{ "id": 8473029, "name": "STATE OF NORTH CAROLINA v. LAWRENCE LEE ASH", "name_abbreviation": "State v. Ash", "decision_date": "2005-04-19", "docket_number": "No. COA04-623", "first_page": "715", "last_page": "728", "citations": [ { "type": "official", "cite": "169 N.C. App. 715" } ], "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": "601 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631756 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0866-01" ] }, { "cite": "358 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631751, 12631754, 12631756, 12631757, 12631758, 12631675 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0863-01", "/se2d/601/0865-02", "/se2d/601/0866-01", "/se2d/601/0867-03", "/se2d/601/0867-01", "/se2d/601/0201-02" ] }, { "cite": "541 U.S. 1038", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5877822, 5914254, 5886094, 5881310 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/1038-02", "/us/541/1038-01", "/us/541/1038-04", "/us/541/1038-03" ] }, { "cite": "541 U.S. 910", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5869696, 5931456, 5918306, 5895715, 5916002, 5912133, 5937732, 5909319, 5896239, 5870898, 5908855, 5897119, 5900442, 5875199 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0910-03", "/us/541/0910-05", "/us/541/0910-01", "/us/541/0910-02", "/us/541/0910-06", "/us/541/0910-12", "/us/541/0910-13", "/us/541/0910-04", "/us/541/0910-11", "/us/541/0910-09", "/us/541/0910-08", "/us/541/0910-10", "/us/541/0910-14", "/us/541/0910-07" ] }, { "cite": "610 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632577 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/610/0712-01" ] }, { "cite": "359 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632578, 3801892, 12632581, 12632580, 3798472, 12632587, 3796173, 3795856, 3798673, 3798551, 3799833, 3794654 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/610/0715-04", "/nc/359/0286-07", "/se2d/610/0715-03", "/se2d/610/0715-02", "/nc/359/0286-04", "/se2d/610/0718-02", "/nc/359/0286-01", "/nc/359/0286-03", "/nc/359/0286-08", "/nc/359/0286-05", "/nc/359/0286-02", "/nc/359/0286-06" ] }, { "cite": "610 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632565, 12632566 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/610/0382-02", "/se2d/610/0382-01" ] }, { "cite": "593 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631213 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/se2d/593/0084-01" ] }, { "cite": "358 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631209, 12631211, 12631212, 12631213, 12631158, 12631159, 12631102 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/se2d/593/0081-01", "/se2d/593/0083-02", "/se2d/593/0083-01", "/se2d/593/0084-01", "/se2d/593/0395-01", "/se2d/593/0396-01", "/se2d/592/0200-02" ] }, { "cite": "584 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "357 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491552 ], "year": 2003, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0433-01" ] }, { "cite": "607 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801344, 3794049, 3795246, 3801519, 3803513, 3793855 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0192-01", "/nc/359/0192-06", "/nc/359/0192-03", "/nc/359/0192-04", "/nc/359/0192-05", "/nc/359/0192-02" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "54" }, { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "598 S.E.2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "217" }, { "page": "220" } ], "opinion_index": 0 }, { "cite": "165 N.C. 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App.", "case_ids": [ 8523664 ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0146-01" ] }, { "cite": "577 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511189, 1511332, 1511461, 1511349 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0679-03", "/nc/356/0679-01", "/nc/356/0679-04", "/nc/356/0679-02" ] }, { "cite": "572 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "168", "parenthetical": "this Court may not set aside or modify findings in an order denying a motion to suppress if the findings are substantiated by evidence, even if conflicting evidence exists" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "537 U.S. 1133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9350848, 9351014, 9351079, 9350664, 9350889, 9350695, 9350953, 9351145, 9350727, 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/537/1133-01", "/us/537/1133-06", "/us/537/1133-02", "/us/537/1133-07", "/us/537/1133-10", "/us/537/1133-03", "/us/537/1133-13", "/us/537/1133-14", "/us/537/1133-12", "/us/537/1133-11", "/us/537/1133-04" ] }, { "cite": "566 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "71" }, { "page": "71" }, { "page": "71", "parenthetical": "internal quotation omitted and alteration in original" }, { "page": "71" } ], "opinion_index": 