{ "id": 8521387, "name": "STATE OF NORTH CAROLINA v. WILLIAM \"BILLY\" GREIME", "name_abbreviation": "State v. Greime", "decision_date": "1990-02-20", "docket_number": "No. 8929SC326", "first_page": "409", "last_page": "418", "citations": [ { "type": "official", "cite": "97 N.C. App. 409" } ], "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": "126 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "257 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567591 ], "year": 1962, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0326-01" ] }, { "cite": "295 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574240, 8574275, 8574212, 8574223, 8574259 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0745-03", "/nc/306/0745-05", "/nc/306/0745-01", "/nc/306/0745-02", "/nc/306/0745-04" ] }, { "cite": "293 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "661" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524882 ], "year": 1982, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0330-01" ] }, { "cite": "108 S. Ct. 2389", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 1775137 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/487/0285-01" ] }, { "cite": "354 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "514", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742319 ], "year": 1987, "pin_cites": [ { "page": "325", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0318-01" ] }, { "cite": "469 U.S. 91", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11958689 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "98-100" } ], "opinion_index": 0, "case_paths": [ "/us/469/0091-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "year": 1981, "pin_cites": [ { "page": "484-85" } ], "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "238 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "293 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565230 ], "year": 1977, "pin_cites": [ { "page": "471-72" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0462-01" ] }, { "cite": "187 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "741" } ], "opinion_index": 0 }, { "cite": "281 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573795 ], "year": 1972, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0081-01" ] }, { "cite": "169 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "275 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559236 ], "year": 1969, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0565-01" ] }, { "cite": "229 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "173" } ], "opinion_index": 0 }, { "cite": "291 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557269 ], "year": 1976, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0037-01" ] } ], "analysis": { "cardinality": 823, "char_count": 17368, "ocr_confidence": 0.745, "pagerank": { "raw": 6.24526438448835e-08, "percentile": 0.3859381377060979 }, "sha256": "fe0b449b34d9657a2f2397571b5a38a1a1e54709503ca5531a19f65b2c58816f", "simhash": "1:cbeb416423763472", "word_count": 2963 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Phillips and Lewis concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM \u201cBILLY\u201d GREIME" ], "opinions": [ { "text": "COZORT, Judge.\nThe defendant was convicted of burning a building used for trade and sentenced to ten years in prison. On appeal, he contends that the trial court erred in three respects: first, by allowing a lay witness to testify as an expert; next, by refusing to suppress defendant\u2019s inculpatory statement regarding the fire; and, lastly, in finding that aggravating circumstances outweighed mitigating circumstances and ordering defendant\u2019s imprisonment for a term exceeding the presumptive sentence. We find no prejudicial error.\n' The State offered evidence tending to show that on the night of 2-3 July 1988, the Hendersonville Police and Fire Departments responded to Mr. Greime\u2019s report of a fire at Yung\u2019s Wig Shop. Andre Massey, the first police officer to reach the shop, testified that he found a kerosene can \u201cjust inside the door and then about eight or ten feet up.\u201d Police Captain John Nicholson testified that, in his opinion, the back door had been forced open from the inside. Further investigation revealed a common attic or crawlspace above the ceilings of Yung\u2019s Wig Shop and the adjacent Lawn Mower Shop operated by defendant. The State\u2019s evidence also tended to show the following: a piece of cord, like the \u201cpull cord\u201d used by defendant to repair lawn mowers and chain saws, was attached to a piece of tin ceiling tile above the wig shop; there were footprints in the dust above the ceiling; and, \u201csmushed into the tin [ceiling tile] . . . was a Marlboro cigarette butt,\u201d the same brand of cigarette that defendant smoked.\nOn 15 July 1988, Mr. Greime called the Hendersonville Police Department and was told that the police would seek warrants charging him with felony breaking and entering, larceny, and burning a building used for trade. Later that day, when he voluntarily surrendered, he was charged with those offenses. At approximately 10:15 p.m. that night, Captain Nicholson interrogated Mr. Greime.