{ "id": 4156273, "name": "STATE OF NORTH CAROLINA v. FANNTON DUMU CUMMINGS", "name_abbreviation": "State v. Cummings", "decision_date": "2008-02-05", "docket_number": "No. COA07-374", "first_page": "598", "last_page": "604", "citations": [ { "type": "official", "cite": "188 N.C. App. 598" } ], "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": "617 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633692, 12633693, 12633694 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/617/0281-01", "/se2d/617/0281-02", "/se2d/617/0281-03" ] }, { "cite": "418 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "487" } ], "opinion_index": 0 }, { "cite": "332 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505926 ], "year": 1992, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0047-01" ] }, { "cite": "376 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 639", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527467 ], "year": 1989, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0639-01" ] }, { "cite": "398 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495424, 2499714, 2498482, 2493493, 2500383 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0638-05", "/nc/327/0638-02", "/nc/327/0638-01", "/nc/327/0638-03", "/nc/327/0638-04" ] }, { "cite": "397 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527189 ], "year": 1990, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0551-01" ] }, { "cite": "237 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "733" } ], "opinion_index": 0 }, { "cite": "293 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563894 ], "year": 1977, "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0286-01" ] }, { "cite": "255 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "158", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570604 ], "year": 1979, "pin_cites": [ { "page": "425-26", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0419-01" ] }, { "cite": "40 F.3d 1111", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10529873 ], "year": 1994, "pin_cites": [ { "page": "1118", "parenthetical": "\"An officer's request to search a defendant's automobile does not constitute interrogation invoking a defendant's Miranda rights.\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/40/1111-01" ] }, { "cite": "85 F.3d 1251", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 571901 ], "year": 1996, "pin_cites": [ { "page": "1256", "parenthetical": "holding that \"the consent to search was not a custodial interrogation triggering the previously invoked Miranda right to counsel\"" } ], "opinion_index": 0, "case_paths": [ "/f3d/85/1251-01" ] }, { "cite": "200 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1973, "pin_cites": [ { "page": "173" }, { "page": "173" }, { "page": "173" } ], "opinion_index": 0 }, { "cite": "284 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560586 ], "weight": 3, "year": 1973, "pin_cites": [ { "page": "142" }, { "page": "142" }, { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0137-01" ] }, { "cite": "309 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "269" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 346", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523833 ], "year": 1983, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0346-01" ] }, { "cite": "133 L. Ed. 2d 739", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "516 U.S. 1079", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 328513, 326369, 325636, 325094, 328102, 324199, 326410, 328174, 328339, 325622, 328409, 325979, 327804, 326687 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/516/1079-08", "/us/516/1079-10", "/us/516/1079-02", "/us/516/1079-04", "/us/516/1079-01", "/us/516/1079-03", "/us/516/1079-05", "/us/516/1079-06", "/us/516/1079-12", "/us/516/1079-14", "/us/516/1079-09", "/us/516/1079-11", "/us/516/1079-07", "/us/516/1079-13" ] }, { "cite": "459 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "755" } ], "opinion_index": 0 }, { "cite": "340 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790245 ], "year": 1995, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0488-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "359 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3795872, 3794371, 3800013, 3796751, 3799217, 3795574, 3802679, 3794746 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0639-03", "/nc/359/0639-01", "/nc/359/0639-04", "/nc/359/0639-06", "/nc/359/0639-02", "/nc/359/0639-05", "/nc/359/0639-08", "/nc/359/0639-07" ] }, { "cite": "610 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470165 ], "year": 2005, "pin_cites": [ { "page": "370-71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0367-01" ] } ], "analysis": { "cardinality": 757, "char_count": 14757, "ocr_confidence": 0.755, "pagerank": { "raw": 6.034328601150468e-08, "percentile": 0.3737909044118016 }, "sha256": "112d3dca26a97206b82e8ad9c5de647fbb9522deece2addb95f6c22d0ece4be7", "simhash": "1:8ba88468c77c224a", "word_count": 2396 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FANNTON DUMU CUMMINGS" ], "opinions": [ { "text": "WYNN, Judge.