0 }, { "cite": "355 N.C. 642", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220086 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "656" }, { "page": "657" }, { "page": "657" }, { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0642-01" ] }, { "cite": "512 U.S. 452", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39831 ], "weight": 14, "year": 1994, "pin_cites": [ { "page": "459" }, { "page": "371" }, { "page": "461-62" }, { "page": "373" }, { "page": "460-61" }, { "page": "372", "parenthetical": "emphasis supplied" }, { "page": "462" }, { "page": "373" }, { "page": "460" }, { "page": "372" }, { "page": "461-62" }, { "page": "372-73" }, { "page": "461-62" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/us/512/0452-01" ] }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "532 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9315009, 9314948, 9314725, 9314661, 9314695, 9314631, 9314793, 9314822, 9315113, 9314863, 9315060, 9314585, 9314909 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/0931-11", "/us/532/0931-10", "/us/532/0931-05", "/us/532/0931-03", "/us/532/0931-04", "/us/532/0931-02", "/us/532/0931-06", "/us/532/0931-07", "/us/532/0931-13", "/us/532/0931-08", "/us/532/0931-12", "/us/532/0931-01", "/us/532/0931-09" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "485" }, { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "199", "parenthetical": "quoting Edwards v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386 (1981)" }, { "page": "201", "parenthetical": "internal quotations and citations omitted" }, { "page": "225", "parenthetical": "alteration in original" }, { "page": "225", "parenthetical": "emphasis supplied" }, { "page": "225" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "406", "parenthetical": "quoting Edwards v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386 (1981)" }, { "page": "409" }, { "page": "451-52" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] } ], "analysis": { "cardinality": 1215, "char_count": 31151, "ocr_confidence": 0.74, "pagerank": { "raw": 2.588204286474854e-07, "percentile": 0.8178418896236808 }, "sha256": "60743586f793be2665e0eba3c7313d9e1c5eebb93f3c73179cba6bc6c25d2bd8", "simhash": "1:cb39552a776e98f6", "word_count": 4993 }, "last_updated": "2023-07-14T22:06:54.593382+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LAWRENCE LEE ASH" ], "opinions": [ { "text": "TYSON, Judge.\nLawrence Lee Ash (\u201cdefendant\u201d) appeals from judgments entered after a jury found him to be guilty of first-degree murder pursuant to the felony murder rule, conspiracy to commit robbery with a dangerous weapon, and attempted robbery with a dangerous weapon. The trial court arrested judgment on the conviction of attempted robbery. We find error at trial but hold such error was harmless beyond a reasonable doubt.\nI. Background\nJonathan Pruey (\u201cPruey\u201d) and his wife Jennifer lived in a mobile home in Cumberland County. Pruey stored marijuana in his bedroom and sold it out of his mobile home. In June 2000, two males, Corrie Cordier (\u201cCordier\u201d) and \u201cChris\u201d were residing at Pruey\u2019s home.\nA. Cordier\u2019s Testimony\nAround 10:30 p.m. on 27 June 2000, Cordier heard a knock at the front door. Pruey looked out the window and asked Cordier to illu-m\u00ednate the front porch lights. Cordier observed two people dressed in all black clothing huddling in the corner of the porch. One of the men was wearing a \u201cJason mask,\u201d which Cordier described as a white hockey mask with small black lines, and brandishing a long metallic object, which appeared to Cordier to be a baseball bat.\nCordier stepped away from the door and yelled to Pruey. The door swung open, and the individual wearing the \u201cJason mask\u201d fell through the partially-opened door. Cordier kicked the masked man as Pruey closed the door. A few seconds later, Cordier heard a loud \u201cnoise.\u201d Pruey\u2019s wife turned on some lights and observed Cordier with blood on his side. After \u201cChris\u201d turned on more lights, Cordier and Pruey\u2019s wife observed Pruey lying \u201cspread-eagled\u201d on the floor between the kitchen and the living room bleeding profusely. Cordier attempted to administer first aid to Pruey, while \u201cChris\u201d took Pruey\u2019s wife, who became hysterical, next door to Michael Grimes\u2019s (\u201cGrimes\u201d) home.\nB. Grimes\u2019s Testimony\nGrimes testified that shortly before 10:30 p.m. on 27 June 2000, he heard a \u201cslamming\u201d noise, a shotgun blast, and someone screaming. He went outside and observed a car accelerating past Pruey\u2019s mobile home. Grimes could not identify the tag number, but noticed the car\u2019s headlights were not activated until after it reached Cumberland Road. Grimes returned inside his home and called 911.