{ "id": 9000035, "name": "STATE OF NORTH CAROLINA v. WILLIE MELVIN JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "2004-08-17", "docket_number": "No. COA03-733", "first_page": "763", "last_page": "777", "citations": [ { "type": "official", "cite": "165 N.C. App. 763" } ], "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": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 351828, 353749, 355188, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-07", "/us/535/1114-08", "/us/535/1114-10", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "537 U.S. 1133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9350848, 9351014, 9351079, 9350695, 9351145, 9350727, 9350664, 9350889, 9350953, 9351342, 9351407, 9351279, 9351220, 9350807 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/537/1133-05", "/us/537/1133-08", "/us/537/1133-09", "/us/537/1133-02", "/us/537/1133-10", "/us/537/1133-03", "/us/537/1133-01", "/us/537/1133-06", "/us/537/1133-07", "/us/537/1133-13", "/us/537/1133-14", "/us/537/1133-12", "/us/537/1133-11", "/us/537/1133-04" ] }, { "cite": "528 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9591745, 9590661, 9590821, 9591239, 9591017, 9591422, 9591627, 9590924, 9591537, 9591858, 9590740, 9591319, 9591161, 9591095, 9591966 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/1006-13", "/us/528/1006-01", "/us/528/1006-03", "/us/528/1006-08", "/us/528/1006-05", "/us/528/1006-10", "/us/528/1006-12", "/us/528/1006-04", "/us/528/1006-11", "/us/528/1006-14", "/us/528/1006-02", "/us/528/1006-09", "/us/528/1006-07", "/us/528/1006-06", "/us/528/1006-15" ] }, { "cite": "337 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "792-93", "parenthetical": "holding that an indictment alleging that the defendant \"unlawfully, willfully and felo-niously and of malice aforethought did kill and murder\" the victim was \"sufficient to charge first degree murder without specifically alleging premeditation and deliberation or felony murder.\"" } ], "opinion_index": 0 }, { "cite": "534 U.S. 1046", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9215521, 9215684, 9215772, 9215847, 9215659, 9215565, 9215710, 9215824, 9215635, 9215608, 9215738, 9215802, 9215550, 9215583 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/534/1046-01", "/us/534/1046-08", "/us/534/1046-11", "/us/534/1046-14", "/us/534/1046-07", "/us/534/1046-03", "/us/534/1046-09", "/us/534/1046-13", "/us/534/1046-06", "/us/534/1046-05", "/us/534/1046-10", "/us/534/1046-12", "/us/534/1046-02", "/us/534/1046-04" ] }, { "cite": "532 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9315009, 9314948, 9314661, 9314725, 9314631, 9314822, 9314793, 9314695, 9315113, 9314863, 9315060, 9314585, 9314909 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/0931-11", "/us/532/0931-10", "/us/532/0931-03", "/us/532/0931-05", "/us/532/0931-02", "/us/532/0931-07", "/us/532/0931-06", "/us/532/0931-04", "/us/532/0931-13", "/us/532/0931-08", "/us/532/0931-12", "/us/532/0931-01", "/us/532/0931-09" ] }, { "cite": "538 U.S. 1040", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9088471, 9088356, 9088262, 9088423, 9088327, 9088253, 9088298, 9088395, 9088274, 9088343, 9088313, 9088380, 9088285, 9088447 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/538/1040-14", "/us/538/1040-09", "/us/538/1040-02", "/us/538/1040-12", "/us/538/1040-07", "/us/538/1040-01", "/us/538/1040-05", "/us/538/1040-11", "/us/538/1040-03", "/us/538/1040-08", "/us/538/1040-06", "/us/538/1040-10", "/us/538/1040-04", "/us/538/1040-13" ] }, { "cite": "153 L. 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App.", "case_ids": [ 9186405 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "142" }, { "page": "142-43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0133-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "pin_cites": [ { "page": "414-15" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "417 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "331 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497387 ], "year": 1992, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0583-01" ] }, { "cite": "256 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "297 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572036 ], "year": 1979, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0555-01" ] }, { "cite": "555 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "300", "parenthetical": "quoting State v. Clay, 297 N.C. 555, 559, 256 S.E.2d 176, 180 (1979), overruled on other grounds by State v. McAvoy, 331 N.C. 583, 601, 417 S.E.2d 489, 500 (1992), and by State v. Davis, 305 N.C. 400, 414-15, 290 S.E.2d 574, 583 (1982)" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378179 ], "year": 2001, "pin_cites": [ { "page": "101", "parenthetical": "quoting State v. Clay, 297 N.C. 555, 559, 256 S.E.2d 176, 180 (1979), overruled on other grounds by State v. McAvoy, 331 N.C. 583, 601, 417 S.E.2d 489, 500 (1992), and by State v. Davis, 305 N.C. 400, 414-15, 290 S.E.2d 574, 583 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0094-01" ] }, { "cite": "544 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685056, 685073, 684970, 685075 