Warren_ Herbert Earl

					No. COA07-220                                         DISTRICT 6A

                 NORTH CAROLINA COURT OF APPEALS

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

STATE OF NORTH CAROLINA            )
                                   )
                                   )
    v.                             )    From Halifax County
                                   )
                                   )
HERBERT EARL WARREN JR.            )


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

                    DEFENDANT-APPELLANT=S BRIEF
         ************************************************
                             INDEX

TABLE OF CASES AND AUTHORITIES................................. 1

QUESTION PRESENTED............................................. 2

STATEMENT OF THE CASE.......................................... 3

STATEMENT OF GROUNDS FOR APPELLATE REVIEW.......................4

STATEMENT OF FACTS..............................................4

ARGUMENTS......................................................14

         THE TRIAL COURT ERRED BY DENYING MR. WARREN’S MOTION TO
         DISMISS THE CHARGE OF SECOND-DEGREE KIDNAPPING WHERE
         THERE WAS A FATAL VARIANCE IN THE INDICTMENT AND THE
         PROOF

         THE TRIAL COURT ERRONEOUSLY DENIED MR.
         WARREN’S MOTION TO EXCLUDE THE TESTIMONY OF
         DETECTIVE BAGGETT ABOUT AN INCRIMINATING
         STATEMENT MADE BY DEFENDANT THAT WAS ELICITED
         BY DETECTIVE BAGGETT, WHERE DEFENDANT WAS IN
         CUSTODY BUT NOT MIRANDIZED


CONCLUSION.....................................................31

CERTIFICATE OF SERVICE ........................................32




                               ii
                   TABLE OF CASES AND AUTHORITIES

NORTH CAROLINA CASE LAW

State v. Baldwin, 141 N.C. App. 596, 540 S.E.2d 815 (2000) . . 19

State v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 (2004). . 25

State v. Brewington, 352 N.C. 489, 532 S.E.2d 496 (2000) . . . 25

State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001) . . . . 25

State v. Conrad, 293 N.C. 735, 239 S.E.2d. 260 (1977). . . . . 21

State v. Davis, 340 N.C. 1, 455 S.E.2d 627 (1995). . . . . . . 19

State v. Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980) . 14, 23

State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978). . . . . 16

State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000). . . .29-30

State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983) . . . 14, 24

State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778 (1982). . . . 15

State v. Moore, 315 N.C. 738, 340 S.E.2d 401 (1986). . 15, 19, 21

State v. Moore, 74 N.C. App. 464, 328 S.E.2d 864 (1986). . . . 18

State v. Pollack, 22 N.C. App. 214, 206 S.E.2d 382 (1974). . . 2p

State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). .   14, 23-24

State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981) . . . . . 15


FEDERAL CASE LAW

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966). . .29-30

Rhode Island v. Innis, 446 U.S. 291, 64 L.Ed.2d 297 (1980) .29-31


NORTH CAROLINA STATUTES

N.C. Gen. Stat. 14-39 (2005). . . . . . . . . . . . . . . . . .15


                                1
No. COA07-220                                             DISTRICT 6A

                  NORTH CAROLINA COURT OF APPEALS

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

STATE OF NORTH CAROLINA                 )
                                        )
                                        )
    vi.                                 )   From Halifax County
                                        )
                                        )
HERBERT EARL WARREN JR.                 )


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

                     DEFENDANT-APPELLANT=S BRIEF
          ************************************************


                          QUESTIONS PRESENTED


    DID THE TRIAL COURT ERR BY DENYING MR. WARREN’S MOTION TO
    DISMISS THE CHARGE OF SECOND-DEGREE KIDNAPPING WHERE THERE
    WAS A FATAL VARIANCE IN THE INDICTMENT AND THE PROOF?


    DID THE TRIAL COURT ERRONEOUSLY DENY MR. WARREN’S MOTION TO
    EXCLUDE THE TESTIMONY OF DETECTIVE BAGGETT ABOUT AN
    INCRIMINATING STATEMENT MADE BY DEFENDANT THAT WAS ELICITED
    BY DETECTIVE BAGGETT, WHERE DEFENDANT WAS IN CUSTODY BUT NOT
    MIRANDIZED?




                                  2
                         STATEMENT OF THE CASE


     This case came on before the Honorable Alma L. Hinton, Judge

Presiding, at the November 2, 2006 Criminal Session of Halifax

County Superior Court.    Defendant was indicted for assault by

pointing a gun and second-degree kidnapping.       A jury was duly

impaneled and on November 3, 2006, found defendant guilty of both

charges.    Judge Hinton sentenced defendant to between 34 and 50

months in the North Carolina Department of Corrections. Defendant

gave notice of appeal in open court on November 6, 2006 and the

Appellate Defender‟s Office was appointed to perfect Defendant‟s

appeal.    On November 13, 2006, the Appellate Defender appointed

undersigned counsel to perfect Defendant‟s appeal.       The court

reporter delivered the transcript to undersigned counsel on

November 28, 2006.    Undersigned counsel received one extension of

time from the trial court in which to send the proposed record on

appeal to opposing counsel, giving her until February 1st, 2007,

to do so.   The Record on Appeal was filed and docketed on

February 20, 2007.    The printed record on appeal was mailed to

undersigned counsel on February 27, 2007.        Undersigned counsel

received one extension of time in this Court in which to serve

defendant‟s brief in this case, giving her until April 30, 2007,

to do so.




