Opinion
No. COA12–463.
2013-02-5
STATE of North Carolina v. Ryan Ansley RENDLEMAN.
Attorney General Roy Cooper, by Special Deputy Attorney General Sandra Wallace–Smith, for the State. Kathryn L. VandenBerg, for Defendant–Appellant.
Appeal by defendant from judgment entered 30 November 2011 by Judge Robert T. Sumner in Catawba County Superior Court. Heard in the Court of Appeals 8 October 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Sandra Wallace–Smith, for the State. Kathryn L. VandenBerg, for Defendant–Appellant.
ERVIN, Judge.
Defendant Ryan Ansley Rendleman appeals from a judgment entered by the trial court sentencing him to life imprisonment without parole based upon his conviction for first degree murder. On appeal, Defendant argues that the trial court erroneously denied his motion to suppress a confession which he gave to investigating officers and erroneously instructed the jury in such a manner as to impair its ability to consider his defense. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State's Evidence
At approximately 7:30 a.m. on 22 March 2010, the body of Christy Dawn Whitmore was discovered in the home she shared with Defendant. As of that date, Defendant and Ms. Whitmore had been together for more than eight years. Although Defendant and Ms. Whitmore had separated on a few occasions, they had always reconciled within a few days.
The relationship between Defendant and Ms. Whitmore apparently involved domestic violence. Ms. Whitmore showed up at her mother's with a black eye on one occasion. On another occasion, one of Ms. Whitmore's co-workers observed that Ms. Whitmore's face was badly bruised. At that time, Ms. Whitmore said that Defendant “hasn't done this in such a long time.” Shortly before her death, Ms. Whitmore told a friend that she intended to ask Defendant to leave and planned to do so on 20 March 2010.
Carlotta Huff, Ms. Whitmore's mother, spoke with Ms. Whitmore at about 9:00 a.m. on 20 March 2010. After Ms. Huff asked why Ms. Whitmore was not at work and noted that Ms. Whitmore sounded different, Ms. Whitmore told Ms. Huff that she would talk to her when she came to Ms. Huff's residence in about an hour. After Ms. Whitmore failed to appear within the stated time, Ms. Huff unsuccessfully attempted to reach Ms. Whitmore by phone.
Later in the day, Defendant told Ms. Huff on multiple occasions that Ms. Whitmore was not at home. Although he promised to pick up Ms. Whitmore's son, who was staying with Ms. Huff and her husband, Roger Huff, later in the day, he never did so. After Ms. Huff reached Defendant again at 11:20 p.m., he told her that he was supposed to pick Ms. Whitmore up from work. Ms. Huff later learned from Defendant's sister, Teri Wilfong, that Defendant had been arrested for felonious speeding to elude arrest and other motor vehicle charges that evening and had already been released.
Just after midnight, Ms. Huff went to Ms. Whitmore's residence, but no one answered the door. On the following Monday morning, the Huffs returned to Ms. Whitmore's house. After entering the house through a window, Mr. Huff discovered that Ms. Whitmore was dead.
At the time that her body was discovered, Ms. Whitmore was lying on her side on the bedroom floor with a plastic bag over her face and duct tape around her ankles. A roll of duct tape and a tape cutter, from which two of Defendant's fingerprints were later lifted, lay on the floor near Ms. Whitmore's body. A knife, on which blood and Ms. Whitmore's DNA was detected, was found on the kitchen counter.
In a statement that he made to investigating officers, Defendant admitted that he had choked Ms. Whitmore until she collapsed on the floor. After Ms. Whitmore collapsed, Defendant retrieved a plastic bag and some duct tape from the kitchen, taped Ms. Whitmore's hands and feet, put duct tape over Ms. Whitmore's nose and mouth, and placed the plastic bag over Ms. Whitmore's head. Subsequently, Defendant retrieved a knife and stabbed Ms. Whitmore. After initially telling investigating officers that he was not angry and that he did not know why he had stabbed Ms. Whitmore, Defendant ultimately stated that he stabbed Ms. Whitmore to make sure that she was dead. After leaving the house, Defendant went to a cookout and then watched television at a friend's house.