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0359-04", "/nc/352/0359-03", "/nc/352/0359-01", "/nc/352/0359-02" ] }, { "cite": "531 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "855, n.2" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080801 ], "year": 2000, "pin_cites": [ { "page": "551, n.2" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0549-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "479" }, { "page": "726" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "484 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "346 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139403 ], "year": 1997, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0001-01" ] }, { "cite": "596 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "253", "parenthetical": "quoting State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897048 ], "year": 2004, "pin_cites": [ { "page": "313", "parenthetical": "quoting State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0310-01" ] }, { "cite": "155 L. Ed. 2d 1074", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "572 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "125", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511176 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "340", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0316-01" ] } ], "analysis": { "cardinality": 1322, "char_count": 35098, "ocr_confidence": 0.739, "pagerank": { "raw": 5.720015185456745e-08, "percentile": 0.3589178365225154 }, "sha256": "87f2904d68e734384fdc40bf87b0ea9f2b49d50bf212f4f9ac8368e23e703b5b", "simhash": "1:ab0cf4aa3f171552", "word_count": 5631 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIE MELVIN JACKSON" ], "opinions": [ { "text": "McGEE, Judge.\nWillie Melvin Jackson (defendant) was convicted on 24 October 2002 of first degree murder, attempted robbery with a firearm, and conspiracy to commit robbery with a firearm. The trial court entered judgment and sentenced defendant to life imprisonment without parole for the murder conviction. The trial court further sentenced defendant to a minimum of 64 months and a maximum of 86 months in prison for the attempted robbery conviction and a minimum of 25 months and a maximum of 39 months in prison for the conspiracy conviction to run consecutively. Defendant appeals.\nThe State\u2019s evidence at trial tended to show that James Troutman (Troutman), manager of First Citizen\u2019s Bank (the bank) in Conway, and two women working as bank tellers, Vickie Howell (Howell) and Carolyn Watson (Watson), were working on the afternoon of 24 May 2001. Howell testified that at approximately 3:25 p.m. that afternoon, she was waiting on a customer, Marjorie Joyner (Joyner). Howell heard someone yell and she saw a \u201cyoung guy\u201d who had come into the bank with a \u201cblack mesh type thing on his face.\u201d Howell testified that the young male said, \u201cdon\u2019t push the f-button\u201d and then she heard a shot. Howell discovered Watson lying on the floor and told Troutman that Watson had been shot.\nJoyner testified that while she was standing at Howell\u2019s teller window, she observed two young males enter the bank. One announced that he meant \u201cbusiness\u201d and walked toward Watson\u2019s teller window, while the second male crouched down. Joyner heard gunfire and then saw that Watson had f\u00e1llen.\nTroutman testified that at about 3:20 or 3:25 p.m. that afternoon, he was working at his desk when he heard someone yell, \u201cnobody touch that f-button.\u201d Troutman looked up and saw a male with a pistol in his hand in the bank lobby. Troutman also saw a second male crouched down at the corner of the teller window. The male with the pistol passed by Troutman\u2019s office and walked toward Watson\u2019s teller window. After the male passed by his office, Troutman heard a gunshot. The two males fled the bank immediately after the gunshot. Watson died on the way to the hospital as the result of a single gunshot wound just below her chin.\nMae Woodard (Woodard) testified that she saw defendant and another male named Cody Hill (Hill) standing on the street comer outside the bank at around 3:20 p.m. that afternoon. Woodard, who had previously taught defendant and Hill in school, stopped to speak with them. Woodard then went into the bank to make a deposit, and when she left the bank, she observed defendant and Hill walking away from the bank. Shortly after arriving back at work, Woodard saw rescue squad vehicles and police cars outside the bank. She returned to the bank and heard that Watson had been shot. Woodard informed an officer at the scene that she had just been at the bank and had seen two of her former students, defendant and Hill, on the corner outside the bank. She gave a written statement at the Conway Police Department. Afterwards, Woodard was taken back to the bank and was asked to view a videotape from the bank\u2019s surveillance camera. Woodard identified the male with the gun as defendant and the other male as Hill.