{ "id": 9128278, "name": "STATE OF NORTH CAROLINA v. ERIC L. KORNEGAY", "name_abbreviation": "State v. Kornegay", "decision_date": "2002-03-19", "docket_number": "No. COA01-585", "first_page": "390", "last_page": "398", "citations": [ { "type": "official", "cite": "149 N.C. App. 390" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "436-38", "parenthetical": "holding that \"premeditation and deliberation need not be separately alleged in the short-form indictment\"" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "173-75", "parenthetical": "holding that \"premeditation and deliberation need not be separately alleged in the short-form indictment\"" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "148 L. Ed. 2d 784", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9716648, 9716724 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1120-01", "/us/531/1120-02" ] }, { "cite": "148 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679042, 9678662, 9678761, 9678795, 9678864, 9678962, 9678739, 9678834, 9678903, 9678645, 9678999, 9678940, 9678686, 9678719 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/1018-14", "/us/531/1018-02", "/us/531/1018-06", "/us/531/1018-07", "/us/531/1018-09", "/us/531/1018-12", "/us/531/1018-05", "/us/531/1018-08", "/us/531/1018-10", "/us/531/1018-01", "/us/531/1018-13", "/us/531/1018-11", "/us/531/1018-03", "/us/531/1018-04" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "341-43" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "pin_cites": [ { "page": "504-08" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "388 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "326 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305404 ], "year": 1990, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0155-01" ] }, { "cite": "231 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "year": 1977, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "451 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "272", "parenthetical": "quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558515 ], "year": 1994, "pin_cites": [ { "page": "454", "parenthetical": "quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0441-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "262 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "193", "parenthetical": "quoting State v. Bagley, 321 N.C. 201, 213, 262 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "pin_cites": [ { "page": "62", "parenthetical": "quoting State v. Bagley, 321 N.C. 201, 213, 262 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "344 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774343 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0193-01" ] }, { "cite": "298 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "658" } ], "opinion_index": 0 }, { "cite": "307 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562214 ], "year": 1983, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0274-01" ] }, { "cite": "501 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "66-67", "parenthetical": "quoting State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds, 317 N.C. 193, 344 S.E.2d 775 (1986)" } ], "opinion_index": 0 }, { "cite": "348 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659821 ], "year": 1998, "pin_cites": [ { "page": "524", "parenthetical": "quoting State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds, 317 N.C. 193, 344 S.E.2d 775 (1986)" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0510-01" ] }, { "cite": "140 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11634688, 11634848, 11634818, 11634787, 11635043, 11634759, 11634727, 11634921, 11635018, 11634704, 11635185, 11634993, 11635091, 11634969, 11635131, 11634878 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1135-01", "/us/522/1135-07", "/us/522/1135-06", "/us/522/1135-05", "/us/522/1135-13", "/us/522/1135-04", "/us/522/1135-03", "/us/522/1135-09", "/us/522/1135-12", "/us/522/1135-02", "/us/522/1135-16", "/us/522/1135-11", "/us/522/1135-14", "/us/522/1135-10", "/us/522/1135-15", "/us/522/1135-08" ] }, { "cite": "489 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "407" } ], "opinion_index": 0 }, { "cite": "347 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551309 ], "year": 1997, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0001-01" ] }, { "cite": "243 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "295 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561038 ], "year": 1978, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0075-01" ] }, { "cite": "361 S.E.2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "888", "parenthetical": "quoting State v. Medley, 295 N.C. 75, 79, 243 S.E.2d 374, 377 (1978)" } ], "opinion_index": 0 }, { "cite": "321 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568550 ], "year": 1987, "pin_cites": [ { "page": "41", "parenthetical": "quoting State v. Medley, 295 N.C. 75, 79, 243 S.E.2d 374, 377 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0031-01" ] }, { "cite": "372 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "year": 1988, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0339-01" ] }, { "cite": "412 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "41" } ], "opinion_index": 0 }, { "cite": "330 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511838 ], "year": 1992, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0446-01" ] }, { "cite": "511 U.S. 318", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147005 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "322", "parenthetical": "holding that the \"ultimate inquiry\" in determining whether a person is in custody for purposes of Miranda is whether there was a \"formal arrest or restraint on freedom of movement associated with a formal arrest\"" }, { "page": "298", "parenthetical": "holding that the \"ultimate inquiry\" in determining whether a person is in custody for purposes of Miranda is whether there was a \"formal arrest or restraint on freedom of movement associated with a formal arrest\"" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/us/511/0318-01" ] }, { "cite": "516 U.S. 99", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 326006 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "112" }, { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/us/516/0099-01" ] }, { "cite": "463 U.S. 1121", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203910 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1125" }, { "page": "1279" } ], "opinion_index": 0, "case_paths": [ "/us/463/1121-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "530 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "300" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11095125 ], "year": 2000, "pin_cites": [ { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0590-01" ] }, { "cite": "147 L. Ed. 2d 965", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "530 U.S. 1245", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9433473, 9433442, 9433509, 9433349, 9433253, 9433290, 9433227, 9433548, 9433389, 9433330, 9433365, 9433273, 9433307, 9433407 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/1245-12", "/us/530/1245-11", "/us/530/1245-13", "/us/530/1245-07", "/us/530/1245-02", "/us/530/1245-04", "/us/530/1245-01", "/us/530/1245-14", "/us/530/1245-09", "/us/530/1245-06", "/us/530/1245-08", "/us/530/1245-03", "/us/530/1245-05", "/us/530/1245-10" ] }, { "cite": "520 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "554" } ], "opinion_index": 0 }, { "cite": "351 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155790 ], "year": 1999, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0048-01" ] }, { "cite": "543 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155589, 1155654, 1155601, 1155638, 1155960 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0475-02", "/nc/351/0475-01", "/nc/351/0475-03", "/nc/351/0475-05", "/nc/351/0475-04" ] }, { "cite": "427 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "893" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525992 ], "year": 1993, "pin_cites": [ { "page": "587-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0586-01" ] }, { "cite": "524 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 510", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240774 ], "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0510-01" ] } ], "analysis": { "cardinality": 833, "char_count": 18157, "ocr_confidence": 0.765, "pagerank": { "raw": 3.6771163606503954e-07, "percentile": 0.8912286005863662 }, "sha256": "15eec0a5e9452e4bb37a35fe20520eafcb5627482567d666f3183f16a2ab948d", "simhash": "1:93ea602a744e3bdc", "word_count": 2939 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ERIC L. KORNEGAY" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nEric L. Kornegay (\u201cdefendant\u201d) appeals his convictions of first-degree murder and armed robbery.\nThe evidence at trial tended to show the following: Byong Kook Min (\u201cMin\u201d) was the owner and operator of Lexton\u2019s, a store located in downtown Kinston, North Carolina. On 28 August 1998, law enforcement officers discovered Min\u2019s body lying on the floor of his store.\nOn or around the time of the murder, defendant was seen in downtown Kinston. On 3 September 1999, six days after Min\u2019s murder, law enforcement agents of the Kinston Police Department attached a recording device on Clifton Edwards (\u201cEdwards\u201d) and sent him to speak with defendant. Defendant was heard describing to Edwards how he shot Min and the items he stole from the store. Later that day, Officer Jackie Rogers and Detective Ken Barnes of the Kinston police department located defendant at his home. Defendant agreed to accompany the officers to the police station for questioning.\nAt the police station, defendant was not handcuffed nor restrained in any manner. After repeated denials of his involvement in the crimes, defendant confessed to Captain Randy Askew (\u201cCaptain Askew\u201d) that he committed the robbery and murder. In his confession, defendant admitted riding downtown on his moped with a .22 rifle revolver in his pocket. Once inside Lexton\u2019s, defendant looked at clothing, jewelry and tried on a pair of shoes. At one point, Min turned around and defendant pulled out his revolver and pointed it at Min\u2019s head. However, defendant confessed, he became scared and put the revolver back in his pocket. When Min turned around the second time, defendant fired a gunshot to the back of Min\u2019s head. After the shooting, defendant stated that he stole five (5) twenty-dollar bills, three (3) ten-dollar bills and six (6) one-dollar bills. He also filled four bags with clothing and one bag with jewelry.