                                  3
            STATEMENT OF GROUNDS FOR APPELLATE REVIEW

    Defendant hereby appeals his criminal convictions pursuant

to N.C.G.S. sec. 7A-27(b) and the North Carolina Rules of

Appellate Procedure.



                        STATEMENT OF THE FACTS

    The evidence against defendant, (hereinafter “Mr. Warren”),

came mostly from the testimony of Ms. Etta Sherree Glover,

(hereinafter “Ms. Glover”).     She testified that Mr. Warren is her

ex-boyfriend and that they began dating in October of 2004 until

March of 2006.     She testified that they lived together during

part of that time, that defendant came to live with her after she

moved into her grandmother‟s house at 210 Monroe Street in

September of 2005.     In March of 2006, her grandmother‟s house was

going to be sold and everyone moved out.     Ms. Glover and Mr.

Warren the moved into 219 Monroe Street and lived there along

with friends Yvette Jackson, also known as “Giggles,” and Kyle

Green.   Ms. Glover still had her belongings at 210 Monroe Street

and still had a key she used to get them when she needed them.

(Tr. pp. 14-19)

    Ms. Glover testified that she and Mr. Warren had an abusive

relationship.     One evening on either the 25th or 26th of March of

2006, the two had a verbal argument at their home, in front of

their housemates.     Mr. Warren left the home and went to a club

                                  4
with a friend of his.    Ms. Glover was upset with Mr. Warren

because it was Giggle‟s birthday and they had all planned to do

something together because of the special occasion, and at the

last minute Mr. Warren had chosen to leave and go do something

else.    (Tr. p. 29)

    After Mr. Warren left, Ms. Glover left with Giggles and

another female friend and went to a club in Virginia.    They

stayed there until 1:00 or 1:30 in the morning and then went to a

club in Rocky Mount, Nash County North Carolina that stays open

until 6:00 in the morning.    Ms. Glover spoke with Mr. Warren on

the telephone once before leaving to go to Virginia.    When she

and her friends arrived at the club in Rocky Mount, Ms. Glover

testified that Mr. Warren was in the parking lot of the club and

was upset, believing that someone had taken his money.    She

testified that Mr. Warren had a silver handgun on him.    Ms.

Glover testified that Mr. Warren had only had the gun a few days

and that he kept it in his pocket or the waistband of his pants.

 It was the only gun he had during their relationship.    (Tr. pp.

19-26)

        Once at the club in Rocky Mount, Giggles wanted to leave.

Ms. Glover did not want to, she testified, because she did not

want to leave Mr. Warren up there.     Giggles and Kyle and another

friend all left and Ms. Glover stayed.    Ms. Glover testified that

she was hoping she could calm Mr. Warren down.    She testified


                                 5
that she talked to him and was able to calm him down somewhat.

She offered to help him find the money, and they went back into

the club and looked for it but could not find it. (Tr. pp. 26-29)

    Eventually Ms. Glover and Mr. Warren started arguing again

about the earlier argument and Mr. Warren‟s decision to not

accompany Ms. Glover and her friends.    Ms. Glover testified that

Mr. Warren called her vulgar names in the club.     She told him she

was going to leave and saw a friend that she could get a ride

with back home.    She testified that Mr. Warren did not care that

she was leaving.    About five minutes later, Ms. Glover testified,

she was about to get into the car with her friends when Mr.

Warren came up and pointed the gun at her side.     She testified

that Mr. Warren told her she wasn‟t going anywhere with them,

that she was leaving with him.    (Tr. pp. 29-31)

    Ms. Glover testified that the gun was in her left side and

was visible to everyone who was outside in the parking lot.       Ms.

Glover testified that she got into the car with Mr. Warren

because she was scared.    One male was driving and another guy

from Virginia was in the passenger‟s seat.    She and Mr. Warren

were in the back seat alone.     According to Ms. Glover‟s

testimony, the only thing said was that they were going to a

motel room.   Ms. Glover testified that defendant was just sitting

there with the gun on his lap.    They arrived at the Sunshine




                                  6
Motel in Rocky Mount, after about a two-minute drive.     (Tr. pp.

31-33)

        When they arrived at the motel, Ms. Glover saw people she

knew.    She walked from the car to the room with Mr. Warren, who

had put the gun away.    When they got to the room, she asked Mr.

Warren why he was acting like that.     She testified that at

moments Mr. Warren was quiet, and then he would start yelling and

screaming and waving the gun around, threatening her, her family

and her kids.     Ms. Glover testified that she was sitting on the

bed and that several people were in the room when this happened.

(Tr. pp. 34-36)     Ms. Glover also testified that defendant also

hit her on her leg and arm in front of the other people in the

motel room.    (Tr. pp. 39-40)

     Ms. Glover testified that eventually Mr. Warren fell asleep,

but that she did not sleep at all.      She testified that she tried

to get up off the bed where they were, but that defendant grabbed

her leg and told her that she needed to stay right there.

Checkout time at the motel was 11:00 am.     Ms. Glover testified

that on the way they got a ride and that on the way home she sat

in Mr. Warren‟s lap in the car.     They were both dropped off at

219 Monroe Street.     She heard Mr. Warren say he couldn‟t find his

cell phone and started screaming at Ms. Glover about it.        She ran

into the backyard at 219 Monroe Street to get away from him.       Ms.