\nConway Chief of Police Billy Duke (Chief Duke) testified that at around 7:00 p.m. that evening, FBI Agent Fernando Fernandez (Agent Fernandez), who was assisting with the investigation, spoke with Hill\u2019s father. Agent Fernandez then asked Chief Duke to check out a car at the Arrowhead Trailer Park belonging to Toby Gary (Gary), a twenty-four-year-old man from New York. Chief Duke and Deputy Kevin Bird (Deputy Bird) searched the unlocked car, which was parked at Lot 107 of the Arrowhead Trailer Park. The officers found two caps in the car that matched the description of the caps worn by the two males at the bank. On the way back to the police station, the officers heard over the police radio that three suspects, Gary, Hill, and defendant, had been detained.\nChief Ted Sumner (Chief Sumner) of the Gaston Police Department testified that he took Gary and defendant into custody that evening and transported them to the Conway Police Department with defendant in the front passenger\u2019s seat and Gary in the rear passenger area. Later that evening, the Conway Police Department asked Chief Sumner to check his car for a gun. Chief Sumner did so and found a handgun beneath the passenger\u2019s seat. Expert testimony at trial established that Watson was shot by the handgun found under the passenger\u2019s seat of Chief Sumner\u2019s patrol car.\nThe State also offered evidence of three statements defendant made to police. In defendant\u2019s first statement, made on the evening of 24 May 2001, defendant stated that Gary and Hill went into the bank on the afternoon of 24 May 2001 while defendant waited for them. While Gary and Hill were in the bank, defendant went to a thrift store and then waited for them in the car. In his second statement that evening, defendant admitted that he shot Watson, but defendant claimed that the shooting was an accident. Defendant also made a third statement on 7 June 2001 to Detective Charles Barfield (Officer Barfield) of the Northampton Sheriff\u2019s Department. In his third statement, defendant stated that he was with Gary and Shawn Garris (Garris) on the evening of 23 May 2001 when a man was robbed by Gary and Garris. Defendant further stated that they had attempted to get a gun \u201cto do a job.\u201d Defendant presented no evidence.\nWe note at the outset that defendant has failed to present an argument in support of assignments of error numbers two, four through seven, ten, fourteen, fifteen, twenty, twenty-one, twenty-three through twenty-six, twenty-nine, and thirty-two through thirty-five. Therefore, those assignments of error are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).\nDefendant first argues in assignments of error numbers sixteen through eighteen that the trial court erred in denying his motion to suppress his 7 June 2001 statement because it was obtained as a result of custodial interrogation after defendant had been formally charged. Accordingly, defendant asserts that he is entitled to a new trial because his constitutional rights under the Fifth and Sixth Amendments of the United States Constitution were violated. For the reasons stated below, we disagree.\nIn a written motion dated 22 October 2002, defendant moved to suppress \u201call evidence of written or oral statements made by him\u201d to law enforcement. However, on appeal, the only statement at issue is the statement defendant made to Officer Barfield on 7 June 2001. We note that\n[o]ur review of a denial of a motion to suppress by the trial court is \u201climited to determining whether the trial judge\u2019s 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\u2019s ultimate conclusions of law.\u201d\nState v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). \u201cHowever, the trial court\u2019s conclusions of law \u2018must be legally correct, reflecting a correct application of applicable legal principles to the facts found.\u2019 \u201d State v. Strobel, 164 N.C. App. 310, 313, 596 S.E.2d 249, 253 (2004) (quoting State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)).\nIn the case before our Court, voir dire was held during trial to determine the admissibility of defendant\u2019s 7 June 2001 statement to Officer Barfield, as well as statements defendant made to other officers. Evidence at voir dire tended to show that Officer Barfield testified that after defendant\u2019s 7 June 2001 court appearance, Officer Barfield and Officer Shelton Skinner (Officer Skinner) sat with defendant as they waited for juvenile authorities to transport defendant elsewhere. Officer Barfield did not make any statements to defendant, but he described defendant as being \u201cvery talkative.\u201d Officer Barfield testified that when defendant saw the cap which had been presented into evidence, defendant \u201cspontaneously stated, T know where that cap came from.\u2019 \u201d Officer Barfield simply responded, \u201cso do I.\u201d Officer Barfield further testified that defendant then \u201cwent on to say, \u2018well I can tell you some stuff that you don\u2019t know about.\u2019 \u201d Officer Barfield responded, \u201cyeah[,]\u201d and defendant \u201cproceeded at that time talking and disclosing to me of a robbery committed in Roanoke Rapids by him and some others.\u201d When asked whether he initiated any conversation with defendant at any point, Officer Barfield responded negatively. On cross-examination during voir dire, Officer Barfield stated that the only thing he would have asked defendant was for defendant to \u201cbe more specific about something.