State Carolina v. Joshua Newton Clark.

714 S.E.2d 754

STATE of North Carolina

v.Joshua Newton CLARK.

No. COA10–403.

Court of Appeals of North Carolina.

April 19, 2011.

Appeal by Defendant from judgment entered 29 October 2009 by Judge F. Donald Bridges in Burke County Superior Court. Heard in the Court of Appeals 29 September 2010.

Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant.

ERVIN, Judge.

Defendant Joshua Newton Clark appeals from a judgment sentencing him to a minimum term of 156 months and a maximum term of 197 months imprisonment in the custody of the North Carolina Department of Correction based upon his conviction for first degree rape and an order requiring him to enroll in lifetime satellite-based monitoring (SBM) following his release from prison. After careful consideration of Defendant's challenges to the trial court's judgment and order in light of the record and the applicable law, we find no basis for providing Defendant with any relief on appeal.

I. Factual Background

A. Procedural Facts

On 3 May 2006, a warrant for arrest charging Defendant with first degree burglary, first degree rape of a child, and first degree sexual offense against a child was issued. On 5 May 2006, a warrant for arrest charging Defendant with taking indecent liberties with a child was issued. On 5 June 2006, the Burke County grand jury returned bills of indictment charging Defendant with taking indecent liberties with a child and first degree rape.

On 11 May 2009, Defendant filed a motion to suppress certain inculpatory statements that he had made to Detective John R. Huffman of the Burke County Sheriff's Department on 3 May 2006. Defendant sought suppression of these statements on the grounds that they stemmed from a violation of his right to the assistance of counsel and in the absence of a valid waiver of his right to be free from compelled self-incrimination. Defendant's suppression motion was heard before Judge James E. Hardin, Jr., at the 11 May 2009 session of the Burke County Superior Court. At the conclusion of the hearing, Judge Hardin orally denied Defendant's suppression motion. On 5 November 2009,¹ Judge Hardin entered a written order that contained extensive findings of fact and conclusions of law denying Defendant's suppression motion.

In light of Judge Hardin's decision to deny his suppression motion and while reserving his right to “appeal specified rulings of the trial court as specified in the plea proceedings,” Defendant entered an Alford plea to first degree rape at the 26 October 2009 criminal session of the Burke County Superior Court. In return for Defendant's plea, the State voluntarily dismissed the indecent liberties charge.² At the sentencing hearing, the trial court found that Defendant had no prior record points and should be sentenced as a Level I offender, that he had “voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer [ ] at an early stage of the criminal process,” and that “the factors in mitigation ouweigh[ed] the factors in aggravation,” so that a “mitigated sentence [was] justified.” As a result, the trial court ordered that Defendant be imprisoned for a minimum term of 156 months and a maximum term of 197 months in the custody of the North Carolina Department of Correction.

After the imposition of judgment, the trial court conducted a hearing for the purpose of determining, among other things, whether Defendant should be required to enroll in SBM. At the conclusion of the SBM hearing, the trial court found that Defendant had been convicted of an offense against a minor as defined in N.C. Gen.Stat. § 14–208.6(1i) and a sexually violent offense as defined in N.C. Gen.Stat. § 14–208.6(5), that the conviction offense was an aggravated offense as defined in N.C. Gen.Stat. § 14–208.6(1a), and that Defendant should be required to enroll in SBM “for [his] natural life.” Defendant orally noted an appeal to this Court after the entry of the trial court's judgment. In addition, Defendant has petitioned this Court for the issuance of a writ of certiorari directed to the trial court's SBM order on 4 June 2010.

II. Substantive Facts

A. State's Evidence at the Suppression Hearing

At the suppression hearing, the State presented the testimony of Detective Huffman. Detective Huffman testified that, on 2 May 2006, he received a call reporting that a sexual assault had been committed against a child and responded to the home where the child resided. As Detective Huffman arrived at the child's residence, Defendant, who was standing in the driveway by himself, inquired if Detective Huffman was the detective responsible for handling the case. After Detective Huffman responded in the affirmative, Defendant stated that he needed to speak with Detective Huffman in order “to make some wrongs right.” Although Detective Huffman told Defendant that he would need to make contact with the child first, he assured Defendant that he would speak with him after that had been done.