Glover testified that Mr. Warren ran after her, put the gun to


                                  7
her head and told her “I can kill you right now.”       She said that

Mr. Warren smacked her with his hand on the back of her head and

she went to the ground.    Then he pulled her up off the ground and

told her to come inside, and was pushing her toward the house.

(Tr. pp. 40-44)

    Ms. Glover testified that she begged Mr. Warren to let her

leave, while they were outside.        She testified that when

defendant was pushing and pulling her by the arm, she could

probably have gotten away from him but she was scared to because

he had a gun.     (Tr. pp. 45-47)     Once inside the house, Mr. Warren

let her go and she was able to move about freely.        (Tr. p. 48)

Inside the house, Giggles was upset and asking everyone to leave.

 Ms. Glover gathered her things together, going upstairs and back

downstairs twice and put her things by the door.        She testified

that Mr. Warren told her, “I don‟t know where you think you are

going; you are not leaving.”        Ms. Glover told Mr. Warren in

response, “didn‟t you hear what Giggles said?       Everybody has got

to leave.” (Tr. p. 49)     Giggles told Ms. Glover she was about to

leave and Ms. Glover asked if she could go with Giggles.         (Tr.

pp. 45-49)   According to Ms. Glover, Mr. Warren told her she

could not go.     She doesn‟t recall if he had the gun with him at

this point or not.    (Tr. p. 50)

    At this point, Ms. Glover called her mother and asked to

speak with her father, Chester Proctor.       She told him to come and


                                     8
pick her up right away, that it was an emergency, that Mr. Warren

had a gun.   Ms. Glover testified that she did not call the police

because she was scared.    (Tr. pp. 51-53)    She told Mr. Warren

that her dad was coming to pick her up.      Ms. Glover testified

that Mr. Warren calmed down a bit after hearing that but did tell

her she wasn‟t leaving with her father.      Ms. Glover testified

that she told Mr. Warren, “[w]ell, I made him come all this way.

 At least let him go ahead and take my stuff to their house,

since we have to leave Giggles‟ house.”      And Mr. Warren told her,

“[t]hat‟s fine.”   She testified that she told Mr. Warren that she

would stay and talk to him, but that in reality that was not her

plan, she planned to get into the van and leave.      (Tr. p. 54)

    While she waited for her dad to arrive, she and Mr. Warren

talked.   She asked him why he was doing this, if he loved her,

why would he threaten to hurt her and her family.     Ms. Glover

testified that she was not sure if Mr. Warren had the gun in his

hand or not at that point.    (Tr. pp. 55-56)

    When her father arrived, Ms. Glover brought her things the

van, making two trips to do so.     On the first trip, she told her

father that, “when I bring this next box, I am jumping in, and

just pull off.”    When she went back inside the house and got the

box, she walked the box back out to the van.     “I got in and

closed the door, and he pulled off.”    (Tr. p. 57)




                                  9
    When Ms. Glover arrived at her parents‟ house, Mr. Warren

had already begun calling her.      He was calling every ten minutes

and cussing at Ms. Glover.       She allowed Mr. Warren to come to her

mother‟s home in order to get his medication.      Ms. Glover walked

outside and handed it to Mr. Warren and then went back inside

without any conversation.      (Tr. pp. 57-60)   Ms. Glover has talked

to Mr. Warren about what happened that day and Mr. Warren said he

was sorry.    (Tr. pp. 61-62).

    At one point, Ms. Glover testified, after Mr. Warren got out

of jail, Ms. Glover was seeing him again, but told him she could

not be with him, that the feelings weren‟t there and she asked

him to leave her alone.      (Tr. p. 62)   Ms. Glover did not call law

enforcement after reaching her parents‟ home.      She testified that

this was because she was scared Mr. Warren would come and harm

her family.    (Tr. p. 66)

    On Monday morning following the weekend in question, Ms.

Glover‟s mother called Ms. Glover at 7:00 and said that Mr.

Warren had burned down her grandmother‟s house at 210 Monroe

Street.   Ms. Glover did not see this, and Mr. Warren did not tell

her he had done this.    At this point, Ms. Glover came back to her

parents‟ house and contacted Detective Baggett and told him what

she knew.    (Tr. pp. 67)    Her statement, State‟s Exhibit One, is

found in the record on pages 29-34.




                                   10
     On cross-examination, Ms. Glover admitted that she had had

sex with Mr. Warren a few times after he got out of jail.      (Tr.

pp. 71, 122)   She also testified that the medication she gave

defendant was not prescribed for him.    (Tr. p. 109)

     Darlene Twisdale, Ms. Glover‟s mother, corroborated Ms.

Glover‟s testimony about getting a phone call from Ms. Glover on

March 27, 2006 and about Mr. Warren‟s repeated telephone calls on

that day.   Ms. Twisdale also testified that after finding out

about the house burning, she called Ms. Glover and together they

went to the police station and spoke with Detective Baggett.

(Tr. pp. 126-133)

     Chester Proctor, Ms. Glover‟s father, corroborated Ms.

Glover‟s testimony about coming to pick her up from 219 Monroe

Street.   He also testified that when he saw Mr. Warren that day,

he asked him “what‟s up?” and Mr. Warren told him he was “playing

games.”   Mr. Proctor testified that Mr. Warren pulled out his

pistol, shoved it back into his pocket and twiddled it in his

pocket.   Mr. Proctor thought the gun was a .380 or a 9mm caliber

weapon.   He also corroborated Ms. Glover‟s testimony about Mr.