\nC. Deputy Porter\u2019s Testimony\nCumberland County Deputy Sheriff Jennifer Porter (\u201cDeputy Porter\u201d) was the first officer to arrive at the scene. Deputy Porter testified she spoke with Grimes and Cordier upon arrival. Deputy Porter found Pruey to have a faint pulse and called the 911 dispatcher regarding Pruey\u2019s condition. Emergency medical services personnel and other officers arrived and assumed the investigation.\nInvestigators processing the scene found a mask identified by Cordier as the \u201cJason mask\u201d worn by one of the perpetrators. The mask was found on the dirt road leading from Pruey\u2019s mobile home to Cumberland Road next to tire impressions and a nylon rag. The police attempted unsuccessfully to cast a mold of the tire impressions.\nInvestigators collected fingerprints, but were unable to gather any useful fingerprints from the front door or the mask. Inside Pruey\u2019s home, officers recovered a shotgun shell wadding from the kitchen floor, and removed and collected a portion of the front door containing the hole from the gun shot. Officers also recovered a metal box containing money and \u201cgreen vegetable matter.\u201d\nD. B.G.\u2019s Testimony\nB.G. testified that in June 2000 she was a fifteen-year-old runaway and lived with a man named \u201cKenny\u201d in the Sunset Trailer Park along with her boyfriend, Craig Wissink (\u201cWissink\u201d) and defendant. Defendant was B.G.\u2019s \u201cex-boyfriend.\u201d Approximately one week prior to 27 June 2000, B.G. observed a male named \u201cShawn\u201d give Wissink a shotgun. Prior to the attempted robbery and murder, she heard Wissink and Damian Jackson (\u201cJackson\u201d) discuss plans to rob someone.\nAround 4:00 p.m. on 27 June 2000, B.G. visited Victoria Lawson\u2019s (\u201cLawson\u201d) mobile home. B.G. testified that Wissink and defendant came by Lawson\u2019s home around 7:00 p.m. Wissink told B.G. to stay where she could be found. At about 10:45 p.m., she received a call at Lawson\u2019s home from Wissink, who told her to return to Kenny\u2019s mobile home alone. Upon arrival, Wissink informed B.G. he was leaving town and, if she wanted to accompany him, she should pack her things. After gathering her belongings, B.G. and Wissink left town, stopping along the way for Wissink to speak with Jackson.\nB.G. and Wissink traveled to Wissink\u2019s mother\u2019s home in Kingman, Arizona, where they were subsequently arrested. Wissink carried a shotgun with them. This gun was identified by B.G. as the same gun State Bureau of Investigation Agent Ronald Marrs (\u201cAgent Marrs\u201d) had earlier identified as the murder weapon during his testimony.\nB.G. was charged with accessory after the fact to murder and entered into a plea agreement with the State. In exchange for her testimony, her charges were retained in juvenile court and she was not' bound over for trial as an adult.\nE. C.P.\u2019s Testimony\nC.P. testified that on 27 June 2000, he lived with his mother in Sunset Trailer Park and knew both Wissink and defendant. That morning, he was present with Wissink and defendant when Wissink stated that he was planning to rob a drug dealer on Cumberland Road to get money so he and B.G. could leave town. According to C.P, defendant stated that he also needed money, but did not say anything about participating in Wissink\u2019s planned robbery. While Wissink was discussing the robbery, C.P. observed a twenty-gauge shotgun and a \u201cJason mask\u201d similar to the one later identified by Cordier and recovered near the scene.\nC.P. testified that during the day after the robbery, defendant confessed that he and Wissink had been the perpetrators and that he had shot Pruey. Defendant informed C.P. that he and Wissink drove to Pruey\u2019s home in C.P.\u2019s mother\u2019s car, parked the car, and approached the front door. Defendant stated he was wearing the \u201cJason mask\u201d and dark gloves, and Wissink was wearing a green camouflage mask. After Wissink knocked on the door, defendant attempted to kick in the door. Defendant observed a man kick Wissink in the face. Wissink stood up, and the door closed. Defendant confessed to C.P. that he shot through the door one time.\nAccording to C.P., defendant suggested that C.P. call the police to report that Wissink committed the offense and that they would split the reward money. C.P. contacted the police and informed them that Wissink committed the offenses. C.P. did not mention defendant\u2019s involvement, but stated that someone named \u201cMiko\u201d had committed the crimes with Wissink that night. C.P. admitted \u201cMiko\u201d was a fake name.