\nOver Mr. Greime\u2019s objection the trial court permitted Lieutenant Philip Cagle of the Hendersonville Fire Department to testify as an expert on a number of points, including the \u201codor of a flammable liquid\u201d in Yung\u2019s Wig Shop. The trial court permitted Captain Nicholson of the Police Department to testify, also over objection, that during custodial interrogation the defendant said: \u201che couldn\u2019t say that he did do the break-in and the arson or that he didn\u2019t.\u201d\nThe defendant contends that Lieutenant Cagle, who was neither tendered as nor expressly found to be an expert in investigating arson or other fires, was a lay witness, qualified to offer only \u201cthose opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (1989). Thus, defendant argues that the trial court erroneously allowed Lieutenant Cagle to offer expert testimony on the following: whether he detected the odor of kerosene; whether he conducted an arson investigation; the characteristics of a kerosene fire; and how long the fire burned.\nWhen the defendant objected to testimony from the witness on the grounds that he was not an expert, the trial court overruled the objection. The court\u2019s ruling came at the end of this exchange:\nQ Did you smell anything that smelled like kerosene\u2014\nMr. CARPENTER: Objection.\nThe COURT: Overruled.\nQ Have you ever smelled kerosene before?\nA Yes, sir.\nQ You know what kerosene smells like?\nA Yes, sir.\n\u2756 * * *\nQ Now, have you had any experience in arson training or\u2014\nA Yes, sir, I have.\nQ \u2014or training to investigate arson cases?\nA Well, I have been to two that I can recall and approximately three arson schools over the years.\nQ Okay. In your arson training did you receive any certificates for attending these schools?\nA Yes, sir.\nQ As a matter of course in your occupation as a Lieutenant with the Fire Department did you routinely investigate cases looking for possible arson?\nA Most all our fires that are, you know, fairly suspicious, then we do some kind of investigation. For a period of time we did our own, but the Police Department has taken care of that for the last several years, however.\n* * H= *\nQ Okay, I\u2019ll ask you if you did such an investigation at the scene of this gift shop fire as to looking for signs or indications of possible arson?\nA Oh, yes, sir.\nMr. CARPENTER: Objection.\nTHE COURT: Overruled.\n* * * *\nQ Did you examine the carpet area there where the burning had occurred?\nA Yes, sir, we did.\nQ Did you notice anything unusual about that area?\nA The odor of a flammable liquid. I could not determine the exact liquid other than I could absolutely swear that it was kerosene or a Varsol, something other than gasoline. We did not have the flash area that would be involved with gasoline or lacquer thinner. That probably would have exploded rather than setting [sic] there and smoldering as long as it did.\nQ When you burn kerosene, in your experience, what effect does that have in one local area like that?\nMr. CARPENTER: Objection, no foundation.\nThe COURT: Overruled.\nA Usually the kerosene itself will burn after it gets started and it will actually burn itself before the material that it is on will ignite. After the kerosene itself burns then the material will get involved. So it acts almost like a wick, almost like a wick would.\nQ Comparing that with your experience with the way kerosene burns, on the physical evidence you saw there at that six by six foot spot, compare that with what you saw as to what you just testified as to the way kerosene burns?\nMr. CARPENTER: Objection, if your Honor please, he has not been qualified as an expert witness, I don\u2019t believe.\nTHE COURT: Overruled.\nTaking these rulings in context, we hold that the trial court implicitly found Lieutenant Cagle to be an expert. The record would support such a finding, and the \u201copinion of an expert witness is admissible when it is shown that the witness, through study or experience, has acquired such skill and expertise that he is better qualified than the jury to form an opinion on the subject matter to which his testimony applies.\u201d State v. Monk, 291 N.C. 37, 52, 229 S.E.2d 163, 173 (1976). While \u201cit would have been better practice for the [State] to have tendered\u201d Lieutenant Cagle as an expert, in the circumstances disclosed by the record, any error in permitting the witness to state opinions as an expert was harmless. State v. Perry, 275 N.C. 565, 572, 169 S.E.2d 839, 844 (1969); see also State v. Jenerett, 281 N.C. 81, 90, 187 S.E.2d 735, 741 (1972), and State v. Cates, 293 N.C. 462, 471-72, 238 S.E.2d 467, 472 (1977).\nThe defendant contends next that the trial court erred by refusing to suppress his inculpatory statement. Mr. Greime argues that during custodial interrogation he expressed the desire to deal with the police only through counsel. A defendant in those circumstances is \u201cnot subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.\u201d Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Mr. Greime maintains that Captain Nicholson impermissibly continued the interrogation, and Mr. Greime eventually said \u201che couldn\u2019t say that he did do the break-in and arson or that he didn\u2019t.