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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA10-562 NORTH CAROLINA COURT OF APPEALS Filed: STATE OF NORTH CAROLINA v. FLOYD LEE BONDS Catawba County Nos. 08 CRS 51599 - 600 5 April 2011

Appeal by defendant from judgments entered 28 September 2009 by Judge Mark E. Klass in Catawba County Superior Court. the Court of Appeals 4 November 2010. Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling Irene, for the State. Bryan Gates, for defendant-appellant. CALABRIA, Judge. Floyd Lee Bonds (Adefendant@) appeals judgments entered upon jury verdicts finding him guilty of first degree rape and first degree burglary. More specifically, defendant appeals the trial court=s Heard in

denial of his motion to suppress statements he made to law enforcement officers. We find no error. I. BACKGROUND

-2On 2 February 2008, ASue,@ a sixty-five year old woman, lived alone in a home in Hickory, North Carolina, across the street from Frye Medical Center.1 Early that morning, Sue woke up and noticed Sue

her bedroom lamp was turned on and her bedroom door was open.

observed a clean-shaven male with a medium build wearing a wool cap enter her bedroom. He turned off the light, then climbed onto Sue=s Sue

bed and straddled her with one knee on each side of her. described the man as Astrong.@ there and told him to leave. bed and laid on top of her. he held her down. side.

Sue asked the man what he was doing The man pushed Sue back down onto the

Sue tried to bite and scratch him but

He then hurt her by pushing her left leg to the

While he held Sue down, he penetrated her vagina with his penis When

and told her, AI=ll kill you if you don=t stop acting funny.@ the man finished, he grabbed his clothes and left. After the man left Sue=s home, she called 911.

Officer Melissa

Lackey (AOfficer Lackey@) of the Hickory Police Department (AHPD@) responded to the call shortly after 7:00 a.m. that day. When Officer

Lackey arrived at Sue=s home, she observed Sue=s nightgown was bloody and Sue had blood on her leg. Sue reported to Officer Lackey that Officer Lackey

she had been raped and was bleeding from her vagina.

requested EMS assistance due to Sue=s loss of blood.

1

We use a pseudonym to protect the victim=s identity.

-3As Officer Lackey investigated the home, she and Sue observed that the side door was damaged as though it had been pried open. then showed Officer Lackey a screwdriver that was on her bed. Sue Sue

stated that the screwdriver did not belong to her, that she had never seen it before, and did not know how it got there. Officer Lackey

observed blood on the bed, the floor, and other furniture where Sue sat down after the incident. The EMS transported Sue to Frye Medical Center. On the way,

Sue told Officer Lackey and Investigator Ken Phillips (AInvestigator Phillips@) of the HPD what happened. When Sue arrived at the ER, Sue

also told the nurse what happened and the nurse performed a rape kit on Sue. A physical examination of Sue revealed that she had

sustained multiple injuries to her vagina, the back of her thigh, the back of her right arm, her lip, and her right eye. The rape kit was submitted to the SBI Crime Lab, and the SBI=s examination revealed the presence of sperm on a rectal smear. The

lab was unable to develop a DNA profile because the amount of sperm was insufficient to develop a full DNA profile. However, the lab

was able to develop a predominant DNA profile of an unknown person from scrapings taken from Sue=s fingernails as part of the rape kit. This profile was entered into the state DNA database (ACODIS@) of previously-entered profiles. Defendant=s profile had been

previously entered into CODIS.

The lab determined from CODIS that

-4the unknown profile from the fingernail scrapings matched defendant=s DNA profile. Shortly after the incident, Investigator R.M. George

(AInvestigator George@) of the HPD received a telephone call from defendant=s girlfriend. As a result of the call, Investigator George

and Investigator Phillips spoke with defendant at his place of employment on 5 February 2008. When defendant was asked his location

on the night of the incident, he responded that he stayed at a friend=s house. The SBI notified Lieutenant Scott Hildebrand (ALt.

Hildebrand@) of the HPD that the DNA profile developed from the fingernail scrapings matched defendant=s DNA profile. On 25 February 2008, defendant was arrested. The officers Both Lt. Lt.

obtained additional DNA and a blood sample from defendant.

