{ "id": 4362848, "name": "STATE OF NORTH CAROLINA v. TERRELL DAVEZ CORNELIUS", "name_abbreviation": "State v. Cornelius", "decision_date": "2012-03-06", "docket_number": "No. COA11-94", "first_page": "329", "last_page": "338", "citations": [ { "type": "official", "cite": "219 N.C. App. 329" } ], "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": "122 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916931 ], "opinion_index": -1, "case_paths": [ "/nc-app/122/0298-01" ] }, { "cite": "321 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681761 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0747-01" ] }, { "cite": "312 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1984, "pin_cites": [ { "page": "494" }, { "page": "494" }, { "page": "497", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 65", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525614 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0065-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 4, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] }, { "cite": "495 U.S. 508", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 634223 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/495/0508-01" ] }, { "cite": "113 S. Ct. 2849", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "125 L. Ed. 2d 556", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "509 U.S. 688", "category": "reporters:federal", "reporter": "U.S.", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "353 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "675" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 666", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169132 ], "year": 1987, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0666-01" ] }, { "cite": "581 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "795", "parenthetical": "holding that question of jurisdiction is \" 'the most critical aspect of the court's authority to act' \" (quoting Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987))" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188012 ], "year": 2003, "pin_cites": [ { "page": "443", "parenthetical": "holding that question of jurisdiction is \" 'the most critical aspect of the court's authority to act' \" (quoting Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987))" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0441-01" ] }, { "cite": "260 F. Supp. 970", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1532501 ], "weight": 5, "year": 1966, "pin_cites": [ { "page": "974" }, { "page": "973, 975" }, { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/f-supp/260/0970-01" ] }, { "cite": "169 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1969, "pin_cites": [ { "page": "853" }, { "page": "853" }, { "page": "856" }, { "page": "855" } ], "opinion_index": 0 }, { "cite": "275 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559246 ], "year": 1969, "pin_cites": [ { "page": "576-77" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0575-01" ] }, { "cite": "494 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4898 ], "weight": 3, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/0433-01" ] }, { "cite": "372 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "20", "parenthetical": "holding that trial court did not err in admitting statements made two hours after defendant's blood alcohol level was 0.26 when trial court found that, during questioning, the defendant was coherent and that his answers \" 'were extremely reasonable, responsive and appropriate' \"" }, { "page": "24" } ], "opinion_index": 0 }, { "cite": "323 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2560587 ], "year": 1988, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0001-01" ] }, { "cite": "277 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "529" }, { "page": "529" } ], "opinion_index": 0 }, { "cite": "303 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571310 ], "year": 1981, "pin_cites": [ { "page": "19-20" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0001-01" ] }, { "cite": "536 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "7" } ], "opinion_index": 0 }, { "cite": "352 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685065 ], "year": 2000, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0227-01" ] }, { "cite": "491 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "347 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551275 ], "year": 1997, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0253-01" ] }, { "cite": "532 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "501", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "501", "parenthetical": "emphasis added" }, { "page": "502" } ], "opinion_index": 