\u201d\nAfter voir dire examination the trial court overruled Mr. Greime\u2019s motion to suppress his statement and permitted Captain Nicholson to testify as follows:\nQ State to the members of the jury whether or not you advised him of his Constitutional Rights?\nA Yes, I did.\nQ In that regard, what rights did you advise him of and what was his response?\nA I first advised him since he was in custody at the jail charged with breaking, entering, larceny and arson, that I was going to advise him of his rights, and I proceeded to do so.\nI said, \u201cYou have the right to remain silent.\u201d Then I asked him if he understood that.\nMr. Grieme said, \u201cYeah.\u201d\nThen I stated, \u201cAnything you say can be used against you in a court of law.\u201d And then I asked him if he understood that and Mr. Grieme said, \u201cYes, sir.\u201d\nThen I said, \u201cYou have the right to talk to a lawyer, to have a lawyer present while you are being questioned. Do you understand that?\u201d Mr. Grieme said, \u201cYes, sir.\u201d\n\u201cIf you want a lawyer before or during questioning, but cannot afford to hire one, one will be appointed to represent you at no cost before any questioning. Do you understand that?\u201d\nMr. Grieme said, \u201cYes, I do.\u201d\n\u201cIf you answer questions now without a lawyer here, you still have the right to stop answering questions at any time. Do you understand that?\u201d\nMr. Grieme: \u201cYes, I do.\u201d\n\u201cDo you understand each of the rights that I have just explained to you?\nMr. Grieme: \u201cYes, I do.\u201d\n\u201cHaving these rights in mind, do you wish to answer questions?\u201d\nMr. Grieme: \u201cYes, okay. \u201d\n\u201cYou now wish to answer questions now without a lawyer present?\u201d\nMr. Grieme: \u201cNo. \u201d\n\u201cDo you have an attorney?\u201d\nMr. Grieme: \u201cYes, I do.\u201d\n\u201cWho is your attorney?\u201d\nMr. Grieme: \u201cYoungblood.\u201d\n\u201cAnd you don\u2019t want to answer questions at all?\u201d\nMr. Grieme: \u201cHe advises me not to say anything, but I don\u2019t know what you would be asking, so \u2014 \u201d\nAt that time I said, \u201cHuh?\u201d I didn\u2019t really understand what his response was.\nMr. Grieme then stated, \u201cI don\u2019t know what you would be asking me.\u201d\nSo he stated, \u201cI could stop at any time, correct.\u201d That was his question to me.\nThen I stated, \u201cRight.\u201d\nMr. Grieme: \u201cOkay. I will go ahead and answer any questions you need to, but if you want to stop \u2014 excuse me \u2014 if I want to stop, I just stop, okay?\u201d\nAnd to him I replied, \u201cOkay, but you don\u2019t have to without your attorney being present.\u201d\nMr. Grieme: \u201cI understand that, he advised me not to say anything, really, that is what he told me.\u201d\nAt that time I asked Mr. Grieme, \u201cWell, what do you want to do?\u201d\nAnd at that time Mr. Grieme said, \u201cTalk about it, but I will stop if I feel \u2014 \u201d Then he asked for a pen so he could sign the waiver of rights.\n* * *\nQ Now, Officer Nicholson, later in the interview did Mr. Grieme \u2014 Did you have a tape recorder?\nA Yes, sir, I did.\nQ Did Mr. Grime ask you to shut the tape recorder off?\nA Yes, sir, he did.\nQ What point did he do that?\nA Okay. I had talked to him about- some of the inconsistencies in the evidence that I was trying .to- send off to the lab. Mr. Grime at that time said, \u201cWill you shut that off a minute?\u201d\nAt that time, at his request, I turned off the tape recorder. And he stated that he could not talk with one of those things and that he couldn\u2019t say that he did do the break-in and the arson or that he didn\u2019t. He said that he had been under a lot of stress and a lot of pressure and when he is under a lot of stress pressure he doesn\u2019t know what he does, he kind of like blacks out and couldn\u2019t remember things. He didn\u2019t know if he did or didn\u2019t.\nAt that time he started to cry.\nI didn\u2019t question him or push him at that time. I waited for a minute or two for him to get his composure back. Before I could ask another question, he stated that he didn\u2019t want to answer any more questions and requested his attorney.\nQ Did you then terminate your interview?\nA Yes, sir, I did. [Emphasis added.]\nThe admissibility of Mr. Greime\u2019s statement is controlled by Smith v. Illinois, 469 U.S. 91 (1984). In Smith the Supreme Court held:\nWhere nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused\u2019s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries ....\n* * * *\nOur decision is a narrow one. We do not decide the circumstances in which an accused\u2019s request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself nor do we decide the consequences of such ambiguity or equivocation. We hold only that, under the clear logical force of settled precedent, an accused\u2019s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver.\nId. at 98-100. Thus, when Captain Nicholson asked, \u201cYou now wish to answer questions now [sic] without a lawyer present?\u201d and Mr. Greime replied, \u201cNo,\u201d his subsequent statements became relevant only to the issue of waiver.