Hildebrand and Investigator Phillips interviewed defendant. Hildebrand read defendant his Miranda rights. defendant stated: I would like, I mean, it don=t matter to me, but I would like to have . . . in this situation, with what charge you=ve got. I would like to have, um, a lawyer present . . . (inaudible) . . . besides that, I mean, uhh, I mean, uhh, that=s, that=s a pretty deep charge right there.

At one point,

Lt. Hildebrand then asked defendant if he would be willing to talk to him without an attorney present. Defendant replied in the

affirmative and subsequently signed a form waiving his Miranda

-5rights. During the interview, defendant stated that on the early

morning hours of 2 February 2008, he was in the area of Frye Medical Center trying to break into a residence. However, defendant denied

knowing Sue, denied being in her home, and also denied raping her. On 27 February 2008, Investigator Phillips interviewed

defendant at the detention facility.

Defendant again signed a form

waiving his Miranda rights, and subsequently stated that he used a screwdriver to pry Sue=s door open and raped her while he was high on heroin. Defendant was indicted for first degree rape, first On

degree burglary, and first degree kidnapping on 3 March 2008.

12 August 2009, defendant filed a motion to suppress the statements he made to Lt. Hildebrand and Investigator Phillips. suppression hearing, the following items were At the into

admitted

evidence: the waiver of rights form of 25 February 2008, a verbatim transcript of defendant=s interview on 25 February 2008, and a waiver of rights form dated 27 February 2008. Following the hearing, the

trial court denied defendant=s motion on 26 August 2009. Defendant=s first trial ended in a mistrial, and he was retried before a jury at the 21 September 2009 criminal session of Catawba County Superior Court. Prior to the second trial, defendant The

requested that the trial court re-hear his motion to suppress.

trial court denied the request and stated that the order of 26 August 2009 denying the motion to suppress would stand.

-6On 25 September 2009, the jury returned verdicts finding defendant guilty of first degree rape, first degree burglary, and second degree kidnapping. On the charge of first degree rape, the

trial court sentenced defendant to a minimum term of 480 months to a maximum term of 585 months. On the charge of first degree burglary,

the trial court sentenced defendant to a minimum term of 117 months to a maximum term of 150 months, and ordered the sentences to be served consecutively in the custody of the North Carolina Department of Correction. The trial court arrested judgment on the charge of Defendant appeals.

second degree kidnapping. II.

MOTION TO SUPPRESS STATEMENTS

Defendant argues that the trial court erred in denying his motion to suppress because the core element of his statement, AI would like to have, um, a lawyer present,@ was an unambiguous request for counsel requiring that all further questioning end. Defendant

contends that Aall questioning should have ceased at that point and since [defendant] did not initiate contact after his arrest, the statement on February 27, 2008[,] should have been suppressed as well.@ We disagree. A. Standard of Review

The trial court=s findings of fact after a hearing concerning the admissibility of a confession are conclusive and binding on this Court when supported by competent evidence. The trial court=s conclusions of law, however,

-7are reviewable de novo. Under this standard, the legal significance of the findings of fact made by the trial court is a question of law for this Court to decide. State v. Dix, 194 N.C. App. 151, 154-55, 669 S.E.2d 25, 27 (2008), review denied, stay denied, and appeal dismissed, 363 N.C. 376, 679 S.E.2d 140 (2009) (internal citations omitted). B. Right to Counsel

The Miranda right to counsel is the right of a defendant to have an attorney present during custodial interrogation A[i]f . . . he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking.@ Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 707 (1966). In Davis v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994), the United States Supreme Court held that to invoke his right to counsel, Athe suspect must unambiguously request counsel.@ Id. at 459, 129 L. Ed. 2d at 371. The invocation of the right to counsel A>requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.=@ Id. (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 115 L. Ed. 2d 158, 169 (1991)). The test is an objective one that assesses whether a reasonable officer under the circumstances would have understood the statement to be a request for an attorney. See id. This test examines more than the mere words used by a defendant. See [State v. Barber, 335 N.C. 120, 130, 436 S.E.2d 106, 111 (1993), cert. denied, 512 U.S. 1239, 114 S. Ct. 2747, 129 L. Ed. 2d 865 (1994)] (AIn deciding whether a person has invoked her right to counsel, therefore, a court must look not only at the words spoken, but the context in which they are spoken as well.@) (citations omitted). In fact, the