\nCaptain Askew reduced defendant\u2019s confession to writing. Defendant subsequently read and signed the statement. Shortly after giving the statement to Captain Askew, Special Agent Forrest Kennedy of the State Bureau of Investigation, read defendant his Miranda rights, at which point defendant gave another statement confessing to the crimes.\nAfter confessing to the crimes, defendant rode with the police to his home where they recovered a .22 caliber revolver. While at defendant\u2019s home, defendant\u2019s mother asked him if he in fact, \u201cshot that man.\u201d She asked the question twice and defendant responded that he shot Min. At trial, the recorded conversation between defendant and Clifton was played in court for the jury. Defendant was subsequently found guilty of first-degree murder and armed robbery and was sentenced to life imprisonment without parole. Defendant appeals.\nIn his first assignment of error, defendant contends that the trial court erroneously failed to suppress statements that were obtained in violation of his constitutional rights. For the following reasons stated herein, we disagree.\n\u201c \u2018The scope of review on appeal of the denial of a defendant\u2019s motion to suppress is strictly limited to determining whether the trial court\u2019s 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\u2019s conclusions of law.\u2019 \u201d State v. Cabe, 136 N.C. App. 510, 512, 524 S.E.2d 828, 830 (quoting State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993)), disc. review denied, 351 N.C. 475, 543 S.E.2d 496 (2000). We note that defendant does not except to any of the trial court\u2019s findings of fact. This Court\u2019s review is therefore, \u201climited to whether the trial court\u2019s findings of fact support its conclusions of law.\u201d State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000). \u201cWhile the trial court\u2019s factual findings are binding if sustained by the evidence, the court\u2019s conclusions based thereon are reviewable de novo on appeal.\u201d State v. Parker, 137 N.C. App. 590, 594, 530 S.E.2d 297, 300 (2000).\nDefendant argues that the trial court articulated the wrong test for determining whether he was \u201cin custody\u201d for purposes of Miranda in light of the recent Supreme Court decision, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).\nIn State v. Buchanan, our Supreme Court redefined the test that a trial court must employ in determining whether a person is \u201cin custody\u201d for purposes of Miranda. In Buchanan, defendant made two statements to law enforcement officers before he was arrested, charged and afforded his Miranda rights. Id. at 335, 543 S.E.2d at 825. In suppressing the defendant\u2019s statements, the trial court found that defendant was in custody before he was afforded his Miranda rights and thus his statements were not admissible. The State appealed, contending that the trial court applied an \u201cincomplete test\u201d in determining that defendant was in custody. Id. at 335, 543 S.E.2d at 826. The State argued that the trial court erred in applying the test of whether a reasonable person in defendant\u2019s position would have felt \u201cfree to leave,\u201d rather than utilizing a test which inquires whether a \u201creasonable person would have perceived that there was a \u201cformal arrest or restraint on freedom of movement of the degree associated with a formal arrest.\u201d Id. at 336, 543 S.E.2d at 826. Therefore, the State argued, the trial court erred in granting defendant\u2019s motion to suppress. Id.\nIn summarizing the law regarding the application of Miranda in custodial interrogations, the Supreme Court in Buchanan \u201cdisavowed\u201d the long-standing \u201cfree to leave\u201d test for determining whether a defendant is in custody. Id. at 340, 543 S.E.2d at 828. Instead, the Supreme Court articulated that the \u201c \u2018ultimate inquiry,\u2019 \u201d based on the totality of circumstances, is whether there was a \u201c \u2018formal arrest or restraint of freedom of movement of the degree associated with a formal arrest.\u2019 \u201d Id. at 338, 543 S.E.2d at 827 (quoting California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 1279 (1983); see also Thompson v. Keohane, 516 U.S. 99, 112, 133 L. Ed. 2d 383, 394 (1995)); Stansbury v. California, 511 U.S. 318, 322, 128 L. Ed. 2d 293, 298 (1994) (holding that the \u201cultimate inquiry\u201d in determining whether a person is in custody for purposes of Miranda is whether there was a \u201cformal arrest or restraint on freedom of movement associated with a formal arrest\u201d). The Court stated that unlike the \u201cfree to leave\u201d test, which has consistently been applied for determining whether a person has been seized for Fourth and Fourteenth Amendment purposes, the \u201cformal arrest\u201d test applies to \u201cFifth Amendment custodial inquiries and requires circumstances which go beyond those supporting a finding of temporary seizure and create an objectively reasonable-belief that one is actually or ostensibly \u201cin custody.\u201d Id. at 339, 543 S.E.2d at 828.\nAccordingly, the Supreme Court concluded that the trial court\u2019s application of the broader \u201cfree to leave\u201d test was error and thus the Court remanded the matter to the trial court for a determination of whether the statement should be suppressed under the narrower \u201cformal arrest\u201d test. Id. at 339, 543 S.E.2d at 828.