{ "id": 4078804, "name": "STATE OF NORTH CAROLINA v. KENNETH MARK HARTLEY", "name_abbreviation": "State v. Hartley", "decision_date": "2011-05-17", "docket_number": "No. COA10-964", "first_page": "1", "last_page": "24", "citations": [ { "type": "official", "cite": "212 N.C. App. 1" } ], "court": { "name_abbreviation": "N.C. Ct. 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App.", "case_ids": [ 9380605 ], "year": 2001, "pin_cites": [ { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0549-01" ] }, { "cite": "542 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5861325 ], "weight": 8, "year": 2004, "pin_cites": [ { "page": "611" }, { "page": "654" }, { "page": "611-12" }, { "page": "655" }, { "page": "604" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/us/542/0600-01" ] }, { "cite": "468 U.S. 420", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338811 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "442" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/us/468/0420-01" ] }, { "cite": "478 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 734", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890574 ], "year": 1996, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0734-01" ] }, { "cite": "418 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "185-87", "parenthetical": "holding that defendant who voluntarily accompanied officers to the police station in a police car, waited in a lobby with unlocked external doors, and was told more than once he was not under arrest, was not in custody" } ], "opinion_index": 0 }, { "cite": "331 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501824 ], "year": 1992, "pin_cites": [ { "page": "443-45", "parenthetical": "holding that defendant who voluntarily accompanied officers to the police station in a police car, waited in a lobby with unlocked external doors, and was told more than once he was not under arrest, was not in custody" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0427-01" ] }, { "cite": "431 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "10", "parenthetical": "holding that defendant was not in custody where he was told several times that he was not under arrest and never asked to leave the interview" } ], "opinion_index": 0 }, { "cite": "334 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530737 ], "year": 1993, "pin_cites": [ { "page": "154", "parenthetical": "holding that defendant was not in custody where he was told several times that he was not under arrest and never asked to leave the interview" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0148-01" ] }, { "cite": "570 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "134", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249972 ], "year": 2002, "pin_cites": [ { "page": "365", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0358-01" ] }, { "cite": "701 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "633" }, { "page": "633", "parenthetical": "internal citations omitted" }, { "page": "633-34", "parenthetical": "holding that defendant was not in custody where officers told him he was not under arrest, he voluntarily went with officers to the police station, was never restrained, was given bathroom breaks, and he was not deceived, misled, or threatened" }, { "page": "634" } ], "opinion_index": 0 }, { "cite": "161 L. Ed. 2d 122", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "396-97" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] }, { "cite": "139 L. Ed. 2d 177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "opinion_index": 0 }, { "cite": "522 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11525121, 11525092, 11524582, 11525031, 11524807, 11524710, 11524847, 11524689, 11524884, 11524761, 11524635, 11524924, 11524734, 11524959 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/us/522/0900-14", "/us/522/0900-13", "/us/522/0900-01", "/us/522/0900-12", "/us/522/0900-07", "/us/522/0900-04", "/us/522/0900-08", "/us/522/0900-03", "/us/522/0900-09", "/us/522/0900-06", "/us/522/0900-02", "/us/522/0900-10", "/us/522/0900-05", "/us/522/0900-11" ] }, { "cite": "483 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "405" }, { "page": "402-06", "parenthetical": "holding that juvenile defendants who voluntarily went with police officers to the police station for questioning, but were told they were not under arrest, were not in custody" } ], "opinion_index": 0 }, { "cite": "345 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53878 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "662" }, { "page": "658-63" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0647-01" ] }, { "cite": "429 U.S. 492", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 7010 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "495" }, { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/us/429/0492-01" ] }, { "cite": "470 U.S. 298", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299279 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/us/470/0298-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "826" }, { "page": "826-27" }, { "page": "829" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "year": 2001, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "361 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "728" } ], "opinion_index": 0 }, { "cite": "321 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571664 ], "year": 1987, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0052-01" ] }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "224" }, { "page": "224" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "449" }, { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "151 L. Ed. 2d 54", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "pin_cites": [ { "page": "70" } ], "opinion_index": 0 }, { "cite": "540 S.E.2d 713", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "723", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135728 ], "year": 2000, "pin_cites": [ { "page": "65-66", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0050-01" ] }, { "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": "570 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "755", "parenthetical": "\"We find nothing in our previous cases or in defendant's argument that persuades us the short form indictments for rape or sexual offense are invalid or unconstitutional.\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250832 ], "year": 2002, "pin_cites": [ { "page": "551", "parenthetical": "\"We find nothing in our previous cases or in defendant's argument that persuades us the short form indictments for rape or sexual offense are invalid or unconstitutional.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0546-01" ] }, { "cite": "535 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 208", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124012 ], "year": 2000, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0208-01" ] }, { "cite": "532 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "779", "parenthetical": "\"We reiterate here that [short-form] indictments based on N.C.G.S. \u00a7 15-144, like those charging defendant in this case, comply with both the North Carolina and the United States Constitutions.\"" } ], "opinion_index": 0 }, { "cite": "352 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685072 ], "year": 2000, "pin_cites": [ { "page": "539", "parenthetical": "\"We reiterate here that [short-form] indictments based on N.C.G.S. \u00a7 15-144, like those charging defendant in this case, comply with both the North Carolina and the United States Constitutions.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0531-01" ] }, { "cite": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "133 L. Ed. 2d 739", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "459 S.E.2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "761", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "340 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790245 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0488-01" ] }, { "cite": "423 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "461" }, { "page": "461-62" } ], "opinion_index": 0 }, { "cite": "333 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550426 ], "year": 1992, "pin_cites": [ { "page": "56-57" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0052-01" ] } ], "analysis": { "cardinality": 1909, "char_count": 59036, "ocr_confidence": 0.745, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.12982494346195472 }, "sha256": "23a66d07c349e25312b40466a47c7aa6f61c4c531134fad40e137324aeefe629", "simhash": "1:cb38552a347d4dde", "word_count": 9632 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH MARK HARTLEY" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nKenneth Mark Hartley (\u201cdefendant\u201d) appeals from (judgments entered after a jury found him guilty of three counts of first degree murder, attempted first degree rape, and first degree sexual offense. After careful review, we find no error.