-8understanding of the officer to whom a defendant=s statement is made may be indicative of how a reasonable officer under the circumstances would have interpreted the defendant=s statement. See State v. Jackson, 348 N.C. 52, 57, 497 S.E.2d 409, 412 (1998), abrogated on other grounds by State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). . . . While Athere are no >magic words= which must be uttered in order to invoke one=s right to counsel,@ Barber, 335 N.C. at 130, 436 S.E.2d at 111, Aa statement either is such an assertion of the right to counsel or it is not.@ Davis, 512 U.S. at 459, 129 L. Ed. 2d at 371. It is well settled that, during custodial interrogation, once a suspect invokes his right to counsel, all questioning must cease until an attorney is present or the suspect initiates further communication with the police. See Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 68 L. Ed. 2d 378, 386 (1981). However, A[i]f the suspect=s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.@ Davis, 512 U.S. at 461-62, 129 L. Ed. 2d at 373. Thus, unless the in-custody suspect Aactually requests@ an attorney, and thus invokes his right to counsel, lawful questioning may continue. Davis, 512 U.S. at 462, 129 L. Ed. 2d at 373; State v. Hyatt, 355 N.C. 642, 655, 566 S.E.2d 61, 70 (2002); State v. Barnes, 154 N.C. App. 111, 118, 572 S.E.2d 165, 170 (2002); see also State v. Ash, 169 N.C. App. 715, 721, 611 S.E.2d 855, 860 (2005). Although the Davis Court noted in dicta that, Awhen a suspect makes an ambiguous statement it will often be good police practice for the interviewing officer[] to clarify whether or not he actually wants an attorney,@ such clarifying questions are not required. Davis, 512 U.S. at 461, 129 L. Ed. 2d at 373. Dix, 194 N.C. App. at 155-56, 669 S.E.2d at 27-28. ADavis [] imposes

the burden of resolving any ambiguity as to whether a suspect wishes

-9to invoke his right to counsel upon the individual, rather than leaving the question up to the interrogating officer.@ 669 S.E.2d at 29. As an initial matter, we note that the State does not dispute that defendant was subject to custodial interrogation on 25 and 27 February 2008, and that Miranda applied to those interrogations. Therefore, we address whether defendant Aunambiguously@ and Aactually@ requested the assistance of counsel. C. Waiver of Counsel Id. at 157,

In Dix, this Court stated that a defendant=s statement, A>I=m probably gonna have to have a lawyer,= taken out of context, cannot be the sole determinate of whether [the] defendant unambiguously invoked his right to counsel@ because the defendant previously Aexpressed a desire to >tell his side of the story=@ to a detective who asked the defendant to wait until they were back at the station, and Agave a brief, unsolicited oral confession to [another officer] en route to the station.@ 28. Dix, 194 N.C. App. at 156, 669 S.E.2d at

This Court further stated that after the detective was told

about the defendant=s confession to the other officer, the detective reasonably expected [the] defendant to continue their former conversation and proceed with the statement [the] defendant apparently wished to make. Thus, when [the] defendant remarked, AI=m probably gonna have to have a lawyer,@ [the detective] was understandably unsure of [the] defendant=s purpose. By this statement, [the]

-10defendant neither refused nor agreed to answer [the detective=s] questions without an attorney present. In this context, [the] defendant=s statement was ambiguous because no reasonable officer under the circumstances would have understood [the] defendant=s words as an unambiguous, Aactual request@ for an attorney at that moment, as opposed to a mere comment about the likelihood that [the] defendant would eventually require the services of an attorney in this matter, which he surely anticipated would involve criminal proceedings. Id. at 156-57, 669 S.E.2d at 28-29. In Ash, after the defendant was advised of his right to have an attorney present, he asked, ANow?@ at 860-61. A detective 169 N.C. App. at 723, 611 S.E.2d affirmatively. Id. The

responded

defendant then asked, AWhere=s my lawyer at? [Inaudible] come down here?@ Id. The detective replied that the attorney who was

representing the defendant on a pending, but unrelated, charge had Anothing to do >with what [he was] going to talk to [the defendant] about.=@ Id. The defendant responded, AOh, okay,@ and signed a Id. This Court held that the defendant=s Id.

waiver of rights form.

statements were not an unambiguous request for counsel.