0 }, { "cite": "352 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685022 ], "year": 2000, "pin_cites": [ { "page": "498", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0489-01" ] }, { "cite": "470 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1996, "pin_cites": [ { "page": "87" }, { "page": "88" }, { "page": "89" }, { "page": "89", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916931 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc-app/122/0298-01" ] } ], "analysis": { "cardinality": 952, "char_count": 21951, "ocr_confidence": 0.749, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1487801026237437 }, "sha256": "dfb94736ef8514023b96ad5841b0a1a691ebbb3651ec8521bab895e95d9a4f15", "simhash": "1:a36fe621421d0ec4", "word_count": 3518 }, "last_updated": "2023-07-14T22:16:59.313771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and THIGPEN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRELL DAVEZ CORNELIUS" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Terrell Davez Cornelius appeals from his conviction of felony murder. In defendant\u2019s first trial on the charges of felony murder and first degree burglary, a jury found him guilty of first degree burglary but could not reach a verdict on the felony murder charge. The trial court declared a mistrial on the felony murder charge, and defendant was retried on that charge only.\nIn this appeal, defendant primarily argues that the trial court in the second trial erred in applying offensive collateral estoppel to bar him from relitigating, for purposes of the felony murder charge, whether he committed the felony of first degree burglary. Although defendant argues that offensive collateral estoppel should not apply in criminal cases, this Court held otherwise in State v. Dial, 122 N.C. App. 298, 470 S.E.2d 84 (1996). Because we also find defendant\u2019s remaining arguments unpersuasive, we hold that defendant received a trial free of prejudicial error.\nFacts\nThe State\u2019s evidence tended to show the following facts. Rodney Fraley, Danny Cordray, and defendant went to Leon Conrad\u2019s house to rob him late on the evening of 8 November 2007 or early in the morning of 9 November 2007. All three men were armed with semi-automatic weapons. Fraley had suggested the robbery after spending the day with Conrad and seeing $50,000.00 in cash, which he expected to be in Conrad\u2019s truck. When the men found the truck locked, defendant kicked in the main front door. As Cordray and defendant entered the residence, both of them shot at Conrad, and Conrad shot back.\nConrad ultimately died of gunshot wounds to his chest. Defendant, who was shot in the hands and abdomen, was admitted to Wake Forest University Baptist Medical Center on 9 November 2007 between 1:40 and 1:50 a.m. Defendant underwent exploratory surgery to make sure there were no injuries inside his abdomen. In addition, an orthopedic surgeon addressed the injuries to his hands. Defendant was then moved to a non-ICU, standard bed in the hospital.\nAt 11:05 a.m. that morning, Detective Michael Poe of the Winston-Salem Police Department visited defendant in the hospital. Defendant\u2019s mother and sister were in the room with him. In a recorded statement, defendant told Detective Poe that he had been the victim of a robbery. However, after Detective Poe later learned the name of another individual involved in the shooting, Detective Poe went back to speak with defendant again that afternoon around 3:40 p.m. During this conversation, which was also recorded, defendant admitted that his previous statement had not been truthful and that he was shot while attempting to rob Conrad. Defendant also admitted to kicking in the door at Conrad\u2019s home and to firing a gun.\nDetective Poe visited defendant in the hospital a third time three days later on 12 November 2007. The purpose of this interview, also recorded, was to clarify some issues. This time, defendant admitted that he, Fraley, and Cordray had wanted to steal $50,000.00 from Conrad.\nDefendant was indicted for first degree murder on 7 July 2008. Defendant was later indicted for first degree burglary with two aggravating factors on 10 November 2008. Defendant subsequently filed a motion to suppress the statements made in the hospital as involuntary. The trial court denied the motion in an order filed 26 February 2009. Consequently, the jury was allowed to hear at trial the recordings of defendant\u2019s three statements.