\u201d Officer Barfield also specifically testified that he did not tell defendant he had a right not to say anything.\nOfficer Skinner testified at voir dire that he was present when defendant made the 7 June 2001 statement to Officer Barfield. Officer Skinner testified that defendant \u201cjust decided to talk\u201d while they were waiting for defendant to be transferred. Officer Skinner stated that he did not ask defendant anything during this time and that Officer Barfield \u201cmay have asked [defendant] to specify what he was talking about[.]\u201d Officer Skinner further testified that neither he nor Officer Barfield gave defendant any Miranda warnings. Defendant did not testify during voir dire concerning the motion to suppress.\nAt the conclusion of voir dire, the trial court immediately found and concluded, among other things, that \u201cthe statement made by the defendant on June 7, 2001, was made freely, voluntarily and understandingly.\u201d Accordingly, the trial court orally denied the motion to suppress and overruled defendant\u2019s objection to admission of the statement into evidence.\nI. Fifth Amendment\nDefendant first challenges admission of his statement to Officer Barfield as a violation of his rights under the Fifth Amendment of the U.S. Constitution. Under the interpretation of the Fifth Amendment under Miranda v. Arizona, 384 U.S. 436, 479, 16 L. Ed. 2d 694, 726 (1966), \u201cno evidence obtained from a defendant through custodial interrogation may be used against that defendant at trial, unless the interrogation was preceded by (1) the appropriate warnings of the rights to remain silent and to have an attorney present and (2) a voluntary and intelligent waiver of those rights.\u201d State v. Locklear, 138 N.C. App. 549, 551, n.2, 531 S.E.2d 853, 855, n.2, disc. review denied, 352 N.C. 359, 544 S.E.2d 553 (2000). However, \u201c \u2018[t]he Miranda warnings and waiver of counsel are required only when an individual is being subjected to custodial interrogation.\u2019 \u201d State v. Kincaid, 147 N.C. App. 94, 101, 555 S.E.2d 294, 300 (2001) (quoting State v. Clay, 297 N.C. 555, 559, 256 S.E.2d 176, 180 (1979), overruled on other grounds by State v. McAvoy, 331 N.C. 583, 601, 417 S.E.2d 489, 500 (1992), and by State v. Davis, 305 N.C. 400, 414-15, 290 S.E.2d 574, 583 (1982)).\nDefendant argues that his Fifth Amendment right applies in the present case because his statement to Officer Barfield was the result of custodial interrogation. The State does not dispute that defendant was in custody at the time of the 7 June 2001 statement, or that defendant was not advised, of his Miranda rights. However, the State argues that Officer Barfield did not interrogate defendant; rather, defendant\u2019s statement was spontaneous and therefore admissible. Thus, the issue is whether the statement was the result of an interrogation.\nWe begin our analysis by noting that \u201cnot every statement obtained by police from a person in custody is considered the product of interrogation.\u201d State v. Fisher, 158 N.C. App. 133, 142, 580 S.E.2d 405, 413, disc. review denied, 357 N.C. 464, 586 S.E.2d 273-74 (2003), aff'd, 358 N.C. 215, 593 S.E.2d 583 (2004).\nThe term \u201cinterrogation\u201d is not limited to express questioning by law enforcement officers, but also includes \u201cany words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.\u201d\nState v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 308 (1980)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). We emphasize that the definition of interrogation extends only to words or actions that police officers should reasonably have known would elicit an incriminating response \u201cbecause \u2018the police surely cannot be held accountable for the unforeseeable results of their words or actions[.]\u2019 \u201d Golphin, 352 N.C. at 406, 533 S.E.2d at 199 (quoting Innis, 446 U.S. at 301-02, 64 L. Ed. 2d at 308)). Further,\n[f] actors that are relevant to the determination of whether police \u201cshould have known\u201d their conduct was likely to elicit an incriminating response include: (1) \u201cthe intent of the police\u201d; (2) whether the \u201cpractice is designed to elicit an incriminating response from the accused\u201d; and (3) \u201c[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion . . . .\u201d\nFisher, 158 N.C. App. at 142-43, 580 S.E.2d at 413 (quoting Innis, 446 U.S. at 301-02, n.7,8, 64 L. Ed. 2d at 308, n.7,8).\nIn this case, as already stated, Officer Barfield did not initiate any questioning with defendant. Rather, defendant spontaneously stated to Officer Barfield that he knew where the cap in the room came from. Officer Barfield responded simply, \u201cso do I.\u201d This is not the type of statement that necessarily invites a response. According to testimony by both Officers Barfield and Skinner, defendant then volunteered the information about another robbery unrelated to defendant\u2019s pending charges. Both officers also testified that Officer Barfield may have asked for clarification on a couple of occasions as defendant talked about the unrelated robbery.