\nIn the instant case, the trial court, in denying defendant\u2019s motion to suppress, applied the \u201cfree to leave\u201d test and determined that defendant was not in custody when he confessed to the crimes charged. As announced by our Supreme Court in Buchanan, the \u201cfree to leave\u201d test is less restrictive than the newly articulated \u201cformal arrest test.\u201d Since the trial court determined that under the less restrictive \u201cfree to leave\u201d test that defendant\u2019s statement should not be suppressed, it follows that an application of the more restrictive \u201cformal arrest\u201d test would yield the same conclusion, that, \u201cdefendant was not in custody\u201d for purposes of Miranda. Thus, we hold that any error in the trial court\u2019s application of the \u201cfree to leave\u201d test did not prejudice defendant. This assignment of error is overruled.\nIn his second assignment of error, defendant contends that the trial court erred in failing to instruct the jury on voluntary intoxication and second-degree murder. We disagree.\nIt is \u201cwell established that an instruction on voluntary intoxication is not required in every case in which a defendant claims that he killed a person after consuming intoxicating beverages or controlled substances.\u201d State v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992). Evidence of mere intoxication is not enough to meet defendant\u2019s burden of production. State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 536 (1988). Before the trial court will be required to instruct on voluntary intoxication, defendant must produce substantial evidence which would support a conclusion by the trial court that at the time of the crime for which he is being tried \u201c \u2018defendant\u2019s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. In absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon.\u2019 \u201d State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987) (quoting State v. Medley, 295 N.C. 75, 79, 243 S.E.2d 374, 377 (1978)).\nIn support of an instruction of voluntary intoxication, defendant attempts to rely on his statement given to Captain Askew wherein he stated that he was \u201cdrunk and high from smoking [cocaine]\u201d and that he was \u201ccoming down\u201d from the night before. While he may have consumed these controlled substances prior to the murder, there is no evidence to suggest that he was intoxicated at the time he committed the murder. In fact, in his statement given to Captain Askew, defendant remembered specific details surrounding the murder including the clothes he was wearing and the conversation he had with Min prior to the murder. After leaving the store, defendant disposed of the murder weapon and the bags of stolen property. Such behavior is clearly indicative of a capacity to form premeditation and deliberation. Under the facts of this case, we cannot conclude that defendant produced sufficient evidence from which a jury could find that defendant was so intoxicated that he was \u201cutterly incapable\u201d of forming the specific intent to commit first-degree murder.\nDefendant further argues that the trial court erred in failing to instruct the jury on second-degree murder. We disagree.\nFirst-degree murder is defined as \u201cthe intentional and unlawful killing of a human being with malice and with premeditation and deliberation.\u201d State v. Flowers, 347 N.C. 1, 29, 489 S.E.2d 391, 407 (1997), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998). Second-degree murder is defined as \u201cthe unlawful killing of a human being with malice, but without premeditation and deliberation.\u201d Id. \u201cA defendant is entitled to have a lesser-included offense submitted to the jury only when there is evidence to support that lesser-included offense.\u201d Id. Our Supreme Court has stated that the test for determining whether an instruction on second-degree murder is required is as follows:\n\u201cThe determinative factor is what the State\u2019s evidence tends to prove. If the evidence is sufficient to fully satisfy the State\u2019s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant\u2019s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.\u201d\nState v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 66-67 (1998) (quoting State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds, 317 N.C. 193, 344 S.E.2d 775 (1986)).\nThe State\u2019s evidence tended to show that defendant killed Min with premeditation and deliberation. Defendant went to Lexton\u2019s with a gun. At one point, Min turned around and defendant pointed a gun at his head; however, defendant did not fire a shot. When Min turned around the second time, defendant shot Min in the back of the head. After killing Min, defendant proceeded to steal items from the store including cash, clothing, and jewelry. The evidence is clearly sufficient to establish every element of the offense of first-degree murder. Thus, the trial court was not required to instruct the jury on second-degree murder. This assignment of error is therefore overruled.\nBy his next assignment of error, defendant contends that the trial court erred in its instructions to the jury on flight. At trial, defendant did not object to the instruction given by the trial court. Having failed to object at trial, defendant now assigns plain error to the trial court\u2019s instruction to the jury.\nTo find plain error, the error in the trial court\u2019s jury instruction must be \u201c \u2018so fundamental as to amount to a miscarriage of justice\u2019 \u201d in that a different verdict probably would have been reached by the jury. