             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-491

                              Filed: 17 January 2017

Mecklenburg County, No. 11 CRS 247933

STATE OF NORTH CAROLINA

            v.

BOBBY JOHNSON


      Appeal by Defendant from judgment entered 6 October 2015 by Judge Eric L.

Levinson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 19

September 2016.


      Attorney General Josh Stein, by Assistant Attorney General Alvin W. Keller, Jr.,
      for the State.

      Marilyn G. Ozer for Defendant.


      McGEE, Chief Judge.


      Anita Rychlik (“Anita”) and her husband, David Rychlik (“David”), were

employees of the Thrift Motel in Charlotte (“the motel”) when Anita was shot and

killed in the early morning hours of 2 May 2007. David was outside in the parking

lot in front of the motel talking to Brandy Davis (“Brandy”), when three men (“the

men”), all dressed in black, approached from the left side of the motel as one faced

the front of the building. At that time, Anita managed the motel and David acted as

the security guard. Anita was asleep inside the motel. One of the men was holding
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a gun, and the man forcibly searched David and Brandy, taking some personal items

from both of them, and a set of keys to the motel from David.

      Brandy testified the men were African-American, that two of them were

approximately five feet, six inches tall or five feet, seven inches tall and weighed

about 150 pounds, while the third man was approximately six feet or six feet, one

inch tall and weighed between 180 and 200 pounds. According to Brandy, the larger

man was holding a small black gun. The men asked David where the safe was and

they demanded keys. All three of the men were talking and demanding things. David

was hit in the head with the gun during the altercation. Brandy described the man

holding the gun as “the older gentleman,” and “the tall one,” and testified that he told

one of the “younger guys” to stay with her and David, and to “shoot” them if they

moved. Brandy could see the younger men’s faces, and estimated them to be eighteen

or nineteen years old. Brandy also testified that the man holding the gun had a “mask

all the way down his face” which made it difficult to tell how old he was. One of the

smaller, younger men remained with David and Brandy, while the other two men

entered the motel. Brandy did not know if the younger man who remained with them

had a gun. The two men then entered Anita’s bedroom in the motel and there was a

struggle. Brandy heard Anita give “a very panic-attack scream,” and Anita was shot

once in the back of her neck and killed. The men then fled from the scene.




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      James Rhymes (“Rhymes”), who lived at the motel, testified that on the night

in question he left his room upon hearing a strange noise. As Rhymes turned to head

toward Anita’s office, which was a very short distance from Rhymes’ room, he was

confronted by a man wearing a mask and holding a gun. Rhymes pushed the gun

away from him and turned and ran away up a nearby hill. As he was running away,

he heard two gunshots, but was not hit.

      The three men escaped, and no one was charged with Anita’s murder until 24

October 2011.    However, during the course of the investigation Bobby Johnson

(“Defendant”) was identified as a suspect and, in 2007, he was placed in custody, read

his Miranda rights, which he waived, and he voluntarily gave investigators an

interview and a buccal swab for the purposes of collecting his DNA. DNA was also

recovered from under Anita’s fingernails, and these DNA samples were sent for

testing and comparison.      Results from the DNA analysis were returned to

investigators in 2009.   Although the DNA analysis indicated that only one in

16,600,000 African-Americans could have been the contributor of the DNA recovered

from under Anita’s fingernails, and that Defendant was one of those African-

Americans who could have contributed that DNA, the Charlotte-Mecklenburg Police

Department did not attempt to locate Defendant until late 2011.

      A police detective “called [Defendant] and spoke to him a number of times and

made arrangements for him to come down to the station.” Detective William Earl



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Ward, Jr. (“Detective Ward”) testified that they “wanted to talk to him about the DNA

evidence.” Defendant voluntarily went to the police station on the morning of 24

October 2011, arriving at approximately 9:40 a.m. Defendant was escorted to an

interview room on the second floor, just outside the homicide office. The interview

room was behind doors that remain locked. Detective Ward and Detective Brian

Whitworth (“Detective Whitworth”), together (“the detectives”) began to interview

Defendant. Approximately four hours after entering the interview room, Defendant

was placed under arrest for murder, and approximately ten minutes later, after

additional conversation, he was read his Miranda rights and signed a waiver of those

rights. Approximately twenty-five minutes after that, Defendant began to discuss

his involvement in the crime. Defendant named brothers Antonio Chaney (“Tony”)

and Joshua Chaney (“Josh”) as the two other men involved, and stated that it was

Tony who shot and killed Anita.

      Because the voluntariness of Defendant’s confession is an issue on appeal, we

examine in great detail Defendant’s interrogation on 24 October 2011 – from the

initiation of the questioning until Defendant admitted participating in Anita’s

murder. According to the video recording of Defendant’s interview, the questioning

began in a police interrogation room at approximately 9:50 a.m. Defendant told the

detectives that he had been “saved” recently, and Defendant was reminded that

Detective Ward had interviewed him back in 2007. At approximately 10:11 a.m., the



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detectives showed Defendant a forensic report stating DNA had been recovered from

under Anita’s fingernails,1 and that there was only a one in 16,600,000 chance that

the DNA would match any particular African-American, but that the DNA recovered

from under Anita’s fingernails matched Defendant’s DNA.

       Detective Ward told Defendant that the 2007 interview had locked Defendant

into a statement and that, with the DNA report, they now had the “meat and

potatoes,” and that Defendant’s 2007 statement was coming back and “kicking you in

the ass.” Defendant was told that the crime was committed by three people, and that

one of those three people was Defendant. Defendant was told: “The fact is your DNA

is under [Anita’s] fingernails in her living quarters which you denied even being

there.” Defendant was told that he needed “to do the right thing by God,” and was

told the DNA analysis “puts you there[,]” that “[y]ou were there that night, you know

what happened.” Defendant was told he had not been at home like he had been telling

the detectives. Defendant was told, “you were there [at the motel], you were involved

in this crime, it’s as simple as that, I can’t put it more plainly, you can’t make this

stuff up. It’s a scientific fact.” “You were there. This puts you there. You understand

what this holds? This could be a capital murder case. This is a death penalty case.”

“If you want to wear it on your own, that’s your decision. If you want to do the right



       1 The DNA recovered was identified as having come from three separate individuals, one of
whom was Anita. Defendant was identified as the likely (one in over sixteen million chance)
contributor of the second profile. The third profile was never matched to anyone.

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thing and bring other people that were involved, that’s your decision.” The detectives

continued:

               Your body parts, your cells, your DNA, are on her body.
               How can that happen if you never touched her? There’s no
               way. There’s no way your DNA can be spit in the wind and
               land somewhere. It has to be her grabbing your hair or
               grabbing your neck. That’s how it happens. It’s forever,
               Bobby.2 Bobby, so you understand, where we’re coming
               from is not “hey, we wanted to talk to you about this
               murder case . . . .” Where we stand now as a law
               enforcement agency . . . is that there’s no question
               anymore. That’s the meat and potatoes right there for the
               case [pointing at the DNA analysis]. That’s enough to
               charge you with murder right now. Right now. My
               suggestion to you is this. Stop with the “I wasn’t there,”
               because this proves you were there.