\nDefendant emphasizes that when he made this statement to Officer Barfield, he was only fifteen years old, he was facing first degree murder and attempted robbfery charges, and he had just left a probable cause hearing in district court. Defendant argues that he was \u201cundoubtedly nervous and scared\u201d and \u201cparticularly susceptible to any persuasion tactics.\u201d In addition, defendant alleges that he was \u201cconfronted with a baseball cap\u201d while he was waiting to be transferred. However, we do not find that these circumstances warrant a conclusion that Officer Barfield should have known that he would elicit an incriminating response from defendant by saying, \u201cso do I.\u201d\nFurthermore, we note that defendant argues that Officer Barfield \u201cexpressly questioned Defendant about the details, asking him to be more specific.\u201d However, this assertion is not supported by the evidence in the transcript. Rather, the evidence shows that Officer Barfield may have simply asked for clarification for such things as who defendant meant by \u201cwe.\u201d Defendant has also cited no cases to support the assertion that Officer Barfield\u2019s requests for clarification amounted to interrogation, and we hold that Officer Barfield\u2019s conduct did not constitute interrogation under the Fifth Amendment.\nII. Sixth Amendment\nThe Sixth Amendment to the U.S. Constitution provides that \u201cin all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense.\u201d U.S. Const, amend. VI. \u201cThe Sixth Amendment right to counsel attaches only \u2018at or after the initiation of adversary judicial criminal proceedings \u2014 whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.\u2019 \u201d State v. Lippard, 152 N.C. App. 564, 569-70, 568 S.E.2d 657, 661 (quoting Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417 (1972)), disc. review denied and cert. denied, 356 N.C. 441, 573 S.E.2d 159 (2002). \u201c[T]he police may not interrogate a defendant whose Sixth Amendment right has attached unless counsel is present or the defendant expressly waives his right to assistance of counsel.\u201d State v. Warren, 348 N.C. 80, 95, 499 S.E.2d 431, 439, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216 (1998).\nAs just stated, the Sixth Amendment protects a defendant from interrogation after the right has attached. In the analysis regarding defendant\u2019s Fifth Amendment challenge, we concluded that defendant was not interrogated by Officer Barfield. Thus, although defendant\u2019s Sixth Amendment rights had attached, because he was not interrogated, the conclusion follows that defendant\u2019s Sixth Amendment rights were not violated. Accordingly, the assignments of error challenging the trial court\u2019s denial of defendant\u2019s motion to suppress the 7 June 2001 statement are overruled.\nDefendant next argues in assignment of error number thirteen that the trial court deprived him of his constitutional right to a presumption of innocence by instructing the jury not to form an opinion regarding defendant\u2019s guilt or innocence. We note that defendant failed to object or make a constitutional claim for this alleged error at trial. \u201cConstitutional questions not raised and passed upon at trial will not be considered on appeal.\u201d State v. Call, 353 N.C. 400, 421, 545 S.E.2d 190, 204, cert. denied, 534 U.S. 1046, 151 L. Ed. 2d 548 (2001).\n\u201cIn criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.\u201d N.C. R. App. P. 10(c)(4). In order to establish plain error, a defendant must establish that the trial court committed error and that absent this error, the jury would have probably reached a different result.\nState v. Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 477, cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).\nDefendant cites language from Coffin v. United States, 156 U.S. 432, 459, 39 L. Ed. 481, 493 (1895) for the proposition that the presumption of innocence is an \u201cinstrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created.\u201d Defendant argues that the trial court\u2019s instruction about not forming an opinion regarding defendant\u2019s guilt or innocence effectively \u201coperated to remove from the jury\u2019s consideration a portion of the \u2018proof created by the law,\u2019 which the jury was bound to consider.\u201d\nSubsequent cases have commented on the Coffin Court\u2019s view of the presumption of innocence being an \u201cinstrument of proof.\u201d For example, in Taylor v. Kentucky, the United States Supreme Court noted in a footnote that \u201cthe so-called \u2018presumption\u2019 is not evidence\u2014 not even an inference drawn from a fact in evidence \u2014 but instead is a way of describing the prosecution\u2019s duty both to produce evidence of guilt and to convince the jury beyond a reasonable doubt.\u201d Taylor v. Kentucky, 436 U.S. 478, 483-84, n.12, 56 L. Ed. 2d 468, 474, n.12 (1978). The Court further stated that the presumption is \u201cbetter characterized as an \u2018assumption\u2019 that is indulged in the absence of contrary evidence.\u201d Id.\nIn the case before our Court, the trial court instructed the jury before the trial began not to \u201cform any opinion about the guilt or innocence of the defendant.