Dr. Deborah Radisch, North Carolina's Chief Medical Examiner, autopsied Ms. Whitmore's body. According to Dr. Radisch, there was evidence of asphyxia and of bleeding in Ms. Whitmore's left lung. In addition, Dr. Radisch testified that, although decomposition fluid was present in Ms. Whitmore's nostril, the majority of the fluid found in that location was blood. Ms. Whitmore's left lung was collapsed and a moderate amount of blood was present in her chest cavity, a fact that indicated that Ms. Whitmore's heart was still beating at the time that she was stabbed. According to Dr. Radisch, Ms. Whitmore died from a combination of the stab wound and asphyxia.
2. Defendant's Evidence
At trial, Defendant testified that, on the morning of 20 March 2010, he was returning to bed after having taken his dogs outside when Ms. Whitmore suddenly threw a wine jar at him and began cursing at him, calling him names, and accusing him of cheating on her. After Ms. Whitmore began throwing Defendant's clothes outside and spitting in his face, Defendant became angry and decided to leave after shaving and taking a shower.
Before Defendant could leave, Ms. Whitmore attacked Defendant with a picture which hung on their wall. When he got out of the shower, Defendant saw Ms. Whitmore pointing a gun at him. At that point, Defendant, who was angry and afraid, blacked out and began strangling Ms. Whitmore. After Defendant strangled her, Ms. Whitmore fell to the floor, where she lay without moving or making any noise. Subsequently, Defendant taped Ms. Whitmore's hands and feet together, put a bag over her face and stabbed her in her left side.
Once he had stabbed Ms. Whitmore, Defendant went to a cookout at a friend's house and remained at that location until evening. While returning home from the cookout, Defendant disposed of the gun that Ms. Whitmore had pulled on him, took his dogs from the residence, and unsuccessfully attempted to sleep in his car. When Ms. Wilfong learned that Ms. Whitmore was dead on 22 March 2010, she confronted Defendant about what had happened and helped her father convince Defendant to turn himself in.
According to Dr. Donald Jason, a pathologist who testified on Defendant's behalf, the blood in Ms. Whitmore's chest cavity resulted from decomposition rather than the continued action of Ms. Whitmore's heart after the infliction of the stab wound. In Dr. Jason's opinion, the stab wound was inflicted after Ms. Whitmore's death, so that the sole cause of death was manual strangulation. Dr. Jason concluded that the stab wound had been inflicted after Ms. Whitmore's death because the infliction of a stab wound to Ms. Whitmore's left side should not have resulted in the presence of blood in her right chest cavity, because there was no evidence of subsurface bleeding at the wound site, and because the stains on Ms. Whitmore's shirt were inconsistent with the infliction of a pre-mortem stab wound.
B. Procedural History
On 22 March 2010, a Magistrate's Order charging Defendant with murdering Ms. Whitmore was issued. On 7 September 2010, the Catawba County grand jury returned a bill of indictment charging Defendant with murdering Ms. Whitmore. On 8 November 2011, Defendant filed a motion seeking to suppress any statements that he had made to investigating officers. The charges against Defendant came on for trial before the trial court and a jury at the 15 November 2011 criminal session of Catawba County Superior Court. After hearing Defendant's suppression motion on 15 and 16 November 2011, the trial court entered an order on 30 November 2011 denying that motion. On the same date, the jury returned a verdict convicting Defendant of first degree murder. Based upon the jury's verdict, the trial court entered a judgment sentencing Defendant to life imprisonment without the possibility of parole. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Motion to Suppress
In his first challenge to the trial court's judgment, Defendant argues that the trial court erred by denying his motion to suppress the inculpatory statement that he gave to investigating officers on the grounds that the statement in question had been made involuntarily and obtained in violation of his right to counsel. We do not find Defendant's argument persuasive.
1. Factual Background
On the morning of 22 March 2010, Sergeant Jason Beebe of the Catawba County Sheriff's Office responded to the scene of Ms. Whitmore's murder. While at that location, Sergeant Beebe was informed that Defendant had arrived at the Sheriff's Office and that he, in his capacity as lead investigator, should come speak with Defendant.
