No. COA05-154 TENTH DISTRICT
COURT OF APPEALS OF NORTH CAROLINA
STATE OF NORTH CAROLINA )
V. ) From Wake County
DAVID EARL JONES, Jr. )
DEFENDANT APPELLANT’S BRIEF
TABLE OF AUTHORITIES . . . . . . . . . . . . . iii
QUESTIONS PRESENTED . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE . . . . . . . . . . . . . .2
STATEMENT OF THE GROUNDS OF APPELLATE REVIEW . . 3
STATEMENT OF THE FACTS . . . . . . . . . . . . . 3
I. THE TRIAL COURT COMMITTED ERROR AND ABUSE
OF DISCRETION INSTRUCTING THE JURY AND
PROSPECTIVE JURORS THAT THE KNIFE WAS A DEADLY
WEAPON AS A MATTER OF LAW IN VIOLATION OF
MR. JONES’S STATE AND FEDERAL RIGHTS . . . . . 10
A. Introduction . . . . . . . . . . . . 10
B. The Trial Court improperly expressed
an opinion of fact that the knife was a
deadly weapon . . . . . . . . . . . . . . 10
C. Presentation of Evidence is
necessary before there can be a
determination of whether a knife is a
deadly weapon as a matter of law . . . . .12
D. Conclusion . . . . . . . . . . . . . 15
II. THE TRIAL COURT COMMITTED ERROR IN DENYING
THE MOTION TO SUPPRESS MR. JONES’ STATEMENT AND
IN ADMITTING RELATED TESTIMONY IN VIOLATION OF
MR. JONES’S STATE AND FEDERAL RIGHTS . . . . . 16
CONCLUSION . . . . . . . . . . . . . . . . . . 22
CERTIFICATE OF SERVICE . . . . . . . . . . . . 23
Hon. Donald W. Stephens Informing
Prospective Jurors of Case App. 1
Arizona v. Fulminante, 499 U.S. 279, 113 L.Ed.2d
302 (1991) ................................... 20
Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694
(1966) ............................... 16, 19, 21
State v. Anthony, 354 N.C. 372, 555 S.E.2d 557
(2001) ....................................... 11
State v. Castor, 285 N.C. 286, 204 S.E.2d 848
(1974) ....................................... 20
State v. Greene, 332 N.C. 565, 422 S.E.2d 730
(1992) .................................... 19-20
State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309
(1991) ....................................... 13
State v. Hooper, 318 N.C. 680, 351 S.E.2d 286
(1987) ....................................... 20
State v. Maniego, 163 N.C. App. 676, 594 S.E.2d
242 (2004) ................................ 19-20
State v. McKinnon, 54 N.C. App. 475, 283 S.E.2d
555 (1981) ................................. 12-3
State v. Monroe, 27 N.C. App. 405, 219 S.E.2d 270
(1975) ..................................... 20-1
State v. Odom, 307 N.C. 655, 300 S.E.2d 375
(1983) ....................................... 16
State v. Schneider, 306 N.C. 351, 293 S.E.2d 157
(1982) ....................................... 19
State v. Shipp, 155 N.C. App. 294, 573 S.E.2d 721
(2002) ..................................... 15-6
State v. Sidbury, 64 N.C. App. 177, 306 S.E.2d
844 (1983) ................................... 11
State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d
143 (1985) ................................... 13
State v. Sturdivant, 304 N.C. 293, 283 S.E.2d 719
(1981) ....................................... 12
State v. Young, 317 N.C. 396, 346 S.E.2d 626
(1986) ....................................... 12
State v. Young, 324 N.C. 489, 380 S.E.2d 97
(1989) ....................................... 15
STATUTES & ADMINSTRATIVE CODES
N.C. Gen. Stat. § 7A-27(b) (2003) ............... 3
N.C. Gen. Stat § 15A-1222 (2004) ............... 11
N.C. Gen. Stat. § 15A-1443(b) (2003) ........... 20
N.C. Gen. Stat § 15A-1444(a) (2003) ............. 3
N.C. R. App. Proc. 10(c)(4) (2004). ............ 15
N.C. CONST. Art. I, § 19 ........................ 19
N.C. CONST. Art. I, § 23 ........................ 19
U.S. CONST. amend. V ............................ 19
U.S. CONST. amend. XIV .......................... 19
No. COA05-154 TENTH DISTRICT
COURT OF APPEALS OF NORTH CAROLINA
STATE OF NORTH CAROLINA )
V. ) From Wake County
DAVID EARL JONES, Jr. )
DEFENDANT APPELLANT’S BRIEF
I. WHETHER THE TRIAL COURT COMMITTED ERROR AND ABUSE OF
DISCRETION INSTRUCTING THE JURY AND PROSPECTIVE JURORS THAT
THE KNIFE WAS A DEADLY WEAPON AS A MATTER OF LAW IN VIOLATION
OF MR. JONES’S STATE AND FEDERAL RIGHTS?