\nMiranda warnings \u201care inapplicable to searches and seizures.\u201d Here, the defendant argues that a search of his vehicle was unconstitutional because he consented to the search after he invoked his right to consult with an attorney. Because Miranda warnings are not required for a search to be valid and any error in admitting the fruits of the search was harmless, we affirm.\nAt trial, the State presented evidence that tended to show that on 15 December 2003, Defendant Fannton D. Cummings, Robert Blair, Darius Rutledge, and Adrian Watkins participated in the robbery of a residence located on Martin Street in Greensboro, North Carolina. The robbery resulted in th\u00e9 fatal shooting of Anthony Graham.\nAt trial, Mr. Blair, a co-defendant, testified that after 4:00 p.m. on 15 December 2003, he, Mr. Rutledge, Mr. Watkins, and Defendant drove to the home of Tarcia Mack, the mother of Defendant\u2019s child. The four met with Ms. Mack to discuss the idea of robbing her aunt\u2019s house on Martin Street because it was a known drug house, containing cocaine and at least $25,000 in cash. They planned to go to the house on Martin Street after dark, when no one would be there, with Defendant carrying the gun. They also rented a U-Haul for the purpose of transporting stolen property.\nAt approximately 7:30 or 8:00 p.m., the foursome arrived at Martin Street, went around to the back of the house, and kicked the door open. Defendant carried a shotgun and Mr. Watkins carried a .40 caliber handgun. Mr. Blair testified that once in the home, he heard a shot come from the occupants of the home and heard Defendant and Mr. Watkins respond by shooting through the bedroom door of the room where the drugs were supposed to be located. Mr. Rutledge testified that he saw Defendant fire several shots from a sawed-off shotgun and saw Mr. Watkins fire from a handgun. Mr. Rutledge stated that he then jumped out of a window and heard several more shots. Mr. Blair testified that after hearing the last shot, he went into the bedroom and saw Mr. Graham lying on the floor with the door on top of him. The four men then left the house and drove away in the U-Haul.\nLater that evening, Defendant called Deborah Johnson to ask for a ride because he had lost his keys. Defendant directed Ms. Johnson to McKnight Mill Boulevard, but she was unable to turn onto the street because police were blocking it off due to the recent robbery and shooting on nearby Martin Street. Ms. Johnson pulled over and Defendant got out, leaving his hooded jacket and gloves in her car. Shortly thereafter, Ms. Johnson and Defendant were questioned by police officers, including Detective Michael Conwell. Detective Conwell took custody of the clothing left by Defendant in Ms. Johnson\u2019s car and took Defendant downtown for questioning.\nAt the police department, Detective Conwell interviewed Defendant for approximately six hours and was suspicious about Defendant\u2019s explanation for being near Martin Street. Since Defendant told Detective Conwell that he was in the Marine Corps, Detective Conwell contacted Special Agent Eric Chapman of the Naval Criminal Investigative Service (NCIS) and asked him to secure Defendant\u2019s vehicle.\nAt the request of Detective Conwell, Agent Chapman interviewed Defendant on 19 December 2003 at the Marine Corps Air Station in New River. Defendant was not under arrest and his handcuffs were removed in the interview room. Agents advised Defendant of his rights, read him a military \u201cacknowledgment and waiver of rights\u201d form, and gave him the chance to read the form himself. Defendant acknowledged that he understood his rights and requested permission to go to the bathroom, where officers overheard him pushing buttons on a cell phone. Defendant then requested a cigarette break and a glass of water.\nUpon his return to the interview room, Defendant signed and initialed the waiver form. When asked what happened on 15 December 2003, Defendant stated that he was looking for his keys, then he paused and said \u201cor something like that,\u201d and paused again. Defendant then requested legal counsel. Defendant was not asked any further questions about the shooting, but was asked if he would sign a \u201cpermissive authorization for search and seizure\u201d form, and the form was explained to him. After Defendant attempted twice to call an attorney, he signed the form.\nA search was conducted of Defendant\u2019s Ford Explorer, while Defendant was present. The search revealed a .12-gauge shotgun shell with red plastic casing, a box labeled \u201cRemington Slugger,\u201d and two rolls of black electric tape. Agent Chapman called Detective Conwell and informed him of the items found, some of which Detective Conwell had specifically mentioned. A more thorough search was planned for the following day and Brigadier General Dickerson authorized the command search.