\nOn 29 June 2000, C.P. informed police that both Wissink and defendant had committed the offense. C.P. was charged with multiple felony charges and entered into a plea agreement. In exchange for his testimony, he received a reduction of two armed robbery charges to common law robbery, dismissal of other charges, and was sentenced to ten to twelve months imprisonment followed by probation.\nF. Defendant\u2019s Arrest and Statements\nOn 29 June 2000, defendant was arrested and interrogated over two and one-half hours by Detective Sterling McClain (\u201cDetective McClain\u201d). The interrogation was videotaped. Prior to trial, defendant moved to suppress the videotape of the interrogation. The trial court denied this motion and played portions of the videotape for the jury. On the videotape, defendant initially denied any involvement but later confessed he and Wissink went to Pruey\u2019s mobile home and attempted to enter it. Defendant stated that he was attempting to get Wissink to leave when Wissink fired the shotgun.\nDetective McClain acknowledged that during the interrogation he lied to defendant about finding defendant\u2019s: (1) fingerprints and his blood on the mask; (2) hair fibers; and (3) shoes in a lake. Detective McClain also falsely informed defendant that Wissink had been arrested and had implicated defendant.' Detective McClain testified that falsehoods or deceptions are an interrogation \u201ctechnique\u201d or \u201ctactic\u201d commonly used by investigators.\nOver defendant\u2019s objections, the State also introduced a videotaped deposition of Dr. Kenneth Lidonnici (\u201cDr. Lidonnici\u201d). Dr. Lidonnici testified that an autopsy revealed a large hole and three smaller holes in Pruey\u2019s chest. Internal examination showed Pruey died from a gunshot wound to the chest. Dr. Lidonnici testified he removed three projectiles, some shotgun shell \u201cwadding,\u201d and some white \u201cplastic sphere[s]\u201d from Pruey\u2019s body. Agent Marrs later testified that shell wadding recovered at the scene and from Dr. Lidonnici was consistent with shells found in a 20 gauge shotgun recovered from Wissink. The white plastic styrofoam balls recovered from Pruey by Dr. Lidonnici were consistent with the material inside Pruey\u2019s front door.\nDefendant did not testify or present any evidence. The jury found him to be guilty of first-degree murder, conspiracy to commit armed robbery, and attempted armed robbery. After arresting judgment on the attempted armed robbery conviction, the trial court sentenced defendant to life-imprisonment without parole for the murder conviction and twenty-nine to forty-four months for the conspiracy conviction, to run consecutive to the life sentence. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) denying defendant\u2019s motion to suppress the videotape of his interrogation; (2) restraining and removing defendant from the courtroom during trial; and (3) admitting Dr. Lidonnici\u2019s videotaped deposition into evidence.\nIII. Motion to Suppress\nDefendant contends the trial court erred by denying his motion to suppress the videotape of his interrogation by Detective McClain and argues he was denied his rights to counsel and to remain silent. We disagree.\nDefendant\u2019s motion to suppress was heard and denied on 15 August 2003. Contrary to the State\u2019s argument that defendant failed to renew his objection, defense counsel sufficiently preserved this assignment of error for review on appeal. Upon the State\u2019s tender of the videotape at trial, defense counsel renewed his objection to \u201cwhat\u2019s been previously ruled on\u201d and preserved the issue for appellate review.\nA. Right to Counsel\nIt is well-settled that \u201cduring a custodial interrogation, if the accused invokes his right to counsel, the interrogation must cease and cannot be resumed without an attorney being present \u2018unless the accused himself initiates further communication, exchanges, or conversations with the police.\u2019' \u201d State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (quoting Edwards v. Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386 (1981)) (other citations omitted) (emphasis in original), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001), cert. denied, 358 N.C. 157, 593 S.E.2d 84 (2003).\nA trial court is to make an initial determination as to whether a defendant waived his/her right to counsel. Those findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. Conclusions of law which are supported by findings of fact are binding on appeal. Further, the trial court\u2019s conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found.\nGolphin, 352 N.C. at 409, 533 S.E.2d at 201 (internal quotations and citations omitted). \u201cThe question is whether the suspect \u201c \u2018articulate [d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.