\nBackground\nOn the morning of 18 June 2004, the bodies of Gail Tyndall (\u201cGail\u201d), her daughter T.B. (age nine), and her son R.B. (age 14) were discovered in their trailer in Sampson County, North Carolina. Officers then began looking for defendant who was Gail\u2019s 21-year-old son and the half-brother of T.B. and R.B. At approximately 9:51 p.m., SBI Special Agent James Tilley and Captain Ricky Mattocks of the Sampson County Sheriff\u2019s Department saw defendant walking along Highway 421. The officers pulled over, approached defendant, and asked him if he knew about anyone being hurt at his home. Defendant responded that he did not know about the situation at his home. The officers asked defendant if he would accompany them to the investigation headquarters at the Plainview Fire Department and he agreed. In less than an hour after arriving at the Fire Department, defendant confessed to Special Agent Sheila Quick and Sergeant Julian Carr that he had killed Gail, R.B., and T.B. Defendant was then arrested and read his Miranda rights, which he waived. Defendant again confessed to the killings and signed a written confession.\nAccording to defendant\u2019s confession, his family members went to bed at around 12:00 a.m. on 18 June 2004. Defendant went to his bedroom and began watching television, but he \u201cjust started thinking about stabbing [his] mom.\u201d Defendant did not know \u201cwhere the thoughts came from\u201d; he had never thought about stabbing her before and he was not angry with her. Defendant admitted to thinking about stabbing his mother for around 15 or 20 minutes. At approximately 1:30 a.m., defendant retrieved a knife he had recently purchased and then walked to his mother\u2019s bedroom door. He \u201cwaited a minute to make sure she was asleep\u201d and then entered the bedroom. Defendant stated that his mother was lying in the center of the bed with her back to him when he began stabbing her with the knife. She awoke immediately and began screaming and trying to fight defendant. Defendant continued to stab her until she stopped screaming. At about the same time Gail stopped screaming, R.B. came into the bedroom and turned on the light. Defendant then began stabbing R.B. until he fell face forward into the doorway of the bedroom.\nDefendant confessed that he then put the knife on the kitchen table, found some duct tape, and proceeded to T.B.\u2019s bedroom. When he entered the room, T.B. awoke and asked him what he was doing. Defendant told her to put a piece of clothing from the floor into her mouth, which she did. He then used the duct tape to bind her hands behind her back and tape her mouth shut. Defendant then instructed T.B. to walk to his bedroom where he undressed her and himself. Defendant attempted to have sex with T.B. vaginally \u201cfor a few minutest,]\u201d but was unable to achieve penetration. Defendant then had anal sex with T.B. Defendant admitted that he tried to strangle T.B. with a shoelace, but \u201cit wasn\u2019t working[,]\u201d so he strangled her with his arm for about five minutes until she stopped moving.\nDefendant told police that he then washed his arms in the bathroom sink and changed clothes. Defendant took all of the telephones in the house and placed them in the bathroom so that the victims could not find them \u201cif they didn\u2019t die.\u201d Defendant washed the knife and gathered a flashlight, portable television, and cash to take with him. He then began walking in the direction of Dunn, North Carolina.\nDefendant was charged with three counts of first degree murder, one count of attempted first degree rape, and one count of first degree sexual offense. At trial, it was undisputed that defendant killed the three victims and perpetrated sexual acts on T.B.; however, defendant claimed that he was not guilty of the crimes charged due to his being insane. In support of his defense, defendant offered the testimony of two mental health experts, Dr. Manish Fozdar and Dr. Ann Burgess, who claimed that defendant suffered from pervasive developmental disorder (\u201cPDD\u201d), a type of neurodevelopmental disorder, and that due to his mental illness defendant did not have the capacity to differentiate between right and wrong or appreciate the nature of his actions. Dr. Charles Vance, an expert witness for the State, testified that while defendant likely suffered from schizoid personality disorder (\u201cSPD\u201d), and possibly PDD, defendant knew the difference between right and wrong and had the ability to form the specific intent to kill.\nOn 22 November 2009, the jury convicted defendant of three counts of first degree murder on the basis of malice, premeditation, and deliberation. The jury also convicted defendant of the first degree murder of T.B. pursuant to the felony murder rule, attempted first degree rape, and first degree sexual offense. The jury recommended that defendant receive life imprisonment rather than the death penalty. The trial court sentenced defendant to three terms of life imprisonment without the possibility of parole, 240 to 297 months imprisonment for the first degree sexual offense conviction, and 157 to 198 months imprisonment for the attempted first degree rape conviction. Defendant timely appealed to this Court.\nDiscussion\nI. Motion to Suppress Confession\nDefendant argues that the trial court erred in denying his motion to suppress his confession to the murders of Gail, T.B., and R.B. Specifically, defendant argues that his confession was given while in custody prior to being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966).\nAlthough defendant argues on appeal that the trial court erred in denying his pre-trial motion to suppress the confession, defendant did not object at trial to the admission of his confession into evidence. It is well established that\na motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.... [A] pretrial motion to suppress, a type of motion in limine, is not sufficient to preserve for appeal the issue of admissibility of evidence.\nState v. Grooms, 353 N.C. 50, 65-66, 540 S.E.2d 713, 723 (2000) (internal citation omitted), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54, 70 (2001); accord State v. Golphin, 352 N.C. 364, 449, 533 S.E.2d 168, 224 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Nevertheless, defendant is entitled to relief if he can demonstrate plain error. Golphin, 352 N.C. at 449, 533 S.E.2d at 224.\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it-can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error]... amounts to a denial of a fundamental right of the accused,\u201d or... where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings[.]\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). We must determine whether, absent the alleged error, the \u201cjury probably would have returned a different verdict.\u201d State v. Davis, 321 N.C. 52, 59, 361 S.E.2d 724, 728 (1987).\nThe threshold issue to be decided is whether defendant was in custody when he first confessed to the murders prior to receiving the Miranda warnings, which \u201cw[ere] conceived to protect an individual\u2019s Fifth Amendment right against self incrimination in the inherently compelling context of custodial interrogations by police officers.\u201d State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). \u201cAlthough the United States Supreme Court has acknowledged that the Fifth Amendment prohibits the use only of \u2018compelled\u2019 testimony, it has interpreted the Miranda decision as holding that failure to administer Miranda warnings in \u2018custodial situations\u2019 creates a presumption of compulsion which would exclude statements of a defendant.