B. The Trial Court improperly expressed an opinion of
fact that the knife was a deadly weapon.
C. Presentation of evidence is necessary before there can
be a determination made of whether a knife is a deadly
weapon as a matter of law.
II. WHETHER THE TRIAL COURT COMMITTED ERROR IN DENYING THE MOTION
TO SUPPRESS MR. JONES’ STATEMENT AND IN ADMITTING RELATED
TESTIMONY IN VIOLATION OF MR. JONES’S STATE AND FEDERAL
STATEMENT OF THE CASE
On 5 April 2004, the Wake County Grand Jury issued two
separate indictments charging Defendant David Earl Jones, Jr.
with assault with a deadly weapon with intent to kill inflicting
serious injury. (Rpp. 6-8) This case came for trial before the
Honorable Donald W. Stephens, Senior Resident Superior Court
Judge presiding, during the 20 July 2004 Criminal Session of the
Superior Court of Wake County. (Rp. 1) Following jury selection
and presentation of evidence, the jury on 21 July 2004 returned
verdicts finding Mr. Jones guilty of one count of assault with a
deadly weapon with intent to kill inflicting serious injury and
one count of assault with a deadly weapon. (Rpp. 59-60) Judge
Stephens entered judgment on that same day. The judgments were
consolidated, and Mr. Jones was sentenced to 116 to 149 months’
imprisonment and ordered to pay restitution of $695. (Rpp. 61-8)
Defendant entered notice of appeal on that same date in open
court. (Rpp. 69-70; Tp. 299) The record on appeal was filed in
the Court of Appeals on 31 January 2005, docketed on 17 February
2005, and mailed to the parties of 28 February 2005. The time to
file the brief was extended to 29 April 2005.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Defendant appeals pursuant to N.C. Gen Stat. §§ 7A-27(b)
and 15A-1444(a) from a final judgment of the Wake County
STATEMENT OF THE FACTS
The evidence presented by the State at the trial tended to
show that on 12 March 2004, Tonya Bridges had recently moved
with her four children to a new apartment at 2120 Larson Drive,
Raleigh. (Tpp. 49, 51-2) The father of her youngest child,
Miracle, was David Earl “Buddy” Jones, Jr. who Ms. Bridges was
living with and had dated for four years. (Tpp. 50-2) The night
of 12 March 2004, Ms. Bridges and Mr. Jones were watching DVD
movies together on the player that Mr. Jones gave Ms. Bridges
for her birthday. (Tp. 52) Mr. Jones said he wanted to leave for
the night and Ms. Bridges did not want him to. (Tpp. 52-4) She
asked for her key back and he asked for $60 back that he had
given her. (Tpp. 53-4) They exchanged the items and Ms. Bridges
told Mr. Jones not to come back. (Tp. 55) Mr. Jones called
between 20 minutes to one hour later saying he was going to come
back and Ms. Bridges told him not to. (Tp. 55) Mr. Jones was not
upset. (Tp. 55)
The morning of 13 March 2004, Ms. Bridges and Mr. Jones
made several calls to each other and “cussed each other out.”
(Tp. 56) That same day, several people, including her friend
Maurice Adams, visited Ms. Bridges at her new apartment. (Tp.
57) Ms. Bridges was talking, drinking and listening to music
with two other friends, Fred and Paul, when Mr. Adams arrived
between 6:00 and 7:00 p.m. (Tpp. 57-8, 110) Fred and Paul left,
and Mr. Adams went across the street to his sister’s and brought
back some more beer. (Tpp. 58, 110) Throughout the night, Ms.