       The detectives told Defendant that if the shooting was an accident, if Anita

backed into the gun and “pow, holy sh*t, you didn’t mean for that to happen, now’s

the time to talk about it. If you stay silent about it, Bobby, you’re going to wear it.”

The detectives told Defendant that they knew what happened to Anita in her room,

but that Defendant was going to have to explain it. Defendant was then told again

that that the odds were one in 16,600,000 that any African-American person other

than Defendant could have contributed the DNA recovered from under Anita’s

fingernails.




       2Throughout   the interview, the detectives referred to Defendant as “Bobby.”   At times,
Defendant referred to himself as “Bobby.”

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      Referring to an earlier comment Defendant had made, Detective Ward stated:

“When you said [Anita] was shot in the back of the neck, only you, me, the victim, and

the coroner knew that. That was not publicized.” Detective Ward told Defendant: “I

have locked you in so hard to this story here, you can’t get out with a blow torch.” As

Defendant continued to deny being involved, the detectives stopped him from talking

and told him they knew he was lying. The detectives told Defendant:

             You’re in a box right now. This is the . . . lock to the door
             [Detective Ward was holding the DNA report in his hand].
             If you want to wear capital murder on your own and let
             them other two dipsticks go run free, that’s on you man. I
             can’t help you with that. But if you want to be a hero, be a
             real man, be a God saved man, then do the right thing.

      The detectives told Defendant they could not promise him anything and people

had to pay for their crimes, but that Defendant was facing a capital murder charge

and he needed to do what was best for himself. They told Defendant the district

attorney would look at the people involved and work with those that they and the

detectives believed were being “honest and true.” Defendant was told he should

cooperate and get the truth “off his chest.” Defendant was told that “[p]eople need

. . . something to grab ahold of in a case when they’re . . . boxed in, and you’re boxed

in. You’re boxed in by the best evidence that is out there for any case today – DNA.”

Defendant was told that because of the DNA evidence, “I know you’re either my

shooter, or you’re someone who was with my shooter. We want the shooter.”




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      Defendant was asked, in light of the DNA evidence, what he thought the jury

was going to think. Defendant answered that they would think he took part in the

crime. Defendant was told that DNA analysts do not make mistakes, and he needed

to “do the right thing.” Defendant was told that the DNA evidence was “pretty

damning, that puts you there.” Defendant responded “That put me there, man. That

right there just took my life. That right there just took my life.” Detective Ward

responded:

             Yes, so, and I want you to understand that. That’s what
             I’m trying to explain to you, that it’s over. This game is
             over. This is the meat and potatoes of the case [touching
             the DNA analysis], that’s what we need to lock folks up.
             We thought well, we can go get a warrant, let’s not do that.
             . . . But this isn’t going away, this is a done deal. It’s a done
             deal.

Defendant responded: “I mean, I’m going to jail, so . . . .” Detective Ward interjected:

“Well, we’re not there yet, but it’s pretty close, ok? And if that will make you

understand. If that will make you a believer that’s, that’s a possibility. We’ll do what

we need to do.” Defendant replied, “I want to be on your team. I don’t want to be in

prison the rest of my damn life.” Detective Ward said: “I tell you that the DA works

with people . . . .” Defendant interjected that the issue was “not going away,” and told

the detectives he would try and help them out in the hope that the case against him

would be resolved in the best way possible. The detectives told Defendant: “We’re

going to need everybody that was involved, and what part they played, to help you.



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That’s the only thing that’s gonna help you. Saying what you’re saying right now,

that’s not gonna help Bobby a damn bit.”

      Shortly after making this statement, at approximately 10:36 a.m., the

detectives asked Defendant if they could pat him down for weapons. Defendant

complied, and was frisked and asked to take off his hat.          After the pat-down,

Defendant sat back in his chair and the interrogation continued. Defendant was

asked to talk about his experience of being “saved,” and was told that it was more

important to help others than to help himself. The detectives told Defendant that

there were three people involved, and that he was one of them. They told Defendant

he should help himself, that if he wanted to “wear this” by himself, then “God bless

you,” but that that would be crazy since there were two others involved. Detective

Ward said: “Sh*t, I wouldn’t go down by myself.”

      Defendant was then asked again if he had shot Anita, or been with the person

who had, and Defendant again replied, “no.” Defendant was told that the detectives

did not believe him, and Defendant replied: “I know you don’t.” Defendant was told:

“So what you’re telling us, and what you’re telling the DA, is that you’re not willing

to help out.” Defendant was again reminded that it was a capital murder case with

DNA evidence implicating him. Detective Ward told Defendant they locked him into

a story in 2007, a story that was a lie, then they took the buccal swab to test his DNA,

and that if “Bobby doesn’t choose to help himself, then Bobby can wear it himself. All



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I can do is say that the smartest thing, based on my experience, is to cooperate. . . .

You and two other folks, two other people, have gotten away with murder since 2007.

That sucks.”

      Detective Ward told Defendant they had shown the “meat and potatoes” to him,

but he was still not willing to help himself. Defendant was told: “We rely on facts.

We don’t rely on B.S. This right here [touching DNA report] is fact.” Defendant was

then told: “Bobby doesn’t know what we’ve done. He doesn’t know that we haven’t

already talked to the other defendants. You don’t know what other evidence we have,

or what other folks have said about what you did.” (Emphasis added).

      Defendant was told: “We’ve done our homework. The ball’s in your court. The

time to get on the bus and get the best seat is now. I didn’t have this [the DNA

evidence]” in 2007. The detectives told Defendant that he was allowed to tell his lies

in 2007, but now they were showing him the truth. “It’s black and white.” The

detectives offered to go and get an assistant district attorney to see what offer

Defendant might get for cooperating, but Defendant declined. Defendant was told

that it was up to him to “save your own tail,” and that if he needed to throw others

“under the bus” he should do that. The detectives talked some more about Defendant

needing to get the best seat on the bus, and Defendant told them that he was trying

to. Defendant then started crying.




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      The detectives said that “accidents happen,” and that Defendant should act in

a godly way. Defendant said that he felt “set up.” When Defendant again denied

having been at the murder scene, the detectives told him he could not keep denying

involvement. Defendant said: “I don’t have a life.” The detectives responded: “You

don’t,” and told Defendant he was lying, they knew the truth, that Defendant could

not deny what was in his heart, and that the only way to “take care of those tears”

was to get it all out in the open and “clean his heart, clean Bobby’s soul.”