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (quoting State v. Bagley, 321 N.C. 201, 213, 262 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)). \u201cOnly in a \u2018rare case\u2019 will ah improper instruction \u2018justify reversal of a criminal conviction when no objection has been made in the trial court.\u2019 \u201d State v. Weathers, 339 N.C. 441, 454, 451 S.E.2d 266, 272 (1994) (quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983)).\nA flight instruction is appropriate where \u201cthere is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime[.]\u201d State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977). \u201cThe relevant inquiry concerns whether there is evidence that defendant left the scene of the murder and took steps to avoid apprehension.\u201d State v. Levan, 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990).\nIn the present case, the evidence revealed that defendant fled the scene after committing the . crimes charged. Upon leaving the store, defendant discarded the murder weapon and the bags of stolen items. We hold the evidence sufficient for an instruction on flight. This assignment of error is overruled.\nIn his last assignment of error, defendant contends that the trial court erred in denying his motion to dismiss based on the State\u2019s use of the short-form indictment. This argument is without merit.\nThe indictment in the present case charged that defendant \u201cunlawfully, willfully and feloniously did of malice aforethought kill and murder Byon Kook Min\u201d in violation of N.C. Gen. Stat. \u00a7 14-17. Defendant\u2019s arguments were expressly rejected in State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43 (holding that indictments based upon N.C. Gen. Stat. \u00a7 15-144 are in compliance with both the North Carolina and United States Constitution), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000), reh\u2019g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001); and State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000) (holding that \u201cpremeditation and deliberation need not be separately alleged in the short-form indictment\u201d), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). In light of the recent decisions of the Supreme Court, we overrule this assignment of error.\nNo error.\nJudges WYNN and TYSON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, by Special Deputy Attorney General Robert J. Blum, for the State.", "Russell J. Hollers, III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC L. KORNEGAY\nNo. COA01-585\n(Filed 19 March 2002)\n1. Confessions and Incriminating Statements\u2014 free to leave test \u2014 formal arrest test \u2014 defendant not in custody\nThe trial court did not err in a first-degree murder and armed robbery case by failing to suppress statements that were obtained before defendant received Miranda warnings because although the trial court applied the less restrictive \u201cfree to leave\u201d test to conclude that defendant\u2019s statements should not be suppressed, instead of the newly articulated \u201cformal arrest\u201d test, it follows that an application of the more restrictive \u201cformal arrest\u201d test would yield the same conclusion that defendant was not in custody for purposes of Miranda.\n2. Homicide\u2014 first-degree murder \u2014 voluntary intoxication\nThe trial court did not err in a first-degree murder case by failing to instruct on voluntary intoxication, because: (1) while defendant may have consumed controlled substances prior to the murder, there is no evidence to suggest that he was intoxicated at the time he committed the murder; (2) defendant remembered specific details surrounding the murder including the clothes he was wearing and the conversation he had with the victim prior to the murder; and (3) defendant disposed of the murder weapon and the bags of stolen property after leaving the store, indicating a capacity to form premeditation and deliberation.\n3. Homicide\u2014 first-degree murder \u2014 failure to instruct on lesser-included offense of second-degree murder\nThe trial court did not err in a first-degree murder case by failing to instruct on the lesser-included offense of second-degree murder, because the State\u2019s evidence tended to show that defendant killed the victim with premeditation and deliberation.\n4. Criminal Law\u2014 jury instructions \u2014 flight\nThe trial court did not commit plain error in a first-degree murder and armed robbery case by its instructions to the jury on flight, because: (1) the evidence revealed that defendant fled the scene after committing the crimes charged; and (2) upon leaving the store, defendant discarded the murder weapon and the bags of stolen items.\n5. Homicide\u2014 first-degree murder \u2014 short-form indictment\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of first-degree murder based on the use of a short-form indictment, because the indictment is constitutional.\nAppeal by defendant from judgment entered 31 August 2000 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 13 February 2002.\nAttorney General Roy A. Cooper, by Special Deputy Attorney General Robert J. Blum, for the State.\nRussell J. Hollers, III, for defendant-appellant." }, "file_name": "0390-01", "first_page_order": 424, "last_page_order": 432 }