\nA jury found defendant guilty of first degree burglary on 11 March 2009. It was, however, unable to reach a unanimous verdict with respect to the felony murder indictment, and the trial court, therefore, declared a mistrial on the murder charge. The judge also granted a prayer for judgment continued as to the first degree burglary sentence pending a second trial on the first degree murder charge. At the second trial, defendant was found guilty of felony murder and was sentenced to life in prison without parole. Defendant timely appealed to this Court.\nI\nDefendant first contends that the trial court erred in denying his motion to suppress the three statements made while he was in the hospital. Defendant argues that the medication he received in the hospital rendered these statements involuntary and, therefore, inadmissible.\n\u201c[T]he standard of review in evaluating a trial court\u2019s ruling on a motion to suppress is as follows: .... Its findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. Conclusions of law that are correct in light of the findings are also binding on appeal.\u201d State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (internal citations and quotation marks omitted).\nIn this case, with respect to the voluntariness of defendant\u2019s statements, the trial court made the following findings of fact. Defendant was alert, oriented, and able to interact with others throughout his hospital stay and at the time of each of the three interviews. Defendant was able to describe events in great detail, including names, locations, and statements made by others. Defendant also had the mental acuity to concoct a story explaining his gunshot wound but removing him from the home invasion and homicide. The court further noted that defendant\u2019s family remained in the hospital room for two of the three interviews and did not request that those interviews be terminated. Finally, after determining that the evidence failed to show that defendant\u2019s will was overborne or his capacity for self-determination critically impaired, the trial court concluded that defendant\u2019s statements were voluntary.\nOur review of the record indicates that these findings are supported by defendant\u2019s hospital records and Detective Poe\u2019s testimony. The State presented evidence that at the time of the first statement, the side effects of Dilaudid, which he had been administered, would have worn off. While defendant was still able to self-administer morphine, there was evidence he was taking no medication at all by the time of his final statement. In addition, nurses visited defendant every four hours, and defendant\u2019s medical records indicated that he was consistently at maximum alertness and orientation. There were no notes in defendant\u2019s medical records suggesting that he was confused or disoriented to any degree or that he was going in and out of consciousness.\nDetective Poe testified that, even in the first interview, defendant was able to understand questions, responded in a coherent manner, and did not lapse into unconsciousness. He also testified that during the second interview, defendant was \u201c[v]ery detailed and coherent\u201d and did not fall asleep. Regarding defendant\u2019s third interview, Detective Poe testified that defendant \u201celaborated on things\u201d and \u201cwas able to . . . tell us what he wanted to tell us on his own.\u201d Defendant did not appear to be on any type of drug, was coherent, and \u201cmade sense.\u201d In addition to Detective Poe\u2019s testimony, the trial court also had the opportunity to hear all three recorded interviews. The court could, therefore, assess on its own the coherency of defendant\u2019s statements, as well as the credibility of Detective Poe\u2019s testimony.\nDefendant does not specifically contest the sufficiency of this evidence to support the trial court\u2019s findings. Instead, in support of his contention that \u201chis capacity for self-determination and self-direction [were] overborne by the narcotics he was administered for pain,\u201d he points to his mother\u2019s testimony that he seemed lethargic and confused and his own testimony that he does not remember making the statements. It is, however, well established that a trial court\u2019s \u201c \u2018findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u2019 \u201d Id., 532 S.E.2d at 501 (emphasis added) (quoting State v. Peterson, 347 N.C. 253, 255, 491 S.E.2d 223, 224 (1997)). \u201c \u2018[A] trial court\u2019s resolution of a conflict in the evidence will not be disturbed on appeal....\u2019\u201d Id., 532 S.E.2d at 502 (quoting State v. Steen, 352 N.C. 227, 237, 536 S.E.2d 1, 7 (2000)).