{ "id": 4278155, "name": "STATE OF NORTH CAROLINA v. ANTHONY McMILLAN", "name_abbreviation": "State v. McMillan", "decision_date": "2011-08-02", "docket_number": "No. COA10-1419", "first_page": "320", "last_page": "332", "citations": [ { "type": "official", "cite": "214 N.C. App. 320" } ], "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": "661 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641152, 12641150, 12641151 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/661/0743-03", "/se2d/661/0743-01", "/se2d/661/0743-02" ] }, { "cite": "362 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641516 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/663/0428-02" ] }, { "cite": "656 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640342 ], "year": 2008, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0329-01" ] }, { "cite": "672 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642834 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "100", "parenthetical": "quoting Schneckloth v. 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Ed. 2d 854, 862-63 (1973)" }, { "page": "101", "parenthetical": "holding no coercion where the defendant was told that if he did not grant consent, the officers would get a search warrant" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0097-01" ] }, { "cite": "531 U.S. 1167", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9788992, 9787808, 9789122, 9787934, 9788430, 9788718, 9787538, 9789235, 9788053, 9788565, 9787676, 9788309, 9788860, 9788188, 9787422 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1167-13", "/us/531/1167-04", "/us/531/1167-14", "/us/531/1167-05", "/us/531/1167-09", "/us/531/1167-11", "/us/531/1167-02", "/us/531/1167-15", "/us/531/1167-06", "/us/531/1167-10", "/us/531/1167-03", "/us/531/1167-08", "/us/531/1167-12", "/us/531/1167-07", "/us/531/1167-01" ] }, { "cite": "531 U.S. 1041", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9686561, 9686594, 9686466, 9686519, 9686629, 9686405, 9686374, 9686666, 9686444, 9686703, 9686422, 9686390, 9686490 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/1041-09", "/us/531/1041-10", "/us/531/1041-06", "/us/531/1041-08", "/us/531/1041-11", "/us/531/1041-03", "/us/531/1041-01", "/us/531/1041-12", "/us/531/1041-05", "/us/531/1041-13", "/us/531/1041-04", "/us/531/1041-02", "/us/531/1041-07" ] }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565644, 9565933, 9565235, 9565023, 9564441, 9564731, 9564539, 9564829, 9565727 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-12", "/us/531/0890-15", "/us/531/0890-09", "/us/531/0890-07", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-13" ] }, { "cite": "673 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642968 ], "year": 2009, "pin_cites": [ { "page": "730-31" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0724-01" ] }, { "cite": "188 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156273 ], "year": 2008, "pin_cites": [ { "page": "602-03" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0598-01" ] }, { "cite": "474 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "336", "parenthetical": "holding no coercion where eight officers obtained consent after disarming defendant and asking to enter his house" } ], "opinion_index": 0 }, { "cite": "344 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867653 ], "year": 1996, "pin_cites": [ { "page": "433", "parenthetical": "holding no coercion where eight officers obtained consent after disarming defendant and asking to enter his house" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0428-01" ] }, { "cite": "241 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "94", "parenthetical": "citation omitted" }, { "page": "94" } ], "opinion_index": 0 }, { "cite": "35 N.C. 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App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165511 ], "year": 2009, "pin_cites": [ { "page": "610-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0599-01" ] } ], "analysis": { "cardinality": 1181, "char_count": 28978, "ocr_confidence": 0.743, "pagerank": { "raw": 7.396700621148574e-08, "percentile": 0.44260225210041204 }, "sha256": "69f0dddf25b387eb140b8b7387790ccf6c3a73320a4fa82927b5664d05133602", "simhash": "1:9b5be06252342c1c", "word_count": 4742 }, "last_updated": "2023-07-14T17:33:33.584356+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and HUNTER, Jr., ROBERT N. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTHONY McMILLAN" ], "opinions": [ { "text": "STEELMAN, Judge.