\u201d Id. at 336-37, 543 S.E.2d at 826 (citing Oregon v. Elstad, 470 U.S. 298, 306 07, 84 L. Ed. 2d 222, 230 31 (1985)).\n\u201c[A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a \u2018coercive environment.\u2019 Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.\u201d\nId. at 337, 543 S.E.2d at 826-27 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977)).\n\u201c [I]n determining whether a suspect was in custody, an appellate court must examine all the circumstances surrounding the interrogation; but the definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.\u201d State v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997). \u201cWe must therefore determine whether ... a reasonable person in defendant\u2019s position would have believed that he was under arrest or was restrained in his movement to that significant degree.\u201d State v. Garcia, 358 N.C. 382, 396 97, 597 S.E.2d 724, 736 37 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005); accord State v. Waring,\u2014 N.C. \u2014, \u2014, 701 S.E.2d 615, 633 (2010). \u201cThis is an objective test, based upon a reasonable person standard, and is to be applied on a case by case basis considering all the facts and circumstances.\u201d State v. Jones, 153 N.C. App. 358, 365, 570 S.E.2d 128, 134 (2002) (internal citation and quotation marks omitted). \u201c[Our Supreme] Court has considered such factors as whether a suspect is told he or she is free to leave, whether the suspect is handcuffed, whether the suspect is in the presence of uniformed officers, and the nature of any security around the suspect[.]\u201d Waring, \u2014 N.C. at \u2014, 701 S.E.2d at 633 (internal citations omitted).\nIn the instant case, on 18 June 2004 at approximately 9:51 p.m., Agent Tilley and Captain Mattocks approached defendant after he was located walking along Highway 421 in the direction of Dunn, North Carolina. Agent Quick and Sergeant Carr arrived soon thereafter. Agent Tilley asked defendant if his name was Kenneth Hartley and he responded affirmatively. Agent Tilley asked defendant if he was okay and he replied that he was okay. Agent Tilley then informed defendant that three people had been injured at his residence and asked him if he knew anything about the situation, to which defendant responded that he did not. Agent Tilley then asked defendant to place his hands on the vehicle so he could pat him down for weapons. Agent Tilley recovered two bundles of money from defendant\u2019s pants, but returned the money to defendant. It was apparent that defendant\u2019s clothes were damp and his hands were shaking. Agent Tilley told defendant that he would like to talk to him about what happened at the trailer and asked defendant if he would accompany him to the Plainview Fire Department, which was being used as a command post for the investigation. Defendant was not handcuffed and Agent Tilley told defendant that he was not under arrest. Defendant voluntarily went with the officers to the fire department, riding in the front passenger seat of the police car.\nAt the fire department, the officers entered a code to access the building and defendant followed them to a classroom where he was seated at one table while Agent Quick and Sergeant Carr sat across from him at a different table with an aisle separating the two tables. Defendant was asked if he wanted anything to eat or drink or if he needed to use the restroom. Defendant was again informed that he was not under arrest. Agent Quick asked defendant when he last saw his family and defendant responded that he had dinner with them at 8:30 p.m. and then left the house at about 1:00 a.m. while they were sleeping. He claimed that he was walking to Wal-mart and had not been home since 1:00 a.m.\nAgent Quick noticed that defendant had cuts on his hands and when asked about them, defendant stated that he did not know how he had received the cuts. Agent Quick testified that at that time she decided that she would not allow defendant to leave, but she did not relay that decision to defendant; rather, she stated that there was forensic evidence at the scene that would likely lead to apprehension of the person suspected of killing defendant\u2019s family. She then asked defendant if there was anything else defendant would like to tell her, and defendant replied: \u201cYeah, I did it.\u201d Defendant then confessed to committing the murders in detail, stating that he stabbed his mother and then stabbed his brother who entered his mother\u2019s room. He then woke up his sister, gagged her, bound her hands with duct tape, attempted to have sex with her vaginally, had sex with her anally, and then strangled her to death. Agent Quick testified that due to her concern for public safety, she asked defendant where the knife was located. Defendant told her that he hid it in the woods near a church.\nAt 10:41 a.m., Agent Quick left the room to inform Agent Tilley and District Attorney G. Dewey Hudson that defendant had confessed to killing his mother, R.B., and T.B. Sergeant Carr remained in the room with defendant. Soon thereafter, defendant was arrested and given the Miranda warnings. He was not handcuffed and he remained seated at the same table. Defendant then waived his rights under Miranda and restated his confession. Agent Quick wrote a statement on behalf of defendant as he gave his confession, read it back to defendant, and defendant signed the document.\nIn its order denying defendant\u2019s motion to suppress, the trial court concluded as a matter of law, inter alia, that under these facts and circumstances, defendant was not in custody when he gave his initial confession. We agree with the trial court and find no error, much less plain error, in the admission of defendant\u2019s confession at trial.\nThe following circumstances lead us to this conclusion: (1) defendant was told on two occasions that he was not under arrest; (2) defendant voluntarily accompanied the officers to the fire department; (3) defendant was never handcuffed; (4) defendant rode to the station in the front of the vehicle; (5) the officers asked defendant if he needed food, water, or use of the restroom; (6) defendant was never misled or deceived; (7) defendant was not questioned for a long period of time; and (8) the officers kept their distance during the interview and did not employ any form of physical intimidation. Our caselaw supports this holding under similar, albeit not identical, factual scenarios. See e.g., Waring, \u2014 N.C. at _, 701 S.E.2d at 633-34 (holding that defendant was not in custody where officers told him he was not under arrest, he voluntarily went with officers to the police station, was never restrained, was given bathroom breaks, and he was not deceived, misled, or threatened); Gaines, 345 N.C. at 658-63, 483 S.E.2d at 402-06 (holding that juvenile defendants who voluntarily went with police officers to the police station for questioning, but were told they were not under arrest, were not in custody); State v. Lane, 334 N.C. 148, 154, 431 S.E.2d 7, 10 (1993) (holding that defendant was not in custody where he was told several times that he was not under arrest and never asked to leave the interview); State v. Phipps, 331 N.C. 427, 443-45, 418 S.E.2d 178, 185-87 (1992) (holding that defendant who voluntarily accompanied officers to the police station in a police car, waited in a lobby with unlocked external doors, and was told more than once he was not under arrest, was not in custody).\nDefendant points out that he was subjected to a pat-down; the fire department required an access code; he was not offered medical attention; he was never left alone in the room; he had no previous experience with the state\u2019s criminal justice system; he was a suspect; and Agent Quick continued to ask him questions after she had subjectively determined that she would not allow defendant to leave had he tried. None of these factors alone are determinative, and, viewing them in context with the other factors discussed above, we are not persuaded that defendant was in custody. We point out that a pat-down search does not automatically create a custodial situation. State v. Benjamin, 124 N.C. App. 734, 738, 478 S.E.2d 651, 653 (1996). Furthermore, with regard to Agent Quick\u2019s intentions, \u201c \u2018[a] policeman\u2019s unarticulated plan has no bearing on the question whether a suspect was \u2018in custody\u2019 at a particular time; the only relevant inquiry is how a reasonable man in the suspect\u2019s position would have understood his situation.