Opinion
No. COA04-287
Filed 5 April 2005 This case not for publication
Appeal by defendant from judgment entered 31 July 2003 by Judge Thomas D. Haigwood in Beaufort County Superior Court. Heard in the Court of Appeals 17 January 2005.
Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State. William H. Dowdy for defendant-appellant.
Beaufort County No. 02 CRS 52607.
On 26 August 2002, defendant Golette Holloway, who was born in 1948, was indicted for taking indecent liberties with a child in violation of N.C. Gen. Stat. § 14-202.1 (2003). Defendant contends on appeal that (1) the trial court erred in denying his motion to suppress his statement to the police, and (2) the trial court improperly curtailed defense counsel's cross-examination of various witnesses. We affirm the trial court's denial of the motion to suppress and find no error with respect to the trial court's cross-examination rulings.
The State's evidence tended to show the following. On 21 June 2002, DM, a 15-year-old girl, was baby sitting her cousin's two children. DM was watching television when she heard a knock on the door. Defendant was at the door. DM had seen defendant before, but she did not know his name. Defendant entered the trailer, told DM she was "one cute chick," asked about her boyfriend, and told her that her boyfriend "must be the luckiest guy in the world." Defendant asked DM for a kiss, but she refused.
DM baby sat for her cousin's children again on 23 June 2002. While she was there, the door was unlocked and defendant "just came in." Defendant told DM that "when he saw [her] walking down the street Saturday that he nearly melted." He said she had nice hips, asked if her boyfriend was treating her right, and added that if he was not, defendant would "take over." When defendant asked DM for a hug, DM gave him a one-armed hug in which she "barely even touched him." Defendant then asked for a kiss, but DM refused. Defendant proceeded to kiss her anyway on the lips. DM pushed defendant away, but as she turned around, defendant grabbed her "butt." As DM walked away, defendant followed her. He put his arms around her shoulder and told her that when she turned 16, they were "going to work something out." Defendant then left.
Two days later, DM wrote a letter about what had happened. Her mom found the letter and called the police. Lt. Jerry Cobb of the Belhaven Police Department interviewed DM about what happened. Subsequently, Lt. Cobb also interviewed defendant and defendant gave the following statement:
On June 21st at approximately 9:30 p.m. I was walking past the front door of Jerry Spencer's residence and noticed [DM] in the living room. I knocked on the door and she opened it and I walked in. I told her I didn't know she was baby sitting. I didn't remember what her reply were [sic], but I said a few more things to her and left. I do remember asking her who was her boyfriend, and she said he was from Bath. On Saturday night, I stopped by to say hello and run my mouth again. This time I told her to show me some love, which she came over and hugged me. Then I kissed her on the cheek, as best I can remember. I don't remember all that well because I had been drinking on both those nights. I may have said she had some pretty hips, but I don't remember feeling of them when she walked away.
Defendant moved to suppress this statement, arguing that the statement was obtained in violation of his constitutional rights. The trial court denied the motion.
Defendant was convicted of taking indecent liberties with a child and sentenced to a term of 15 to 18 months imprisonment. Defendant's sentence was suspended and he was placed on supervised probation for 36 months. Defendant timely appealed.
We first consider whether the trial court erred in denying defendant's motion to suppress. Defendant contends that because Lt. Cobb failed to comply with departmental procedures for noting the date and time he advised defendant of his Miranda rights, Lt. Cobb's testimony that he informed defendant of his Miranda rights prior to taking defendant's statement is uncorroborated and insufficient to establish that Lt. Cobb properly advised defendant of his Miranda rights.
"The scope of review on appeal of the denial of a defendant's motion to suppress is strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law." State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993). The trial court determined below that defendant went to the Belhaven Police Department of his own accord, that Lt. Cobb advised defendant of his Miranda rights, and that defendant freely and voluntarily waived those rights.
The trial court based its findings on Lt. Cobb's testimony that defendant approached him while he was on foot patrol and asked, "You wanted to see me?" Lt. Cobb told him that he would need to talk to him eventually, and defendant said he would come to the police department. Later that day, Lt. Cobb received a call to inform him that defendant was waiting at the police department to speak with him. Lt. Cobb testified that defendant was not under arrest, there was no warrant for his arrest, and defendant was not handcuffed. Lt. Cobb testified that he advised defendant of his Miranda rights at 9:07 p.m., and defendant executed the form indicating he wished to waive his rights. Defendant then gave Lt. Cobb a statement.