\nEvidence that defendant \u201chad words\u201d with one of the deceased was not sufficient to negate the malice supporting his conviction for second-degree murder, nor was it sufficient to require a jury instruction on voluntary manslaughter in the two murder cases. The temporal sequence of the taking and the use of a firearm did not negate defendant\u2019s conviction for armed robbery that was the basis of his first-degree felony murder conviction. Where constitutional arguments are not presented at trial, they are not preserved for appellate review. Where officers advised defendant that if he did not consent to giving oral swabs and surrendering certain items of clothing that they would detain him until they obtained a search warrant, this did not negate defendant\u2019s voluntary consent to the seizure of those items.\nI. Factual and Procedural Background\nThe evidence presented at trial tended to show the following: On the evening of 14 August 2006, defendant shot and killed Marcus Robinson (Robinson) and Tammyln Rosario (Rosario) at Robinson\u2019s car wash business in Stedman, North Carolina. Employees arriving for work the next morning at approximately 7:15 a.m. observed that the front glass door had been shattered and the first floor lobby was littered with small denomination currency. The glass door appeared to have been broken from the inside with the glass pushed outward. Robinson and his girlfriend, Rosario, were found dead, lying in pools of blood on the second floor. Robinson was found lying on the landing, while Rosario was found sitting upright, propped against a door, with a jacket fashioned as a tourniquet around her leg and a cell phone in her hand.\nAn autopsy revealed that Robinson sustained a non-life threatening blunt force injury to the back of his head, leaving a tear in his scalp, as well as two fatal gunshot wounds to his upper left chest and abdomen, both inflicted from one to three feet away. Rosario sustained gunshot wounds believed to have been inflicted by the same bullet entering and exiting her right thigh and then grazing her left leg. Rosario bled to death from the injury to her right femoral artery and vein. This wound would not have been fatal had timely medical assistance been rendered. A loaded silver Smith & Wesson .22 caliber revolver was collected from inside a safe, located in a room on the second floor, in front of which there was a pool of blood. An employee testified that cash from the car wash was frequently stored in the safe.\nInvestigators identified defendant after determining that the last number dialed from Rosario\u2019s cell phone before she called 911 was to defendant\u2019s cell phone. At 7:32 p.m. on 15 August 2006, defendant voluntarily presented himself at the law enforcement center. At that time, investigators noticed that defendant had fresh cuts on his hand and legs, and his shoes and belt appeared to have blood on them. Defendant, who was not under arrest, signed a consent form, voluntarily relinquishing his shoes and belt to investigators, and agreeing to have his injuries photographed and to provide a DNA sample from an oral swab.\nPolice later interviewed Maurice McMillan (McMillan), defendant\u2019s cousin, who testified that he received a phone call from defendant on the night of the shootings. Defendant asked to meet with McMillan, and they met at the home of McMillan\u2019s grandfather. McMillan testified that both he and defendant sold drugs and that defendant claimed to have shot one of his customers that night. Defendant told McMillan that he had \u201cmessed up,\u201d that he had \u201cmade a mistake\u201d and \u201cshot some people.\u201d Defendant stated that he had been \u201csmoking [marijuana] with the people\u201d and that he and the \u201cdude . . . had some words or something.\u201d Defendant told McMillan that the man bent over a safe and defendant saw a gun in the safe. He then shot the man with the gun from the safe, then shot a woman because he was scared.\nMcMillan also testified that defendant told him that he injured his hands on the door trying to break the glass to get out of the building. Defendant also claimed to have taken money, although McMillan denied ever seeing any of the stolen money. McMillan told defendant to take him to the place where the shooting had occurred. Defendant took him to a warehouse in Stedman. Defendant dropped McMillan off at the warehouse, but McMillan lost his nerve, did not enter the warehouse, and called defendant to pick him up. They returned to the residence of McMillan\u2019s grandfather, where defendant produced a gun from the trunk of his car. McMillan wiped down the gun and threw it into the Cape Fear River. Investigators later retrieved the gun. Defendant\u2019s fianc\u00e9 testified that he did not return home until after midnight. She observed fresh cuts on his hands, which he advised he had sustained in a fight. She confirmed that defendant was selling drugs.