Warren calling the house repeatedly.    (Tr. pp. 146-50)

     Detective Baggett testified that he interviewed Ms. Glover

at 10:30 a.m. on March 27th, 2006.    He went out to serve a

warrant on Mr. Warren at around 4pm that day.    The officers

arrested him and transported him to the police station.


                               11
Detective Baggett testified that Mr. Warren was irate and

agitated, uncooperative and cursing, so they did not interview

him.    (Tr. pp. 162-65)   Detective Baggett testified that at one

point while Mr. Warren was in custody, he “went on a tangent,”

stating that the charges were “bullshit” and that Ms. Glover was

“trumping shit up.”    Detective Baggett testified that he

responded to Mr. Warren, saying, “[w]ell, you need to stop

setting fire to her house and her shed.”    Detective Baggett

testified that Mr. Warren said.    “I didn‟t set fire to no house

or shed.    The shed ain‟t burned up anyway.    The fire kept going

out.”    After a brief pause, Detective Baggett testified, Mr.

Warren then said, “[i]t must have been a crackhead smoking in

there and set the paper on fire.     They sold the shed anyway.”

(Tr. pp. 167-68)

       Detective Baggett testified that Ms. Glover also told him

about the events that occurred in Nash County.      He told her that

it would be a separate kidnapping offense that occurred there,

but he never contacted Rocky Mount police or anyone to have Mr.

Warren charged there and he did not follow up with anyone from

law enforcement in Nash County about it.       (Tr. p. 174)

       Detective Baggett also testified that he originally charged

Mr. Warren with the burning of the shed at 210 Monroe Street, as

well as the burning of the house, but that those charges were




                                 12
dismissed.   (Tr. p. 175)   This concluded the evidence presented

by the State.

    LaPage Foster testified on behalf of Mr. Warren, that she

was 25 years old and that she knew Mr. Warren from school,

Halifax Community College and that she knew and Ms. Glover

through knowing Mr. Warren.    She testified that she was present

at the clubs and the hotel on the evening in question and that

she had not heard any of the previous testimony about that night.

 She testified that she saw nothing out of the ordinary with Mr.

Warren and Ms. Glover and did not see any weapons.       She further

testified that Mr. Warren and Ms. Glover fussed and argued the

whole time at the club.     She testified that they always fuss and

that everyone knew that.    Ms. Foster did not witness anything

physical between them at the club or the hotel.        Ms. Foster saw

the gun when Mr. Warren took it from Ms. Glover, who had been

swinging it on her finger.    (Tr. pp. 179-86)      After Mr. Warren

took the gun from Ms. Glover, he gave it to a guy.       (Tr. p. 188)

     Ms. Foster further testified that Ms. Glover hit a female

college student because she thought Mr. Warren was having sex

with her and was upset.     (Tr. p. 188)     This female was sitting

outside in a car with Mr. Warren and was totally drunk.

According to Ms. Foster, Ms. Glover picked the girl‟s head up by

her hair and hit her.   (Tr. p. 208)       Ms. Foster stayed in the

room and slept until check-out time at 11:00 a.m.        She did not


                                 13
see Mr. Warren threaten or hit Ms. Glover that night. (Tr. p.

191)

                                 ARGUMENT

       I.   THE TRIAL COURT ERRED BY DENYING MR. WARREN’S MOTION TO
            DISMISS THE CHARGE OF SECOND-DEGREE KIDNAPPING WHERE
            THERE WAS A FATAL VARIANCE IN THE INDICTMENT AND THE
            PROOF.

       (Assignments of Error Nos. 2 and 3; Tr. pp. 178; 211-22)

       A.   Standard of Review

       Upon a defendant‟s motion to dismiss, the question before

the court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant‟s being the perpetrator of

such offense.     State v. Powell, 299 N.C. 95, 261 S.E.2d 114

(1980).     The evidence must be considered in the light most

favorable to the State, and the State is entitled to every

reasonable inference of fact arising from the evidence.      State v.

Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980).      Evidence is not

substantial if it arouses only a suspicion about the fact to be

proved, even if the suspicion is strong.      State v. Malloy, 309

N.C. 176, 305 S.E.2d 718 (1983).      If the evidence is sufficient

only to raise a suspicion or conjecture as to either the

commission of the offense or the identity of the defendant as the

perpetrator of it, the defendant‟s motion to dismiss must be

allowed.    Powell, 299 N.C. 95, 261 S.E.2d 114.



                                   14
     B. The State presented insufficient evidence that Ms. Glover
     was confined.

     Mr. Warren was indicted for the second-degree kidnapping of

Ms. Glover.   The indictment specifically states that in

perpetrating the kidnapping, Mr. Warren unlawfully confined Ms.

Glover for the purpose of terrorizing her. (Rp. 22) (emphasis

added) Kidnapping, as defined by N.C.G.S. sec. 14-39(a) is the

confinement, restraint or removal of a person against his will

for a felonious purpose.

      The elements required for a conviction of first-degree

kidnapping relevant in the present case are: (1) the unlawful

confinement (2) of any person over 16 years of age; (3) for the

purpose of terrorizing that person; N.C. Gen. Stat. 14-39 (2005).