\u201d Defendant cited no cases showing that such an instruction constitutes an error. Thus, we hold that this instruction by the trial court did not amount to plain error. Accordingly, defendant\u2019s argument is overruled.\nDefendant next agues in assignment of error number eight that the trial court lacked jurisdiction to enter judgment convicting defendant of conspiracy to commit robbery. Defendant asserts that because he was fifteen years old at the time the alleged conspiracy was committed, he was subject to prosecution only pursuant to the North Carolina Juvenile Code as codified in N.C. Gen. Stat. \u00a7 7B-100 et seq. (2003). Defendant argues that the trial court did not properly obtain jurisdiction pursuant to the Juvenile Code.\nThe Juvenile Code provides that the district court \u201chas exclusive, original jurisdiction over any case involving a juvenile who is alleged to be delinquent. For purposes of determining jurisdiction, the age of the juvenile at the time of the alleged offense governs.\u201d N.C. Gen. Stat. \u00a7 7B-1601(a) (2003). See also N.C. Gen. Stat. \u00a7 7B-1501(4) (2003) (defining court as \u201c[t]he district court division of the General Court of Justice.\u201d). Further, N.C. Gen. Stat. \u00a7 7B-2200 (2003) provides the following as the procedure regarding transfer from district to superior court:\nAfter notice, hearing, and a finding of probable cause the court may, upon motion of the prosecutor or the juvenile\u2019s attorney or upon its own motion, transfer jurisdiction over a juvenile to superior court if the juvenile was 13 years of age or older at the time the juvenile allegedly committed an offense that would be a felony if committed by an adult. If the alleged felony constitutes a Class A felony and the court finds probable cause, the court shall transfer the case to the superior court for trial as in the case of adults.\n\u201cThe superior court may obtain subject matter jurisdiction over a juvenile case only if it is transferred from the district court according to the procedure [N.C. Gen. Stat. \u00a7 7B-2200] prescribes.\u201d State v. Dellinger, 343 N.C. 93, 96, 468 S.E.2d 218, 220 (1996).\nIn the case before this Court, two juvenile petitions, one alleging murder and the other alleging attempted armed robbery, were filed in district court. The trial court found probable cause that defendant committed these offenses and ordered that these offenses be transferred to superior court. Subsequently, defendant was indicted and found guilty of first degree murder, attempted armed robbery, and conspiracy to commit armed robbery. Prior to the indictments in superior court, no petition had been filed in district court regarding the conspiracy charge. Defendant argues that the district court never exercised jurisdiction over defendant for this charge, and consequently, the superior court did not obtain jurisdiction over this charge by transfer pursuant to N.C. Gen. Stat. \u00a7 7B-2200. However, N.C. Gen. Stat. \u00a7 7B-2203(c) (2003) states that when a juvenile case is transferred to superior court, \u201cthe superior court has jurisdiction over that felony, any offense based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan of that felony[.]\u201d The offense of conspiracy to commit armed robbery fell within the transaction related to the felony charge of armed robbery that was transferred from district court to superior court. Therefore, the superior court also had jurisdiction over the offense of conspiracy to commit armed robbery under N.C.G.S. 7B-2203(c). Accordingly, we affirm defendant\u2019s conviction for conspiracy to commit armed robbery.\nDefendant next argues in assignment of error number thirty that the trial court erred in failing to arrest judgment on the attempted armed robbery offense where that offense served as the underlying felony for defendant\u2019s felony murder conviction. We note that the State concedes the trial court erred.\n\u201cWhen a defendant is convicted of felony murder only, the underlying felony constitutes an element of first-degree murder and merges into the murder conviction.\u201d State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770 (2002). \u201cIn accordance with the state and federal prohibitions against double jeopardy, our Supreme Court firmly established that \u2018a defendant may not be punished both for felony murder and for the underlying, \u201cpredicate\u201d felony, even in a single prosecution.\u2019 \u201d State v. Coleman, 161 N.C. App. 224, 234, 587 S.E.2d 889, 896 (2003) (quoting State v. Gardner, 315 N.C. 444, 460, 340 S.E.2d 701, 712 (1986)). Because the underlying felony merges into the murder conviction, \u201cany judgment on the underlying felony must be arrested.\u201d Coleman, 161 N.C. App. at 234, 587 S.E.2d at 896.\nIn the case before us, defendant was convicted of first degree murder based on the fact that the killing occurred during an attempted armed robbery. Defendant was also convicted of attempted armed robbery. The trial court erroneously imposed sentences for both the murder conviction and the attempted armed robbery conviction. Accordingly, judgment is arrested on defendant\u2019s conviction of attempted armed robbery. See State v. Gillis, 158 N.C. App. 48, 58-59, 580 S.E.2d 32, 39, disc. review denied, 357 N.C. 508, 587 S.E.2d 887 (2003); State v. Ocasio, 344 N.C. 568, 581, 476 S.E.2d 281, 288 (1996).