\nDNA analysis matched the DNA from a blood droplet located on the sidewalk outside of the car wash and from blood on the front glass door to defendant. Analysis of shell casings found on the second floor of the warehouse confirmed that they had been fired from the .357 Glock handgun retrieved from the Cape Fear River. The bullets retrieved from the wall behind Rosario\u2019s body and those retrieved from Robinson\u2019s body could not be definitively matched to the .357 Glock handgun.\nDefendant was indicted on two counts of first-degree murder and two counts of robbery with a dangerous weapon as to Robinson and Rosario, respectively, on 29 January 2007. The State sought the death penalty for each murder charge. These cases were tried before Judge Lock at the 9 November 2009 session of Criminal Superior Court for Cumberland County. On 8 December 2009, the jury found defendant guilty of: (1) first-degree felony murder of Rosario; (2) second-degree murder of Robinson; and (3) robbery with a dangerous weapon as to Rosario. The jury found defendant not guilty of the robbery of Robinson. On 11 December 2009, the jury unanimously recommended that defendant be sentenced to life in prison without parole for the murder of Rosario. Defendant was sentenced to life imprisonment without parole for the murder of Rosario and a consecutive term of 180 months minimum and 225 maximum for the murder of Robinson. The trial court arrested judgment as to the robbery conviction, since it constituted the basis for the first-degree felony murder conviction of Rosario.\nDefendant appeals.\nII. Refusal to Dismiss Short Form Indictment\nIn his first argument, defendant contends that the trial court erred in refusing to dismiss the \u201cshort form\u201d first-degree murder indictment (counts I and II) against defendant.\nThe issue of \u201cshort form\u201d indictments has been repeatedly decided against defendant. See State v. Jacobs, 195 N.C. App. 599, 610-11, 673 S.E.2d 724, 730-31 (2009), aff\u2019d, 363 N.C. 815, 689 S.E.2d 859 (2010); State v. Avery, 315 N.C. 1, 12-14, 337 S.E.2d 786, 792-93 (1985). We are bound by this precedent. Defendant acknowledges that this argument is made for preservation purposes only.\nThis argument is without merit.\nIII. Sufficiency of Evidence\nIn his second and third arguments, defendant contends that the trial court erred in denying his motion to dismiss the charges of second-degree murder of Robinson and first-degree felony murder of Rosario because the State offered insufficient evidence to establish every element of these crimes. We disagree.\nA. Standard of Review\nIn order to survive a motion to dismiss based on the sufficiency of the evidence, the court must determine that there is substantial evidence of each essential element of the offense charged and that defendant is the perpetrator of such offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \u201cSubstantial evidence is \u2018such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (quotation omitted). The court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences to be drawn from the evidence. Fritsch, 351 N.C. at 378-39, 526 S.E.2d at 455.\nB. Second-Degree Murder of Robinson\nDefendant contends that the trial court erred in denying his motion to dismiss the charge of second-degree murder as to Robinson at the close of the State\u2019s evidence because the State\u2019s evidence was insufficient to establish every element of that crime. In particular, defendant contends that there was evidence of a heat of passion killing on sudden provocation, negating the presumption of malice allowed by the trial court because a deadly weapon was used. Defendant bases this argument solely on the evidence offered by McMillan\u2019s testimony, that \u201c[defendant] was up there smoking reefer with the people and him and the dude . . . had some words or something . . . ,\u201d claiming this testimony offers evidence of a sudden quarrel and therefore a killing in the heat of passion.\nSecond-degree murder is the unlawful killing of another human being with malice, but without premeditation and deliberation. State v. Phipps, 331 N.C. 427, 457-58, 418 S.E.2d 178, 194 (1992). Malice is implied from a killing with a deadly weapon. State v. McCoy, 320 N.C. 581, 587, 359 S.E.2d 764, 768 (1987); State v. Patterson, 297 N.C. 247, 253, 254 S.E.2d 604, 609 (1979). \u201cWhen the killing with a deadly weapon is admitted or established, two presumptions arise: (1) that the killing was unlawful; (2) that it was don\u00e9 with malice; and an unlawful killing with malice is murder in the second degree.\u201d State v. Gordon, 241 N.C. 356, 358, 85 S.E.2d 322, 323 (1955). To give rise to these presumptions, it is not necessary to prove intent to kill; instead, it is sufficient if the weapon was used intentionally and proximately caused the resulting death. Id. at 358, 85 S.E.2d at 324. Evidence of self-defense or proof of adequate provocation can negate the presumption of malice. McCoy, 320 N.C. at 587, 359 S.E.2d at 768. Mere words are not sufficient provocation. State v. McCray, 312 N.C. 519, 534, 324 S.E.2d 606, 616 (1985) (holding that taunts from fellow prison inmates did \u201cnot constitute sufficient provocation to raise a \u2018sudden heat of passion\u2019 which can rob the crime of malice and reduce it to manslaughter. \u201d).