\nMr. Greime\u2019s subsequent statements are susceptible to differing interpretations. After voir dire examination and arguments from counsel, the trial court found\nthat from a totality of the circumstances the defendant knowing that he had a right to remain silent, and he had a right to counsel, and that he in fact conferred with counsel, and had in fact been advised by counsel to say nothing; [sic] initiated further conversation with the investigating officer and in doing so voluntarily, knowingly, and intelligently waived the rights which he had had explained to him and to each of which he had indicated that he understood.\nFindings of fact \u201cconcerning the admissibility of a confession a^e conclusive and binding if supported by competent evidence. This is true even though the evidence is conflicting.\u201d State v. Nations, 319 N.C. 318, 325, 354 S.E.2d 510, 514 (1987) (citation omitted). The trial court\u2019s finding was supported by competent evidence, and we hold that Captain Nicholson honored the limits (\u201cif I want to stop, I just stop, okay?\u201d) that Mr. Greime placed on his waiver of counsel. See Patterson v. Illinois, 108 S. Ct. 2389, 2395 n.5 (1988).\nThe defendant contends, lastly, that the sentencing procedure in the trial court was fatally flawed. Specifically, the defendant maintains that the trial court \u201cdid not consider and weigh all factors\u201d in aggravation and mitigation as required by N.C. Gen. Stat. \u00a7 15A-1340.4.\nThe alleged factor to which defendant points, however, is one weighing in aggravation of his offense. During the sentencing hearing, the State offered evidence tending to show \u201cdamage causing great monetary loss.\u201d N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l)(m). The trial court considered but did not find that factor. In aggravation it did find the defendant\u2019s seven prior convictions of offenses punishable by more than sixty days\u2019 confinement. In mitigation the court found that defendant suffered from a mental condition insufficient to constitute a defense but one that significantly reduced his culpability. After weighing these factors, the court sentenced Mr. Greime to ten years for a Class E felony, which has a presumptive sentence of nine years.\nA trial judge is required to consider all of the aggravating and mitigating factors listed in N.C. Gen. Stat. \u00a7 15A-1340.4 before imposing a sentence greater than the presumptive term, but \u201che is only required to set out in the judgment the factors that he determines by the preponderance of the evidence are present.\u201d State v. Davis, 58 N.C. App. 330, 334, 293 S.E.2d 658, 661, disc. review denied, 306 N.C. 745, 295 S.E.2d 482 (1982). In the sentencing hearing the defendant has shown neither abuse of discretion, nor procedural conduct operating to his prejudice, nor circumstances manifesting inherent unfairness. In the absence of those flaws in sentencing, a judgment will not be disturbed. State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962).\nNo error.\nJudges Phillips and Lewis concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Cheryl D. Jackson, for the State.", "J. Michael Edney for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM \u201cBILLY\u201d GREIME\nNo. 8929SC326\n(Filed 20 February 1990)\n1. Criminal Law \u00a7 51 (NCI3d)\u2014 fire department lieutenant-expert opinion testimony\nThough it would have been the better practice for the state to have tendered a fire department lieutenant as an expert, any error in permitting the witness to state opinions as an expert was harmless where the witness testified that he had attended three arson schools and had investigated a number of suspicious fires in the past, and the trial court implicitly found him to be an expert.\nAm Jur 2d, Arson and Related Offenses \u00a7 49.\n2. Criminal Law \u00a7 75.10 (NCI3d)\u2014 defendant\u2019s statement during interrogation \u2014 waiver of constitutional rights\nThe trial court did not err in admitting into evidence defendant\u2019s statement made during custodial interrogation that \u201che couldn\u2019t say that he did do the break-in and the arson or that he didn\u2019t,\u201d since evidence supported the trial court\u2019s finding that defendant knowingly and intelligently waived his rights, and the interrogating officer honored the limits which defendant had placed on his waiver of counsel.\nAm Jur 2d, Evidence \u00a7\u00a7 555, 556, 557.\n3. Criminal Law \u00a7 1079 (NCI4th)\u2014 sentence \u2014 finding that aggravating factors outweighed mitigating factors\nThe trial court did not err in finding that aggravating circumstances outweighed mitigating circumstances and in ordering defendant\u2019s imprisonment for a term exceeding the presumptive sentence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nAPPEAL by defendant from Judgment of Judge Bruce Briggs entered 10 November 1988 in HENDERSON County Superior Court. Heard in the Court of Appeals 21 September 1989.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Cheryl D. Jackson, for the State.\nJ. Michael Edney for defendant appellant." }, "file_name": "0409-01", "first_page_order": 437, "last_page_order": 446 }