After Defendant's arrival at approximately 9:00 a.m., he had been seated at a conference room table near Investigator Anthony Stafford's desk in the middle of the Sheriff's Office. Upon realizing that Defendant looked familiar, Investigator Stafford determined that he and Defendant had attended middle school together. After Defendant asked for a lawyer, Investigator Stafford refrained from asking additional questions, informed Defendant that Sergeant Beebe was coming to speak to him, and took Defendant to an interview room after allowing him to get a drink of water and use the restroom.
When Sergeant Beebe arrived, he and Sergeant Aaron Turk of the Catawba County Sheriff's Office introduced themselves to Defendant and provided him with a standard Miranda rights waiver form. After Defendant requested an attorney and declined to waive his right to remain silent, the officers exited the room to obtain the issuance of an arrest warrant. After Sergeant Turk spoke with a magistrate, who issued the requested warrant, the officers handcuffed Defendant and placed him under arrest.
Subsequently, Defendant was fingerprinted and seated on a bench outside the magistrate's office until he could be brought before the on-duty magistrate. At that point, Defendant suddenly stated, “my dad told me that whatever I did I just need to come clean with it and tell you-all what's going on because I'm guilty of it anyway.” After Sergeant Beebe asked if Defendant wished to talk with him, Defendant inquired if he could still get an attorney. In response, Sergeant Beebe told Defendant that he would “have an attorney for this type of case anyway” and that Defendant had to decide if he wanted to speak now or if he wanted to wait for an attorney. When Defendant indicated that he wanted to speak with Sergeant Beebe, Sergeant Beebe asked if he wanted to speak “with or without an attorney,” said that the decision was Defendant's to make, and told Defendant that “he ha [d] an opportunity to tell his side of the story now or wait and maybe never have [his] side ever told.” Defendant reiterated his desire to tell his side of the story. When Sergeant Beebe again asked if Defendant wanted to speak with or without an attorney, Defendant stated that he would speak without an attorney.
As a result of this conversation, Sergeant Beebe informed Sergeant Turk of Defendant's willingness to speak without having an attorney present. At that point, the group returned to the interview room, where Defendant was presented with another Miranda rights waiver form which Sergeant Turk read aloud while Defendant followed along on a separate copy. When Defendant asked if he would be able to obtain an attorney, Sergeant Turk told Defendant that he could have an attorney at trial or at any point. After receiving this information, Defendant completed the Miranda rights waiver form at approximately 11:00 a.m. However, this time Defendant waived his constitutional rights to remain silent and to have the assistance of counsel. According to Sergeant Beebe, Defendant did not appear to be impaired and seemed to understand everything that had been read to him. After waiving his Miranda rights, Defendant made an inculpatory statement to the investigating officers.
According to Dr. Jerry Noble, a clinical psychologist who evaluated Defendant's ability to waive his right to counsel, Defendant had borderline intellectual functioning as evidenced by an IQ of 82, scored 25% on a reading comprehension test, had low verbal functioning, and suffered from depression. Based upon his evaluation, Dr. Noble did not believe that Defendant had knowingly, intelligently, and voluntarily waived his Miranda rights.
The trial court made findings of fact concerning the circumstances surrounding the questioning of Defendant that reflected the events recounted above. Based upon these findings of fact, the trial court concluded as a matter of law that “the Defendant was in custody from the time he was [initially] placed in” the interview room; that “the Defendant unambiguously invoked his right to counsel during the first interview;” that “the Defendant ... volunteered to make a statement” “spontaneously and without coercion by any Officer” “while waiting on the Magistrate;” that, “when the Defendant made an ambiguous statement about his desire for counsel during the second interview, Officer Turk exercised good police practice by clarifying whether the Defendant wanted an attorney prior to speaking;” that “the Defendant understood his right to an attorney before giving a statement having previously asked for representation approximately 45 minutes prior;” that “the Defendant knowingly, freely, intelligently, and voluntarily waived his Miranda rights upon his return to the interview room for a second time;” that “a reasonable officer under the circumstances would not have understood the Defendant's statement at the second interview as a request for an attorney prior to answering questions;” that “the Defendant's request was not an unambiguous request for counsel;” that “the Defendant was not coerced into waiving his right to counsel;” that “the Defendant's confession was unsolicited, un-coerced and given after a knowing and voluntary waiver of his right to counsel;” that, “even though the Defendant was of below average intelligence and may have been suffering under some psychological duress due to the events of March 21 and 22, 2010, [he] had previous experience with the Court system and was familiar with his right to an attorney and his Miranda rights;” and that, “based on the Defendant's demeanor on the video and his responses to the Officer's questions, it is clear that the Defendant understood what he was doing and understood his Miranda rights.” Based upon these findings and conclusions, the trial court denied Defendant's suppression motion.