\u2019 \u201d Id. at 450, 533 S.E.2d at 225 (alteration in original) (quoting Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371 (1994)). In Davis, the United States Supreme Court held, \u201c[i]f the suspect\u2019s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.\u201d Davis, 512 U.S. at 461-62, 129 L. Ed. 2d at 373. The Supreme Court explained the requirement.\nWe recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who \u2014 because of fear, intimidation, lack of linguistic skills, or a variety of other reasons \u2014 will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. Full comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process. A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection \u2014 if a suspect subsequently requests an attorney, questioning must cease \u2014 it is one that must be affirmatively invoked by the suspect.\nId. at 460-61, 129 L. Ed. 2d at 372 (emphasis supplied) (internal citations and quotations omitted). The Supreme Court ruled the statement, \u201cMaybe I should talk to a lawyer,\u201d was ambiguous and insufficient to require termination of the interrogation. Id. at 462, 129 L. Ed. 2d at 373.\nIn State v. Hyatt, our Supreme Court ruled that the defendant did not \u201cunambiguously convey [his] desire to receive the assistance of . . . counsel\u201d and \u201cinvoke his Fifth Amendment right to counsel\u201d when he stated'to two police officers that his father wanted a lawyer to be present during the interrogation. 355 N.C. 642, 656, 566 S.E.2d 61, 71 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003), cert. denied, 359 N.C. 284, 610 S.E.2d 382 (2005). Further, the Hyatt Court explained, \u201c[defendant's willingness to speak to [the officers] unassisted by counsel after having his Miranda rights read to him, printed out for his review, and explained to him upon his ambiguous utterances regarding his father\u2019s wishes constituted a waiver of defendant\u2019s Fifth Amendment rights.\u201d 355 N.C. at 657, 566 S.E.2d at 71. The Court relied on language from Davis, 512 U.S. at 460, 129 L. Ed. 2d at 372, which states:\n\u2018[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process,\u2019 and \u2018[a] suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted.\u2019\nHyatt, 355 N.C. at 657, 566 S.E.2d at 71 (internal quotation omitted and alteration in original).\nDefendant contends the trial court erred by denying his motion to suppress and argues he invoked his right to counsel during the interrogation. Defendant admits being advised of his rights prior to interrogation, but argues the trial court erred by finding that he \u201cdid not... ever ask to talk to an attorney.\u201d After being advised of his right to have an attorney present, defendant asked, \u201cNow?\u201d Detective McClain responded affirmatively. Defendant then asked, \u201cWhere\u2019s my lawyer at? [Inaudible] come down here?\u201d Detective McClain replied that the lawyer who was representing defendant on a pending, but unrelated, breaking and entering charge had nothing to do \u201cwith what [he was] going to talk to [defendant] about.\u201d Defendant responded, \u201cOh, okay,\u201d and signed the waiver of rights form.\nAlthough defendant carries the burden of unequivocally asserting his right to counsel, see Davis, 512 U.S. at 461-62, 129 L. Ed. 2d at 372-73, \u201cthe State has the burden of establishing by a preponderance of the evidence that the defendant voluntarily waived the rights afforded to [him] under Miranda, and that the voluntariness of a waiver is to be determined by the totality of the circumstances.\u201d State v. Strobel, 164 N.C. App. 310, 317, 596 S.E.2d 249, 255 (2004) (citations omitted), appeal dismissed and disc. rev. denied, 359 N.C. 286, 610 S.E.2d 712 (2005). Here, defendant was informed of his right to counsel and subsequently voluntarily waived his right to counsel by signing the waiver form. See Hyatt, 355 N.C. at 657, 566 S.E.2d at 71. Substantial evidence supports the trial court\u2019s finding that defendant did not \u201cask to talk to an attorney.\u201d See State v. Barnes, 154 N.C. App. 111, 115, 572 S.E.2d 165, 168 (2002) (this Court may not set aside or modify findings in an order denying a motion to suppress if the findings are substantiated by evidence, even if conflicting evidence exists), disc. rev. denied, 356 N.C. 679, 577 S.E.2d 892 (2003). The trial court further found \u201cdefendant indicated his desire to answer questions without a lawyer being present and his desire to waive his rights ... by initialing the rights form in the proper place.\u201d Defendant does not assign error to or contest this finding. Defendant has failed to show the trial court\u2019s findings do not support its conclusion that \u201cdefendant never made a clear and unequivocal assertion of his Right to Counsel. . . .\u201d\nThe trial court\u2019s order sufficiently shows defendant\u2019s statements were not \u201can unambiguous and unequivocal request for counsel.