\u2019 \u201c Buchanan, 353 N.C. at 341-42, 543 S.E.2d at 829 (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 82 L. Ed. 2d 317, 336 (1984)). In sum, viewing the totality of the circumstances we hold that \u201ca reasonable person in defendant\u2019s position would [not] have believed that he was under arrest or was restrained in his movement to that significant degree.\u201d Garcia, 358 N.C. at 396-97, 597 S.E.2d at 737.\nDefendant further argues that he was interrogated in a two-stage process by which the officers deliberately drew out a confession prior to giving the Miranda warnings, then provided the Miranda warnings, obtained a waiver, and asked defendant to repeat his confession. Defendant relies heavily on Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643 (2004), where the United States Supreme Court held that a confession obtained by a two-stage interrogation violated defendant\u2019s Fifth Amendment rights. The Court stated that \u201c[t]he object of question first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.\u201d Id. at 611, 159 L. Ed. 2d at 654. The Court further reasoned:\nThe threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function \u201ceffectively\u201d as Miranda requires. .. . For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.\nId. at 611-12, 159 L. Ed. 2d at 655.\nWhile the officers in this case questioned defendant, obtained a confession, Mirandized defendant, and then obtained a second confession, the key distinction between Seibert and the present case is that the defendant in Seibert was arrested prior to questioning. Id. at 604, 159 L. Ed. 2d at 650. Therefore, both confessions in Seibert were obtained while the defendant was in custody. As we have concluded, defendant was not in custody when the first confession was given. Defendant was not under arrest, unlike the defendant in Seibert. \u201cBecause these statements were voluntary and would have been admissible if offered into evidence, no issue arises under Missouri v. Seibert[.]\u201d Waring, \u2014 N.C. at \u2014, 701 S.E.2d at 634.\nDefendant also argues that he received ineffective assistance of counsel because his trial attorney failed to object to the confession at trial. \u201cIn general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal.\u201d State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001), cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002). However, ineffective assistance of counsel \u201cclaims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required[.]\u201d 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).\nTo successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two prong test. First, he must show that counsel\u2019s performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different absent the error.\nState v. Blakeney, 352 N.C. 287, 307-08, 531 S.E.2d 799, 814-15 (2000) (internal citation omitted), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780 (2001).\nAs stated supra, there was no error, much less plain error, in the admission of defendant\u2019s confession at trial. Consequently, we hold that no further investigation is required as to defendant\u2019s ineffective assistance of counsel claim and that defendant is unable to show that had defense counsel objected to the confession, \u201ca reasonable probability exists that the trial result would have been different. ...\u201d Id.\nII. Confrontation Clause\nNext, defendant argues that his Sixth Amendment right to confront the witnesses against him was violated at trial when Dr. Deborah Radisch testified to the results of the victims\u2019 autopsies performed by Dr. Carl Barr who was not present to testify because he was recovering from surgery. Defendant objected to Dr. Radisch\u2019s testimony and the admission of Dr. Barr\u2019s file on Confrontation Clause grounds. Dr. Radisch testified that she reviewed Dr. Barr\u2019s autopsy results \u201cin the course of [her] duties [,]\u201d which requires her to review all of the medical examiners\u2019 cases. Dr. Radisch conducted a \u201cmore thorough review\u201d of the reports shortly before trial. Defendant did not have the opportunity to cross-examine Dr. Barr before trial.\nThe Confrontation Clause of the Sixth Amendment bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 203 (2004). In Melendez-Diaz v. Massachusetts, \u2014 U.S. \u2014, \u2014, 174 L. Ed. 2d 314, 327-28 (2009), the Supreme Court determined that forensic analyses, including autopsy examinations, qualify as \u201ctestimonial\u201d statements, and forensic analysts are \u201cwitnesses\u201d to which the Confrontation Clause applies. Therefore, when the State seeks to introduce forensic analyses, \u201c[a]bsent a showing that the analysts [are] unavailable to testify at trial and that petitioner had a prior opportunity to cross examine them,\u201d such evidence is inadmissible under Crawford. Id. at \u2014, 174 L. Ed. 2d at 322.\nSince Melendez-Diaz, our courts have held that the Confrontation Clause prohibits the introduction of testimony by an expert witness that is based solely upon the reports of a non-testifying analyst. See, e.g., State v. Locklear, 363 N.C. 438, 451-52, 681 S.E.2d 293, 304-05 (2009); State v. Hurt, \u2014 N.C. App. \u2014, \u2014, 702 S.E.2d 82, 99, temporary stay allowed, \u2014 N.C. \u2014, 705 S.E.2d 349 (2010); State v. Galindo, \u2014 N.C. App. \u2014, \u2014, 683 S.E.2d 785, 788 (2009). However, the expert testimony is permissible when the expert testifies \u201cnot just to the results of other experts\u2019 tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts\u2019 tests, and her own expert opinion based on a comparison of the original data.\u201d State v. Mobley, \u2014 N.C. App. \u2014, \u2014, 684 S.E.2d 508, 511 (2009), disc, review denied, 363 N.C. 809, 692 S.E.2d 393 (2010). Furthermore, any evidence offered \u201cas the basis of an expert\u2019s opinion is not being offered for the truth of the matter asserted.\u201d Id. Thus, the critical distinction that we must make in order to address defendant\u2019s challenge to the admission of Dr. Radisch\u2019s testimony is determining whether she merely recited information previously reported by Dr. Barr or whether she testified to her own, independent expert opinion based on information of a type properly utilized in developing an expert opinion.\nUpon review of the record, it is clear that Dr. Radisch provided her own expert opinion, not a regurgitation of Dr. Barr\u2019s reports. While Dr. Radisch made minimal references to Dr. Barr\u2019s autopsy reports, which were never introduced into evidence, her testimony primarily consisted of describing to the jury the injuries sustained by the victims as depicted in 28 autopsy photographs. Dr. Radisch described the type of wounds, the pain the wounds would have inflicted, whether the wounds would have been fatal, and ultimately the cause of death of each victim. With regard to T.B., Dr. Radisch explained to the jury, through use of the photographs, that T.B. had been asphyxiated, how long it would have taken for her to lose consciousness, and that the blood seen in her vagina could have been menstrual blood or the result of attempted penetration.\nDr. Radisch\u2019s testimony is remarkably similar to that of the pathologist in Hurt, \u2014 N.C. App. at \u2014, 702 S.E.2d at 86. There, Dr. Patrick Lantz testified as to the effect of the victim\u2019s stab wounds, the pain the wounds would have caused, and how long it would have taken for the victim to lose consciousness and die. Id. While this Court held that the testimony of other experts violated the defendant\u2019s rights under the Confrontation Clause, the Court noted the following with regard to Dr. Lantz\u2019s testimony:\n[W]e do not discuss Lantz\u2019s testimony to the non-testifying pathologist\u2019s autopsy findings at great length. For, even if Lantz\u2019s recitation of stab wounds visually observed by [the nontestifying expert] and listed in the latter\u2019s report are considered a type of testimonial forensic evidence contemplated by Melendez-Diaz, his description of [the victim\u2019s] stab wounds was not prejudicial. Several responding officers and EMS personnel also testified to the wounds they personally observed, and several photographs of the victim\u2019s body were published .to the jury for inspection. Moreover, Lantz\u2019s opinion testimony regarding the impact of the various wounds and the time it would have taken for [the victim] to lose consciousness was clearly based, not on the report at all, but on his own independent experience as a pathologist.