In State v. Strobel, when the defendant told a detective that she had a court-appointed attorney representing her on her conspiracy charge, the detective told her that she could Ause the telephone and telephone book located in the room to call her attorney.@ App. 310, 316, 596 S.E.2d 249, 254 (2004). 164 N.C.

The detective also told

-11the defendant that Ahe would stop the statement until such time as she had the opportunity to talk to her lawyer.@ Id. The detective

then Aattempted to clarify whether [the] defendant wanted a lawyer. He also gave [the] defendant every opportunity to contact her attorney.@ Id. This Court held that, A[a]t best, [the] defendant=s

statement amounted to an equivocal request for an attorney, and as the case law indicates, the officer could have and did continue questioning [the] defendant without any constitutional violation.@ Id. See also State v. Boggess, 358 N.C. 676, 687, 600 S.E.2d 453,

460 (2004) (the defendant=s statement to officers, A[i]f y=all going to treat me this way, then I probably would want a lawyer,@ was not an unambiguous request for counsel); State v. Little, ___ N.C. App. ___, ___, 692 S.E.2d 451, 456-57 (2010) (the defendant=s question to officers, ADo I need an attorney?@ was not an unambiguous request for counsel); State v. Shelley, 181 N.C. App. 196, 202, 638 S.E.2d 516, 521 (2007) (the defendant=s statement to an officer, AI don=t know if I go ahead an[d] tell you then when I do get my lawyer . . . I=ve done wrong, because I went ahead and said anything or - I don=t know,@ was not an unambiguous request for counsel). But see Zektaw v.

Commonwealth, 278 Va. 127, 136-38, 677 S.E.2d 49, 54 (2009) (the defendant=s statement to officers, ARight, and I=d really like to talk to a lawyer because this - oh my God, oh, my Jesus, why?@ under an

-12objective, Areasonable police officer@ test was a Aclear, unambiguous, unequivocal request for counsel@). D. Defendant=s Waiver of Counsel

In the instant case, defendant spoke with Investigator Phillips and Investigator George on 2 February 2008 at defendant=s place of employment. On 25 February 2008, Lt. Hildebrand and defendant

engaged in the following conversation at the HPD: [Lt. Hildebrand]: Alright, it has been explained to you what you are being charged with as far as these four warrants. Now, of course you have the right to say anything that you want to and to do any of that, we=ve got to go over this. Before we ask you any questions, you must understand your rights. Number one, you have the right to remain silent and not make any statement. You understand that, correct? Anything you say can be used against you in court. You understand that, correct? Are you willing to talk to us now? [Defendant]: I don=t care. [Lt. Hildebrand]: Well, I need a yes or a no. [Defendant]: Yes. [Lt. Hildebrand]: Alright, number three, you have the right to talk to a lawyer for advice before you are asked any questions and to have him or her present with you during questioning. Number four, if you cannot afford a lawyer, one will be appointed for you at no cost by the court before any questioning if you wish. Number five, if you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time

-13until you talk to a lawyer. those rights? [Defendant]: Yes. [Lt. Hildebrand]: You=re still willing to talk to us without a lawyer present? [Defendant]: (inaudible) I mean (inaudible) this situation. It=s my choice (inaudible) I=d like to have a, umm, lawyer present but (inaudible) besides that (inaudbile) charge right there. [Lt. Hildebrand]: charges. Well, they are felony Do you understand

[Defendant]: Yes I know. [Lt. Hildebrand]: And it comes down, like I read, you have the right to have a lawyer before we ask you any questions. So my question to you for right now is are you willing to talk to us without a lawyer present? [Defendant]: Yea. I=ll talk to you.

[Lt. Hildebrand]: Okay. [Defendant], I=m going to hand this to you. This is exactly what I read to you. [Defendant]: Uh-huh. [Lt. Hildebrand]: If you understand it and agree to it, I need you to, uh, initial there, there, there and there, and sign at the X at the bottom. That=s saying that I read that to you, you understand it. [Defendant]: Uh-huh. Yea, I understand it.

[Lt. Hildebrand]: And that you=re going to talk to us.