\u201d Davis, 512 U.S. at 461-62, 129 L. Ed. 2d at 373. This assignment of error is overruled.\nB. Right, to Remain Silent\nDefendant also argues he invoked his right to remain silent during the interrogation.\nIn Golphin, our Supreme Court held, \u201c[b]ecause [the defendant] did not unambiguously invoke his right to remain silent, the trial court did not err in admitting the portion of his statement. . . 352 N.C. at 451-52, 533 S.E.2d at 225 (emphasis supplied).\nDuring the interrogation by Detective McClain, defendant confessed that he and others had planned to do a robbery, but ended their plan when they drove by the mobile home and observed all the interior lights illuminated in Pruey\u2019s home. After Detective McClain asked defendant whether he was \u201cscared\u201d when the gun \u201cwent off,\u201d defendant stated, \u201cI don\u2019t want to talk no more \u2018cause you\u2019re talking some crazy s \u2014 t now.\u201d Detective McClain continued to question defendant, stating, \u201cYou didn\u2019t even know how many people was [sic] in the house, did you?\u201d Defendant responded, \u201cThat\u2019s why the f \u2014 k I didn\u2019t stop,\u201d and the interrogation continued. Defendant continued to deny his involvement in the crime, but admitted his participation after further questioning.\nThe trial court found, \u201cNotwithstanding this statement, [defendant] continued to talk without significant prompting by the officer. . . . [T]he court is unconvinced that the defendant clearly and unequivocally asserted his right to remain silent.\u201d Substantial evidence supports this finding and satisfies the Golphin test that defendant failed to \u201cunambiguously invoke his right to remain silent.\u201d Id. at 451-52, 533 S.E.2d at 225. This, assignment of error is overruled.\nAccepting defendant\u2019s argument that the trial court erred by denying his motion to suppress and admitting the videotape of defendant\u2019s statements made to Detective McClain, this error is harmless beyond a reasonable doubt. The State presented other overwhelming evidence of defendant\u2019s guilt, including the testimony of B.G. and C.P. See State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744 (overwhelming evidence of the defendant\u2019s guilt qualifies error as harmless since it could not have affected the outcome), cert. denied and appeal dismissed, 306 N.C. 744, 295 S.E.2d 480 (1982).\nFurther, defendant failed to object during Detective McClain\u2019s testimony regarding defendant\u2019s confession and statements made to Detective McClain, which are consistent with the videotape. State v. Wiggins, 159 N.C. App. 252, 584 S.E.2d 303 (harmless error in the admission of the victim\u2019s written statements because the recorded 911 call and witnesses\u2019 testimony duplicated the victim\u2019s written statements), disc. rev. denied, 357 N.C. 511, 588 S.E.2d 472 (2003), cert. denied, 541 U.S. 910, 158 L. Ed. 2d 256, reh\u2019g denied, 541 U.S. 1038, 158 L. Ed. 2d 726 (2004). This assignment of error is overruled.\nIV. Restraint and Removal from Courtroom\nDefendant argues the trial court erred by restraining him and removing him from the courtroom. We disagree.\nThe transcript included in the record on appeal reveals numerous outbursts by defendant during jury selection. He accused jurors of lying, blurted out questions, cursed, babbled, sucked his thumb, and sang. Two jurors were excused for cause because they felt they could not be fair and impartial in light of defendant\u2019s disruptive behavior at trial.\nThe trial court recessed the proceedings and, outside the presence of the jury, stated that trial would resume the next day in the video courtroom, with defendant present in the adjoining judge\u2019s chambers. The trial court instructed the bailiff to employ whatever security measures were necessary, including restraining defendant. The trial court informed defendant\u2019s two attorneys that one attorney would remain with defendant and the other would be present in the courtroom. The trial court assured the defense attorneys of ample time to confer during trial and allow them to switch places as needed to cross-examine different witnesses.\nA. Removal from the Courtroom\nDefense counsel objected to defendant\u2019s removal from the courtroom. Under this Court\u2019s holding in State v. Reid, defendant has a right to be present during each stage of his trial, but, in a non-capital case, may waive that right through disruptive behavior. 151 N.C. App. 379, 386-87, 565 S.E.2d 747, 753 (citing State v. Miller, 146 N.C. App. 494, 499-500, 553 S.E.2d 410, 414 (2001), appeal dismissed and disc. rev. denied, 356 N.C. 622, 575 S.E.2d 522 (2002). N.C. Gen. Stat. \u00a7 15A-1032(a) (2003) authorizes the trial court to remove a defendant from the courtroom if the defendant\u2019s conduct is \u201cso disruptive that the trial cannot proceed in an orderly manner.