitt, 286 N.C. at 457, 212 S.E.2d at 102 (citation and quotation marks omitted) (“The
assertion of his innocence, in reply to the proposition that he should confess and thus make it easier
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STATE V. JOHNSON
Opinion of the Court
The facts before us are in contrast to those in cases where a defendant’s
statements were found to have been voluntary:
Unlike the situations in Pruitt and Stevenson, the detective
did not accuse defendant of lying, but rather informed
defendant of the crime with which he might be charged and
urged him to tell the truth and think about what would be
better for him. Further, at the time Howard made the
statements defendant contends were coercive, Howard had
already identified for defendant, and defendant had
acknowledged, the others with him the night of the murder.
Earlier in the interview Howard had stated:
What I want to talk with you about is when you and
Chuck and Brian and Bootsy and another guy from
Clayton by the name of Brian Barbour come to Raleigh
and ya’ll robbed an old man and hit him with a bat.
That’s the incident I’m talking about, okay?
Shortly thereafter, Howard asked defendant, “So who was
together? Who was with ya’ll that night?” Defendant
responded, “Everybody that you named.” Defendant knew
at that point that the State had at least one witness.
....
Under the totality of the circumstances test, the isolated
statements by Howard do not support defendant’s
contention that his statements were made involuntarily
out of fear or hope on the part of defendant. We conclude,
therefore, that the trial court did not err in determining
that the statements were freely and voluntarily given and
for him, does not at all prove that the offer of benefit from the officer who had him in charge did not
find a lodgment in his mind. If so, what could be more reasonable than that when he found himself
on the way to prison in charge of the author of this hope that a confession would alleviate his condition,
he should be tempted to act then upon a suggestion that he had rejected when the prospect did not
seem to him so dark, and make a confession. It may have proceeded from this cause, from this hope
so held out to him. If it may have proceeded from that cause, there is no guaranty of its truth, and it
must be rejected.”).
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STATE V. JOHNSON
Opinion of the Court
in denying defendant’s motion to suppress.
State v. McCullers, 341 N.C. 19, 28, 460 S.E.2d 163, 168 (1995); see also State v.
Thomas, 310 N.C. 369, 379, 312 S.E.2d 458, 464 (1984) (“In Pruitt, unlike the case
before us, the police repeatedly told defendant that they knew that he had committed
the crime and that his story had too many holes in it; that he was ‘lying’ and that
they did not want to ‘fool around.’ In addition, the officers told defendant in that case
that ‘it would simply be harder on him if he didn’t go ahead and cooperate.’”) (citations
and quotation marks omitted); Flood, 237 N.C. App. at 296–99, 765 S.E.2d at 72–74
(lengthy analysis of Pruitt and other relevant opinions); State v. Patterson, 146 N.C.
App. 113, 124, 552 S.E.2d 246, 255 (2001) (“In Pruitt, the investigating officers
repeatedly told defendant that they knew that he had committed the crime and that
his story had too many holes in it; that he was ‘lying’ and that they did not want to
‘fool around.’ They also told him that they considered [him] the type of person ‘that
such a thing would prey heavily upon’ and that he would be ‘relieved to get it off his
chest.’ The Court found that under these circumstances the defendant’s confessions
were made under the influence of fear or hope, or both, growing out of the language
and acts of those who held him in custody.”) (citations and quotation marks omitted).
The fact that the detectives at times managed to get Defendant to state that
he thought he could leave does not change our analysis. J.D.B., 564 U.S. at 271, 180
L. Ed. 2d at 322 (“[T]he ‘subjective views harbored by either the interrogating officers
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STATE V. JOHNSON
Opinion of the Court
or the person being questioned’ are irrelevant. The test, in other words, involves no
consideration of the ‘actual mindset’ of the particular suspect subjected to police
questioning.”). Based upon Pruitt and other cited cases, we hold that Defendant’s
inculpatory statements “were made under the influence of fear or hope, or both,
growing out of the language and acts of those who held him in custody.” Pruitt, 286
N.C. at 458, 212 S.E.2d at 103. Defendant’s motion to suppress his confession should
have been granted.
Because we have held that Defendant’s constitutional rights were violated by
the failure to suppress his inculpatory statements, it is the State’s burden to prove
this error was harmless beyond a reasonable doubt. “‘A violation of the defendant’s
rights under the Constitution of the United States is prejudicial unless the appellate
court finds that it was harmless beyond a reasonable doubt. The burden is upon the
State to demonstrate, beyond a reasonable doubt, that the error was harmless.’
N.C.G.S. § 15A–1443(b) (2011).” State v. Ortiz-Zape, 367 N.C. 1, 13, 743 S.E.2d 156,
164 (2013). In its brief, the State incorrectly attempts to place this burden on
Defendant. However, we hold that the overwhelming evidence of Defendant’s guilt
of first-degree murder, based upon the evidence that Anita was murdered in the
course of a robbery in which Defendant played an essential part, renders this error
harmless beyond a reasonable doubt.
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STATE V. JOHNSON
Opinion of the Court
Both Josh and Tony, whose testimony Defendant did not move to suppress,
identified Defendant as the third man involved in the robbery and shooting, and both
stated Defendant was wearing a mask that covered his face. They both testified that
Defendant and Tony entered the motel while Josh remained outside, and both
claimed Defendant was carrying a gun. Brandy testified that there were two younger
men without their faces covered, and an older, larger man whose face was covered by
a mask. Brandy testified it was the older, larger man who held the gun, and who
entered the motel with one of the younger men. Most importantly, Defendant’s DNA5
was recovered from under Anita’s fingernails. Although Defendant’s admission of
participation in the crime, which we have held was involuntary, clearly prejudiced
Defendant, in light of the overwhelming evidence presented pointing to Defendant as
one of the three men involved in the robbery and murder, we hold the prejudice to
Defendant was harmless beyond a reasonable doubt. We reach this holding on these
particular facts, and because the jury was instructed on acting in concert and felony
murder based upon killing in the course of a robbery. The State did not have to prove
that Defendant shot Anita, only that he was one of the three men involved in the
robberies and murder. The evidence that Defendant was one of the three men
involved was overwhelming, and the State has shown beyond a reasonable doubt that
5To a stated certainty of 1 in 16,600,000 African-Americans, and all evidence presented
demonstrated that all three of the men involved were African-American.
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STATE V. JOHNSON
Opinion of the Court
Defendant would have been convicted even had his motion to suppress his inculpatory
statements been granted.
In Defendant’s second argument, he contends the trial court erred in excluding
evidence of bullet fragments recovered from the parking lot that might have indicated
the presence of a second gun at the crime scene. We disagree.
Defendant argues he could have used this evidence to impeach the testimonies
of Josh and Tony. Even assuming arguendo that there was a second gun involved in
the crime, the State did not need to prove that Defendant was the person who shot
Anita in order to obtain a conviction against him for first-degree murder, nor would
the presence of an additional gun have weakened the plenary evidence of Defendant’s
involvement. This argument is without merit.
The trial court erred in denying Defendant’s motion to suppress his inculpatory
statements, but we hold this error was harmless in light of the plenary additional
evidence of Defendant’s guilt. For the same reason, we hold that, even assuming
arguendo the trial court erred in excluding evidence of bullet fragments recovered
from the parking lot, any such error was harmless.
NO PREJUDICIAL ERROR.
Judges STROUD and INMAN concur.
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