State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778 (1982)

     The State is restricted at trial to proving the purposes

alleged in the indictment,   State v. Moore, 315 N.C. 738, 340

S.E.2d 401 (1986), and a jury may only convict on a theory of the

purpose alleged.   State v. Taylor, 304 N.C. 249, 283 S.E.2d 761

(1981), cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398, rehearing

denied, 463 U.S. 1249, 77 L. Ed. 2d 1456 (1983) Evidence revealed

at Mr. Warren‟s trial of the events that took place in Halifax

County, was insufficient to show that Ms. Glover was confined.




                               15
    Confinement has been defined as “some form of imprisonment

within a given area, such as a room, a house or a vehicle.”

State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978).

    Ms. Glover could not have been “confined,” within the

meaning of the statute and interpreting caselaw, while she and

Mr. Warren were outside of 219 Monroe St.      Once the two were in

the house, Ms. Glover‟s own testimony reveals that she was free

to both move about and to leave.     She testified as follows:

“Once we got inside the house, he let me go, he let my arm go.         I

was able to move about freely.”     (Tr. p. 48)   “When we got into

the house, Giggles was there.   She was in the house cleaning up.

She had got upset about some stuff missing, and she said the

people that were staying there were all going to have to leave.

I went ahead and started getting my stuff together, the

belongings that I did have there.      It was just a small box and a

clothes basket.   I got my stuff together and put them on the

couch by the door.” (Tr. p. 46)

    Ms. Glover further testified that she went upstairs in the

house to retrieve her belongings, while Mr. Warren stayed

downstairs, (Tr. pp. 48-49), that she took two trips to bring her

things downstairs, and that while she was doing so, Mr. Warren

was “fiddling with the gun.”    Mr. Warren told her at this point,

“I don‟t know where you think you are going; you are not

leaving.”   And Ms. Glover responded to him, saying, “Didn‟t you


                                16
hear what Giggles said?    Everybody has got to leave.”   Mr. Warren

did not say anything in response to this, according to Ms.

Glover, and she, “went back upstairs and got the box of stuff

that I had, and I brought that down.    (Tr. pp. 49-50)

       After she brought the box down, Ms. Glover testified that

she went into the bedroom and asked Giggles if she could leave

with her, and Mr. Warren walked into the bedroom and told her

“[y]ou are not leaving; you can‟t go.”     Ms. Glover testified that

did not remember if Mr. Warren had the gun at this time or not.

(Tr. p. 50)    Mr. Warren sat down on a futon in the bedroom, and

Ms. Glover grabbed a cordless phone, went into the bathroom and

called her mother.    (Tr. p. 51)   After she called her mother, Ms.

Glover told Mr. Warren that her father was on the way to pick her

up.    Mr. Warren told her she was not going to leave, and he “just

kind of had [the gun] in his hands.     All of this time, Ms. Glover

testified that she did not call the police.    (Tr. pp. 52-54)

       Ms. Glover testified further that while she waited for her

father to arrive, she did not know if defendant had the gun or

not.    (Tr. pp. 55-56)   When her father arrived, Ms. Glover

testified, she brought her things the van, making two trips to do

so.    On the first trip, she told her father that, “when I bring

this next box, I am jumping in, and just pull off.”    When she

went back inside the house and got the box, she walked the box




                                 17
back out to the van.    “I got in and closed the door, and he

pulled off.”    (Tr. p. 57)

    Ms. Glover testified that while in the house she was free to

move about.    She went upstairs, while defendant stayed

downstairs, in order to pack her belongings.      She came

downstairs.    She went back upstairs to pack more belongings and

she took them downstairs to the door of the house.      She walked

outside to her father‟s van; she walked back inside to get more

of her things and walked back to the van whereupon she got into

the van, all on her own volition.       Mr. Warren did nothing to stop

her from walking around the house or out of the house.        Once

inside the house, Ms. Glover was able to move about freely.

There was no confinement.     Since the evidence presented by the

State was insufficient to show confinement, the only aspect of

second-degree kidnapping for which Mr. Warren was indicted, the

charge of second-degree kidnapping should have been dismissed by

the trial court.

    C.   The State did not produce substantial evidence that Ms.
         Glover was terrorized by Mr. Warren or that he intended
         to terrorize her.

    There was also insufficient evidence presented to show that

Mr. Warren intended to terrorize Ms. Glover, as is required to

sustain a conviction of kidnapping for this purpose.         State v.

Moore, 74 N.C. App. 464, 328 S.E.2d 864, modified on other

grounds, 315 N.C. 738, 340 S.E.2d 401 (1986) (in order to be


                                 18
guilty of kidnapping, the defendant must have formed the intent

to do one of the six purposes at the time he confined, restrained

or removed the victim).   Taking the evidence in the light most

favorable to the State, Mr. Warren intended for Ms. Glover to

“not leave,” as she testified repeatedly that Mr. Warren told her

she “was not going anywhere,” and “I don‟t know where you think

you are going, you are not leaving.”   (Tr. p. 44).   This does not

rise to the level of “terrorizing,” as seen by North Carolina

jurisprudence.

    "Terrorizing is defined as more than just putting another in

fear. It means putting that person in some high degree of fear, a

state of intense fright or apprehension.'" State v. Davis, 340

N.C. 1, 24, 455 S.E.2d 627, 639 (1995) (quoting State v. Moore,

315 N.C. 738, 745, 340 S.E.2d 401, 405 (1986) "In determining the

sufficiency of the evidence, `the test is not whether

subjectively the victim was in fact terrorized, but whether the

evidence supports a finding that the defendant's purpose was to

terrorize' the victim." Davis, 340 N.C. at 24, 455 S.E.2d at 639,

(quoting Moore, 315 N.C. at 745, 340 S.E.2d at 405.     "[T]he

victim's subjective feelings of fear [during the incident], while

not determinative of the defendant's intent to terrorize, are

relevant." State v. Baldwin, 141 N.C. App. 596, 604, 540 S.E.2d

815, 821 (2000)




                               19
      "The presence or absence of the defendant's intent or

purpose to terrorize [the victim] may be inferred by the

factfinder from the circumstances surrounding the events

constituting the alleged crime." Id. at 605, 540 S.E.2d at 821.