\nId. at \u2014 n.5, 702 S.E.2d at 98 n.5 (emphasis added). As was the case with Dr. Lantz, Dr. Radisch\u2019s testimony as to the impact of the various trauma suffered by the three victims was based primarily on her inspection of the photographs that were admitted into evidence and her independent experience as a pathologist. The Court in Hurt declined to determine whether Dr. Lantz\u2019s initial recitation of the stab wounds observed and reported by the testifying expert violated the defendant\u2019s constitutional rights. Id. In the present case, Dr. Radisch made references to Dr. Barr\u2019s reports, but did not provide a recitation of the findings from the reports. However, as in Hurt, to the extent that Dr. Radisch recited any portion of Dr. Barr\u2019s reports, we hold that any such error was not prejudicial given the extensive testimony Dr. Radisch provided based strictly on her own personal knowledge as a pathologist, including the effect of the victims\u2019 various injuries and their cause of death.\nAssuming, arguendo, that Dr. Radisch\u2019s testimony was erroneously admitted, the State has met its burden of proving that any error was harmless beyond a reasonable doubt. N.C. Gen. Stat. \u00a7 15A-1443(b) (2009) (\u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless ... it was harmless beyond a reasonable doubt.\u201d). \u201c \u2018[T]he presence of overwhelming evidence of guilt may render error of constitutional dimension harmless beyond a reasonable doubt.\u2019 \u201d State v. Morgan, 359 N.C. 131, 156, 604 S.E.2d 886, 901 (2004) (quoting State v. Autry, 321 N.C. 392, 400, 364 S.E.2d 341, 346 (1988)), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). Dr. Radisch testified regarding the type of wounds inflicted on the victims and the cause of death. We fail to see how this testimony affected the outcome of this case where the overwhelming evidence established that defendant killed the victims, and, by his own confession, the manner in which he killed them. As defendant admits in his brief, \u201c[his] only defense to the charges was mental illness.\u201d Assuming Dr. Radisch\u2019s testimony violated defendant\u2019s Confrontation Clause rights, it was harmless beyond a reasonable doubt.\nIII. State\u2019s Exhibit 39\nDefendant argues that State\u2019s Exhibit 39, a rectal swab taken from T.B. which contained sperm with DNA matching that of defendant, was not properly authenticated and was, therefore, erroneously admitted at trial. Defendant also argues that his right to confront the witnesses against him was violated because law enforcement testimony that the exhibit consisted of rectal swabs from T.B. was inadmissible testimonial hearsay of Dr. Barr who was not present to testify. Defendant has not preserved these arguments for appellate review as he did not object at trial on constitutional grounds or on authentication grounds. Nevertheless, we apply plain error review.\nFirst, as to defendant\u2019s claim that the swabs were not properly authenticated, Rule 901 of the North Carolina Rules of Evidence requires \u201cauthentication or identification as a condition precedent to admissibility\u201d of evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 901(a) (2009). The authentication or identification requirement is satisfied by \u201cevidence sufficient to support a finding that the matter in question is what its proponent claims.\u201d Id. The evidence at trial tended to establish that Officer Lawrence Dixon processed evidence at the crime scene, was present for the autopsy of T.B., and obtained evidence related to the crime from Dr. Barr, including the rectal swabs, on 24 June 2004. The swabs were then placed in the custody of the Sampson County Sheriff\u2019s Office. The swabs were submitted to the SBI for analysis and later returned to the Sampson County Sheriff\u2019s Office where they were kept unaltered until the time of trial. We hold that Exhibit 39 was properly authenticated.\nStill, defendant questions the chain of custody and argues that the swabs were taken on 19 June 2004, but were not picked up by Officer Dixon until 24 June 2004. Our Supreme Court stated in State v. Sloan, 316 N.C. 714, 723, 343 S.E.2d 527, 533 (1986) (quoting State v. Grier, 307 N.C. 628, 633, 300 S.E.2d 351, 354 (1983)):\nIn the first place, defendant has provided no reason for believing that this evidence was altered. Based on the detailed and documerited chain of custody presented by the State, the possibility that the real evidence involved was confused or tampered with \u201cis simply too remote to require exclusion of this evidence.\u201d Furthermore, any weaknesses in the chain of custody relate only to the weight of the evidence, and not to its admissibility.\nAs in Sloan, there is no reason to believe that Exhibit 39 was in any way altered and the possibility that this evidence was tampered with is remote. Consequently, any weakness in the chain of custody does not render the exhibit inadmissible. Id.\nSecond, defendant claims that Officer Dixon\u2019s testimony that Exhibit 39 contained rectal swabs taken from T.B. violated his Confrontation Clause rights. Since the record permits a determination that Officer Dixon had personal knowledge of the source from which the rectal swabs admitted into evidence as State\u2019s Exhibit 39 were obtained, any objection to the admission of these swabs predicated on the theory that the testimony utilized to authenticate them was inadmissible for confrontation-related reasons lacks merit. In other words, Officer Dixon\u2019s testimony was sufficient to establish that Exhibit 39 contained rectal swabs taken from T.B. at the autopsy performed by Dr. Barr. The results of the tests conducted on the swabs were relayed to the jury by the experts who conducted the tests. SBI serologist Russell Holley testified that Exhibit 39 consisted of two rectal swabs that he personally tested for semen. SBI DNA analyst Amanda Thompson testified that the swabs contained DNA that matched that of defendant. In sum, defendant\u2019s constitutional rights were not violated by Officer Dixon\u2019s testimony and we hold that there was no error in the admission of Exhibit 39 at trial.\nIV. Prosecutor\u2019s Closing Argument\nDefendant argues that the prosecutor made improper statements during his closing argument at trial. Defendant did not object to these statements at trial. Consequently, our review is limited to \u201cwhether the remarks were so grossly improper that the trial court committed reversible error by failing to intervene ex mero mo tu.\" State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002). \u201cUnder this standard, only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.\u201d State v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008) (citations and internal quotation marks omitted). \u201cTo establish such an abuse, defendant must show that the prosecutor\u2019s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.\u201d State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999).\nThe prosecutor argued: \u201c[T]he judge is also going to instruct you about lack of mental capacity. It\u2019s also called diminished capacity. And the defense made reference to that, in other words, you cannot form specific intent.