\nThe State presented evidence at trial that defendant intentionally used a deadly weapon to inflict wounds upon Robinson, which were the proximate cause of his death. Defendant recounted these events to McMillan, stating that he \u201cshot some people\u201d \u2014 specifically that he shot the man after seeing a gun in the open safe. The State offered additional evidence that defendant had fresh cuts on his hands and legs the day after the shootings, and the DNA collected from blood found on the glass door and sidewalk in front of the glass matched defendant\u2019s DNA. Analysis confirmed that the spent shell casings discovered on the second floor of the warehouse had been fired from the .357 Glock handgun retrieved from the Cape Fear River. This weapon was identified by McMillan as being given to him by defendant. Cell phone records confirmed a series of cell phone calls were made in the course of the evening, documenting McMillan\u2019s multiple trips to and from Stedman that night.\nThe State presented substantial evidence that defendant killed Robinson with a deadly weapon. Therefore, the jury was allowed to infer that the killing was unlawful and that it was done with malice. Defendant\u2019s statement, that he and the deceased \u201chad words or something,\u201d did not provide evidence of provocation sufficient to negate-the malice presumed from defendant\u2019s use of a deadly weapon. See McCray, 312 N.C. at 533, 324 S.E.2d at 616.\nThere was sufficient evidence presented for the charge of second-degree murder of Robinson to be submitted to the jury.\nThis argument is without merit.\nC. First-Degree Murder of Rosario\nDefendant also contends that the trial court erred in denying his motion to dismiss the charge of first-degree murder of Rosario at the close of the State\u2019s evidence for insufficiency of the evidence. Defendant contends that the State failed to show beyond a reasonable doubt that defendant committed the crime of robbery with a dangerous weapon and that his conviction for first-degree felony murder must be set aside. Specifically, defendant contends that the evidence was insufficient to support defendant\u2019s conviction for armed robbery since the subject of the armed robbery, the .357 Glock handgun, was used in the commission of the murder and there was no evidence as to when in the course of events defendant took it. Defendant contends that he was not armed when he took the .357 Glock handgun. Instead, the very weapon he was convicted of stealing was identical to the instrument used to threaten or endanger the life of Rosario.\nFelony murder is defined in N.C. Gen. Stat. \u00a7 14-17 and has two elements: (1) that the murder took place during the commission of (2) any of the felonies listed in the statute, including robbery with a deadly weapon. State v. Bunch, 363 N.C. 841, 846-47, 689 S.E.2d 866, 870 (2010). If the killing occurs during the perpetration of one of the listed felonies, it is first-degree murder even if the death was not intended. State v. Abraham, 338 N.C. 315, 330, 451 S.E.2d 131, 138 (1994).\nRobbery with a dangerous weapon is the unlawful taking or attempt to take personal property from the person or in the presence of another, by use or threatened use of a firearm or other dangerous weapon, whereby the life of a person is endangered or threatened. N.C. Gen. Stat. \u00a7 14-87(a) (2009). Armed robbery is a continuous transaction such that \u201cthe temporal order of the threat or use of a dangerous weapon and the taking is immaterial.\u201d State v. Olson, 330 N.C. 557, 566, 411 S.E.2d 592, 597 (1992) (citation omitted). There is \u201cno reason why the use of a weapon stolen from the victim cannot also be a part of the continuing transaction of the armed robbery.\u201d State v. Maness, 363 N.C. 261, 283-84, 677 S.E.2d 796, 810 (2009) (holding that it is permissible to convict for robbery with a dangerous weapon when the object taken is also the firearm used to perpetrate the offense), cert. denied, _ U.S. _, 176 L. Ed. 2d 568 (2010).