      Ms. Glover testified that she and Mr. Warren had an abusive

relationship.   (Tr. p. 4)   While together at the club in Rocky

Mount, they both began arguing again about their earlier argument

at 219 Monroe Street.   (Tr. p. 29)     In the car on the way home

after spending the night in the motel room, Ms. Glover sat on Mr.

Warren‟s lap.   (Tr. p. 42).    For a time, Ms. Glover resumed a

romantic and sexual relationship with Mr. Warren after he was

released from jail.   (Tr. pp. 62, 71, 122)

      Ms. Glover also testified that at times in the house Mr.

Warren was not holding the gun; at times it was in his lap and

that at other time she could not recall if he had it or not.       Ms.

Glover testified, “[w]hen I got inside, I went straight to the

room that I had been staying in.    I gathered my belongings.    Then

I called my mother to see if my stepdad could come and pick me

up.   I don‟t think [Mr. Warren] knew I was leaving until I

brought my stuff downstairs.”    This obviously means that Ms.

Glover knew she was leaving while she was upstairs, and that she

knew there would be no impediment to her leaving.

      Finally, there is no evidence of terrorizing where Mr.

Warren and Ms. Glover were arguing and fussing back and forth, as


                                 20
Ms. Glover and Ms. Foster both testified.   There is no high

degree of fear or state of intense fright or apprehension in a

situation like this.



    D.   The trial court erred by denying Mr. Warren’s motion to
         dismiss the kidnapping charge.


    This is not a case like State v. Moore, 315 N.C. 738, 340

S.E.2d 401 (1986), (instructing the jury that the purpose of the

kidnapping was to terrorize the victims in that case was proper)

where the evidence showed that the defendant held the victim at

gunpoint for three hours after inflicting a serious head injury

upon her, during which time he threatened to shoot himself in her

presence and in the presence of her three-year-old son, tried to

get her to shoot him, and made threats against her life.

    This case is more similar to State v. Conrad, 293 N.C. 735,

239 S.E.2d. 260 (1977). In that case, the 17-year old prosecuting

witness, Mildred, while staying at a motel, accepted defendant‟s

solicitation to pimp for her in prostitution “for the weekend.”

Despite finding conflicting evidence on the issue of whether was

actually confined by the defendant for the purpose of terrorizing

her, our Supreme Court found that, “the unconflicting testimony

of the prosecuting witness here completely belies any assertion

that she was in fact confined against her will for the purpose of

terrorizing her.”   Id. at 739.


                                  21
    The pertinent portions of the evidence found by the Court to

support its reversal of the Court of Appeals‟ decision finding no

error at defendant‟s trial were as follows:   (1)   There was no

display of force to cause Mildred to remain with the defendant;

(2) The only physical contact between the prosecuting witness and

the defendant was when he attempted to seduce her and, upon her

refusal, immediately desisted; (3) Mildred was allowed to go

shopping with other girls in defendant‟s employ, unaccompanied by

defendant; (4) Mildred at all times had money in her possession

which could have been used to escape; (5) Mildred went horseback

riding with one of the girls at a location nearly an hour‟s drive

away from the motel; (6) Mildred went to a poker game

approximately one hours‟ drive from the motel with one of

defendant‟s friends, where she made $86 in tip money and later

spent the night at the friend‟s house because he was unable to

drive; and (7) The prosecuting witness was experienced in worldly

affairs far beyond her years.   Id.

    In reversing the Court of Appeals decision affirming the

denial of defendant‟s motion for nonsuit at trial, the Supreme

Court stated:

    Mildred appears to have been permitted to roam in an
    unfenced pasture, with little or no confinement or
    restraint. Although we find the alleged actions of the
    defendant abhorrent, it is our conclusion that they
    present insufficient evidence to submit a kidnapping
    charge to the jury. Id.



                                22
    The jury was instructed that it could find defendant guilty

or not guilty of second-degree kidnapping and guilty of not

guilty of assault by pointing a gun.   The lesser included charge

of false imprisonment was not included in the charge to the jury.

At most this was a false imprisonment case, as there was no

evidence that Mr. Warren removed or restrained or confined Ms.

Glover for any of the enumerated purposes required by sec. 14-39,

including terrorizing her.

    The evidence was woefully insufficient to show that Mr.

Warren confined Ms. Glover and to show that Mr. Warren intended

to terrorize Ms. Glover.   In order to submit this case to the

jury, the trial court had to find that the evidence of both of

these elements was substantial.   It simply was not.

    Upon a defendant‟s motion to dismiss, the question before

the court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant‟s being the perpetrator of

such offense.   State v. Powell, 299 N.C. 95, 261 S.E.2d 114

(1980).   The evidence must be considered in the light most

favorable to the State, and the State is entitled to every

reasonable inference of fact arising from the evidence.   State v.