\u201d Defendant claims that the prosecutor\u2019s statement misled the jury into believing that defendant could only be found not guilty of murder if he did not have the ability to form the requisite intent. Defendant claims that even if he had the ability to form specific intent, it does not necessarily mean that he did so on 18 June 2004. We do not believe that the prosecutor\u2019s statement could have led to a jury conviction on an improper basis. The prosecutor\u2019s statement accurately pointed out that the defense of diminished capacity is utilized to negate the specific intent necessary for murder. The prosecutor went on to argue that defendant formed the specific intent to kill, which was the State\u2019s burden to prove if defendant did, in fact, have the capability to form such intent. Moreover, the jury was instructed that in order to convict defendant of murder, the jury must find that defendant formed the specific intent to kill, not simply that he had the ability to form the specific intent to kill.\nDefendant also points to the prosecutor\u2019s statements: (1) \u201cThe defendant is trying to escape responsibility for the actions he did back on June 18, 2004. If that... isn\u2019t murder, I don\u2019t know what is[,]\u201d and (2) \u201cI know when to ask for the death penalty and when not to. This isn\u2019t the first case, it\u2019s the ten thousandth for me.\u201d Defendant claims that through these statements, the prosecutor impermissibly expressed his personal belief as to defendant\u2019s guilt. Defendant cites State v. Smith, 279 N.C. 163, 165-66, 181 S.E.2d 458, 459-60 (1971) where the prosecutor stated, among other things, that he knew when or when not to call for a conviction in a capital case; however, the statements by the prosecutor in Smith went far beyond those of the prosecutor in the present case. The prosecutor in Smith went on a \u201ctirade,\u201d stating that he does not try innocent men, and that a man who did what defendant was alleged to have done was \u201c \u2018lower than the bone belly of a cur dog.\u201d \u2019 Id. The prosecutor further called defendant a liar and stated, \u201c T don\u2019t believe a living word of what he says about this case, members of the jury.\u2019 \u201d Id. at 166, 181 S.E.2d at 460. \u2022 We do not believe the prosecutor\u2019s remarks in the case sub judice rise to the level such that a new trial is warranted. We hold that the trial court did no err in failing to intervene ex mero motu.\nV. Requested Instruction on Commitment Proceedings\nDefendant contends that \u201c[t]he trial court erred by failing to give [defendant]^ requested jury instruction on the commitment process.\u201d Where, as here, \u201ca defendant interposes a defense of insanity and requests an instruction setting out the provisions for involuntary commitment, the trial court must instruct \u2018on the consequences of a verdict of not guilty by reason of insanity.\u2019 \u201d State v. Coppage, 94 N.C. App. 630, 634, 381 S.E.2d 169, 171 (1989) (quoting State v. Hammonds, 290 N.C. 1, 15, 224 S.E.2d 595, 604 (1976)). In providing these instructions, the trial court must \u201cset[] out in substance the commitment procedures outlined in [N.C. Gen. Stat. \u00a7\u00a7 15A-1321 and -1322 (2009) and Article 5 of Chapter 122C of the General Statutes], applicable to acquittal by reason of mental illness.\u201d Hammonds, 290 N.C. at 15, 224 S.E.2d at 604 (emphasis added). The purpose of the instruction is to eliminate any \u201cconfusion\u201d or \u201cuncertainty\u201d by the jury regarding \u201cthe fate of [the] accused if found insane at the time of the crime,\u201d id. at 15, 224 S.E.2d at 603-04, and to \u201cremove any hesitancy of the jury in returning a verdict of not guilty by reason of insanity, engendered by a fear that by so doing they would be releasing the defendant at large in the community[,]\u201d State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393 (1982).\nOur appellate courts have not set out \u201cthe precise instruction to be given\u201d regarding the involuntary commitment procedures, but, rather, conduct a \u201ccase by case determination of whether there has been substantial compliance with the rule.\u201d Id. at 726, 295 S.E.2d at 393. The trial court\u2019s instruction on the consequences of a verdict of not guilty by reason of insanity are sufficient if the instruction explains the \u201csubstance,\u201d Hammonds, 290 N.C. at 15, 224 S.E.2d at 604, \u201cgist,\u201d State v. Bundridge, 294 N.C. 45, 53, 239 S.E.2d 811, 817 (1978), or \u201ccentral meaning,\u201d Harris, 306 N.C. at 727, 295 S.E.2d at 393, of the involuntary commitment procedures. At the charge conference, the trial court stated that it planned to give the jury the pattern jury instructions regarding the involuntary commitment process if a defendant is found not guilty by reason of insanity. N.C.P.I. \u2014 Crim. 304.10. Defendant made a written request to modify the pattern instructions to include the following italicized language:\nA defendant found not guilty by reason of insanity shall immediately be committed to a State mental facility. After the defendant has been automatically committed, the defendant shall be provided a hearing within 50 days. This hearing will be held in the court in which the original trial was held. The hearing shall be open to the public. At this hearing and all subsequent hearings in which the defendant seeks his release from inpatient commitment, evidence that the defendant committed a homicide in the relevant past is prima facie evidence of dangerous [ness]. At this hearing the defendant shall have the burden of proving by a preponderance of the evidence that the defendant no longer has a mental illness, or is no longer dangerous to others. If the court is so satisfied, it shall order the defendant discharged and released. If the court finds that the defendant has not met his burden of proof, then it shall order that inpatient commitment continue for a period not to exceed 90 days. This involuntary commitment will continue, subject to review first within 180 days and thereafter every year, until the court finds that the defendant no longer has a mental illness or is no longer dangerous to others.\nThe trial court, after considering arguments from both sides, denied defendant\u2019s request and subsequently instructed the jury according to N.C.P.I. \u2014 Crim. 304.10.\nOn appeal, defendant contends that the trial court should have given his requested instruction because, \u201c[t]he pattern instruction, unlike [defendant]\u2019s requested instruction did not inform jurors that community members and the victims\u2019 family would be able to attend public hearings on whether [defendant] should be released; that at these meetings, the plentiful evidence that [defendant] was guilty of homicide would be strong evidence of his dangerousness to others; and that the periods of review would lengthen to 180 days and then one year.\u201d Our Supreme Court, in Harris, 306 N.C. at 727, 295 S.E.2d at 393, rejected a similar \u201cclaim[] that the [trial] court did not give the instructions [regarding involuntary commitment procedures] in sufficient detail.\u201d There, the trial court instructed the jury that if it found the defendant, who had been charged with first degree murder, not guilty by reason of insanity,\nI then thereafter direct a verdict of not guilty because of that answer in each of these cases, I will order the defendant held in custody until such time as a hearing can be held to see whether or not he will be confined to a state hospital, at first for a period of not more than ninety days and then another hearing will be held in reference thereafter to see whether or not he will continue to be held in the State Hospital as involuntary committed mental patient from time to time.\nId. at 725-26, 295 S.E.2d at 392. The Harris Court held that the trial court\u2019s instructions, which provided the same substantive details as the instructions in this case, were \u201csufficient to remove any hesitancy of the jury in returning a verdict of not guilty by reason of insanity, engendered by a fear that by so doing they would be releasing the defendant at large in the community\u201d: \u201c[the trial court] gave the jury the central meaning of the statute: that if defendant was acquitted by reason of insanity, he would not be released but would be held in custody until a hearing could be held to determine whether he should be confined to a state hospital.\u201d Id. at 727, 295 S.E.2d at 393.