\nSince the trial court\u2019s findings are supported by competent evidence, we next address whether those findings support the trial court\u2019s conclusion that the statements were voluntary. In State v. McCoy, 303 N.C. 1, 19-20, 277 S.E.2d 515, 529 (1981), the defendant similarly contended that his statement made while under the influence of pain killers in the emergency room was involuntary. Our Supreme Court noted:\n[T]he trial court conducted a lengthy voir dire hearing concerning defendant\u2019s mental and physical condition at the time he made this statement. The state\u2019s evidence tended to show that defendant was alert, responsive and coherent. His attending physician gave permission for defendant to be interviewed. Defendant \u201cdid not appear to be sleepy or confused nor did he hesitate to answer questions at any time.\u201d The trial court made extensive findings of fact in accord with this evidence. Defendant did not except to any of these findings.\nId. The Court then held that \u201c[f]rom these findings the trial court correctly concluded that the statement \u2018was made freely, voluntarily, understanding [sic] and knowingly ....\u2019\u201d Id. at 20, 277 S.E.2d at 529. The Court concluded, therefore, that the trial court properly admitted the defendant\u2019s incriminating statements.\nIn this case, the trial court made comparable findings based on similar evidence. Under McCoy, therefore, the trial court\u2019s findings in this case support its conclusion that defendant\u2019s three statements were voluntary and admissible. See also State v. McKoy, 323 N.C. 1, 17, 372 S.E.2d 12, 20 (1988) (holding that trial court did not err in admitting statements made two hours after defendant\u2019s blood alcohol level was 0.26 when trial court found that, during questioning, the defendant was coherent and that his answers \u201c \u2018were extremely reasonable, responsive and appropriate\u2019 \u201d), vacated on other grounds, 494 U.S. 433, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990). Any intoxication remaining from defendant\u2019s medication \u201cwas relevant to [defendant\u2019s] credibility, which was a question for the jury.\u201d Id. at 23, 372 S.E.2d at 24.\nDefendant, however, points to State v. Williford, 275 N.C. 575, 576-77, 169 S.E.2d 851, 853 (1969), in which the defendant had been shot in the ankle when leaving a robbery. An officer spoke with the defendant in the emergency room at the hospital, and the defendant confessed. Id. at 577, 169 S.E.2d at 853. The defendant then attempted to have the confession suppressed as being involuntary. Id. The Supreme Court did not, however, exclude the confession, but rather ordered a new trial because the trial court had failed to make sufficient findings of fact regarding \u201cthe immediate circumstances and conditions\u201d of the statements to support its conclusion that the confession was voluntary. Id. at 582, 169 S.E.2d at 856.\nIndeed, the Supreme Court, in Williford, held that \u201cthe admissibility of a confession is not, ipso facto, rendered involuntary because defendant was suffering from physical injuries and resulting pain at the time he made the confession. These are circumstances to be taken into consideration by the jury in weighing the evidence.\u201d Id. at 579-80, 169 S.E.2d at 855. Because the trial court in this case made the necessary findings, Williford establishes that the circumstances regarding defendant's injury and pain medication were for the jury to weigh.\nDefendant also cites Logner v. State of North Carolina, 260 F. Supp. 970 (M.D.N.C. 1966), a decision granting a defendant\u2019s petition for writ of habeas corpus. The court concluded that the defendant\u2019s statements, which were made after having consumed large amounts of alcohol and amphetamines, were involuntary. Id. at 974. The court noted that multiple police officers testified that the defendant was obviously drunk during questioning. Id. at 973, 975. In addition, initially, when the defendant was arrested for driving under the influence, the \u201cinvestigating officer noted he was too drunk to make a statement.\u201d Id. at 975. The court vacated the defendant\u2019s conviction based on its conclusion that the defendant, while obviously severely intoxicated, specifically \"was interrogated for the purpose of eliciting a confession.\u201d Id.\nThe trial court\u2019s findings in this case\u2014and the evidence supporting those findings\u2014do not indicate a comparable level of intoxication and, therefore, we do not believe Logner supports a reversal of the trial court\u2019s decision in this case. Based on the testimony of Detective Poe, the hospital records, and the recorded statements, the trial court made extensive findings that defendant was alert and oriented. Those findings in turn support the trial court\u2019s conclusion that defendant\u2019s statements were voluntary. We, therefore, hold the trial court did not err in denying defendant\u2019s motion to suppress.