Jones David Earl by KuNa0w

VIEWS: 6 PAGES: 34

									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

      ****************************************************
                        ii


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
ARGUMENT

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
APPENDIX:
     Hon. Donald W. Stephens Informing
     Prospective Jurors of Case            App. 1
                        iii


                      CASES

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
                        iv



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


             CONSTITUTIONAL PROVISIONS

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
                                           1


      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

            ****************************************************

                                QUESTIONS PRESENTED

 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?

          A.   Introduction.

          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.

          D.   Conclusion.

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
        RIGHTS?
                                      2


                          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.
                                          3


           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

Superior Court.


                          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.”
                               4


(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)
                                       5


    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.

(Tp. 125)
                                          6


    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
                                                7


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)
                                8


    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.

124, 134-5)

    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
                                            9


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)
                                    10


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

argument below.


                                 ARGUMENT

   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

          A.    Introduction.

    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.
                                       11



    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

(1983).

    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
                               12


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.
                                              13


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

(2000).

       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
                                            14


“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

introduced.

    In     this     case,    the    Trial    Court      put    the    cart    before    the

horse. Before any evidence had been presented about the knife or
                                        15


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.

           D.        Conclusion.

      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
      appeal.

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
                                       16


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
             Rpp. 76-82

      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
                                     17


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.
                           18


     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
questions asked.

     The defendant was not threatened or coerced in
any way.

     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.
                                     19


         The defendant freely, knowingly, intelligently
    and voluntarily waived each of these constitutional
    rights and made voluntary statements for Detective
    J.P. Arnold.

         The defendant’s objection to the admissibility of
    this evidence is overruled and the motion to suppress
    is denied.

Tpp. 281-84.       This denial of the motion to suppress was

prejudicial error.

    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
                                       20


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

(1992)).

      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
                                              21


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
                                   22


the Trial Court were in error and prejudicial to Mr. Jones. Mr.

Jones’ convictions must be vacated.



                             CONCLUSION

    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.
                                  Suite 146
                                  Chapel Hill, North Carolina 27514
                                  N.C. State Bar No. 20860
                                  (919) 593-0782
                                  ABTigerLaw@earthlink.net

                                  ATTORNEY FOR DEFENDANT APPELLANT
                              23


                 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
of Appeals.

     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
                                     brief at

1-6       Hon. Donald W. Stephens
          Informing Prospective
          Jurors of Case
          (Tpp. 11-6)                    11
1
2
3
4
5
6

								
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