\nDefendant next argues in assignment of error number one that the trial court erred in entering judgment convicting him of first degree murder because the indictment was insufficient to allege the elements of felony murder. Defendant maintains the trial court violated his federal and state constitutional rights under U.S. Const, amends. V, VI, VIII, and XIV and N.C. Const, art. I, \u00a7\u00a7 18, 19, 22, 23, 24 and 27.\nDefendant cites two cases in recognition that our Supreme Court has upheld the use of short-form indictments. However, defendant contends that the \u201ccases do not address the specific issue presented here \u2014 whether an indictment alleging an unlawful, willful and felonious killing with malice aforethought provides sufficient notice ... to charge a defendant with felony murder.\u201d Our Supreme Court \u201chas consistently held that the \u2018short-form indictment is sufficient to charge a defendant with first-degree murder.\u2019 \u201d Coleman, 161 N.C. App. at 236, 587 S.E.2d at 897 (quoting Barden, 356 N.C. at 384, 572 S.E.2d at 150). Contrary to defendant\u2019s assertion, our Supreme Court has addressed the very same issue. See State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786, 792-93 (1985) (holding that an indictment alleging that the defendant \u201cunlawfully, willfully and felo-niously and of malice aforethought did kill and murder\u201d the victim was \u201csufficient to charge first degree murder without specifically alleging premeditation and deliberation or felony murder.\u201d). Accordingly, defendant\u2019s argument is overruled.\nFinally, defendant argues in multiple assignments of error that he received ineffective assistance of counsel. \u201cTo establish ineffective assistance of counsel, defendant must satisfy a two-prong test which was promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984).\u201d State v. Thomas, 350 N.C. 315, 328, 514 S.E.2d 486, 495, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388 (1999). \u201c[A] defendant must show that his counsel\u2019s assistance was so deficient that counsel was not \u2018functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment,\u2019 and that counsel\u2019s deficient performance deprived him of a fair trial.\u201d State v. Lawson, 159 N.C. App. 534, 543, 583 S.E.2d 354, 360 (2003) (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).\nDefendant argues that there are multiple errors that his trial counsel made at trial that either sing\u00falarly or collectively amounted to ineffective assistance of counsel. He argues that trial counsel (1) failed to object to the first degree murder and conspiracy indictments; (2) failed to take appropriate action to preserve any record of the juvenile court proceedings and failed to preserve defendant\u2019s right to appeal the district court proceedings; (3) failed to adequately prepare for trial or to adequately present a defense; and (4) failed to present a defense that was supported by the law.\nN.C. Gen. Stat. \u00a7 15A-1419(a)(3) (2003) \u201crequires a defendant to raise on direct appeal \u2018those [ineffective assistance of counsel] claims on direct review that are apparent from the record.\u2019 \u201d Lawson, 159 N.C. App. at 544, 583 S.E.2d at 361 (quoting State v. Hyatt, 355 N.C. 642, 668, 566 S.E.2d 61, 78 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003)). Pursuant to this statute, \u201cit is likely that counsel will err on the side of bringing claims for ineffective assistance of counsel on direct review even when they cannot be accurately determined at such a stage.\u201d Lawson, 159 N.C. App. at 544, 583 S.E.2d at 361.\n\u201c \u2018[Ineffective assistance of counsel] claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.\u2019 \u201d State v. Daniels, 164 N.C. App. 558, 564, 596 S.E.2d 256, 259-60 (2004) (quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002)).\nOn this record, we conclude that there is inadequate evidence of ineffective assistance of counsel for our Court to review the issue on appeal. Accordingly, we dismiss defendant\u2019s ineffective assistance claim, without prejudice, so that defendant may file a motion for appropriate relief before the trial court. See Daniels, 164 N.C. App. at 564, 596 S.E.2d at 260.\nJudgment arrested in 01 CRS 001020, the attempted armed robbery conviction.\nJudgment affirmed in 01 CRS 001019, the conspiracy to commit armed robbery conviction.\nAffirmed in part; dismissed in part; arrested in part.\nJudges CALABRIA and STEELMAN concur.\n. However, we note that even if defendant\u2019s constitutional rights had been violated, such error would have been harmless beyond a reasonable doubt Under N.C. Gen. Stat. \u00a7 15A-1443(b) (2003), \u201c[a] violation of the defendant\u2019s 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.