\nII\nDefendant next contends that his right to a trial by jury was violated when the trial court allowed offensive collateral estoppel to be used to establish the underlying felony for defendant\u2019s felony murder conviction. At defendant\u2019s second trial, the jury was instructed, with respect to the charge of felony murder, that \u201cbecause it has previously been determined beyond a reasonable doubt in a prior criminal proceeding that Mr. Cornelius committed first degree burglary on November 9th, 2007, . . . you should consider that this element [of felony murder (that defendant committed the felony of first degree burglary)] has been proven to you beyond a reasonable doubt.\u201d\nWhile defendant cites cases from other jurisdictions holding that offensive collateral estoppel is inappropriate in criminal cases, it appears that this Court\u2019s decision in State v. Dial, 122 N.C. App. 298, 470 S.E.2d 84 (1996), is controlling. In Dial, the defendant, who was indicted for first degree murder, contended that the State could not prove the murder occurred in North Carolina and, therefore, North Carolina\u2019s courts did not have jurisdiction. Id. at 302, 470 S.E.2d at 87. In the defendant\u2019s first trial, the trial court submitted the issue of jurisdiction to the jury. Id. Although the jury returned a special verdict finding that North Carolina had jurisdiction, it was unable to reach agreement on the defendant\u2019s guilt. Id.\nAt the defendant\u2019s second trial, the trial court concluded that the special verdict had resolved the issue of jurisdiction and denied defendant\u2019s motion to set aside that verdict and dismiss the case for lack of jurisdiction. Id. On appeal, the defendant \u201cargue [d] that the special verdict was not binding at his second trial so that the State should have been required to prove, beyond a reasonable doubt, the existence of jurisdiction to the same jury deciding his guilt or innocence at his second trial.\u201d Id. at 305, 470 S.E.2d at 88.\nIn rejecting this argument, this Court noted:\nThe question before us, then, is whether the trial court\u2019s acceptance of the jury\u2019s special verdict finding that North Carolina has jurisdiction at defendant\u2019s first trial, prior to declaring a mistrial by reason of the jury\u2019s inability to agree upon the issue of guilt or innocence, precludes defendant from relitigating jurisdiction at his second trial. The question is apparently one of first impression. We believe, however, that it is resolved by application of the settled principles of res judicata and collateral estoppel.\nId., 470 S.E.2d at 89. The Court explained:\nThe doctrines of res judicata and collateral estoppel apply to criminal, as well as, civil proceedings, and their application against a criminal defendant does not violate the defendant\u2019s rights to confront the State\u2019s witnesses or to a jury determination of all facts.\nIn the present case, all the requirements for precluding relitigation of the jurisdiction issue have been met: (1) the parties are the same; (2) the issue as to jurisdiction is the same; (3) the issue was raised and actually litigated in the prior action; (4) jurisdiction was material and relevant to the disposition of the prior action; and (5) the determination as to jurisdiction was necessary and essential to the resulting judgment.\nId. at 306, 470 S.E.2d at 89 (internal citations omitted). The Court, therefore, held \u201cthat the [trial] court\u2019s acceptance of that special verdict of the jury at his first trial finding that North Carolina has jurisdiction precludes defendant from relitigating the issue of jurisdiction at his second trial.\u201d Id.\nDefendant acknowledges that Dial \u201costensibly affirmed the offensive use of collateral estopped against a defendant,\u201d but argues that it is \u201ceasily distinguished\u201d because the jury, in that case, \u201conly resolved one very limited question: the location of the crime.\u201d To the contrary, that purportedly \u201climited\u201d question was critical to any conviction\u2014it resolved whether North Carolina had jurisdiction to prosecute the defendant at all. See In re McKinney, 158 N.C. App. 441, 443, 581 S.E.2d 793, 795 (2003) (holding that question of jurisdiction is \u201c \u2018the most critical aspect of the court\u2019s authority to act\u2019 \u201d (quoting Harris v. Pembaur, 84 N.C. App. 666, 667, 353 S.E.2d 673, 675 (1987))). Since the defendant in Dial could not be convicted of murder without the State\u2019s proving beyond a reasonable doubt the element\u2014-jurisdiction\u2014decided in the first trial, we find Dial equally applicable when, as here, the prior verdict accepted by the trial court established an element of the crime of felony murder.