-14Defendant then placed his initials beside the box marked AYes@ next to the question, AAre you willing to talk to me/us without a lawyer present?@ on the AAdvice of Rights Form,@ and signed the form. The transcript of Lt. Hildebrand=s interview with defendant reveals that portions of the interview were inaudible. At the

suppression hearing, Defendant=s Exhibit 3, which was admitted into evidence without objection, stated that when Lt. Hildebrand asked if defendant was still willing to talk to him without an attorney present, defendant replied: I would like, I mean, it don=t matter to me, but I would like to have . . . in this situation, with what charge you got. I would like to have, umm, a lawyer present . . . (inaudible) . . . besides that, I mean uhh, I mean, uhh that=s, that=s a pretty deep charge right there. The trial court then considered the transcript and Exhibit 1 in reconstructing the inaudible portions of defendant=s conversation with Lt. Hildebrand. The trial court found that defendant=s response

to Lt. Hildebrand was: I would like, I mean, it don=t matter to me, but I would like to have . . . in this situation, with what charge you=ve got. I would like to have, um, a lawyer present . . . (inaudible) . . . besides that, I mean, uhh, I mean, uhh, that=s, that=s a pretty deep charge right there. The transcript of defendant=s conversation with Lt. Hildebrand on 25 February 2008, coupled with the fact that defendant spoke with investigators approximately three weeks earlier, reveals that

-15defendant initially had a desire to speak with law enforcement officers about the offenses charged in the warrants. defendant=s conversation with Lt. Hildebrand, Lt. During

Hildebrand

attempted to clarify whether defendant wanted to talk to him by asking defendant, AI need a yes or a no.@ affirmative. Defendant replied in the

After Lt. Hildebrand explained the AAdvice of Rights

Form,@ he asked defendant, AYou=re still willing to talk to us without a lawyer present?@ Defendant replied, Ait don=t matter to me,@ and

AI would like to have, um, a lawyer present . . . (inaudible) . . . besides that, I mean, uhh, I mean, uhh, that=s, that=s a pretty deep charge right there.@ This conversation Aevidences the ambiguous

nature of defendant=s statement under the circumstances,@ Dix, 194 N.C. App. at 157, 669 S.E.2d at 29, and is indicative that a reasonable officer under the circumstances would have interpreted defendant=s statement as being an ambiguous and equivocal request for counsel. Therefore, Lt. Hildebrand Awas understandably unsure of defendant=s purpose,@ id. at 156, 669 S.E.2d at 28, because defendant=s statement indicates that he neither refused nor agreed to answer Lt.

Hildebrand=s questions without an attorney present.

In this context,

defendant=s statements were ambiguous and equivocal because Ano reasonable officer under the circumstances would have understood defendant=s words as an unambiguous, >actual request= for an attorney at that moment,@ id. at 156-57, 669 S.E.2d at 28-29, as opposed to

-16a mere comment that defendant was considering having an attorney present because of the nature of the charges. Lt. Hildebrand subsequently told defendant, AWell, they are felony charges.@ Defendant replied, AYes, I know.@ Lt. Hildebrand

then asked defendant, ASo my question to you for right now is, are you willing to talk to us without a lawyer present?@ replied, AYeah, I=ll talk to you.@ When defendant answered in the affirmative, his statement was no longer ambiguous. Nevertheless, Lt. Hildebrand confirmed his Defendant then

response by handing defendant the AAdvice of Rights Form@ and showing defendant where to initial the form. Defendant said he understood

where to initial, then placed his initials beside the box marked AYes@ next to the question, AAre you willing to talk to me/us without a lawyer present?@ on the AAdvice of Rights Form,@ and signed the form. Once defendant signed the form, he unambiguously or

unequivocally agreed to talk to law enforcement officers and waived his right to counsel. to cease questioning Therefore, Lt. Hildebrand had no obligation defendant, and his subsequent lawful

questioning of defendant was allowed to continue.

Accordingly, the

trial court properly concluded that defendant freely, knowingly, intelligently, and voluntarily waived his right to counsel.

Therefore, Lt. Hildebrand did not violate defendant=s Miranda rights,

-17and the trial court properly denied defendant=s motion to suppress. Defendant=s assignment of error is overruled. IV. CONCLUSION

The trial court properly denied defendant=s motion to suppress, and defendant received a fair trial, free from error. No error. Judges ELMORE and GEER concur. Report per Rule 30(e).



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