\u201d In doing so, the trial court is required to set forth an explanation on the record for the reasons to remove defendant and instruct the jury that removal is not to be a factor in weighing the evidence or determining his guilt. N.C. Gen. Stat. \u00a7 15A-1032(b)(l)-(2) (2003).\nAfter removing defendant from the courtroom, the trial court stated,\nHe has been a little bit disruptive from the beginning, although he was on fairly good behavior, particularly when he wouldn\u2019t talk to anybody. But he began to curse and speak when he wasn\u2019t supposed to and speak out of turn. Wouldn\u2019t be quiet when I asked him to and became disruptive to the point that defense counsel asked me to not inquire of the jury whether that would affect them or not. So that\u2019s why he\u2019s out of the courtroom, although he can see and hear us.\nDefense counsel specifically waived the instruction required under N.C. Gen. Stat. \u00a7 15A-1032(b)(2) because they felt \u201cit will just call more attention to the fact that he\u2019s not here.\u201d The trial court followed the requirement of N.C. Gen. Stat. \u00a7 15A-1032(b)(1) and defendant waived the instruction under N.C. Gen. Stat. \u00a7 15(A)-1032(b)(2). See State v. Miller, 146 N.C. App. 494, 553 S.E.2d 410 (2001). This assignment of error is dismissed.\nB. Defendant\u2019s Restraint at Trial\nDefendant did not object to his restraint at trial and has waived appellate review of this argument. See State v. Thomas, 134 N.C. App. 560, 568, 518 S.E.2d 222, 228 (\u201c \u2018failure to object to the shackling, . . . waive [s] any error which may have been committed\u2019 \u201d) (quoting State v. Tolley, 290 N.C. 349, 369, 226 S.E.2d 353, 370 (1976)), appeal dismissed and cert. denied, 351 N.C. 119, 541 S.E.2d 468 (1999). Further, under N.C. Gen. Stat. \u00a7 15A-1031 (2003), \u201cA trial judge may order a defendant or witness subjected to physical restraint in the courtroom when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant\u2019s escape, or provide for the safety of persons.\u201d This assignment of error is overruled.\nV. Deposition Testimony\nDefendant argues his constitutional right of confrontation was violated in the trial court\u2019s admission of a videotaped deposition of Dr. Lidonicci.' We hold that any error was harmless beyond a reasonable doubt.\n\u201cOur review of whether defendant\u2019s Sixth Amendment right of confrontation was violated is three-fold: (1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and (3) whether defendant had an opportunity to cross-examine the declarant.\u201d State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (citing Crawford v. Washington, 541 U.S. 36, 54, 158 L. Ed. 2d 177, 203 (2004)), disc. rev. denied, 358 N.C. 734, 601 S.E.2d 866, appeal dismissed, 359 N.C. 192, 607 S.E.2d 651 (2004).\nIt is undisputed that Dr. Lidonicci\u2019s deposition was testimonial in nature and defendant had an opportunity, which he availed himself of, to cross-examine Dr. Lidonicci during the deposition. The trial court failed to hear evidence to support or enter a finding of fact regarding Dr. Lidonicci\u2019s unavailability. Clark, 165 N.C. App. at 285-86, 598 S.E.2d at 218-19 (citing State v. Nobles, 357 N.C. 433, 439, 584 S.E.2d 765, 770 (2003)). Prior to playing the videotape, the trial court informed the jury, \u201cFor the convenience of the doctor you are about to see testify, we did this last week. ...\u201d This statement in the record is insufficient under Clark and Nobles to establish unavailability. Without receiving evidence on or making a finding of unavailability, the trial court erred in admitting Dr. Lidonicci\u2019s deposition.\nAs defendant\u2019s constitutional right was violated through the admission of Dr. Lidonicci\u2019s deposition, \u201cthe State has the burden of proving the error was harmless beyond a reasonable doubt to sustain defendant\u2019s conviction.\u201d Clark, 165 N.C. App. at 289, 598 S.E.2d at 220. Defendant argues the trial court\u2019s error in admitting the deposition testimony requires a new trial because no other evidence establishes Pruey\u2019s death and the cause of his death. We disagree.\nCordier testified that after he heard a loud bang, Pruey\u2019s wife turned on the lights and he saw Pruey lying on the floor bleeding profusely from his chest. Grimes testified that Pruey had a large, bleeding hole in his chest and \u201clooked dead.\u201d Deputy Porter testified Pruey was lying on the floor in a pool of blood when she arrived on the scene. Upon arrival at the scene, Detective McClain was informed by Deputy Porter that Pruey was dead. The State presented photographs to the jury showing Pruey\u2019s body lying on the floor and his chest wound. Agent Marrs testified the shotgun was fired at a slight angle within inches of the front door to the mobile home. Defendant confessed to Detective McClain that he fired the shotgun through the front door.