\nDefendant further argues that, regardless of Dial, the United States Supreme Court has intimated (without holding) that collateral estoppel in a criminal case is inappropriate, pointing to a footnote in the plurality opinion of United States v. Dixon, 509 U.S. 688, 710 n.15, 125 L. Ed. 2d 556, 577 n.15, 113 S. Ct. 2849, 2863 n.15 (1993). In that footnote, the plurality addressed a concern by the dissenting opinion that the plurality\u2019s overruling of the \u201csame conduct\u201d Double Jeopardy test established by Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990), would result in prosecutors bringing separate prosecutions to perfect their case. Dixon, 509 U.S. at 710 n.15, 125 L. Ed. 2d at 577 n.15, 113 S. Ct. at 2863 n.15. In dismissing that concern, the plurality opinion noted that prosecutors would \u201chave little to gain and much to lose from such a strategy. Under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), an acquittal in the first prosecution might well bar litigation of certain facts essential to the second one\u2014though a conviction in the first prosecution would not excuse the Government from proving the same facts the second time.\u201d Id.\nThis plurality opinion was decided, however, in 1993\u2014three years before Dial was decided in 1996. Because defendant has not cited a case suggesting that Dial was overruled, and Dixon does not squarely conflict with Dial, we are bound by Dial. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989).\nMoreover, the holding in Dial is consistent with State v. O\u2019Neal, 67 N.C. App. 65, 312 S.E.2d 493, aff\u2019d as modified on other grounds, 311 N.C. 747, 321 S.E.2d 154 (1984). In O\u2019Neal, the jury in the first trial reached agreement on six special verdict issues but could not agree on the seventh issue. Id. at 66, 312 S.E.2d at 494. The defendant requested a mistrial on the seventh issue alone, but the trial court declared a mistrial on all issues. Id. at 67, 312 S.E.2d at 494. On appeal, this Court concluded that because \u201cthe jury has heard the evidence, deliberated, and without error returned a verdict as to the other six issues, no new trial is required on these issues\u201d and \u201c[n]either the State nor defendant is entitled to one.\u201d Id. at 71, 312 S.E.2d at 497 (emphasis added).\nHere, a jury \u201cheard the evidence, deliberated, and without error returned a verdict,\u201d id., of guilty of first degree burglary. The defendant was not, therefore, entitled to retry in the second felony murder trial the issue whether defendant had committed the felony of first degree burglary. Indeed, defendant does not dispute that if we conclude that offensive collateral estoppel can apply in a criminal case, then the trial court properly instructed the jury. Accordingly, we find no error in defendant\u2019s trial.\nNo error.\nJudges STROUD and THIGPEN concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart, Sr. and Special Deputy Attorney General Melissa L. Trippe, for the State.", "Michael E. Casterline for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRELL DAVEZ CORNELIUS\nNo. COA11-94\n(Filed 6 March 2012)\n1. Confessions and Incriminating Statements\u2014statements in hospital\u2014medication\u2014defendant alert and oriented\nThe trial court did not err in denying defendant\u2019s motion to suppress his statements made in a hospital while medicated where the trial court made extensive findings that defendant was alert and oriented based on the testimony of the officer, the hospital records, and the recorded statements, and those statements supported the conclusion that defendant\u2019s statements were voluntary.\n2. Estoppel\u2014offensive collateral estoppel\u2014 felony murder\u2014 underlying felony\u2014established at first trial\nThe defendant in a second felony murder trial was not entitled to retry the issue of whether defendant had committed the underlying felony of first-degree burglary where the jury in the first trial heard the evidence, deliberated, and without error returned a verdict of guilty of first-degree burglary. The offensive use of collateral estoppel against a defendant was established by State v. Dial, 122 N.C. App. 298, and defendant did not cite a case suggesting that Dial was overruled.\nAppeal by defendant from judgment entered 11 February 2010 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 29 September 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General William P. Hart, Sr. and Special Deputy Attorney General Melissa L. Trippe, for the State.\nMichael E. Casterline for defendant-appellant." }, "file_name": "0329-01", "first_page_order": 339, "last_page_order": 348 }