Detective Huffman remained in the child's house for approximately thirty to forty-five minutes. As Detective Huffman exited the residence, Defendant approached Detective Huffman for a second time and again stated that he needed to speak with Detective Huffman. Detective Huffman “explained to [Defendant] that [he] was not going to discuss the case ... in the victim's driveway,” but “would be more than happy to talk to [Defendant] at the sheriff's office.” Detective Huffman offered Defendant a ride to the Burke County Sheriff's Department in his vehicle, an unmarked Crown Victoria. As an alternative, Detective Huffman told Defendant “that he could call family or friends to get ... a ride.” Defendant elected to ride with Detective Huffman.

As the two men traveled to the Sheriff's Department, Defendant rode in the front seat of Detective Huffman's vehicle without being subject to any restraints. During this drive, which lasted approximately fifteen to twenty minutes, Detective Huffman and Defendant refrained from discussing the case. Upon arriving at the Sheriff's Department, Defendant entered the building through the back door and followed Detective Huffman to an interview room.

After the two men reached the interview room, Detective Huffman asked Defendant what “wrongs he needed to make right.” At this time Defendant made the inculpatory statements which underlie his motion to suppress. While interacting with Defendant on 2–3 May 2006, Detective Huffman explicitly informed Defendant that he was not under arrest.

Q.: Did you tell [Defendant] prior to getting in the car, or while he was in the car that he was not under arrest?

A.: Yes.

Q.: Do you recall how many times you told him that?

A.: Multiple, he stated he understood and he wanted to make wrongs right.

Detective Huffman was wearing blue jeans and a sweater, had no visible firearm or other weapon in his possession, and did not have a visible police identification badge or handcuffs on his person.

B. Defendant's Evidence at the Suppression Hearing

At the suppression hearing, Defendant testified that he went to the child's home at approximately 11:00 p.m. on 2 May 2009. At that time, Defendant noticed a Sheriff's Department car in the driveway. Defendant pulled into the driveway, exited his vehicle, walked up to the front door, and knocked. The child's father, who “was irate,” answered the door. A law enforcement officer approached Defendant and asked Defendant to “come with him.” Defendant complied with the officer's request. Defendant further testified that he believed the officer “was trying to get me away from the scene.” Defendant stood with or around one or more police officers for approximately an hour before Detective Huffman arrived and waited for an additional twenty to thirty minutes while Detective Huffman was inside the child's residence. At some point during this interval, Defendant attempted to approach the child's sister, who was his girlfriend, and was instructed to “come back” by a nearby officer. Defendant testified that “I never felt like I was able to [leave the scene],” that, “I have never really been in trouble,” and that “I am pretty intimidated by the police.”

III. Legal Analysis

A. Motion to Suppress

On appeal, Defendant contends that Judge Hardin erred by denying his suppression motion on the grounds that he had not been provided with, and appropriately waived, the necessary Miranda warnings. In challenging the denial of his suppression motion, Defendant argues that Judge Hardin failed to make adequate findings of fact as required by N.C. Gen.Stat. § 15A–977(d) because he did not resolve the conflict in the evidence arising from Defendant's testimony that he was moved to a patrol car and ordered to remain there after he attempted to approach the alleged victim's father and to talk to his girlfriend and that these deficiencies in Judge Hardin's findings prejudiced him. Defendant's argument lacks merit.

In reviewing a trial court's order ruling on a motion to suppress, we are “ ‘strictly limited to determining whether the trial [court's] underlying findings of fact are supported by competent evidence [.]’ ” State v. Ortez, 178 N.C.App. 236, 243–44, 631 S.E.2d 188, 194–95 (2006) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), disc. review denied, 361 N.C. 434, 649 S.E.2d 642 (2007). Assuming that the trial court's factual findings have adequate evidentiary support, they are conclusive for purposes of appellate review even if the record contains conflicting evidence. State v. Crudup, 157 N.C.App. 657, 659, 580 S.E.2d 21, 23 (2003) (citing State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001)). In addition, any findings of fact which the defendant fails to challenge on appeal are binding for purposes of appellate review. State v. Campbell, 188 N.C.App. 701, 704, ...