\nIn light of Harris, we conclude that the trial court did not err in refusing to give defendant\u2019s requested instruction regarding the consequences of a verdict of not guilty by reason of insanity and instructing the jury according to the pattern jury instruction on this issue. See also State v. Allen, 322 N.C. 176, 198-99, 367 S.E.2d 626, 638 (1988) (\u201cThe trial court gave the pattern jury instruction in N.C.P.I. \u2014 Crim. 304.10 which informed the jury of the commitment hearing procedures in N.C.G.S. \u00a7\u00a7 15A-1321 and -1322, pursuant to article 5 of chapter 122C. This instruction adequately charged the jury regarding procedures upon acquittal on the ground of insanity. Defendant\u2019s assignment of error is overruled.\u201d (internal citation omitted)); State v. Hall, 187 N.C. App. 308, 318, 653 S.E.2d 200, 208 (2007) (holding that the trial court properly gave the pattern jury instruction for N.C.P.I.\u2014 Crim. 304.10, which is in accord with the applicable statutes).\nVI. Burden of Proof\nDefendant argues that the trial court\u2019s instructions to the jury lowered the State\u2019s burden of proving that defendant formed the specific intent to kill. The trial court provided the pattern jury instruction pertaining to diminished capacity to the jury as follows:\nNow you may find that there\u2019s evidence which tends to show that the defendant lacked mental capacity at the time of the acts alleged in this case. The law regarding lack of mental capacity is also referred to as diminished capacity. These terms are used interchangeably and refer to the same law; however, if you find that the defendant lacked mental capacity, you should consider whether this condition affected his ability to formulate the specific intent which is required for a conviction of first-degree murder or any other crime requiring specific intent. In order for you to find the defendant guilty of first-degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an act with specific intent to kill, formed after premeditation and deliberation. If, as a result of lack of mental capacity, the defendant did not have the specific intent to kill the deceased formed after premeditation and deliberation, he is not guilty of first-degree murder.\nTherefore, I charge that if, upon considering the evidence with respect to the defendant\u2019s lack of mental capacity, you have a reasonable doubt as to whether the defendant formulated the specific intent required for conviction of first-degree murder, you will not return a verdict of guilty of first-degree murder. Th[ese] instructions will also apply to certain other charged offenses or lesser included offenses and I will specifically tell you when you\u2019re to recall and to consider this instruction on those offenses. And I will further tell you when it does not apply and you should not consider it.\nAs to each specific intent crime, the trial court instructed the jury:\nIf you find from the evidence beyond a reasonable doubt that. . . the defendant [committed the offense charged], it would be your duty to return a verdict of guilty . . ., unless you are satisfied that the defendant was insane at that time and/or you are satisfied that the defendant lacked the mental capacity to formulate the specific intent required for conviction of this crime.\nAfter completing the jury charge, the State suggested to the trial court that the latter instruction improperly shifted the burden of proof regarding specific intent to defendant. The trial court then altered the instruction and reinstructed the jury as follows:\n[I]f you find from the evidence beyond a reasonable doubt that the defendant [committed the offense charged], it would be your duty to return a verdict of guilty . . ., unless you are satisfied that the defendant was insane at that time and/or that the State has failed to prove beyond a reasonable doubt that the defendant had the required mental capacity to formulate the specific intent required for conviction of this crime.\nDefendant specifically contends that the altered instruction lowered the State\u2019s burden to prove specific intent by requiring the State to prove only that defendant had the required mental capacity to form the specific intent required for conviction and did not require the State to prove that defendant actually formed the specific intent to kill.\nThere is a dispute as to whether defendant\u2019s argument is preserved for appeal. Defendant did not object to any of the instructions discussed above. In fact, defendant stated that he had no objection to the pattern jury instruction on diminished capacity and made no objection when the original mandate was given regarding specific intent. Later, when the State advised the trial court that the jury should be reinstructed on specific intent, defense counsel made no suggestions as to the rewording and made no objection to the final instruction. When the trial court asked defense counsel if he had anything to add to the reinstruction, he responded: \u201cWell we don\u2019t have anything to add to the brilliance that\u2019s going on, Your Honor. It is above our pay grade.\u201d Defendant relies on State v. Keel, 333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992), where the Court held that although no formal objection was entered, \u201c[t]he State\u2019s request [for a pattern jury instruction], approved by the defendant and agreed to by the trial court, satisfied the requirements of Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure and preserved this question for review on appeal.\u201d There is an important distinction that defendant overlooks. In Keel, the requested instruction was unilaterally altered by the trial court to provide a misstatement of the law. Id. at 57, 423 S.E.2d at 461-62. Here, the trial court provided the reinstruction that was agreed upon verbatim. Defendant did not object to the instruction, and, arguably, acquiesced to the instruction he now claims is erroneous. Nevertheless, we will review the instruction for plain error.\n\u201cLong-standing precedent in this Court explains that the charge to the jury will be construed contextually, and segregated portions will not be viewed as error when the charge as a whole is free from objection.\u201d State v. Haire, \u2014 N.C. App. \u2014, \u2014, 697. S.E.2d 396, 400 (2010). The segregated portion of the trial court\u2019s instructions to which defendant now objects states that the jury must find defendant guilty if it finds that defendant committed the killing unless \u201cthe State of North Carolina has failed to prove beyond a reasonable doubt that the defendant had the required mental capacity to formulate the specific intent required for conviction of this crime.\u201d We do not believe that the jury would infer, as defendant suggests, that \u201cif [defendant] was capable of possessing specific intent, he necessarily did so.\u201d The trial court\u2019s instruction on diminished capacity specifically informed the jury: \u201cIn order for you to find the defendant guilty of first-degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an act with specific intent to kill, formed after premeditation and deliberation.\u201d The trial court\u2019s reinstruction was an attempt to remedy any confusion as to which party bore the burden of proving specific intent. It was never unclear that specific intent, not just the ability to form it, is required for a conviction of first degree murder. We find no error, much less plain error, in the trial court\u2019s reinstruction.\nVII. Preservation Issues\nDefendant presents several issues for preservation purposes, acknowledging that identical arguments have already been rejected by our Supreme Court.\nA. Diminished Capacity Instruction\nDefendant first preserves his contention that he is entitled to an instruction on diminished capacity as a defense to first degree sexual offense. In State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996), our Supreme Court squarely rejected this argument, holding:\nDefendant further contends the trial court erred by failing to instruct on diminished capacity as that defense related to the charge of first-degree sexual offense. . . . First-degree sexual offense is not a specific intent crime; the intent to commit the crime is inferred from the commission of the act. Thus, diminished capacity is not a defense to first-degree sexual offense, and the trial court did not commit error ... by failing to instruct on that defense.