2. Standard of Review
Appellate review of the denial of a suppression motion is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). If the trial court's factual findings “are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal.” State v. Roberson, 163 N.C.App. 129, 132, 701, 592 S.E.2d 733, 735–36 (2004). However, “[t]he trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
In the event that a defendant challenges the admissibility of a confession on voluntariness grounds, the trial court must determine whether the State has shown by a preponderance of the evidence that the confession was voluntary. State v. Corley, 310 N.C. 40, 52, 311 S.E.2d 540, 547 (1984). We review a trial court's legal conclusion that a defendant's statement was made voluntarily using a de novo standard of review by examining the totality of the circumstances. State v. Kemmerlin, 356 N.C. 446, 457–58, 573 S.E.2d 870, 880 (2002) (citing State v. Hardy, 339 N.C. 207, 222, 451 S.E.2d 600, 608 (1994)). A “waiver of [the right to] counsel, like the waiver of all constitutional rights, must be knowing and voluntary, and the record must show that the defendant was literate and competent, that he understood the consequences of his waiver, and that, in waiving his right, he was voluntarily exercising his own free will.” State v. Thacker, 301 N.C. 348, 354, 271 S.E.2d 252, 256 (1980). We simultaneously examine the voluntariness of a defendant's waiver of his Miranda rights and the voluntariness of any subsequent confession that he makes in the event that the defendant relies on the same set of circumstances to challenge the validity of both waivers. State v. Mahatha, 157 N .C.App. 183, 194, 578 S.E.2d 617, 624,disc. review denied,357 N.C. 466, 586 S.E.2d 773 (2003).
3. Voluntariness
According to well-established law, a confession is voluntary if it is “the product of an essentially free and unconstrained choice by its maker” rather than the result of a process during which “his will has been overborne and his capacity for self-determination critically impaired.” Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1057–58 (1961). The factors to be considered in making a proper voluntariness determination
include the length of the interrogation, the defendant's age and mental condition, whether the defendant had been deprived of food or sleep, whether the defendant was in custody, whether the defendant was deceived, whether the defendant was held incommunicado, ... whether the defendant's Miranda rights were violated, and the defendant's familiarity with the criminal justice system.
Mahatha, 157 N.C.App. at 194, 578 S.E.2d at 624 (citing State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000), cert. denied, 531 U.S. 1114, 121 S.Ct. 862, 148 L.Ed.2d 775 (2001)). In addition, a proper voluntariness analysis should include consideration of the defendant's mental capabilities, State v. Allen, 322 N.C. 176, 186, 367 S.E.2d 626, 631 (1988), and the extent to which investigating officers made promises to or threatened the defendant. Hyde, 352 N.C. at 45, 530 S.E.2d at 288. “The presence or absence of one or more of these factors is not determinative.” State v. Barlow, 330 N.C. 133, 141, 409 S.E.2d 906, 911 (1991).