      The detectives then told Defendant his tears didn’t “mean sh*t,” that

Defendant was just crying because he was “trapped,” and that Defendant did what

he did and made his own choices. The detectives told Defendant they were giving

him the option to cut his losses, and that was all they could do. A few minutes later,

Defendant stated: “I want to help you bad” and started to cry again. Defendant then

hit himself in the head and began sobbing for over a minute.             As Defendant

whimpered with his head on the table, he was told to wipe his face, and asked if he

had any regrets. Defendant was asked if the tears were for Anita or himself.

      At approximately 11:09 a.m., Defendant told the detectives he was sick to his

stomach, and he was provided with a trash can and told that the only way to feel

better would be to start talking to them. Defendant was told that the best thing for

him, and what the jury would like to see, would be to show remorse. Defendant began

sobbing again and denied having killed Anita. Defendant continued sobbing for a



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couple of minutes and, at one point, his head fell to the table. Talking through sobs,

Defendant said he was “a free man right now,” then spit into a cup and said, “I’m

about to lose my life.”

      The detectives kept telling Defendant he was making it hard on himself, and

to think about God. Defendant told the detectives he was trying to help, and that he

came voluntarily to talk. Defendant was then told that most people do not run, they

talk, and that “we didn’t call you and say hey Bobby I need to talk to you about this

murder case, you’re a suspect.      Would you have come down?         Probably not.”

Defendant was told the only way to “make it right” with God and with Defendant’s

children was to tell the detectives “how it went down.” Defendant was then asked:

“What you blubbering for?” “Bad news for you, Bobby, cause it’s your DNA hooked to

hers. Boom!” Defendant responded, crying, “I’m tore apart. I’m destroyed right now.”

      Defendant was told: “There’s only one thing to do in this room,” and Defendant

responded: “I know there’s only one thing to do in this room.” The detectives told

Defendant that either he “goes down” or he “gives up the other two folks.” Defendant

continued crying with his head on the table and was told: “For us, this is the best

interview in the world. We got you. You know we got you.” The detectives then told

Defendant how making a plea agreement worked, that not all cases went to trial, and

that if Defendant wanted, they would go and get an assistant district attorney at that

moment.     After a couple of minutes, Defendant stated that if he admitted to



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committing the crime, he would go to prison for life or get the death penalty. After

some more back and forth, Defendant was told, “you’re trying to find another lie to

tell me. You’re stuttering.”

      Several minutes later, Defendant was told: “You know it’s over,” and he

responded: “I know it’s over.” The detectives then asked, “who else was with you that

night?” After another long pause, Defendant again denied involvement, cried some

more, and said, “that’s all I got.” After several minutes, the detectives told Defendant:

“You are almost there.” “We know what happened.” “We’re trying to be there for

you.” Detective Whitworth told Defendant: “I could have just come and locked you

up but I don’t do that to people because I’m an honorable man.” Defendant said he

could not keep repeating the same thing, and was told, “then don’t, repeat the right

thing.” Defendant began crying again and indicated he felt suicidal.

      A couple of minutes later, Defendant was told it was not unusual for people to

come in “and lie like you.” Defendant cried some more and the detectives told him

that his continued lying made the “best case for DA – you lie to us once on tape, lied

again on tape – got your DNA.” Defendant then said: “I know I’m dead,” and the

detectives told him he had the choice to cooperate or not, and asked him, “are you

willing to wear this yourself?”

      Detective Ward asked Defendant if he thought he was going to be able to go

home “today.” When Defendant answered that he did not, he was told: “Then you’re



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under arrest for murder.” Detective Whitworth told him: “If you don’t believe you can

get up and walk out of here, then I have no choice. You just told me you believe you’re

going to jail.” Detective Ward then asked Defendant: “Did you just say that, yes or

no?” Defendant responded: “Yes, sir.” Detective Ward responded: “Then I’m going to

have to place you under arrest and then I’ve got some stuff to do before I continue.”

“Because to be voluntary you’ve got to believe you can walk out of here.” Defendant

said he believed he could go home but that he wanted to help because he believed he

was the “star player.” Detective Ward told Defendant that if he felt like he could

leave, “we’re good,” but if he did not, “then we’ll have to do something different.”

Defendant was then asked if he thought he could get up and walk out at any time,

and Defendant responded, “not at any time, only after you free me to go.” A visibly

exasperated Detective Whitworth responded: “That’s different, Bobby.” He then

asked Defendant again if he thought he could walk out at that moment, and

Defendant responded in the affirmative. Defendant was then told: “Because if not,

then we’re going to have to go to the next level.” Defendant later said he had “faith”

that he could walk out, but also knew he could not provide what the detectives wanted

and that he was confused.

      Defendant said, speaking about himself: “Right now it looks like Bobby did this

because Bobby has DNA under the victim[’s] . . . nails.” Several minutes later, the

detectives told Defendant: “You did what you did.” “You’re full of sh*t.” And: “You’re



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done.” The detectives again told Defendant they were certain they were talking to

the right person, that Defendant was “choosing not to help” himself, and that he was

lying. The detectives told Defendant: “All you can do is make it a little easier on you.”

They asked him: “Do you think it will go easier on you if you don’t talk?” Defendant

replied: “No[,]” and the detectives thanked him and said: “So you’re listening to us.”

The detectives reiterated they were certain they were “talking to the right person”

and that Defendant was not going to change their minds.            The detectives told

Defendant to “cut your losses. Help yourself.”

      At approximately 12:20 p.m., the detectives told Defendant there would be no

other interviews with him after that one, that someone would have to pay for the

crime, and the nature of the punishment would depend on the individual. Defendant

was told: “You told us things in these interviews that only the killer knows. It’s that

simple.” “So is Bobby willing to help Bobby?” Defendant was again told to “cut his

losses” and “get the best seat on the bus.” Several minutes later, Defendant was told

he had gotten away with murder for four years, was asked if he wanted to share the

blame, and was told that the “DA wants to know who didn’t cooperate; who did

cooperate.”

      The detectives told Defendant they did not “think” he was lying to them, they

“knew” it. Defendant was told the “ball” was in his court and, after a long pause,

Defendant was again asked if he wanted an assistant district attorney to come and



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tell him what was in his best interest. Defendant was told that coming clean would

give him peace and closure, and that showing remorse would help “cleanse” his soul,

and put him at “a higher level.” At approximately 12:45 p.m., Defendant was told the

district attorney would look at who had cooperated; if only one of the three involved

had cooperated, the district attorney would go after the other two; if two of the three

had cooperated, the district attorney would go after the uncooperative one. Several

minutes later, the detectives asked: “Do you trust them that much?”

      Defendant then put his head on the table and went silent for a very long pause.

One of the detectives touched Defendant, and Defendant said: “God,” which was

followed by minutes more of silence. At approximately 1:05 p.m. Defendant stated:

“I’m dead.” The detectives told him he would have to pay, but the question was how

much; that it would be a question of cooperation versus non-cooperation. Defendant

was again told it would be better for him if he cooperated. He was asked if he wanted

the detectives to get an assistant district attorney, and was told by Detective Ward

that, if he gave a truthful statement, “I’ll work for you.”