\nUnder applicable North Carolina cases, the temporal sequence of events is not significant. The State\u2019s evidence indicated that defendant did not arrive at the car wash office with a weapon, but during the course of the evening obtained Rosario\u2019s .357 Glock handgun and used it to shoot both victims. He then fled with the weapon. The State produced sufficient evidence that defendant\u2019s taking and use of the weapon were part of a continuous transaction,' such that it was proper to convict defendant of the armed robbery of the same instrument used to commit the robbery. Defendant possessed and used the weapon, and endangered the lives of other people with such weapon, while unlawfully taking personal property from another, thus establishing all of the requisite elements of armed robbery. The State presented sufficient evidence to establish that defendant shot and killed Rosario in the course of the robbery of Rosario\u2019s .357 Glock handgun.\nThis argument is without merit.\nIV. Denial of Defendant\u2019s Request to Charge the Jury on the Lesser Offense Voluntary Manslaughter\nIn his fourth argument, defendant contends that the trial court erred in refusing to charge the jury on the lesser-included offense of voluntary manslaughter as to each victim. We disagree.\nVoluntary manslaughter is distinguished from first and second-degree murder by the absence of malice. State v. Wilkerson, 295 N.C. 559, 577-78, 247 S.E.2d 905, 915 (1978). Malice is presumed from the use of a deadly weapon. See Gordon, 241 N.C. at 358, 85 S.E.2d at 323. Evidence of adequate provocation has to be present in order to rebut the presumption of malice. State v. Owens, 65 N.C. App. 107, 110, 308 S.E.2d 494, 497 (1983) (\u201cThe law requires a showing of strong provocation before it will grant a defendant who is charged with second-degree murder a jury instruction on the lesser-included offense of voluntary manslaughter. For example, mere insulting words do not constitute sufficient provocation.\u201d (citation omitted)). A defendant is entitled to a jury instruction on the lesser offense only if the evidence would permit the jury to find defendant guilty of the lesser-included offense. State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841 (citation omitted), cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995). When the State has presented positive evidence of the greater charges and there is no real evidence negating those elements, an instruction on the lesser offense is not appropriate. State v. Thibodeaux, 352 N.C. 570, 582, 532 S.E.2d 797, 806 (2000), cert. denied, 531 U.S. 1155, 148 L. Ed. 2d 976 (2001).\nIn the instant case, malice was presumed by virtue of defendant\u2019s use of a deadly weapon. There was no positive evidence of adequate provocation that would have supported submission of voluntary manslaughter to the jury. The only evidence presented, that defendant and \u201cthe dude\u201d were \u201chaving words or something,\u201d was insufficient provocation to negate malice. McCray, 312 N.C. at 533, 324 S.E.2d at 616; Owens, 65 N.C. App. at 110, 308 S.E.2d at 397. The trial court correctly denied defendant\u2019s request to charge the jury on the lesser-included offense of voluntary manslaughter.\nThis argument is without merit.\nV. Admission of Pathologist\u2019s Testimony\nIn his fifth argument, defendant contends that the trial court committed plain error in allowing the State\u2019s expert forensic pathologist, Dr. Deborah Radisch, to testify about the autopsy of Rosario and give her own opinion concerning the cause of death in violation of his constitutional right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.\nConstitutional error cannot be asserted for the first time on appeal, State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005), not even for plain error, State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578 (\u201cplain error analysis applies only to instructions to the jury and evidentiary matters.\u201d), cert denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000). Because defendant did not raise this constitutional issue at trial, he failed to preserve it for appellate review and it is waived. Chapman, 359 N.C. at 366, 611 S.E.2d at 822. We decline defendant\u2019s invitation to apply Rule 2 of the Rules of Appellate Procedure to properly bring this issue before the Court.\nEven assuming arguendo that this issue was properly preserved for appellate review, there was no error. The Confrontation Clause prohibits the introduction of testimony by an expert witness based solely upon the reports of a non-testifying analyst. State v. Locklear, 363 N.C. 438, 451-52, 681 S.E.2d 293, 304-05 (2009) (applying the analysis of the United States Supreme Court cases of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), andMelendez-Diaz v. Massachusetts, _ U.S. _, 174 L. Ed. 2d 314 (2009)). However, because Dr. Radisch was actually present for the autopsy of Rosario and testified as to her own independent opinion as to the cause of her death, Locklear is not controlling in this case. Rather, the instant case is controlled by State v. Blue, _ N.C. App. _, 699 S.E.2d 661 (2010). In Blue, Dr. Trobbiani performed the autopsy, along with Dr. Butts. Dr. Trobbiani did not testify at trial. Dr. Butts testified based on his observations. This was held not to violate the strictures of Crawford. Defendant, Blue, had a full opportunity to confront and cross-examine Dr. Butts concerning his observations and opinions.