\nBased on the evidence found in the search and on additional evidence, Detective Conwell obtained an arrest warrant to charge Defendant with first-degree murder and first-degree burglary.\nOn 4 February 2005, defense counsel made a motion to suppress \u201call evidence secured as a result of the initial search of [Defendant\u2019s] vehicle on or about December 19, 2003, and all evidence secured through a subsequent command authorization.\u201d The trial court denied Defendant\u2019s motion on 1 May 2005.\nDefendant\u2019s trial took place during the 3 April 2006 session of court. The jury found Defendant guilty of second-degree murder, first-degree burglary, and attempted robbery with a firearm. Defendant was sentenced as a Prior Record Level III and received consecutive sentences of 220 to 273 months for second-degree murder, 96 to 125 months for first-degree burglary, and 96 to 125 months for attempted robbery with a firearm.\nThe sole issue raised by Defendant on appeal is that the trial court erred by denying his motion to suppress the evidence found by officers during the initial search of his vehicle at the Marine Corps Air Station. Specifically, Defendant argues that the search was unconstitutional because he consented to the search after he invoked his right to consult with an attorney. We disagree.\nIn reviewing an appeal of a denial of a motion to suppress:\n[O]ur review is limited to whether the trial court\u2019s findings of fact are supported by competent evidence. If competent evidence is found to exist, the findings of fact are binding on appeal. We must then limit our review to whether the findings of fact support the trial court\u2019s conclusions of law.\nState v. Houston, 169 N.C. App. 367, 370-71, 610 S.E.2d 777, 780, appeal dismissed, 359 N.C. 639, 617 S.E.2d 281 (2005).\nDefendant first challenges the search of his vehicle as a violation of his Fifth Amendment right against self-incrimination. Our Supreme Court has noted that Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), together with Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378 (1981), \u201cestablish that custodial interrogation must cease when an accused requests an attorney and may not be resumed by police officers without an attorney present.\u201d State v. Daughtry, 340 N.C. 488, 506, 459 S.E.2d 747, 755 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996). \u201c[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.\u201d State v. Young, 65 N.C. App. 346, 348, 309 S.E.2d 268, 269 (1983).\nHowever, our Suprem\u00e9 Court has also held that Miranda warnings \u201care inapplicable to searches and seizures, and a search by consent is valid despite failure to give such warnings prior to obtaining consent.\u201d State v. Frank, 284 N.C. 137, 142, 200 S.E.2d 169, 173 (1973). Additionally, we find it persuasive that numerous federal courts have concluded that asking for consent to search is not an interrogation within the meaning of Miranda. See United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996) (holding that \u201cthe consent to search was not a custodial interrogation triggering the previously invoked Miranda right to counsel\u201d); United States v. McCurdy, 40 F.3d 1111, 1118 (10th Cir. 1994) (\u201cAn officer\u2019s request to search a defendant\u2019s automobile does not constitute interrogation invoking a defendant\u2019s Miranda rights.\u201d).\nHere, at Detective Conwell\u2019s request, Defendant was brought to NCIS headquarters for an interview. Agents advised Defendant of his rights, read him a military \u201cacknowledgment and waiver of rights\u201d form, and gave him the chance to read the form himself. Defendant acknowledged that he understood his rights, and signed and initialed the waiver form; but shortly after questioning began, he requested legal counsel. Defendant was not asked any further questions about the shooting, but was asked if he would sign a \u201cpermissive authorization for search and seizure\u201d form, and the form was explained to him. After Defendant attempted twice to call an attorney, he signed the form, giving his consent for his vehicle to be searched.\nAfter Defendant invoked his right to counsel, interrogation ceased. Agents did not ask any further questions about the robbery or Mr. Graham\u2019s homicide. The agents asked only whether Defendant would give his consent for his vehicle to be searched, a question to which Miranda warnings do not apply. See Frank, 284 N.C. at 142, 200 S.E.2d at 173. Because there is competent evidence to support the trial court\u2019s finding of fact, we cannot conclude that the trial court erred in finding that Defendant\u2019s \u201cconsent to search his vehicle was consensual.\u201d\nDefendant also challenges the search of his vehicle as a violation the Fourth Amendment. Our Supreme Court has stated:\nIt is beyond dispute that a search pursuant to the rightful owner\u2019s consent is constitutionally permissible without a search warrant as long as the consent is given freely and voluntarily, without coercion, duress or fraud. The question whether a consent to a search was in fact \u201cvoluntary\u201d or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.