      The detectives told Defendant his record was not that bad, other than his prior

murder conviction, and that the district attorney would consider that. Defendant was

again told the detectives knew they were talking to the right person, and that

Defendant knew he was the right person, too.




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      The detectives left Defendant alone in the interrogation room at 1:15 p.m. and

Defendant began to pray out loud. A few minutes later Defendant got up and asked

if he could use the restroom, which he did, then returned to an empty interrogation

room where he sat alone until 1:57 p.m., when Detective Ward returned alone and

resumed talking to Defendant. Detective Ward showed Defendant two post-mortem

photographs of Anita at approximately 2:01 p.m.

      At approximately 2:03 p.m., Detective Ward told Defendant he was placing him

under arrest for Anita’s murder, and Detective Ward had Defendant shackle himself

to chains set in the interrogation room floor. Although Detective Ward had not yet

given Defendant his Miranda warnings, he continued to talk to Defendant and listen

to him for approximately eleven more minutes. Defendant told Detective Ward he

could give him some answers if Detective Ward would allow him to call someone.

Detective Ward told Defendant that he was not going to listen to lies. Defendant was

told that he was not going to get to go home because murder suspects are generally

held without bail.

      At approximately 2:14 p.m., Detective Ward began to read Defendant his

Miranda rights, and Defendant signed a waiver of those rights at approximately 2:17

p.m. Detective Ward continued to question Defendant and told him he was trying to

work with Defendant, and that cooperating would be the smartest thing.           At

approximately 2:22 p.m., Detective Ward told Defendant: “I felt like I had to make



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you a believer, you weren’t believing us.” “I felt in my heart like the only thing that’s

going to make you understand that this isn’t going to go away is to charge you with

murder. So I charged you with murder.”

      Several minutes later, Detective Ward assured Defendant he did not “have a

problem taking the stand on the behalf of a defendant.”           Detective Ward told

Defendant that he could face either second-degree, first-degree, or capital murder and

“that’s why I’m . . . beating my head against the wall trying to explain to you, help

yourself. Put it into a better category for you.” Detective Ward told Defendant he

could not promise anything, but the district attorney would go easier on Defendant if

Defendant was truthful. Defendant was told to “cut his losses,” that if he was honest

about what he had done, it would help him. Defendant was told not to “wear” the

charge all by himself.

      At approximately 2:38 p.m., Defendant began crying again and told Detective

Ward, “you have to get me a witness protection plan, though,” then began sobbing.

Defendant asked: “I’m already dead, should I just kill myself all the way?”           At

approximately 2:40 p.m., Defendant told Detective Ward, while sobbing, “I wasn’t the

gunman.” Defendant then told Detective Ward that Tony and Josh were the other

two men involved, asked Detective Ward for a hug, and sobbed on Detective Ward’s

shoulder. As indicated above, Defendant told the detectives that he had not killed

Anita, and that he assumed Tony had been the one who shot her.



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      Acting on information obtained from Defendant, the detectives located Tony

and Josh and questioned them at the police station. Tony and Josh gave different

accounts from each other when questioned by the police, and then gave different

accounts when testifying at trial. When initially questioned, Josh told police he had

handled a gun that night, and that the gun belonged to him. Josh testified that he

first told the detectives that he shot Anita, but that this statement was not recorded.

Josh then told police Tony had killed Anita; that Tony had told him “he [Tony] shot

her[, but Tony] didn’t know if he killed her or not.” However, at trial, Josh testified

he never touched a gun, that Defendant brought the gun, and that he did not know

who shot Anita. Tony testified at trial that Defendant and Josh planned the robbery.

Tony also testified that Josh never had a gun, but admitted he had previously told

police that Josh “probably did have a gun[.]”

      When Josh testified at trial, he said that he, Tony, and Defendant walked to

the motel and when they were beside the motel, Defendant pulled out a gun and said

they should rob a man and a woman who were standing in the parking lot. Josh and

Tony wore stocking caps, and Defendant wore a ski mask that covered his face. They

all approached the man and woman in the parking lot and Defendant threatened

them with his gun and told them to get on the ground; then Josh went through their

pockets. Josh put the items he recovered into his own pockets, except a set of keys,

which he gave to Defendant. Defendant told Josh to remain with the victims, and he



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and Tony went to the motel. Josh heard both a man and a woman screaming, and

some gunfire. Defendant and Tony returned a few minutes later and the three men

left together. Josh testified that Defendant attempted to rob another man who was

approaching the motel, but the man ran away and Defendant fired his gun at the

man, but missed. Defendant hid the gun under a brick beside an abandoned building.

Josh testified he never had a gun that night, and that he never saw Tony with a gun.

      Tony’s testimony was that he, Josh, and Defendant left a friend’s house and

headed toward the motel with the intention of committing a robbery. According to

Tony’s testimony, Defendant and Josh had come up with the plan. However, Tony

then testified they all came up with the plan once they were at the motel. Tony

testified Defendant hit the man in the head with his gun, then saw Josh doing

something to the man and woman who were on the ground. Tony took the keys and

attempted to unlock to door to the motel, and finally managed to find the correct key.

He and Defendant went inside, and encountered a woman sleeping. Defendant went

to the woman, and when she woke up “she was trying to get him off[,] and “she was

screaming.” Tony said he left the room to rejoin Josh, then they heard a gunshot and

saw Defendant “coming out of the room running.” The three men then ran away from

the motel, but when they saw a man coming towards them, Defendant shot at the

man twice. They went behind a building where Defendant hid the gun under a brick.




                                         - 20 -
                                 STATE V. JOHNSON

                                 Opinion of the Court



      Defendant filed a motion to suppress on 11 December 2014, arguing his

statements to police should be suppressed because they were not voluntarily made.

Defendant’s motion specifically argued that Defendant was subjected to custodial

interrogation before he was given his Miranda rights, and that Defendant’s

inculpatory statements were made pursuant to improper use of both threat and

promise.

      Defendant’s motion was heard 28 September 2015, and was denied by order

entered 3 November 2015, nunc pro tunc, 29 September 2015. The trial court ruled

that Defendant “was not in custody until the time that he was advised that he was

under arrest and Mirandized at 2:14 p.m.”         The trial court further ruled that

Defendant’s inculpatory statements were made voluntarily, and not “obtained as a

result of hope or fear instilled by the detectives.” Defendant was tried and found

guilty of first-degree murder on 6 October 2015. Defendant appeals.

      In Defendant’s first argument, he contends the trial court erred in denying his

motion to suppress. We agree, but hold the error was harmless.