Bridges drank between three to four and Mr. Adams drank at least
10 beers. (Tpp. 58-9, 110-11) Miracle, the only other person in
the apartment at this point, was asleep on a chair in the living
room. (Tp. 61)
There was a knock, Ms. Bridges asked Mr. Adams to open the
door and it was Mr. Jones. (Tpp. 60, 109, 119) Mr. Jones asked
to use the bathroom and Mr. Adams let him in. (Tpp. 60, 119) Mr.
Jones walked through the kitchen to the bathroom. (Tpp. 60-1)
Mr. Adams went through the kitchen and into Ms. Bridges’ son
Troy’s bedroom and shut the door behind him. (Tpp. 51. 60-1,
120) Mr. Jones came out of the bathroom, opened the door to
Troy’s room and spoke with Mr. Adams. (Tpp. 61, 120) Both men
walked back though the kitchen and the living room and went
outside to smoke a cigarette. (Tpp. 61-2, 120) A third person,
Richard Hanes Smith, came up to get a light and stood outside
with them. (Tpp. 62, 111-12)
Mr. Jones and Mr. Adams walked back into the apartment and
Mr. Adams put his hand on the DVD player. (Tp. 62) Mr. Jones
started calling Ms. Bridges, “bitches” and “told Maurice that
they both should fuck [Ms. Bridges] at the same time.” (Tpp. 63-
4) Mr. Jones went into the kitchen to get some water. (Tpp. 63-
4, 120-21) Mr. Jones said he was going to kiss Miracle and
leave. (Tp. 64)
Ms. Bridges was sitting on the couch and Miracle was lying
on the chair beside her. (Tpp. 66-7, 89) Mr. Jones came out of
the kitchen and bent down as though he was going to kiss Miracle
but he stabbed Ms. Bridges in the upper left chest and then
under her left breast. (Tpp. 64-5, 78-9, 102, 121) Mr. Jones
used an eight or nine inch restaurant knife that was in Ms.
Bridge’s kitchen. (Tpp. 65-6, 88-9, 111)
Mr. Adams bent down over Ms. Bridges. (Tp. 67) Mr. Jones
went behind Mr. Adams and held the knife to his throat. (Tpp.
122-23) The two men “got in a tussle,” and Mr. Jones cut Mr.
Adams on the right side of the neck causing him to start
bleeding. (Tp. 123) Mr. Jones pushed Mr. Adams off him, and Mr.
Adams left the apartment. (Tpp. 67, 123-24) Mr. Adams first went
to his sister’s house, but no one was home. (Tp. 124) He then
went down the street to the house of a friend, Roy Wells. (Tp.
125) Mr. Wells called Mr. Adams’ grandmother and the paramedics.
Ms. Bridges picked up Miracle but put her down when Mr.
Jones told her to. (Tp. 68) Mr. Jones stabbed Ms. Bridges
through her right hand and said he was going to kill her. (Tpp.
68-9, 81, 102) Ms. Bridges fought with him and made her way to
the bathroom to get Clorox to throw in his face. (Tpp. 69-70)
Mr. Jones got his foot in the bathroom door and stabbed Ms.
Bridges in the left side. (Tpp. 70-1, 80, 102) She tried to pull
the knife out as he pushed it in. (Tp. 70) Ms. Bridges hit Mr.
Jones and he fell backwards. (Tpp. 70-1) Ms. Bridges had a
chance to grab the knife but did not. (Tp. 71) She shut herself
in the bathroom and told Mr. Jones to leave. (Tp. 72) After a
minute, she opened the bathroom door, looked around to make sure
that Mr. Jones was gone and checked on Miracle who was still
asleep and unharmed. (Tpp. 72-3, 112-13) Ms. Bridges never found
the knife in her apartment again. (Tpp. 73, 112) Ms. Bridges
went back into the bathroom to pee and then went outside to ask
for help. (Tpp. 73-4)
Raleigh Police Department Officer P.C. McKeon responded to
a call around 9:57 p.m. and saw Ms. Bridges “on her knees at the
doorstep clutching her side bleeding and crying.” (Tpp. 31-2,
35) There was blood where Ms. Bridges was kneeling, all over the
couch, in the living room, and in the bathroom. (Tpp. 37, 39,
82-5) Ms. Bridges was upset, and said that Mr. Jones had stabbed
her and left on a moped. (Tpp. 33-4) Officer McKeon put out a be
on the lookout (BOLO) alert for Mr. Jones on a maroon moped
“fleeing the scene.” (Tpp. 34-5) Officer McKeon collected
evidence but did not locate a weapon. (Tpp. 38, 40)
The paramedics took Ms. Bridges to Wake Medical Center
where she was in surgery for about two and a half hours on her
small intestine and right hand and stayed almost a week. (Tpp.