In challenging the trial court's determination that his confession was made voluntarily and that he voluntarily waived his Miranda rights, Defendant acknowledges that the trial court's factual findings have adequate evidentiary support, which, as we have previously noted, renders them binding upon us for purposes of appellate review. However, Defendant argues that the trial court erroneously concluded that he voluntarily waived his right to counsel and confessed because the investigating officers held him incommunicado, minimized the importance of his Miranda rights, and deceived Defendant into believing that he might not have an opportunity to tell his side of the story at a later time and because Defendant initially denied his guilt, did not have extensive experience with the criminal justice system, was suffering from sleep deprivation and had limited intellectual capabilities. In addition, Defendant argues that certain of the trial court's findings omitted relevant details, including the fact that Defendant was not given an opportunity to call family or friends, that the investigating officers continued to talk with Defendant while he was being processed, that investigating officers read Defendant's Miranda rights to him in a “rapid-paced” way at the beginning of the second interview, that Defendant initially denied any intent to kill Ms. Whitmore, and that Defendant was suffering from sleep deprivation. All of Defendant's arguments lack merit.
Although Defendant contends that one of the trial court's findings was only “partially supported by [Officer] Beebe's testimony,” he never explains how the finding in question lacked adequate evidentiary support. As a result, we will treat all of the trial court's findings, which are reflected in the factual summary set out above, as binding upon us for purposes of appellate review.
As the trial court properly determined, Defendant was in custody at the time that he made his inculpatory statement. However, the fact that Defendant was in custody and did not communicate with family and friends is not determinative of the voluntariness of his conduct. In fact, the record does not contain any indication that Defendant sought an opportunity to communicate with his family and friends during the three hour period beginning with his appearance at the Sheriff's Office and concluding with the making of his statement. As a result, Defendant has failed to demonstrate that the trial court failed to properly take the fact that Defendant was in custody into account in evaluating the voluntariness of his actions.
In addition, Defendant contends that the trial court failed to appropriately consider the fact that the investigating officers failed to take Defendant before a magistrate promptly, manifested a clear intention to obtain an incriminating statement throughout the process leading to the making of Defendant's statement, and utilized deceit and trickery in order to induce Defendant to confess. As the trial court found, however, the investigating officers began the process of taking Defendant before a magistrate as soon as he invoked his Miranda rights and would have completed that process except for Defendant's decision to re-initiate discussions with the investigating officers. The three hour interval between the point at which Defendant turned himself in at the Sheriff's Office and the point at which Defendant completed making his statement was substantially shorter than the period upheld in State v. Littlejohn, 340 N.C. 750, 757–58, 459 S.E.2d 629, 633–34 (1995) (holding that a thirteen hour delay between the time at which the defendant was taken into custody and the time at which the defendant was taken before a magistrate, during which he was interrogated and confessed, did not require suppression of the defendant's statement given the absence of any evidence that the defendant's appearance before a magistrate would have resulted in the exercise of the defendant's right to remain silent). Similarly, the evidentiary record, as reflected in the trial court's findings, does not support a determination that the investigating officers were determined to obtain an inculpatory statement at all costs. Instead, the record reflects that the investigating officers advised Defendant of his Miranda rights twice; respected Defendant's initial invocation of his Miranda rights; refrained from questioning Defendant until he spontaneously expressed the desire to make a statement; and took care to ensure that Defendant was not, in fact, attempting to invoke his right to counsel before allowing him to make a statement. Finally, we see no indication that the investigating officers resorted to trickery or deceit in order to persuade Defendant to make an inculpatory statement. As a practical matter, Defendant had no assurance that he would be able to tell “his side of the story” at a later time given the fact that he might not be able to speak with investigating officers at a later time, the prevalence of plea bargaining, and the possibility that he would elect not to testify at trial. As a result, none of Defendant's arguments in reliance upon these three factors undercut the trial court's determination that Defendant acted voluntarily when he decided to waive his Miranda rights and make an inculpatory statement.