\nThe instant case is virtually identical to Blue. Dr. Radisch was present during the autopsy of Rosario and testified to her own, independent conclusions as to the cause of death. Dr. Radisch was not simply recounting the findings of Dr. Gardner in that doctor\u2019s autopsy report. Defendant had a full opportunity to confront and cross-examine Dr. Radisch concerning her observations and opinions.\nThis analysis is consistent with the most recent Confrontation Clause case from the United States Supreme Court, Bullcoming v. New Mexico, _ U.S. _, 180 L. Ed. 2d 610 (2011). In that case, the defendant\u2019s conviction was reversed where the person who analyzed the defendant\u2019s blood sample did not testify, but his test results were admitted through another analyst who had no connection to the test. The Supreme Court held that the results of the testing were testimonial and therefore subject to the guarantees of the Confrontation Clause. Justice Sotomayor\u2019s concurring opinion made it clear that the case would have been different had the other analyst witnessed the test or rendered an independent opinion. Bullcoming, _ U.S. _, _, 180 L. Ed. 2d 610, 629 (2011) (Sotomayor, J., concurring).\nThe presence of both of these factors in the instant case- distinguish it from Bullcoming.\nThis argument is without merit.\nVI. Voluntary Surrender of Physical Evidence\nIn his sixth argument, defendant contends that the trial court erred in concluding as a matter of law that defendant freely and voluntarily consented to the swabbing of his mouth, the photographs of his injuries, and the collection of his belt and shoes, and therefore erred in denying his motion to suppress that evidence. We disagree.\nA. Standard of Review\n\u201cThe standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court\u2019s findings of fact and whether the findings of fact support the conclusions of law.\u201d State v. Biber, _ N.C. _, _, _ S.E.2d _, _ (June 16, 2011) (No. 423A10). Findings of fact are presumed to be supported by competent evidence and are binding on appeal unless properly challenged. State v. Jacobs, 162 N.C. App. 251, 254, 590 S.E.2d 437, 440 (2004). A defendant must specify how the findings are inadequate and which findings are not supported by the evidence; a general contention that findings are not supported by evidence is insufficient for appellate review. State v. Steen, 352 N.C. 227, 238, 536 S.E.2d 1, 8 (2000), cert. denied, 531 U.S. 1167, 147 L. E. 2d 997 (2001). The trial court\u2019s conclusions of law are reviewable de novo. Biber, _ N.C. at _, _ S.E.2d at _.\nB. Analysis\nDefendant contends that he did not freely and voluntarily give his consent for the evidence gathered during an interview at the Cumberland County Sheriff\u2019s Department, including an oral swab, photographs of his injuries, and collection of his belt and shoes. He specifically contends that his consent to the oral swab was the result of deceptive practices by the detectives, but acknowledges the photographs and the taking of his belt and shoes may have been proper.\nEvidence obtained through voluntary consent without a search warrant is constitutionally permissible as long as the consent is given without coercion. State v. Smith, 346 N.C. 794, 799, 488 S.E.2d 210, 213 (1997). \u201c[T]he question whether a consent to a search [is] in fact \u2018voluntary\u2019 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.\u201d State v. Kuegel, 195 N.C. App. 310, 315, 672 S.E.2d 97, 100 (2009) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 862-63 (1973)), disc. review denied, 363 N.C. 378, 679 S.E.2d 396 (2009). \u201cAs a general rule, it is not duress to threaten to do what one has a legal right to do. Nor is it duress to threaten to take any measure authorized by law and the circumstances of the case.\u201d State v. Paschal, 35 N.C. App. 239, 241, 241 S.E.2d 92, 94 (1978) (citation omitted); see also State v. Sokolowski, 344 N.C. 428, 433, 474 S.E.2d 333, 336 (1996) (holding no coercion where eight officers obtained consent after disarming defendant and asking to enter his house); Kuegel, 195 N.C. App. at 316, 672 S.E.2d at 101 (holding no coercion where the defendant was told that if he did not grant consent, the officers would get a search warrant). Invoking the right to silence and refusing to answer questions during an interrogation without counsel present does not invalidate a consensual search. State v. Cummings, 188 N.C. App. 598, 602-03, 656 S.E.2d 329, 332, disc. review denied, 362 N.C. 364, 661 S.E.2d 743 (2008).