We need not reach the question whether defendant was in custody when he gave his statement because we hold that the trial court's conclusion that defendant voluntarily waived his rights was supported by proper findings of fact, which were in turn supported by competent evidence. Lt. Cobb's testimony was sufficient to support the trial court's findings; there is no requirement that it be corroborated by documentary evidence. See State v. Vehaun, 34 N.C. App. 700, 704, 239 S.E.2d 705, 709 (1977) (holding that the testimony of a single witness is legally sufficient to support a verdict), disc. review denied, 294 N.C. 445, 241 S.E.2d 846 (1978). Accordingly, we conclude that defendant's statements were properly admitted as evidence at trial. The assignment of error is overruled.
Defendant next argues that the trial court erred by improperly curtailing his cross-examination of the State's witnesses. During cross-examination, the trial court sustained the prosecutor's objections to the following questions:
Q: Well, Mr. Holloway would have no way of knowing that you [the victim] were there at the house, would he?
. . . .
Q: [To Lt. Cobb] But my question is what time. Specifically what time was his statement taken?
. . . .
Q: Did you [Lt. Cobb] also know that Mr. Holloway was a Viet Nam veteran?
. . . .
Q. Of your own personal knowledge, do you know . . . if Mr. Holloway has ever served in the Armed Forces?
. . . .
Q: But did anything happen between that time and the time that you [Lt. Cobb] actually got a warrant for Mr. Holloway's arrest?
. . . .
Q: Did anything happen that would have any bearing on this case, this incident, between the time you [Lt. Cobb] spoke to Ms. Martin, her husband, and her daughter and the time you got the arrest warrant for Mr. Holloway other than you speaking with Mr. Holloway?
. . . .
Q: What was the impetus that forced you [Lt. Cobb] or allowed you to go and get the arrest warrant? What was the determining factor? You said you went and got the arrest warrant the day after you spoke with Mr. Holloway.
Defendant contends that the above examples illustrate that the trial court repeatedly curtailed his cross-examination and thereby violated his right to confront witnesses against him. We are not persuaded.
Pursuant to our Rules of Evidence, "[a] witness may be cross-examined on any matter relevant to any issue in the case, including credibility." N.C. Gen. Stat. § 8C-1, Rule 611(b) (2003). The trial court, however, "shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." N.C. Gen. Stat. § 8C-1, Rule 611(a) (2003). "`Because the manner of the presentation of evidence is a matter resting primarily within the discretion of the trial judge, his control of the case will not be disturbed absent a manifest abuse of discretion.'" State v. Demos, 148 N.C. App. 343, 351, 559 S.E.2d 17, 22 ( quoting State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986)), cert. denied, 355 N.C. 495, 564 S.E.2d 47 (2002).
We find no abuse of discretion. The first question cited by defendant was rephrased and answered by the witness. The third and fourth questions, regarding defendant's military service, were not relevant to any issue in the case. In regard to the fifth, sixth, and seventh questions cited by defendant, defendant failed to make an offer of proof. Our Supreme Court has stated:
"It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had he been permitted to testify. [I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record."
State v. Golphin, 352 N.C. 364, 462, 533 S.E.2d 168, 231-32 (2000) (internal quotation marks and citations omitted) (quoting State v. Johnson, 340 N.C. 32, 49, 455 S.E.2d 644, 653 (1995)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1379 (2001). Because defendant failed to make an offer of proof as to the evidence that would have been elicited had the cross-examination been allowed and the likely responses are not apparent from the record, we cannot review defendant's objection to the trial court's ruling on these questions. Finally, the trial court did not abuse its discretion in sustaining the objection to the second question because it had already been answered. Lt. Cobb testified that he read defendant his Miranda rights at 9:07 p.m. and that he took defendant's statement immediately afterward. Accordingly, we find no abuse of discretion and the assignment of error is overruled.
No error.
Judges WYNN and TYSON concur.
Report per Rule 30(e).