76-7, 103-04) Dr. Daily William Oller treated Ms. Bridges and
classified her as a trauma one, “the most serious level in which
patients have a physiologic derangement and are likely to
succumb from their injuries in a very short period of time
unless they are treated with a high level of emergency
department resources.” (Tpp. 77, 99-101) The wound to her upper
left chest was ”superficial” but “had it done much deeper, it
would have been a very serious injury near the major neck
vessels.” (Tp. 102) The wound under her left breast “was
bleeding significantly.” (Tp. 102) The wound to her left side
“had a loop of bowel coming out of it.” (Tpp. 102-03) The wound
to her hand was a “through and through laceration of the web of
her thumb.” (Tp. 102) Dr. Oller testified that her recovery was
“expeditious.” (Tpp. 104, 106) There was no permanent disability
(Tpp. 107-08, 115-16) By the time of the trial, Ms. Bridges had
the full use of her hand but she still had occasional pain in
her hand and the other wounds. (Tpp. 77, 113)
Raleigh Police Department Detective J.P. Arnold arrived at
Larson Drive just before the paramedics. (Tpp. 164-66) Detective
Arnold did not find the knife at the apartment. (Tpp. 168, 172-
73) After he had been at the scene approximately for 10 minutes,
the police “got another call across the street about another
person that had been stabbed.” (Tp. 167)
The paramedics and the police arrived at Mr. Well’s house.
Mr. Adams identified the man who cut him as “Buddy” and that he
“rides a burgundy skirt.” (Tp. 125) The paramedics took Mr.
Adams to Rex Hospital. Mr. Adams testified that his “two and one
half inches deep” wound was stitched up. (Tp. 126) He was not
admitted to Rex and was released after about two hours. (Tp.
127) He missed about a week of work because the medication he
was given made him drowsy. (Tpp. 127-28) Mr. Adams has a scar on
his neck but not other disabilities or permanent injuries. (Tpp.
Around 11:00 p.m., Raleigh Police Department Officer D.N.
Hamel heard the BOLO for David Earl Jones, a black male, on a
moped. (Tpp. 42-4) Officer Hamel saw a moped “with a black male
and a black female traveling southbound on Falls of Neuse around
Pacific Road.” (Tp. 44) The moped turned into the Crown gas
station at the intersection of Wake Forest and Hardimont Roads,
about five or six miles from Ms. Bridge’s apartment. (Tpp. 44,
49-50, 168) Officer Hamel approached the driver who identified
himself as Mr. Jones. (Tp. 45) Officer Hamel encountered Mr.
Jones at 11:14 p.m. and placed him in custody at 11:26 p.m. (Tp.
45) Officer Hamel searched Mr. Jones and found no weapons. (Tpp.
46, 48) Ms. Bridges testified that Mr. Jones was “highly
intoxicated” when he was at her apartment. (Tp. 114) Officer
Hamel smelled an “an alcohol order about” Mr. Jones. (Tp. 46)
The female passenger was not arrested. (Tpp. 46-8) Officer Hamel
transported Mr. Jones to the Raleigh Police Department. (Tp. 46)
Detective Arnold interrogated Mr. Jones at the station for
approximately 10 minutes. (Tpp. 144, 152, 168-69) There was no
one else in the interview room. (Tpp. 144-45, 153) Mr. Jones was
in custody under arrest. (Tpp. 144, 152) Detective Arnold
testified that Mr. Jones was “upset, very agitated.” (Tp. 169)
Detective Arnold calmed him down. (Tpp. 149, 154, 169) Detective
Arnold testified that he advised Mr. Jones of his constitutional
rights and that Mr. Jones signed a rights waiver form. (Tpp.