\nIn the instant case, defendant does not contend that the trial court\u2019s findings of fact are unsupported by the evidence, but rather contends that the findings of fact do not support the conclusions of law. The findings of fact indicate that defendant voluntarily went to the Sheriff\u2019s Department with his uncle. Detective Trotter informed defendant that \u201che was not under arrest\u201d and that, he was under \u201cinvestigative detention.\u201d Defendant asserted \u201cthat he didn\u2019t want to do anything without a lawyer and he didn\u2019t want to talk with anyone [,]\u201d but gave consent for the detective to collect an oral swab, take photographs of his injuries, and take into evidence certain items of clothing. It was permissible for the officers to inform defendant that he \u201ccould either consent ... or the officers would detain him until they could prepare and execute a search warrant for the collection of those items.\u201d See Paschal, 35 N.C. App. at 241, 241 S.E.2d at 94. This conduct was not deceptive or unlawfully coercive. The officers truthfully represented that \u201cthe preparation and service of the search warrant might take four or five hours [,]\u201d which they reasonably believed they had sufficient probable cause to obtain, given the fresh cuts on defendant\u2019s hands and legs, and blood spots on his shoes and belt. See id.\n' We hold that the findings of fact support the trial court\u2019s conclusion of law that \u201c [defendant freely and voluntarily consented to the swabbing of his mouth, the photographs of his injuries, and the collection of his belt and shoes.\u201d The officers obtained the evidence with defendant\u2019s consent.\nThis argument is without merit.\nNO ERROR.\nJudges STEPHENS and HUNTER, Jr., ROBERT N. concur.\n. Although the Supreme Court held in Locklear that the admission of the expert testimony was in error, that defendant failed to show prejudice arising from the error.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State.", "William D. Spence, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTHONY McMILLAN\nNo. COA10-1419\n(Filed 2 August 2011)\n1. Indictment and Information \u2014 first-degree murder \u2014 short-form indictment proper\nThe trial court did not err in a first-degree murder and robbery with a dangerous weapon case by refusing to dismiss the short-form first-degree murder indictment against defendant. The issue of short-form indictments has been repeatedly decided against defendants and the Court of Appeals was bound by this precedent.\n2. Homicide \u2014 first-degree murder \u2014 second-degree murder\u2014 sufficient evidence \u2014 motion to dismiss properly denied\nThe trial court did not err in a murder case by denying defendant\u2019s motion to dismiss the charges of second-degree murder of one victim and first-degree felony murder of another. The State offered sufficient evidence to establish every element of these crimes.\n3. Homicide \u2014 first-degree murder \u2014 jury instruction \u2014 voluntary manslaughter \u2014 no evidence to support instruction\nThe trial court erred in a first-degree murder case by refusing to charge the jury on the lesser-included offense of voluntary manslaughter as to each victim.\n4. Appeal and Error \u2014 preservation of issues \u2014 failure to raise constitutional issue at trial \u2014 no constitutional violation\nDefendant failed to preserve for appellate review his constitutional argument that the trial court erred in a first-degree murder case by allowing the State\u2019s expert forensic pathologist to testify about the autopsy of one of the victims and give her own opinion concerning the cause of death. Even if the issue had been preserved, the expert\u2019s testimony did not violate defendant\u2019s constitutional right of confrontation because the expert was actually present for the autopsy of the victim and testified as to her own independent opinion as to the cause of her death.\n5. Evidence \u2014 mouth swabbing \u2014 photographs\u2014belt and shoes\u2014 defendant\u2019s consent \u2014 motion to suppress properly denied\nThe trial court did not err in a first-degree murder and robbery with a dangerous weapon case by denying defendant\u2019s motion to suppress certain evidence. The findings of fact supported the conclusion of law that defendant freely and voluntarily consented to the swabbing of his mouth, the photographs of his injuries, and the collection of his belt and shoes.\nAppeal by defendant from judgments entered 11 December 2009 by Judge Thomas H. Lock in Cumberland County Superior Court. Heard in the Court of Appeals 27 April 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General Danielle Marquis Elder, for the State.\nWilliam D. Spence, for defendant-appellant." }, "file_name": "0320-01", "first_page_order": 330, "last_page_order": 342 }