\u201d In this case, there was overwhelming evidence of defendant\u2019s guilt. He was identified on the surveillance video by a former teacher and the gun which resulted in the death of Watson was discovered after defendant had been riding in Officer Sumner\u2019s patrol car. Further, defendant\u2019s statement to Officer Barfield dealt with a robbery totally unrelated to the charges he faced at the time of the statement.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Steven F. Bryant, for the State.", "Everett & Hite, L.L.P., by Kimberly A. Swank, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIE MELVIN JACKSON\nNo. COA03-733\n(Filed 17 August 2004)\n1. Confessions and Incriminating Statements\u2014 custodial interrogation \u2014 motion to suppress\nThe trial court did not err in a first-degree murder, attempted robbery with a firearm, and conspiracy to commit robbery with a firearm case by denying defendant\u2019s motion to suppress his 7 June 2001 statement made to an officer while defendant sat with two officers while waiting for juvenile authorities to transport defendant elsewhere, because: (1) the officer did not initiate any questioning with defendant, defendant spontaneously stated to the officer that he knew where the cap in the room came from and the officer simply responded \u201cso do I\u201d which is not the type of statement that necessarily invites a response, and defendant thereafter volunteered information about another robbery unrelated to defendant\u2019s pending charges; (2) the circumstances did not warrant a conclusion that the officer should have known that he would elicit an incriminating response from defendant by saying \u201cso do I;\u201d (3) the officer may have simply asked for clarification for such things as who defendant meant by \u201cwe,\u201d and defendant failed to cite any cases to support the assertion that the officer\u2019s requests for clarification amounted to interrogation; and (4) although defendant\u2019s Sixth Amendments rights attached, defendant was not interrogated and thus his Sixth Amendment rights were not violated.\n2. Constitutional Law\u2014 presumption of innocence \u2014 instruction not to form an opinion \u2014 plain error analysis\nThe trial court did not deprive defendant of his constitutional right to the presumption of innocence and did not commit plain error by instructing the jury before the trial began not to form an opinion regarding defendant\u2019s guilt or innocence because: (1) the presumption of innocence is not evidence, but instead is a way of describing the prosecution\u2019s duty to produce evidence of guilt and to convince the jury beyond a reasonable doubt; and (2) defendant failed to cite any cases showing that such an instruction constituted an error.\n3. Juveniles\u2014 conspiracy to commit armed robbery \u2014 jurisdiction \u2014 absence of juvenile petition \u2014 transaction related to transferred felony charge\nThe superior court had jurisdiction over an offense of conspiracy to commit armed robbery that occurred when defendant was fifteen years old, even though no juvenile petition had been filed in district court regarding the conspiracy charge, where juvenile petitions alleging murder and attempted armed robbery were filed in district court; the district court ordered that those offenses be transferred to superior court; defendant was subsequently indicted for first-degree murder, attempted armed robbery and conspiracy to commit armed robbery; the offense of conspiracy to commit armed robbery fell within the transaction related to the felony charge of attempted armed robbery that was transferred from district to superior court; and the superior court thus had jurisdiction over the conspiracy offense under N.C.G.S. \u00a7 7B-2203(c).\n4. Homicide\u2014 felony murder \u2014 attempted armed robbery\nThe trial court erred by failing to arrest judgment on an attempted armed robbery offense where that offense served as the underlying felony for defendant\u2019s felony murder conviction because where defendant is convicted of felony murder only, the underlying felony constitutes an element of first-degree murder and merges into the murder conviction.\n5. Homicide\u2014 felony murder \u2014 short-form indictment\u2014 constitutionality\nThe trial court did not err by entering judgment convicting defendant-of first-degree murder based on an alleged insufficient indictment to allege the elements of felony murder, because our Supreme Court has consistently held that the short-form indictment is sufficient to charge a defendant with first-degree murder.\n6. Constitutional Law\u2014 effective assistance of counsel \u2014 dismissal without prejudice \u2014 motion for appropriate relief\nDefendant\u2019s claim of ineffective assistance of counsel is dismissed without prejudice so that defendant may file a motion for appropriate relief before the trial court because there is inadequate evidence of ineffective assistance of counsel in the record.\nAppeal by defendant from judgments dated 24 October 2002 by Judge Cy A. Grant in Superior Court, Northampton County. Heard in the Court of Appeals 4 March 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Steven F. Bryant, for the State.\nEverett & Hite, L.L.P., by Kimberly A. Swank, for defendant-appellant." }, "file_name": "0763-01", "first_page_order": 795, "last_page_order": 809 }