Moreover, contrary to the implication of Defendant's argument, the trial court correctly concluded that Defendant's Miranda rights were fully respected. “Once the accused has invoked his right to have counsel present during custodial interrogation,” “he may not be further interrogated by law enforcement officers until counsel has been made available to him unless the accused himself initiates further communications with the police.” State v. Fernandez, 346 N.C. 1, 10–11, 484 S.E.2d 350, 356 (1997) (citing Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, 386 (1981)). Although Defendant did invoke his right to counsel during his initial interview, he later waived that same right after initiating additional communications with the investigating officers. Until Defendant stated that his father thought that he should “come clean” because he was “guilty,” he had had no conversation with Officer Beebe after invoking his Miranda rights other than a discussion of Officer Beebe's dogs, an activity which Officer Beebe had no reason to believe would be “likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297, 308 (1980). Furthermore, Defendant has not demonstrated that the manner in which investigating officers described the required Miranda warnings or the speed with which those warnings were read to him had any impact on his decision to waive his Miranda rights and confess, particularly given the fact that Defendant had already been informed of those rights earlier in the day. Thus, the trial court's handling of the nature and extent of the investigating officers' interactions with Defendant concerning his constitutional rights does not undercut its finding that Defendant acted voluntarily when he waived his right to counsel and confessed.
Similarly, Defendant contends that the trial court erred by failing to consider the fact that he repeatedly told the investigating officers that he did not remember stabbing Ms. Whitmore and that he initially denied having intended to kill Ms. Whitmore. However, aside from the fact that Defendant never denied having stabbed Ms. Whitmore, his claimed lack of memory is not tantamount to a protestation of innocence. Similarly, the fact that Defendant initially denied having intended to kill Ms. Whitmore during the early stages of a 45 minute interview is not the equivalent of a persistent denial of guilt extending over the course of several hours of the type deemed relevant to a proper voluntariness analysis in cases such as Ashcraft v. Tennessee, 322 U.S. 143, 153, 64 S.Ct. 921, 926, 88 L.Ed. 1192, 1199 (1944) (holding that a confession had been involuntarily obtained when the defendant, “[f]rom the beginning of the questioning at 7 o'clock on Saturday evening until 6 o'clock on Monday morning,” “denied that he had anything to do with the murder of his wife”). As a result, we do not believe that the record shows that Defendant persistently denied his guilt before confessing.
Although “subnormal mentality is a factor to be considered in determining the voluntariness of a confession,” “this condition, standing alone, does not render an otherwise voluntary confession inadmissible.” Allen, 322 N.C. at 186, 367 S.E.2d at 631. Aside from the fact that Defendant had graduated from high school, we note that the fact that Detective Turk read the applicable Miranda warnings to Defendant instead of simply relying upon Defendant to read those rights for himself further minimizes the relevance of Defendant's mental capabilities for purposes of the required voluntariness analysis.
In addition, Defendant contends that the trial court should have considered his sleep deprivation when analyzing the voluntariness of his actions. However, relevant decisions of this and other courts indicate that the impact of sleep or food deprivation upon the voluntariness of a defendant's confession hinges upon whether those conditions resulted from state, as compared to private, action, see, e.g., State v. Mohamed, 205 N.C.App. 470, 479, 696 S.E.2d 724, 732 (2010) (noting that “Defendant had not been deprived of food or sleep in the interim between his arrest and the time that he made his statement”), and whether the investigating officers had knowledge of and exploited the defendant's vulnerable state. See, e.g., Kemmerlin, 356 N.C. at 458, 573 S.E.2d at 881 (noting that the defendant “never indicated that she was tired”). Although Defendant argues that he “slept poorly, if at all, in the 48 hours from Saturday morning until early Monday morning” and that the video taken of his interview depicts Defendant responding slowing and putting his head on the table when investigating officers were not present, the record contains no evidence that Defendant was sleep-deprived and instead suggests that he got at least one night's sleep between the date of the murder and the date of his confession. Moreover, nothing in the record suggests that the investigating officers in any way procured or exploited any sleep deprivation which Defendant may have been experiencing. As a result, nothing about Defendant's mental capabilities or mental or physical condition establishes that Defendant involuntarily waived his Miranda rights and confessed.
Although Defendant argues that the trial court erroneously relied upon his familiarity with the judicial system in its voluntariness analysis, the record clearly establishes that Defendant had committed various criminal offenses such as assault, felonious breaking and entering, and possession of cocaine with the intent to sell or deliver. In addition, Defendant was arrested for felonious speeding to elude arrest and other offenses shortly before he confessed. For those reasons, the trial court had ample justification for concluding that Defendant was familiar with the manner in which the criminal justice system operated in the course of its voluntariness analysis. As a result, we conclude, after a careful analysis of the totality of the circumstances, that Defendant has failed to demonstrate the existence of any error in the trial court's determination that Defendant's decision to waive his constitutional rights and confess was involuntary.