\nId. at 516, 459 S.E.2d at 761 (internal citation and quotation marks omitted). In light of Daughtry, defendant\u2019s argument in this case is overruled.\nB. Sufficiency of Short-form Indictment\nSimilarly, defendant preserves for further review his argument that the trial court erred in denying his motion to dismiss the murder, attempted rape, and sexual offense charges on the basis that the short form indictments charging defendant with these offenses fail to comply with procedural due process as they do not allege all the elements of each offense. With respect to the short-form indictment charging defendant with first degree murder, the Supreme Court has \u201cheld that indictments for murder based on the short-form indictment statute are in compliance with both the North Carolina and United States Constitutions.\u201d State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001); see also State v. Smith, 352 N.C. 531, 539, 532 S.E.2d 773, 779 (2000) (\u201cWe reiterate here that [short-form] indictments based on N.C.G.S. \u00a7 15-144, like those charging defendant in this case, comply with both the North Carolina and the United States Constitutions.\u201d).\nWith respect to the first degree attempted rape and first degree sexual offense indictments, this Court has observed that \u201c[b]oth our legislature and our courts have endorsed the use of short-form indictments for rape and sex offenses, even though such indictments do not specifically allege each and every element.\u201d State v. Harris, 140 N.C. App. 208, 215, 535 S.E.2d 614, 619 (2000); see also State v. O\u2019Hanlan, 153 N.C. App. 546, 551, 570 S.E.2d 751, 755 (2002) (\u201cWe find nothing in our previous cases or in defendant\u2019s argument that persuades us the short form indictments for rape or sexual offense are invalid or unconstitutional.\u201d). These arguments are overruled.\nConclusion\nWe hold that defendant was not in custody when he gave his first confession to police prior to receiving the Miranda warnings. His confession was, therefore, admissible at trial. We further hold that Dr. Radisch\u2019s testimony was properly admitted; however, assuming, arguendo, that Dr. Radisch\u2019s testimony violated defendant\u2019s right to confrontation, the error was harmless beyond a reasonable doubt. We hold that there was no error in the admission of Exhibit 39 and that the trial court was not required to intervene ex mero motu during the prosecutor\u2019s closing argument. We hold that the trial court\u2019s instructions to the jury were not erroneous and the trial court did not err in refusing to provide a special instruction on the commitment process should defendant be found not guilty by reason of insanity. Finally, the issues raised by defendant for preservation purposes are without merit.\nNo Error.\nJudges STEPHENS and ERVIN concur.\n. The initials of the minor victims axe used throughout this opinion.\n. The circumstances surrounding defendant=s confession will be discussed in greater detail infra.\n. Defendant argues that he objected to Dr. Barr\u2019s entire file on Confrontation Clause grounds, which included the autopsy photographs. These photographs formed the basis, at least in part, of Dr. Radisch\u2019s admissible expert opinion. Consequently, the photographs were admissible to provide the basis for her expert opinion and their admission did not violate defendant\u2019s confrontation rights. Id. Defendant further argues that the photographs were never properly authenticated and that they were unduly prejudicial; however, defendant did not object on those grounds at trial. Moreover, defendant stipulated that the photographs were of the three victims.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State. \\", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defenders Anne M. Gomez and Kathleen M. Joyce, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH MARK HARTLEY\nNo. COA10-964\n(Filed 17 May 2011)\n1. Confessions and Incriminating Statements\u2014 pre-Miranda statement \u2014 not custodial\nDefendant was not in custody when he confessed to first-degree murder and other offenses where he was twice told that he was not under arrest, voluntarily accompanied officers was never handcuffed rode in the front of the officers\u2019 vehicle was offered food, water, and the use of the restroom was never misled or deceived was not questioned for a long period of time and the officers kept their distance during the interview and did not employ any form of physical intimidation. A pat-down did not automatically create a custodial situation, and a policeman\u2019s unarticulated plan had no bearing on whether a suspect was in custody.\n2. Constitutional Law\u2014 two-stage interrogation \u2014 no violation of Fifth Amendment\nDefendant\u2019s Fifth Amendment rights were not violated by a two-stage interrogation process in which defendant confessed, was given Miranda warnings, and confessed again. Defendant was not in custody when the first confession was given.\n3. Constitutional Law\u2014 effective assistance of counsel \u2014 no objection at trial\nDefendant did not receive ineffective assistant of counsel, and no further investigation was needed, where his trial attorney did not object to his confession at trial but there was no error in the admission of the confession.\n4. Constitutional Law\u2014 right to confront witnesses \u2014 pathologist who did not perform autopsy\nDefendant\u2019s right to confront the witnesses against him was not violated where autopsy results were not presented by the pathologist who had performed the victims\u2019 autopsy. While the pathologist who testified made minimal reference to the reports of the pathologist who performed the autopsies, those reports were not admitted and the testimony primarily consisted of a description of the victims\u2019 injuries as depicted in photos, the result of the wounds, and ultimately the cause of death. Moreover, there was overwhelming evidence of the manner in which defendant killed the victims.\n5. Evidence\u2014 DNA swabs \u2014 authentication\u2014chain of custody\nThere was no plain error in the admission of swabs used for DNA matching in a rape prosecution where the evidence was sufficiently authenticated and any weakness in the chain of custody did not render the exhibit inadmissible.\n6. Constitutional Law\u2014 Confrontation Clause \u2014 officer\u2019s description of autopsy exhibit\nThere was no Confrontation Clause violation in a rape and murder prosecution where an officer testified that an exhibit contained swabs taken from a victim at an autopsy.\n7. Criminal Law\u2014 prosecutor\u2019s argument \u2014 specific intent\u2014 personal belief\nThe trial court did not err in a prosecution for first-degree murder and other offenses by failing to intervene ex mero motu in the prosecutor\u2019s argument on diminished capacity and specific intent. Moreover, remarks by the prosecutor which defendant contended expressed a personal belief did not warrant a new trial.\n8. Criminal Law\u2014 instructions \u2014 insanity\u2014pattern jury instructions\nThe trial court did not err by giving the pattern jury instruction on the consequences of a verdict of not guilty by reason of insanity rather than defendant\u2019s requested instruction.\n9. Criminal Law\u2014 reinstruction \u2014 specific intent and diminished capacity \u2014 burden of proof not shifted\nThere was no plain error in a prosecution for first-degree murder where defendant contended that the trial court\u2019s reinstruction on specific intent to kill did not lower the State\u2019s burden of proof. The reinstruction was an attempt to remedy any confusion about the burden of proving specific intent; it was never unclear that specific intent, and not just the ability to form it, was required for a conviction of first-degree murder.\nAppeal by defendant from judgments entered 2 December 2008 by Judge D. Jack Hooks, Jr. in Sampson County Superior Court. Heard in the Court of Appeals 22 February 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State. \\\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defenders Anne M. Gomez and Kathleen M. Joyce, for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 11, "last_page_order": 34 }