145-46, 157, 170) The signed rights waiver form has been
misplaced and cannot be located. (Tpp. 146, 153) After the
interrogation, the form was left “with the officer that was
investigating the case.” (Tp. 150) Mr. Jones answered Detective
Arnold’s questions. (Tpp. 148, 170) Mr. Jones had mood swings
during the interrogation. (Tp. 154) Mr. Jones’s “mood changed
back to being agitated.” (Tp. 170) He was “crying and upset.”
(Tp. 149) Detective Arnold again “calmed him down.” (Tp. 150)
Detective Arnold took notes during the interrogation that he
later used to type up his report. (Tpp. 158-59) Mr. Jones did
not give a written statement. (Tp. 151) The interrogation was
not audio or video taped. (Tpp. 151-53)
The defense presented no evidence.
Additional facts are presented as they are relevant to the
I. THE TRIAL COURT COMMITTED ERROR AND ABUSE OF DISCRETION
INSTRUCTING THE JURY AND PROSPECTIVE JURORS THAT THE KNIFE WAS A
DEADLY WEAPON AS A MATTER OF LAW IN VIOLATION OF MR. JONES’S
STATE AND FEDERAL RIGHTS.
ASSIGNMENT OF ERROR Nos. 23-7, 36, 38, 40, 43-4, 46
Rpp. 82-3, 86-9
In his greeting to the pool of prospective jurors, the
Trial Court twice stated that Mr. Jones was accused of
assaulting Ms. Bridge and Mr. Adams “with a knife, a deadly
weapon.” Tp. 15. Before any evidence was presented as to whether
the weapon could truly be considered deadly as a matter of law,
the Trial Court declared it was so to the entire jury pool. This
declaration invaded the province of the jury and violated Mr.
Jones’ fundamental due process right to a fair trial. Mr. Jones
was prejudiced and is entitled to a new trial.
B. The Trial Court improperly expressed an opinion
of fact that the knife was a deadly weapon.
The courtroom is a place where a judge has a great deal of
authority. However, “[t]he judge may not express during any
stage of the trial, any opinion in the presence of the jury on
any question of fact to be decided by the jury.” N.C. Gen. Stat.
§ 15A-1222 (2004). Judges:
must be careful in what they say and do because a jury
looks to the court for guidance and picks up the
slightest intimation of an opinion. It does not matter
whether the opinion of the trial judge is conveyed to
the jury directly or indirectly as every defendant in
a criminal case is entitled to a trial before an
impartial judge and an unbiased jury.
State v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845
The totality of the circumstances determines whether a
judge’s remarks constitute an impermissible expression of
opinion. State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557,
590-91 (2001), cert. denied, 536 U.S. 930, 153 L.Ed.2d 791
(2003). The burden is on the defendant to demonstrate that he
was prejudiced as a result of the judge’s remark. Id.
The entire portion of the transcript where the Trial Court
informed the prospective jurors of the case is attached as an
appendix. See Appendix. The Trial Court informed the jury pool
of the presumption of innocence and the burden of proof. Tpp.
11-2, 15-6. The Trial Court noted that Mr. Jones had pleaded not
guilty and was accused of alleged felonies. Tpp. 14-5. Those
statements were all proper.
In referring to the specific charges, however, the Trial
Court twice declared that the weapon at issue, a knife, was a
deadly weapon. Tp. 15. This was an improper expression of an
opinion of what was as yet a fact to be decided by the jury.
C. Presentation of evidence is necessary before
there can be a determination made of whether a knife is a
deadly weapon as a matter of law.
The evidence presented in the instant case was that a knife
was used to wound Ms. Bridges and Mr. Adams. In his remarks to
the prospective jurors, the Trial Court stated that the knife
was a deadly weapon. This improper expression of opinion was
made prior to the presentation of any evidence. Depending on the
evidence, a knife could be a deadly weapon as a matter of law or
it could be a question of fact for the jury. Also dependent on
the evidence is whether injuries to a victim are serious as a
matter of law.
A dangerous or deadly weapon is defined as “’any article,
instrument or substance which is likely to produce death or
great bodily injury.’” State v. Young, 317 N.C. 396, 346 S.E.2d
626 (1986) (quoting State v. Sturdivant, 304 N.C. 293, 301, 283
S.E.2d 719, 725 (1981)). “A knife may or may not be considered a
deadly weapon depending upon the manner in which it is used or
the part of the body at which its force is aimed.” State v.