      Our Supreme Court has stated the proper standard of review for denial of a

motion to suppress as follows:

             The applicable standard in reviewing a trial court’s
             determination 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.” Any conclusions of law reached by the trial
             court in determining whether defendant was in custody


                                        - 21 -
                                   STATE V. JOHNSON

                                   Opinion of the Court



             “must be legally correct, reflecting a correct application of
             applicable legal principles to the facts found.”

State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120–21 (2002) (citations omitted).

This Court has held:

             We review de novo a trial court’s conclusions as to the
             voluntariness of a defendant’s waiver of Miranda rights
             and statements. “The State bears the burden of proving
             that a defendant made a knowing and intelligent waiver of
             his rights and that his statement was voluntary.” Where,
             as here, “a defendant’s waiver of Miranda rights arises
             under the same circumstances as the making of his
             statement, the voluntariness issues may be evaluated as a
             single matter. Whether a waiver and statements were
             voluntarily made “must be found from a consideration of
             the entire record[.]” “[T]he reviewing court applies a
             totality-of-circumstances test.”

State v. Ingram, __ N.C. App. __, __, 774 S.E.2d 433, 442 (2015) (citations omitted).

             There are a number of . . . relevant factors [in determining
             the voluntariness of a statement]:

                whether defendant was in custody, whether he was
                deceived, whether his Miranda rights were honored,
                whether he was held incommunicado, the length of the
                interrogation, whether there were physical threats or
                shows of violence, whether promises were made to
                obtain the confession, the familiarity of the declarant
                with the criminal justice system, and the mental
                condition of the declarant.

             . . . . Furthermore, for a waiver of Miranda rights to be
             valid, it “must be . . . given voluntarily ‘in the sense that it
             was the product of a free and deliberate choice rather than
             intimidation, coercion, or deception[.]’” “[W]here it appears
             that an incriminating statement was given under any
             circumstances indicating coercion or involuntary action,


                                          - 22 -
                                  STATE V. JOHNSON

                                  Opinion of the Court



             that statement will be inadmissible.” “[T]he question of
             whether Defendant’s incriminating statements were made
             voluntarily turns on an analysis of the circumstances
             Defendant was subjected to before making his
             incriminating statements and the impact those
             circumstances had upon him.”

Id. at __, 774 S.E.2d at 442–43 (citations omitted).

      In the present case, the trial court made the following relevant findings of fact:

             3. Det. Ward and another CMPD detective, Brian
             Whitworth (“Det. Whitworth”) sought to make contact with
             the Defendant on October 19, 2011.

             4. The Defendant came to the police department
             headquarters on his own, without police escort, on October
             24, 2011.

             5. The Defendant was not told he was under arrest.

             6. The Defendant was not shackled or handcuffed.

             7. At times, during the interview with Det. Ward and Det.
             Whitworth, both detectives left the interview room.

             8. There was not a guard or police officer stationed at the
             door to the interview room.

             9. The Defendant was in possession of his personal cell
             phone while inside the interview room.

             10. The Defendant was offered, and accepted, food and
             drink.

             11. The Defendant was not hesitant to engage with, or
             otherwise speak to, the detectives.

             12. At no point was the Defendant made any specific
             promises.


                                         - 23 -
                    STATE V. JOHNSON

                    Opinion of the Court




....

18. At no time did the Defendant ask detectives to obtain
for him, or to give him the opportunity to speak with, a
defense lawyer.

19. The Defendant was emotional at times.

20. The Defendant cried at times.

21. The Defendant expressed concern with his ability to
“keep food down.”

22. The Defendant was 37 years old at the time of the
interview.

23. The Defendant is high-school-educated through the
11th grade and obtained his GED.

24. The Defendant is articulate, intelligent, literate, and
knowledgeable about the criminal justice system and its
processes.

25. Det. Ward had previously interviewed the Defendant,
in 1993, about a murder unrelated to the above-captioned
case.

26. While there were no specific promises or threats made
by law enforcement, the detectives conducting the
interview did represent to the Defendant that the District
Attorney “might look favorably” at the Defendant if he
made a confession.

27. At one point, the Defendant was patted down, as a
matter of course, for safety purposes.

28. Det. Ward had previously interviewed the Defendant,
in 2007, about the above captioned case.



                           - 24 -
                                  STATE V. JOHNSON

                                  Opinion of the Court



              29. During his 2007 interview, the Defendant did not admit
              any involvement in the above-captioned case.

              30. The Defendant had self-interest in staying and
              engaging with police in 2011.

              31. The Defendant offered to help, offered to wear a wire,
              and offered to do whatever else he could to assist the
              detectives.

      Defendant argues the trial court’s findings of fact “seem to intentionally

downplay the influence of hope and fear.”         Defendant specifically contends that

findings of fact five, nineteen, twenty, twenty-one, and twenty-six are incorrect or

incomplete.

      Defendant argues that finding five: “Defendant was not told he was under

arrest,” “is at best an incomplete finding as [Defendant] was told he would be arrested

if he did not state that he was there voluntarily. [Defendant] was also told that he

was guilty of murder and would ‘pay the price.’” In order to evaluate Defendant’s

arguments, we have reviewed the relevant parts of the video recordings of

Defendant’s interview on 24 October 2011, which are set forth above. We note that

Defendant was told that he was under arrest at approximately 2:03 p.m. Concerning

the time prior to formal arrest, when Defendant was being interrogated, we agree

with Defendant that whether or not he was specifically told he was under arrest, the

detectives’ statements to Defendant, along with the attendant circumstances, made

Defendant’s position akin to a formal arrest at a point early in the interview.



                                         - 25 -
                                   STATE V. JOHNSON

                                    Opinion of the Court



      Findings of fact nineteen, twenty, and twenty-one are all supported by

competent evidence, though we agree with Defendant that finding Defendant “was

emotional at times,” and “cried at times” tends to understate Defendant’s emotional

state during much of the interview. Concerning Defendant’s ability to keep food

down, our review of the video interrogation demonstrates that Defendant did tell the

detectives he felt sick to his stomach, and that he rejected an offer of food at one point,

stating that he worried he would not be able to “keep it down.” Defendant also on

occasion spit into a cup in a manner indicating stomach upset. Finally, though we

may agree with the wording of finding of fact twenty-six that “there were no specific

promises or threats made by” the detectives (emphasis added), we agree with

Defendant that viewing the totality of the circumstances, Defendant was induced by

both fear and hope to make inculpatory statements to the detectives.

      Defendant was asked to “voluntarily” show up at the police department for an

interview. What Defendant did not know at that time was that the police had

received DNA evidence suggesting the overwhelming likelihood that Defendant’s

DNA had been recovered from underneath Anita’s fingernails. Defendant did not

know this at the time he was asked to “voluntarily” submit to an interview at the

police station, so at the time Defendant arrived at the police station, a reasonable

person in Defendant’s situation would not have “believed that he was under arrest or

was restrained in his movement to the degree associated with a formal arrest.”