\nExcluding the deposition testimony, the State presented other overwhelming evidence from which the jury could find that Pruey died from injuries caused by a shotgun wound to the chest and that defendant fired the shotgun inflicting the wound. Any error in admitting Dr. Lidonnici\u2019s deposition testimony is harmless beyond a reasonable doubt.\nVI. Conclusion\nThe trial court did not err in denying defendant\u2019s motion to suppress the videotape of his interrogation. The trial court did not err in restraining defendant and removing him from the courtroom due to his disruptive behavior. The trial court erred in admitting the deposition testimony of Dr. Lidonnici without entering a finding of fact that Dr. Lidonnici was unavailable to testify. However, any error was harmless beyond a reasonable doubt in light of the other overwhelming evidence of defendant\u2019s guilt from which the jury could find Pruey died from a shotgun blast and defendant fired the gun inflicting the wound.\nHarmless Error.\nJudges McGEE and GEER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Amy G. Kunstling, for the State.", "Daniel Shatz, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAWRENCE LEE ASH\nNo. COA04-623\n(Filed 19 April 2005)\n1. Confessions and Incriminating Statements\u2014 motion to suppress \u2014 videotape of interrogation \u2014 right to counsel\u2014 right to remain silent\nThe trial court did not err in a first-degree murder and conspiracy to commit robbery with a dangerous weapon case by denying defendant\u2019s motion to suppress the videotape of his interrogation by a detective which he contends denied his rights to counsel and to remain silent, because: (1) defendant was informed of his right to counsel and subsequently voluntarily waived his right to counsel by signing a waiver form; (2) defendant indicated his desire to answer questions without a lawyer being present and his desire to waive his rights by initialing the rights form in the proper place; (3) defendant failed to unambiguously invoke his right to remain silent; and (4) assuming arguendo that the trial court erred, the error was harmless beyond a reasonable doubt when the State presented overwhelming evidence of defendant\u2019s guilt including the testimony of two witnesses, and further, defendant failed to object during a detective\u2019s testimony regarding defendant\u2019s confession and statements made to the detective which are consistent with the videotape.\n2. Criminal Law\u2014 removal of defendant from courtroom during trial \u2014 restraint of defendant at trial\nThe trial court did not err in a first-degree murder and conspiracy to commit robbery with a dangerous weapon case by restraining and removing defendant from the courtroom during trial, because: (1) defendant has a right to be present during each stage of his trial, but in a noncapital case, may waive that right through disruptive behavior; (2) the transcript revealed numerous outbursts by defendant during jury selection; (3) the trial court followed the requirement of N.C.G.S. \u00a7 15A-1032(b)(l) and defendant waived the instruction required under N.C.G.S. \u00a7 15A-1032(b)(2); (4) defendant failed to object to his restraint at trial and thus waived appellate review of this argument; and (5) N.C.G.S. \u00a7 15A-1031 allows the trial court to order a defendant to be subjected to physical restraint in the courtroom when it is reasonably necessary to maintain order, prevent defendant\u2019s escape, or to provide for the safety of persons.\n3. Constitutional Law\u2014 right of confrontation \u2014 videotaped deposition \u2014 unavailable witness \u2014 harmless error\nAlthough the trial court violated defendant\u2019s constitutional right of confrontation in a first-degree murder and conspiracy to commit robbery with a dangerous weapon case by admitting a doctor\u2019s videotaped deposition into evidence without hearing evidence regarding the doctor\u2019s unavailability, the error was harmless because excluding the deposition testimony, the State presented other overwhelming evidence from which the jury could find that the victim died from injuries caused by a shotgun wound to the chest and that defendant fired the shotgun inflicting the wound.\nAppeal by defendant from judgments entered 17 November 2003 by Judge James Floyd Ammons, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 2 February 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Amy G. Kunstling, for the State.\nDaniel Shatz, for defendant-appellant." }, "file_name": "0715-01", "first_page_order": 745, "last_page_order": 758 }