4. Sixth Amendment Right to Counsel
Secondly, Defendant contends that his inculpatory statement was procured as the result of a violation of his Sixth Amendment right to counsel. More particularly, Defendant asserts that he invoked his Sixth Amendment right to counsel and that his decision to resume his conversation with the investigating officers stemmed from impermissible police conduct. Once again, we conclude that Defendant's argument lacks merit.
An accused person has a right to assistance of counsel “[i]n all criminal prosecutions.” U.S. Const. Amend. VI. “[A] person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411, 417 (1972). As the United States Supreme Court stated in Kirby:
The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable.
Id. at 689–90, 92 S.Ct. at 1882 32 L.Ed.2d at 417–18 (citing Powell v. Alabama, 287 U.S. 45, 66–70, 53 S.Ct. 55, 63–64, 77 L.Ed. 158, 169–70 (1932); Massiah v. United States, 377 U.S. 201, 204–05, 84 S.Ct. 1199, 1202–203, 12 L.Ed.2d 246, 249–50 (1964); Spano v. New York, 360 U.S. 315, 324–25, 79 S.Ct. 1202, 1208, 3 L.Ed.2d 1265, 1272–73 (1959) (Douglas, J., concurring)). Formal adversarial proceedings are initiated by means of a “formal charge, preliminary hearing, indictment, information, or arraignment.” Id. at 689, 92 S.Ct. 1882 77 L.Ed. at 417.
An arrest warrant for first-degree murder is not a sufficient charging document upon which a defendant can be tried. Therefore, an arrest warrant for first-degree murder in this state is not a formal charge as contemplated under Kirby. Defendant's Sixth Amendment right to counsel did not attach either at the issuance of the warrant or at the time of his arrest upon the warrant.
State v. Taylor, 354 N.C. 28, 36, 550 S.E.2d 141, 147 (2001), cert. denied, 535 U.S. 934, 122 S.Ct. 1312, 152 L.Ed.2d 221 (2002). Thus, in view of the fact that the only judicial process which had been issued as of the time of Defendant's confession was a magistrate's order, his Sixth Amendment right to counsel had not attached at the time that Defendant confessed. As a result, Defendant's confession did not result from a violation of his Sixth Amendment right to counsel.
B. Jury Instructions
In his final challenge to the trial court's judgment, Defendant contends that the trial court erroneously instructed the jury in two different respects. First, Defendant claims that the trial court's decision to instruct the jury that the only basis upon which Defendant could be found guilty of first degree murder involved the use a deadly weapon precluded the jury from finding Defendant guilty of one or more lesser included offenses. Secondly, Defendant contends that the trial court's instructions included an impermissible expression of opinion concerning the issue of Defendant's guilt. We are not persuaded by Defendant's arguments.
As Defendant candidly acknowledges, he failed to object at trial to the trial court's instructions on the grounds set out in his brief. “In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N .C.R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied,555 U.S. 835, 129 S.Ct. 59, 172 L.Ed.2d 58 (2008). An error rises to the level of plain error when it is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982), cert. denied,459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d. 513 (1982)). “Under the plain error rule, [D]efendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
At trial, the court allowed the jury to determine whether Defendant was guilty of first degree murder, second degree murder, or voluntary manslaughter, or not guilty, with it substantive instructions based upon N.C.P.J.I. 206.10, which is entitled “First Degree Murder Where a Deadly Weapon Is Used.” In its mandate, the trial court stated, in pertinent part, that:
If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant, acting with malice and not in self-defense, killed the victim with a deadly weapon ... it would be your duty to return a verdict of guilty of first degree murder. If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of first degree murder.