McKinnon, 54 N.C. App. 475, 477, 283 S.E.2d 555 (1981). “Where
the victim has in fact suffered serious bodily injury or death,
the courts have consistently held that a knife is a dangerous or
deadly weapon per se absent production or detailed description.”
State v. Smallwood, 78 N.C. App. 365, 369, 337 S.E.2d 143, 145
(1985). “In the absence of conflicting evidence, a trial judge
may instruct the jury that injuries to a victim are serious as a
matter of law if reasonable minds could not differ as to their
serious nature.” State v. Hedgepeth, 330 N.C. 38, 54, 409 S.E.2d
309, 19 (1991), cert. denied, 529 U.S. 1006, 146 L.Ed.2d 223
The knife here was never recovered and thus was not
introduced into evidence in the lower court. Rp. 30; Tpp. 38,
40, 73, 112, 168, 172-73. A description of the entire knife,
including the blade, as eight or nine inches long was provided.
Tp. 66. There was also testimony as to the extent of the wounds
inflicted upon Ms. Bridges and Mr. Adams.
After the presentation of evidence, Mr. Jones made a motion
to dismiss both charges of assault with a deadly weapon with
intent to kill inflicting serious injury. Tpp. 175-81. A
specific argument was made that there was insufficient evidence
that the injuries to Mr. Adams were of a serious nature.
Although the Trial Court denied the motion, he noted that the
State’s own evidence showed that Mr. Adams injuries were
“superficial.” Tp. 178. The Trial Court also ruled that the
evidence supported instructing the jury as to the lesser-
included offenses of assault with a deadly weapon inflicting
serious injury, assault with a deadly weapon with intent to
kill, and assault with a deadly weapon with respect to Mr.
Adams. Tpp. 189, 258-61.
With respect to Ms. Bridges, the Trial Court ruled as a
matter of law both that her injuries were serious and that the
knife was a deadly weapon. This was the same expression of
opinion that he had made to the prospective jurors prior to the
presentation of any evidence. With respect to Ms. Bridges, the
only lesser-included offense submitted to the jury was assault
with a deadly weapon inflicting serious injury despite written
and oral defense requests that the jury be instructed to more.
Rp. 32; Tpp. 190, 193, 255-56, 268-69.
While a judge may instruct a jury that injuries to a victim
are serious as a matter of law, that instruction must be based
on the particular facts of the case. Where a knife is to be
considered a deadly weapon per se if the victim has suffered
serious injury, a decision on whether the knife is a deadly
weapon must wait until evidence of the serious injury is
In this case, the Trial Court put the cart before the
horse. Before any evidence had been presented about the knife or
the extent of any injuries, he tainted the jury pool and
declared that the knife was a deadly weapon as matter of law. At
the start of the trial, there was as yet not way to determine
whether this might still be a question of fact for the jury to
decide. That impermissible opinion was reinforced in the jury
charge. The jury was first instructed as to Ms. Bridges and was
again told that the knife was a deadly weapon as a matter of
law. The jury was then instructed as to Mr. Adams. The jury was
now asked to decide if the knife was a deadly weapon as a matter
of fact. Having already been told from the outset by the Trial
Court that the knife was a deadly weapon as am matter of law,
there was no way for the jury to reach any other result.
The Trial Court’s remarks to the jury pool were highly
prejudicial. These remarks were made without objection, but may
nevertheless be raised on appeal:
The statutory prohibitions against expressions of
opinion by the trial court contained in N.C.G.S. 15A-
1222 and N.C.G.S. 15A-1232 are mandatory. A
defendant's failure to object to alleged expressions
of opinion by the trial court in violation of those
statutes does not preclude his raising the issue on
State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989).
This Court may review the question for plain error. N.C. R. App.
P 10(c)(4) (2004). “Plain error is “so fundamental that it
denied the defendant a fair trial and quite probably tilted the
scales against him.” State v. Shipp, 155 N.C. App. 294, 300, 573
S.E.2d 721 (2002) (citations omitted); State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983). Mr. Jones specifically
alleged plain error in assigning error to the remarks made and
the instructions given to the jury. This issue is properly
before this Court.