                                           - 26 -
                                 STATE V. JOHNSON

                                 Opinion of the Court



Barden, 356 N.C. at 337, 572 S.E.2d at 123 (citation omitted). What is clear to this

Court, however, is that Defendant was not going to leave the police station that day

without being placed under arrest for Anita’s murder.

      As the State acknowledges:

             Both the United States Supreme Court and this Court have
             held that Miranda applies only in the situation where a
             defendant is subject to custodial interrogation. Miranda v.
             Arizona, 384 U.S. at 444, 16 L.Ed.2d at 706; State v.
             Gaines, 345 N.C. 647, 661, 483 S.E.2d 396, 404 (1997). The
             proper inquiry for determining whether a person is “in
             custody” for purposes of Miranda is “based on the totality
             of the circumstances, whether there was a ‘formal arrest or
             restraint on freedom of movement of the degree associated
             with a formal arrest.’” In this case, we must examine
             “whether a reasonable person in defendant’s position,
             under the totality of the circumstances, would have
             believed that he was under arrest or was restrained in his
             movement to the degree associated with a formal arrest.”

Id. (citations omitted); see also J.D.B. v. North Carolina, 564 U.S. 261, 269–71, 180

L. Ed. 2d 310, 321-22 (2011).

      Approximately twenty minutes into the interview, Defendant was shown the

DNA analysis indicating that his DNA had been recovered from under Anita’s

fingernails. This evidence, if true, placed Defendant not only at the scene of the

murder, but in close physical proximity to the victim. We hold that at that time, “a

reasonable person in [D]efendant’s position, under the totality of the circumstances,

would have believed that he was under arrest or was restrained in his movement to

the degree associated with a formal arrest.” Barden, 356 N.C. at 337, 572 S.E.2d at


                                        - 27 -
                                 STATE V. JOHNSON

                                 Opinion of the Court



123. A reasonable person, who had previously denied ever having had contact with

a murder victim, when confronted with DNA evidence recovered from underneath

that murder victim’s fingernails, would not believe he was free to exit a police

interrogation room and go home. At that point in time, Defendant should have been

informed that he was under arrest and should have been provided his rights under

Miranda. Id.

      We note that the detectives continued to reinforce the position that Defendant

was not free to leave through their subsequent and continuing interrogation. At

approximately 10:12 a.m., Detective Ward told Defendant that the DNA evidence

locked Defendant in on charges of armed robbery and murder. The detectives told

Defendant at approximately 10:16 a.m. that this case would be a capital murder case,

and, unless Defendant wanted “to wear” the whole charge, Defendant needed to tell

them who else was involved. In the next few minutes, the detectives told Defendant

that his DNA under Anita’s fingernails provided enough probable cause to charge

Defendant for murder, and showed that Anita had grabbed Defendant’s arm or his

hair before she was murdered. Approximately thirty-one minutes into the interview,

the detectives told Defendant that he should stop denying his participation, because

he was so locked into the charges that he could not “get out with a blow torch.”

Detective Ward again told Defendant that this case would be a capital case, but

Defendant could help himself by cooperating, and that district attorneys “will work



                                        - 28 -
                                  STATE V. JOHNSON

                                  Opinion of the Court



with people who are honest and true.” Defendant was challenged in this manner for

over four hours, as thoroughly set out above, until he was finally told he was under

arrest.   Though we do not apply a subjective test, we note that Defendant was

eventually placed under arrest and Mirandized, even though he had continued to

deny involvement in Anita’s murder from the time his interrogation began until he

was placed under arrest.

      Defendant argues that Missouri v. Seibert, 542 U.S. 600, 159 L. Ed. 2d 643

(2004), renders his inculpatory statements involuntary. In Seibert, the United States

Supreme Court stated that the “technique of interrogating in successive, unwarned

and warned phases raises a new challenge to Miranda.” Id. at 609, 159 L. Ed. 2d at

653. In Seibert, detectives first questioned the defendant without Miranda warnings

until he confessed, then detectives got the Mirandized defendant to repeat his

confession. This technique was

             a police protocol for custodial interrogation that calls for
             giving no warnings of the rights to silence and counsel until
             interrogation has produced a confession. Although such a
             statement is generally inadmissible, since taken in
             violation of Miranda, the interrogating officer follows it
             with Miranda warnings and then leads the suspect to cover
             the same ground a second time.

Id. at 604, 159 L. Ed. 2d at 650 (citation omitted). The Supreme Court held:

             By any objective measure, applied to circumstances
             exemplified here, it is likely that if the interrogators
             employ the technique of withholding warnings until after
             interrogation succeeds in eliciting a confession, the


                                         - 29 -
                                  STATE V. JOHNSON

                                  Opinion of the Court



             warnings will be ineffective in preparing the suspect for
             successive interrogation, close in time and similar in
             content. After all, the reason that question-first is catching
             on is as obvious as its manifest purpose, which is to get a
             confession the suspect would not make if he understood his
             rights at the outset; the sensible underlying assumption is
             that with one confession in hand before the warnings, the
             interrogator can count on getting its duplicate, with trifling
             additional trouble. Upon hearing warnings only in the
             aftermath of interrogation and just after making a
             confession, a suspect would hardly think he had a genuine
             right to remain silent, let alone persist in so believing once
             the police began to lead him over the same ground again.
             A more likely reaction on a suspect’s part would be
             perplexity about the reason for discussing rights at that
             point, bewilderment being an unpromising frame of mind
             for knowledgeable decision. What is worse, telling a
             suspect that “anything you say can and will be used against
             you,” without expressly excepting the statement just given,
             could lead to an entirely reasonable inference that what he
             has just said will be used, with subsequent silence being of
             no avail. Thus, when Miranda warnings are inserted in
             the midst of coordinated and continuing interrogation, they
             are likely to mislead and “depriv[e] a defendant of
             knowledge essential to his ability to understand the nature
             of his rights and the consequences of abandoning them.”
             By the same token, it would ordinarily be unrealistic to
             treat two spates of integrated and proximately conducted
             questioning as independent interrogations subject to
             independent evaluation simply because Miranda warnings
             formally punctuate them in the middle.

Id. at 613–14, 159 L. Ed. 2d at 655-56 (citations omitted).

      We agree that the detectives in the present case used the same objectionable

technique considered in Seibert. However, unlike in Seibert, Defendant in the present

case did not confess until after he was given his Miranda warnings. For this reason,



                                         - 30 -
                                  STATE V. JOHNSON

                                   Opinion of the Court



our analysis is whether the entirety of the interrogation, from when Defendant first

should have been Mirandized, up until his inculpatory statements, rendered

Defendant’s inculpatory statements involuntary, even without Defendant having

confessed prior to having been Mirandized.

       We hold that resolution of the present case is determined by precedent, which

is partially analyzed in State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975). In Pruitt,

there was

             plenary evidence that the procedural safeguards required
             by the Miranda decision were recited by the officers and
             that defendant signed a waiver stating that he understood
             his constitutional rights, including his right to counsel.
             Even so, the ultimate test of the admissibility of a
             confession still remains whether the statement made by
             the accused was in fact voluntarily and understandingly
             made.