Easterling, 300 N.C. 594, 268 S.E.2d 800 (1980).   Evidence is not

substantial if it arouses only a suspicion about the fact to be


                               23
proved, even if the suspicion is strong.    State v. Malloy, 309

N.C. 176, 305 S.E.2d 718 (1983).    If the evidence is sufficient

only to raise a suspicion or conjecture as to either the

commission of the offense or the identity of the defendant as the

perpetrator of it, the defendant‟s motion to dismiss must be

allowed.   Powell, 299 N.C. 95, 261 S.E.2d 114.

    In the instant case, there was insufficient evidence that

Mr. Warren confined Ms. Glover within the house at 219 Monroe

Street.    There was plenary evidence presented by the State that,

despite testifying that Mr. Warren sometimes held a gun while in

the house and sometimes did not, Ms. Glover still felt free to

move about the house, moved about the house freely, took her

belongings out of the house and put them into her father‟s van,

all without any impediment by Mr. Warren.

    There was also insufficient evidence that Mr. Warren

terrorized Ms. Glover.   There was plenary evidence that the two

argued with each other the entire night previous and were arguing

in the house on the day the alleged kidnapping took place.

Because the evidence was insufficient to support the charges in

the indictment, and because the State is bound by the wording of

the indictment, the trial court‟s denial of Mr. Warren‟s motion

to dismiss the charge of second-degree kidnapping was erroneous.

    Taking the evidence in the light most favorable to the

State, it is clear that the evidence was insubstantial to warrant


                                24
submission of this charge of kidnapping by confinement for the

purpose of terrorizing to the jury.   The trial court erroneously

denied Mr. Warren‟s motion to dismiss the charge of the second-

degree kidnapping of Ms. Glover.   The conviction should be

vacated by this Court.



    II.   THE TRIAL COURT ERRONEOUSLY DENIED MR.
          WARREN’S MOTION TO EXCLUDE THE TESTIMONY OF
          DETECTIVE BAGGETT ABOUT AN INCRIMINATING
          STATEMENT MADE BY DEFENDANT THAT WAS ELICITED
          BY DETECTIVE BAGGETT, WHERE DEFENDANT WAS IN
          CUSTODY BUT NOT MIRANDIZED.

          (Assignment of Error No. 1; Tr. pp. 164-70)

    A. Standard of Review

    “[T]he standard of review in evaluating a trial court‟s

ruling on a motion to suppress is that the trial court‟s findings

of fact „are conclusive on appeal if supported by competent

evidence, even if the evidence is conflicting.‟” State v.

Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting

State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501

(2000) (citations omitted).   However, the trial court‟s

conclusions of law are subject to de novo review and must be

legally correct as well as supported by the findings of fact.

State v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 (2004)




                               25
    B.     Introduction

    Detective Baggett testified that arrested Mr. Warren and

took him downtown without reading him his Miranda rights.        He

also testified that he determined that an interview with Mr.

Warren would be unproductive because Mr. Warren was irate and

agitated.    He testified that Mr. Warren was uncooperative, that

he was cursing and that he was “very angry with us, very angry

with Ms. Glover.”    (Tr. pp. 164-65)

    Detective Baggett then began to testify that Mr. Warren made

a statement about burning a shed.       Counsel for Mr. Warren

objected and a hearing was conducted outside the presence of the

jury.    During voir dire testimony, Detective Baggett testified

that at one point while Mr. Warren was in custody, he “went on a

tangent,” stating that the charges were “bullshit” and that Ms.

Glover was “trumping shit up.”    Detective Baggett testified that

he responded to Mr. Warren, saying, “[w]ell, you need to stop

setting fire to her house and her shed.”      Detective Baggett

testified that Mr. Warren said.    “I didn‟t set fire to no house

or shed.    The shed ain‟t burned up anyway.    The fire kept going

out.”   After a brief pause, Detective Baggett testified, Mr.

Warren then said, “[i]t must have been a crackhead smoking in

there and set the paper on fire.    They sold the shed anyway.”

(Tr. pp. 167-68)




                                 26
    Detective Baggett further testified that Mr. Warren had not

waived any type of rights or agreed to give law enforcement a

voluntary statement.   He testified that prior to his making the

comment to Mr. Warren about stopping burning things, Mr. Warren

had made no statements or admissions about any kind of burning.

(Tr. p. 168)   When asked why he said what he said to Mr. Warren,

Detective Baggett stated, “[b]ecause I was getting tired of

listening to his statements.”   When asked if he knew he might

elicit a response by saying it, Detective Baggett testified that,

“I wasn‟t really looking for a response.”   Detective Baggett

admitted that the statement Mr. Warren made, in response to

Detective Baggett‟s comment could be considered incriminating.

(Tr. p. 169)

    The trial court overruled Mr. Warren‟s objection to his

statement coming into evidence, and Detective Baggett testified

that Mr. Warren “continued to say that this is bullshit and that

she was trumping shit up.”   At one point I said, “Well, you need

to stop setting fire to her house and shed.”   Detective Baggett

testified exactly as he did on voir dire as to what Mr. Warren

stated.   (Tr. pp. 171-72)   Detective Baggett testified that the

victim in the shed burning case was Ms. Glover‟s grandmother.

(Tr. p. 173)   He also testified that the charges of burning

against Mr. Warren had been dismissed.   (TR. p. 175)




                                27
    C. Detective Baggett knew or should have known his comment
    was reasonably likely to elicit an incriminating statement
    from Mr. Warren.