The impermissible expression of an opinion to the
prospective jurors of the question of fact to be decided by the
jury was prejudicial to Mr. Jones. He was denied his fundamental
right to a fair trial. The burden was shifted away from the
State to prove the element of whether the knife was a deadly
weapon and that Mr. Jones guilty beyond a reasonable doubt. This
impermissibly placed the burden of persuasion on Mr. Jones. Mr.
Jones’ convictions must be vacated.
II. THE TRIAL COURT COMMITTED ERROR IN DENYING THE MOTION TO
SUPPRESS MR. JONES’S STATEMENTS AND IN ADMITTING RELATED
TESTIMONY IN VIOLATION OF MR. JONES’S STATE AND FEDERAL RIGHTS.
ASSIGNMENT OF ERROR Nos. 2-22
Detective Arnold testified that, while Mr. Jones was in
custody and under arrest, he advised Mr. Jones of his Miranda
rights by reviewing a right’s waiver form. Tpp. 144-49, 151-2,
169-70. According to Detective Arnold, Mr. Jones waived his
rights by signing the form and made an oral statement. Tpp. 146,
170-71. Mr. Jones objected to the admission of his statement and
the related testimony of Detective Arnold because the form
cannot be located. Tpp. 146, 153, 163, 169-70, 284. The Trial
Court denied the motion to suppress, ruling that Mr. Jones was
“fully and completely” advised of his rights which he
“voluntarily and understandingly waived.” Tp. 162.
Post-trial, the Trial Court dictated the order denying the
motion to suppress:
The Court finds the testimony of Detective J.P.
Arnold to be true in its entirety.
The Court finds that the defendant was lawfully
taken into custody after being identified by Tonya
Bridges as the assailant who stabbed her numerous
times with a knife on March 13th, 2004.
While in custody, the defendant was interviewed
by Detective J.P. Arnold.
The defendant was read his Miranda rights for a
form identical to Voir Dire Exhibit Number 2.
The defendant was advised that he the right to
remain silent and to make no statements.
He was advised that any statement he made could
and would be used against him in court.
He was advised that he the right to consult with
an attorney before questioning and to have the
attorney present during questioning.
He was advised that if he could not afford a
lawyer, one would be appointed by the court before any
questioning if he wished.
The defendant was advised that if he chose to
answer questions without an attorney present, he had
the right to stop the interrogation at anytime.
After being advised of these rights, the
defendant acknowledged that he fully understood all
these rights and signed the form waiving these rights.
He agreed to answer questions without a lawyer
present and he never asked to consult with an attorney
or to have an attorney appointed to represent him.
The written form which the defendant signed was
accidentally misplaced and cannot be found.
The Court also finds that the defendant was not
so impaired by alcohol or that he was unable to
comprehend his rights or waive his rights.
This interview lasted less than 30 minutes.
The defendant was coherent and sufficiently
clearheaded to make informed decisions.
The defendant’s answers to questions by Detective
Arnold were reasonable, responsive and related to the
The defendant was not threatened or coerced in
All of the defendant’s statements were voluntary
after an informed waiver of his rights. No promises,
rewards or improper inducements were made to the
defendant to obtain his statement.
The defendant never asked for an attorney. The
defendant did eventually ask that the interview stop
and Detective Arnold immediately honored that request
as soon as it was made.
Based on the aforesaid findings of fact, the
Court makes the following conclusions of law:
Conclusions of law.
The defendant was fully advised of all
constitutional and statutory rights, including the
right to silence and the right to counsel.
The defendant freely, knowingly, intelligently
and voluntarily waived each of these constitutional
rights and made voluntary statements for Detective
The defendant’s objection to the admissibility of
this evidence is overruled and the motion to suppress
Tpp. 281-84. This denial of the motion to suppress was
The Fifth and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 19 and 23 of the North
Carolina Constitution, guarantee the right against compulsory
self-incrimination. A confession obtained from any subject
through custodial interrogation is inadmissible unless (1) the
subject is first advised of his constitutional rights to remain
silent and to have legal counsel during questioning, (2) the
subject is afforded an opportunity to exercise these rights, and
(3) the subject nevertheless makes an effective waiver of these
rights. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966).
A waiver of rights is not effective unless it is made “knowingly
and intelligently.” Id. 384 U.S. at 475, 16 L.Ed.2d at 724.