\nState v. Powell, 297 N.C. 419, 425-26, 255 S.E.2d 154, 158 (1979) (citations omitted). Where a defendant is in custody, \u201cthe added factor of custody is a circumstance to be taken into account with all other surrounding circumstances in determining whether consent was freely and voluntarily given in the absence of coercion.\u201d State v. Long, 293 N.C. 286, 294, 237 S.E.2d 728, 733 (1977). We have previously held that where a defendant had requested to speak to a lawyer, his subsequent consent to the rolling of his trousers with a lint brush was voluntary and the trial court did not err in denying his motion to suppress. State v. Davy, 100 N.C. App. 551, 557, 397 S.E.2d 634, 637, cert. denied, 327 N.C. 638, 398 S.E.2d 871 (1990).\nHere, uncontested findings of fact numbers sixteen and seventeen state that \u201cdefendant agreed, and was transported to NCIS headquarters,\u201d where \u201cAgent Chapman advised [him] of his constitutional rights to remain silent and consult with counsel.\u201d Finding of fact nineteen states that \u201cdefendant said that he wanted to talk with his lawyer, and attempted to contact an attorney by telephone.\u201d Defendant presented no evidence of duress and coercion. To the contrary, the State\u2019s evidence tends to show that Agent Chapman allowed Defendant to use the bathroom, have a drink of water, and use his cell phone. Additionally, Defendant was not handcuffed during questioning.\nIn considering the totality of the circumstances, we cannot say that the trial court erred in concluding that \u201c[t]he initial search of defendant\u2019s vehicle was pursuant to the defendant\u2019s consent, which was not coerced.\u201d Because we conclude that Defendant\u2019s Fourth and Fifth Amendment rights were not violated, we affirm the trial court\u2019s denial of Defendant\u2019s motion to suppress.\nWe note that even if a constitutional error had occurred in the search of Defendant\u2019s vehicle, the error in admitting the fruits of the search was harmless beyond a reasonable doubt. \u201cError committed at trial infringing upon one\u2019s constitutional rights is presumed to be prejudicial and entitles [defendant] to a new trial unless the error was harmless beyond a reasonable doubt.\u201d State v. Russell, 92 N.C. App. 639, 644, 376 S.E.2d 458, 461 (1989). \u201c[T]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.\u201d State v. Soyars, 332 N.C. 47, 58, 418 S.E.2d 480, 487 (1992).\nHere, in addition to the shotgun shells and black electric tape found in Defendant\u2019s vehicle, the State presented detailed testimony from two of Defendant\u2019s accomplices, testimony from numerous police officers regarding Defendant\u2019s presence near Martin Street after the shooting, test results showing gunshot residue on Defendant\u2019s gloves, and test results matching the shotgun recovered to shotgun shells found at the crime scene. Accordingly, we conclude that any error resulting from admission of the evidence was harmless beyond a reasonable doubt.\nNo error.\nJudges STEELMAN and GEER concur.\n. State v. Frank, 284 N.C. 137, 142, 200 S.E.2d 169, 173 (1973).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Mark A. Davis, for the State.", "M. Alexander Ghams for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FANNTON DUMU CUMMINGS\nNo. COA07-374\n(Filed 5 February 2008)\nSearch and Seizure\u2014 Miranda warnings not applicable \u2014 consent \u2014 admitting fruits of search harmless error\nThe trial court did not err in a second-degree murder, first-degree burglary, and attempted robbery with a firearm case by denying defendant\u2019s motion to suppress evidence found by officers during the initial search of his vehicle at the Marine Corps Air Station even though defendant consented to the search after he invoked his right to consult with an attorney because: (1) Miranda warnings are not applicable to searches and seizures, and a search by consent is valid despite failure to give such warnings prior to obtaining consent; (2) there was competent evidence to support the trial court\u2019s findings that defendant\u2019s consent to search his vehicle was consensual and not coerced; and (3) even if a constitutional error had occurred in the search of defendant\u2019s vehicle, the error in admitting the fruits of the search was harmless beyond a reasonable doubt when there was no reasonable possibility that the evidence complained of might have contributed to the conviction, and there was overwhelming evidence of defendant\u2019s guilt, including testimony by two of defendant\u2019s accomplices.\nAppeal by defendant from judgment entered 28 April 2006 by Judge Lindsay R. Davis in Superior Court, Guilford County. Heard in the Court of Appeals 13 November 2007.\nAttorney General Roy Cooper, by Special Deputy Attorney General Mark A. Davis, for the State.\nM. Alexander Ghams for defendant-appellant." }, "file_name": "0598-01", "first_page_order": 628, "last_page_order": 634 }