If you do not find the defendant guilty of first degree murder, you must determine whether the defendant is guilty of second degree murder.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally and with malice but not in self-defense, wounded the victim with a deadly weapon thereby proximately causing the victim's death, it would be your duty to return a verdict of guilty of second degree murder. If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of second degree murder. If you do not find the defendant guilty of second degree murder, you must consider whether the defendant is guilt of voluntary manslaughter.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally wounded the victim with a deadly weapon and thereby proximately caused the victim's death, and that the defendant was the aggressor in bringing on the fight or used excessive force, it would be your duty to find the defendant guilty of voluntary manslaughter even if the State has failed to prove that the defendant did not act in self-defense.
Or, if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally and not in self-defense wounded the victim with a deadly weapon and thereby proximately caused the victim's death, but the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in the heat of passion upon adequate provocation, it would be your duty to return a verdict of guilty of voluntary manslaughter.
If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of voluntary manslaughter.
And finally, if the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in self-defense then the defendant's action would be justified by self-defense; therefore, you would return a verdict of not guilty.
According to Defendant, the trial court's instructions forced the jury to “either [ ] accept that a stab wound was the cause of death, or acquit [Defendant] outright,” depriving “the jury [of] guidance as to what verdict it should render if it found that choking was the sole cause of death, and that the knife wound was inflicted after death.”
Assuming, without in any way deciding, that his challenge to the trial court's instructions has merit, Defendant must still “convince this Court ... that absent the error, the jury probably would have reached a different result” in order to obtain an award of appellate relief. Jordan, 333 N.C. at 440, 426 S.E.2d at 697. Defendant has not met that burden.
As an initial matter, any jury determination that the stab wound had no role in causing Ms. Whitmore's death would, as Defendant acknowledges, have resulted in a not guilty verdict under the trial court's instructions. For that reason, we are hard-pressed to see how the trial court's alleged error prejudiced Defendant, as compared to the State, a fact which differentiates this case from State v. Whetstone, ––– N.C.App. ––––, ––––, 711 S.E.2d 778, 787 (2011) (holding that the trial court's failure to instruct the jury concerning the extent of the defendant's right to use deadly force to defend himself against an assault which placed him in fear of death or great bodily injury amounted to plain error), upon which Defendant relies. Moreover, all of the evidence at trial indicates that Defendant killed Ms. Whitmore. Although the trial court gave the jury the option of acquitting Defendant on the basis of self-defense, the jury failed to avail itself of that option and Defendant does not contend that the trial court's self-defense instructions were in any way erroneous. As a result, the only issue left for the jury's consideration was the degree of homicide for which Defendant should be convicted.
A first degree murder conviction requires proof of “(1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation.” State v. Haynesworth, 146 N.C.App. 523, 531, 553 S.E.2d 103, 109 (2001) (citing N.C. Gen.Stat. § 14–17; State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991)). Although the expert testimony concerning the cause of death was in conflict, Dr. Radisch testified that Ms. Whitmore died due to the combined effects of the stab wound and asphyxiation. In his confession, Defendant admitted that he strangled Ms. Whitmore, taped her feet and hands together, put a bag over her head, and stabbed her. Given that Defendant admitted having killed Ms. Whitmore, that the firearm with which Ms. Whitmore allegedly threatened Defendant was never found, and that Defendant's trial testimony conflicted with his statements to investigating officers concerning the extent to which Ms. Whitmore threatened him with a firearm, to which he blacked out while strangling Ms. Whitmore, and to which he stabbed Ms. Whitmore after her death, we are unable to say that the jury would have probably convicted Defendant of a lesser included offense had it been instructed in the manner that Defendant now claims would have been appropriate. As a result, we conclude that any instructional error of the type described in Defendant's brief did not rise to the level of plain error.
In addition, we are unable to determine how the trial court's instructions constituted an impermissible expression of opinion to the effect that Ms. Whitmore died as the result, at least in part, of the stab wound given that the trial court's instructions plainly gave the jury the option of concluding that such was not the case and acquitting Defendant.
III. Conclusion
Thus, for the reasons set forth above, we hold that none of Defendant's challenges to the trial court's judgment have merit. As a result, the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).