The test of admissibility of a confession made by a
defendant is whether the confession was voluntarily and
understandingly made. State v. Schneider, 306 N.C. 351, 355, 293
S.E.2d 157, 160 (1982). “The determination of whether
defendant's statements are voluntary and admissible ‘is a
question of law and is fully reviewable on appeal.’" State v.
Maniego, 163 N.C. App. 676, 682, 594 S.E.2d 242, 245-46 (2004)
(quoting State v. Greene, 332 N.C. 565, 580, 422 S.E.2d 730, 738
Mr. Jones asserts that admission of his custodial
statements and the related testimony is of a constitutional
magnitude. It is the State’s burden to show that the erroneous
admission of the custodial confession and the related testimony
was harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-
1443(b) (2003). “`Harmless beyond a reasonable doubt' has been
interpreted to mean that `there is no reasonable possibility'
that the erroneous admission of evidence `might have contributed
to the conviction.'" State v. Hooper, 318 N.C. 680, 682, 351
S.E.2d 286, 288 (1987) (quoting State v. Castor, 285 N.C. 286,
292, 204 S.E.2d 848, 853 (1974)). Confessions have a unique and
profound impact on juries. Arizona v. Fulminante, 499 U.S. 279,
296, 113 L.Ed.2d 302, 322 (1991). This Court should therefore
exercise extreme caution before finding harmlessness.
This Court has held that the State is “not required to
produce a signed written waiver of rights in order to make the
confession admissible.” State v. Monroe, 27 N.C. App. 405, 407,
219 S.E.2d 270, 271 (1975). As in the instant case, the
defendant in Monroe made an oral statement and the signed waiver
form was “misplaced.” Id. at 406. There was, however, no ruling
whether the defendant in Monroe was impaired in any way that
might have affected his ability to voluntarily, knowingly and
understandingly waive his Miranda rights.
Ms. Bridges testified that Mr. Jones was “highly
intoxicated” when he was at her apartment. Tp. 114. Officer
Hamel smelled an “an alcohol order about” Mr. Jones. Tp. 46. Mr.
Jones had mood swings during the interrogation; he was agitated
and upset. Tpp. 149-50, 154, 170. The Court ruled that the
evidence supported an instruction on voluntary intoxication.
Tpp. 191-93, 262-63. Because of the evidence of Mr. Jones’
intoxication and agitation, a signed waiver was necessary to
show that the waiver of his Miranda rights was voluntary,
knowing and understanding.
Without the signed waiver form, there was insufficient
evidence to support the findings of fact in the order denying
the motion to suppress. That same lack of supporting evidence
undermines the conclusions of law.
By allowing the jury to hear Mr. Jones’ incriminating
custodial statements, the Trial Court denied him the fundamental
right not to have an involuntary statement used against him.
This error probably led the jury to find Mr. Jones guilty. The
State cannot meet its burden to show that the admission of this
evidence was harmless beyond a reasonable doubt. The rulings by
the Trial Court were in error and prejudicial to Mr. Jones. Mr.
Jones’ convictions must be vacated.
For all the foregoing reasons, Mr. Jones respectfully
contends his convictions for assault with a deadly weapon with
the intent to kill inflicting serious injury and assault with a
deadly weapon must be vacated.
Respectfully submitted this the 29 day of April 2005.
1818 Martin Luther King, Jr. Blvd.
Chapel Hill, North Carolina 27514
N.C. State Bar No. 20860
ATTORNEY FOR DEFENDANT APPELLANT
CERTIFICATE OF FILING AND SERVICE
The undersigned hereby certifies that the original
Defendant Appellant’s Brief has been filed pursuant to Rule 26
by electronic means with the Clerk of the North Carolina Court
The undersigned further certifies that the foregoing
Defendant Appellant’s Brief has been served upon Ms. Tina A.
Krasner, Assistant Attorney General, North Carolina Department
of Justice, Department of Transportation, 1505 Mail Service
Center, Raleigh, North Carolina 27699-1505, by depositing a
copy, contained in a first-class-postage-paid wrapper, into a
depository under the exclusive care and custody of the United
States Postal Service.
This the 29 day of April 2005.
ATTORNEY FOR DEFENDANT APPELLANT
Table of Contents for Appendix
Appendix Pages Appearing in
1-6 Hon. Donald W. Stephens
Jurors of Case
(Tpp. 11-6) 11