Id. at 454, 212 S.E.2d at 100 (citation omitted).         Our Supreme Court in Pruitt

reasoned:

             Another case factually similar to the case now before us is
             State v. Stevenson, 212 N.C. 648, 194 S.E. 81. There the
             evidence tended to show that the defendant had started to
             make a statement while in jail and was told by an officer
             that he need not lie because the officer already had more
             than enough evidence for his conviction. The defendant
             thereupon confessed. This Court awarded a new trial on
             the ground that the confession was not a free and voluntary
             confession but was instead a product of unlawful
             inducement on the part of the law enforcement officer.

             In State v. Drake, 113 N.C. 625, 18 S.E. 166, the facts
             showed that while the defendant was being carried from


                                          - 31 -
                     STATE V. JOHNSON

                     Opinion of the Court



the place of his arrest to a Justice of the Peace, a law
enforcement officer said to him, ‘If you are guilty, I would
advise you to make an honest confession. It might be easier
for you. It is plain against you.’ At that time the defendant
denied his guilt, but after the Justice of the Peace had
committed him to jail, he confessed. The Court again held
the confession to be involuntary and, in part, stated:

   “. . . The assertion of his innocence, in reply to the
   proposition that he should confess and thus make it
   easier for him, does not at all prove that the offer of
   benefit from the officer who had him in charge did not
   find a lodgment in his mind. If so, what could be more
   reasonable than that when he found himself on the way
   to prison in charge of the author of this hope that a
   confession would alleviate his condition, he should be
   tempted to act then upon a suggestion that he had
   rejected when the prospect did not seem to him so dark,
   and make a confession. It may have proceeded from this
   cause, from this hope so held out to him. If it may have
   proceeded from that cause, there is no guaranty of its
   truth, and it must be rejected.”

In State v. Livingston, 202 N.C. 809, 164 S.E. 337, the
defendants were arrested, and after measuring their shoes
and tracks at the scene of the crime, the officers told
defendants that “it would be lighter on them to confess”
and that “it looks like you had about as well tell it.” The
defendants forthwith confessed to the crime charged.
There the Court . . . held that the confessions were
involuntary and inadmissible in evidence. Accord: State v.
Fox, Supra (Officer told defendant that it would be better
for him in court if he told the truth and that he might be
charged with a lesser offense of accessory to the homicide
charge rather than its principal.); State v. Fuqua, 269 N.C.
223, 152 S.E.2d 68 (A police officer told the incarcerated
defendants that he [the officer] would be able to testify that
they cooperated if they aided the State in its case.); State
v. Woodruff, 259 N.C. 333, 130 S.E.2d 641 (Officer obtained
favors and concessions on the part of State officials to


                            - 32 -
                     STATE V. JOHNSON

                     Opinion of the Court



induce defendant to aid in solving the homicide and
promised that if the evidence obtained involved defendant,
he would try to help defendant.); State v. Davis, 125 N.C.
612, 34 S.E. 198 (Officer told defendant that he had
“worked up the case, and he had as well tell all about it.”).

The rule set forth in Roberts has been consistently followed
by this Court. The Court has, however, made it clear that
custodial admonitions to an accused by police officers to tell
the truth, standing alone, do not render a confession
inadmissible. Furthermore, this Court has made it equally
clear that any improper inducement generating hope must
promise relief from the criminal charge to which the
confession relates, not to any merely collateral advantage.

In instant case the interrogation of defendant by three
police officers took place in a police-dominated atmosphere.
Against this background the officers repeatedly told
defendant that they knew that he had committed the crime
and that his story had too many holes in it; that he was
“lying” and that they did not want to “fool around.” Under
these circumstances one can infer that the language used
by the officers tended to provoke fright. This language was
then tempered by statements that the officers considered
defendant the type of person “that such a thing would prey
heavily upon” and that he would be “relieved to get it off
his chest.” This somewhat flattering language was capped
by the statement that “it would simply be harder on him if
he didn’t go ahead and cooperate.” Certainly the latter
statement would imply a suggestion of hope that things
would be better for defendant if he would cooperate, i.e.,
confess.

We are satisfied that both the oral and written confessions
obtained from defendant were made under the influence of
fear or hope, or both, growing out of the language and acts
of those who held him in custody. We hold that both the
oral and the written confessions obtained in the Sheriff’s
Department on 9 October 1973 were involuntary and that
it was prejudicial error to admit them into evidence.


                            - 33 -
                                         STATE V. JOHNSON

                                         Opinion of the Court




Id. at 456–58, 212 S.E.2d at 101–03 (citations omitted).                        We hold that the

circumstances in the present case were at least as coercive as those in Pruitt. In the

present case, Defendant was questioned for hours after he should have been

Mirandized and, throughout this questioning, the detectives repeatedly told

Defendant they knew he was lying; that they had DNA proof of Defendant’s guilt;

that only a guilty person would have known Anita was shot in the back of the neck;

that this could be a capital case, and that Defendant’s treatment would depend on his

cooperation; that the district attorney’s office would usually work with those who

cooperated; that Detective Ward would consider testifying on Defendant’s behalf;3

that Defendant would feel better if he confessed and did right by God and his children;

and that Defendant should get the “best seat on the bus” by giving statements against

the two other men involved. It is also clear that the detectives decided to arrest

Defendant at the time they did in order to shake him up and, in Detective Ward’s

words: “I felt in my heart like the only thing that’s going to make you understand

that this isn’t going to go away is to charge you with murder. So I charged you with

murder.”4



        3See State v. Flood, 237 N.C. App. 287, 297, 765 S.E.2d 65, 73 (2014), disc. review denied, 368
N.C. 245, 768 S.E.2d 854 (2015) (citing State v. Fuqua, 269 N.C. 223, 228, 152 S.E.2d 68, 72 (1967)
“(statements inadmissible where an officer offered to testify on the suspect’s behalf if he cooperated).”

        4See Pruitt, 286 N.C. at 457, 212 S.E.2d at 102 (citation and quotation marks omitted) (“The
assertion of his innocence, in reply to the proposition that he should confess and thus make it easier



                                                 - 34 -
                                         STATE V. JOHNSON

                                          Opinion of the Court



        The facts before us are in contrast to those in cases where a defendant’s

statements were found to have been voluntary:

                Unlike the situations in Pruitt and Stevenson, the detective
                did not accuse defendant of lying, but rather informed
                defendant of the crime with which he might be charged and
                urged him to tell the truth and think about what would be
                better for him. Further, at the time Howard made the
                statements defendant contends were coercive, Howard had
                already identified for defendant, and defendant had
                acknowledged, the others with him the night of the murder.
                Earlier in the interview Howard had stated:

                    What I want to talk with you about is when you and
                    Chuck and Brian and Bootsy and another guy from
                    Clayton by the name of Brian Barbour come to Raleigh
                    and ya’ll robbed an old man and hit him with a bat.
                    That’s the incident I’m talking about, okay?