      The seminal case Miranda v. Arizona, 384 U.S. 436, 16

L.Ed.2d 694 (1966) established standards for law enforcement

officers engaged in arresting individuals and placing them in

custody where they are not free to leave, who desire to elicit

information that might be incriminating to such individuals.

These standards were implemented to protect custodial detainees

from making statements against their penal interest.

    In the Miranda decision, the United States Supreme Court

defined a custodial interrogation as one “initiated by law

enforcement after a person has been taken into custody or

otherwise deprived of his freedom o faction.”   See, State v.

Pollack, 22 N.C. App. 214, 206 S.E.2d 382 (1974)

    When examining the circumstances surrounding an alleged

custodial interrogation, courts focus on the suspect‟s

perceptions rather than the intent of law enforcement officers.

State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000)

(citing Rhode Island v. Innis, 446 U.S. 291, 301, 64 L.Ed.2d 297,

308 (1980)(cert. denied, 532 U.S. 931, 149 L.Ed.2d 305.     As our

Supreme Court found in Golphin, “[t]he term „interrogation‟ is

not limited to express questioning by law enforcement officers,

but also includes „any words or actions on the part of the police

. . . that the police should know are reasonably likely to elicit

                              28
an incriminating response from the suspect.‟”    Golphin, 352 N.C.

at 406, 533 S.E.2d at 199 (quoting Innis, 446 U.S. at 301, 64

L.Ed.2d at 308).     Our Supreme Court determined, following Innis,

that, “the definition of interrogation can extend only to words

or actions on the part of the police officers that they should

have known were reasonably likely to elicit an incriminating

response.”   Golphin, 352 N.C. at 406, 533 S.E.2d at 199 (quoting

Innis, 446 U.S. at 301-02, 64 L.Ed.2d at 308))(emphasis in

original)

      Detective Baggett‟s statement to Mr. Warren that “you need

to stop setting her house and shed on fire,” falls squarely

within that type of comments by law enforcement officers that

they reasonably should have known was likely to elicit an

incriminating response.    There could be no better example of

exactly what our Supreme Court was talking about in Golphin than

this.   It is a classic example.

      The United States Supreme Court concluded in Innis, that

interrogation, “as conceptualized in the Miranda opinion, must

reflect a measure of compulsion above and beyond that inherent in

custody itself[.]”    Innis, 466 U.S. at 300-03, 64 L.Ed.2d at 307-

08.   Nothing else this officer could have said could have more

easily compelled Mr. Warren to make the incriminating statement

he did.   Telling defendant he needed to stop setting fire to Ms.




                                 29
Glover‟s house and shed are changed the atmosphere from one of

mere custody to one of custodial interrogation.



    C. Since Mr. Warren had not been Mirandized or otherwise
    waived any rights before Detective Baggett elicited the
    statement, it should have been excluded from evidence.


    Mr. Warren was simply in custody when Detective Baggett made

the comment.   He had said nothing incriminating; he was irate and

angry, so much so that officers specifically declined to

interview him.   Thus, Mr. Warren was never read his Miranda

warnings and never waived them.   The Detective Baggett knew or

should have known that his comment to defendant that he should

“stop setting Ms. Glover‟s house and shed on fire,” would have

elicited an incriminating response.   The comment, as the Court

found in Innis, most certainly “reflect[s] a measure of

compulsion above and beyond that inherent in custody itself.”

Id. 466 U.S. at 300-03, 64 L.Ed.2d at 307-08.     The inflammatory

comment made by Detective Baggett should have been excluded from

evidence at Mr. Warren‟s criminal trial.   Had this evidence been

excluded, defendant would have had a trial free of unfair taint,

at least until the time came for submission of a charge to the

jury.   Since this evidence was not excluded, defendant is

entitled to a new trial free from unfair prejudice.




                               30
                            CONCLUSION



    For the reasons set out in Argument I, defendant-appellant

respectfully requests this Court to vacate his conviction for

second-degree kidnapping.   In the alternative, for the reasons

set out in Argument II, defendant-appellant respectfully requests

this Honorable Court to award him a new trial.




                               31
                     CERTIFICATE OF SERVICE



    I hereby certify that I caused a copy of the above and

foregoing DEFENDANT-APPELLANT=S BRIEF, to be duly served upon the

State of North Carolina by placing same in a depository of the

United States Postal Service, first-class postage prepaid,

addressed to:


    William P. Hart
    Special Deputy Attorney General
    114 W. Edenton St.
    Raleigh, NC 27699


    This the ____ day of April, 2007.


                         __________________________

                         Mary March W. Exum
                         Attorney for Defendant-Appellant
                         P.O. Box 818
                         Mars Hill, NC 28754
                         Tel: (828) 216-5027




                              32
                    CERTIFICATE OF SERVICE


     I hereby certify that I caused a copy of the above and
foregoing APPEAL INFORMATION STATEMENT, to be duly served upon
the State of North Carolina by placing same in a depository of
the United States Postal Service, first-class postage prepaid,
addressed to:

    William P. Hart
    Special Deputy Attorney General
    114 W. Edenton St.
    Raleigh, NC 27699


    This the ___ day of April, 2007.


                         ____________________________

                         Mary March W. Exum
                         Attorney for Defendant-Appellant
                         P.O. Box 818
                         Mars Hill, NC 28754
                         Tel: (828) 216-5027




                              33

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:4
posted:6/22/2011
language:English
pages:35