                Shortly thereafter, Howard asked defendant, “So who was
                together? Who was with ya’ll that night?” Defendant
                responded, “Everybody that you named.” Defendant knew
                at that point that the State had at least one witness.

                ....

                Under the totality of the circumstances test, the isolated
                statements by Howard do not support defendant’s
                contention that his statements were made involuntarily
                out of fear or hope on the part of defendant. We conclude,
                therefore, that the trial court did not err in determining
                that the statements were freely and voluntarily given and

for him, does not at all prove that the offer of benefit from the officer who had him in charge did not
find a lodgment in his mind. If so, what could be more reasonable than that when he found himself
on the way to prison in charge of the author of this hope that a confession would alleviate his condition,
he should be tempted to act then upon a suggestion that he had rejected when the prospect did not
seem to him so dark, and make a confession. It may have proceeded from this cause, from this hope
so held out to him. If it may have proceeded from that cause, there is no guaranty of its truth, and it
must be rejected.”).


                                                 - 35 -
                                  STATE V. JOHNSON

                                   Opinion of the Court



             in denying defendant’s motion to suppress.

State v. McCullers, 341 N.C. 19, 28, 460 S.E.2d 163, 168 (1995); see also State v.

Thomas, 310 N.C. 369, 379, 312 S.E.2d 458, 464 (1984) (“In Pruitt, unlike the case

before us, the police repeatedly told defendant that they knew that he had committed

the crime and that his story had too many holes in it; that he was ‘lying’ and that

they did not want to ‘fool around.’ In addition, the officers told defendant in that case

that ‘it would simply be harder on him if he didn’t go ahead and cooperate.’”) (citations

and quotation marks omitted); Flood, 237 N.C. App. at 296–99, 765 S.E.2d at 72–74

(lengthy analysis of Pruitt and other relevant opinions); State v. Patterson, 146 N.C.

App. 113, 124, 552 S.E.2d 246, 255 (2001) (“In Pruitt, the investigating officers

repeatedly told defendant that they knew that he had committed the crime and that

his story had too many holes in it; that he was ‘lying’ and that they did not want to

‘fool around.’ They also told him that they considered [him] the type of person ‘that

such a thing would prey heavily upon’ and that he would be ‘relieved to get it off his

chest.’ The Court found that under these circumstances the defendant’s confessions

were made under the influence of fear or hope, or both, growing out of the language

and acts of those who held him in custody.”) (citations and quotation marks omitted).

      The fact that the detectives at times managed to get Defendant to state that

he thought he could leave does not change our analysis. J.D.B., 564 U.S. at 271, 180

L. Ed. 2d at 322 (“[T]he ‘subjective views harbored by either the interrogating officers



                                          - 36 -
                                 STATE V. JOHNSON

                                  Opinion of the Court



or the person being questioned’ are irrelevant. The test, in other words, involves no

consideration of the ‘actual mindset’ of the particular suspect subjected to police

questioning.”). Based upon Pruitt and other cited cases, we hold that Defendant’s

inculpatory statements “were made under the influence of fear or hope, or both,

growing out of the language and acts of those who held him in custody.” Pruitt, 286

N.C. at 458, 212 S.E.2d at 103. Defendant’s motion to suppress his confession should

have been granted.

      Because we have held that Defendant’s constitutional rights were violated by

the failure to suppress his inculpatory statements, it is the State’s burden to prove

this error was harmless beyond a reasonable doubt. “‘A violation of the defendant’s

rights under the Constitution of the United States is prejudicial unless the appellate

court finds that it was harmless beyond a reasonable doubt. The burden is upon the

State to demonstrate, beyond a reasonable doubt, that the error was harmless.’

N.C.G.S. § 15A–1443(b) (2011).” State v. Ortiz-Zape, 367 N.C. 1, 13, 743 S.E.2d 156,

164 (2013).   In its brief, the State incorrectly attempts to place this burden on

Defendant. However, we hold that the overwhelming evidence of Defendant’s guilt

of first-degree murder, based upon the evidence that Anita was murdered in the

course of a robbery in which Defendant played an essential part, renders this error

harmless beyond a reasonable doubt.




                                         - 37 -
                                    STATE V. JOHNSON

                                     Opinion of the Court



       Both Josh and Tony, whose testimony Defendant did not move to suppress,

identified Defendant as the third man involved in the robbery and shooting, and both

stated Defendant was wearing a mask that covered his face. They both testified that

Defendant and Tony entered the motel while Josh remained outside, and both

claimed Defendant was carrying a gun. Brandy testified that there were two younger

men without their faces covered, and an older, larger man whose face was covered by

a mask. Brandy testified it was the older, larger man who held the gun, and who

entered the motel with one of the younger men. Most importantly, Defendant’s DNA5

was recovered from under Anita’s fingernails. Although Defendant’s admission of

participation in the crime, which we have held was involuntary, clearly prejudiced

Defendant, in light of the overwhelming evidence presented pointing to Defendant as

one of the three men involved in the robbery and murder, we hold the prejudice to

Defendant was harmless beyond a reasonable doubt. We reach this holding on these

particular facts, and because the jury was instructed on acting in concert and felony

murder based upon killing in the course of a robbery. The State did not have to prove

that Defendant shot Anita, only that he was one of the three men involved in the

robberies and murder.       The evidence that Defendant was one of the three men

involved was overwhelming, and the State has shown beyond a reasonable doubt that




       5To a stated certainty of 1 in 16,600,000 African-Americans, and all evidence presented
demonstrated that all three of the men involved were African-American.

                                            - 38 -
                                 STATE V. JOHNSON

                                 Opinion of the Court



Defendant would have been convicted even had his motion to suppress his inculpatory

statements been granted.

      In Defendant’s second argument, he contends the trial court erred in excluding

evidence of bullet fragments recovered from the parking lot that might have indicated

the presence of a second gun at the crime scene. We disagree.

      Defendant argues he could have used this evidence to impeach the testimonies

of Josh and Tony. Even assuming arguendo that there was a second gun involved in

the crime, the State did not need to prove that Defendant was the person who shot

Anita in order to obtain a conviction against him for first-degree murder, nor would

the presence of an additional gun have weakened the plenary evidence of Defendant’s

involvement. This argument is without merit.

      The trial court erred in denying Defendant’s motion to suppress his inculpatory

statements, but we hold this error was harmless in light of the plenary additional

evidence of Defendant’s guilt. For the same reason, we hold that, even assuming

arguendo the trial court erred in excluding evidence of bullet fragments recovered

from the parking lot, any such error was harmless.

      NO PREJUDICIAL ERROR.

      Judges STROUD and INMAN concur.




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