             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA14-21-2

                                Filed: 19 April 2016

Wake County, No. 11CRS214547

STATE OF NORTH CAROLINA

            v.

RODNEY NIGEE PLEDGER TAYLOR, Defendant.


      Appeal by defendant from judgment entered on or about 23 January 2013 by

Judge Carl R. Fox in Superior Court, Wake County. Originally heard in the Court of

Appeals on 4 June 2014, with opinion filed 5 August 2014. An order reversing in part

the decision of the Court of Appeals and remanding for consideration of “defendant’s

Fifth Amendment argument on the merits” was filed by the Supreme Court of North

Carolina on 6 November 2015.


      Attorney General Roy A. Cooper III, by Assistant Attorney General Kathleen N.
      Bolton, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Constance
      E. Widenhouse, for defendant-appellant.


      STROUD, Judge.


      Rodney Nigee Pledger Taylor (“defendant”) appeals from a judgment entered

on a jury verdict finding him guilty of first-degree murder.    Among defendant’s

arguments on appeal, defendant argued that the trial court erred in denying his

motion to suppress because he invoked his Fifth Amendment right to counsel during
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                                  Opinion of the Court



a custodial interrogation. In our previous opinion, filed on 5 August 2014, we declined

to address defendant’s Fifth Amendment argument on the merits and held that the

trial court committed no error. See State v. Taylor, ___ N.C. App. ___, 763 S.E.2d 928

(2014) (unpublished). But on 6 November 2015, on discretionary review, the North

Carolina Supreme Court reversed in part this Court’s decision and remanded the case

to this Court for consideration of “defendant’s Fifth Amendment argument on the

merits.” State v. Taylor, 368 N.C. 419, 777 S.E.2d 759 (2015). Accordingly, we

address defendant’s Fifth Amendment argument on the merits. We find no error.

                                 I.     Background

      We review our discussion of the factual and procedural background from our

previous opinion:

                    Defendant was indicted for first degree murder on
             12 June 2011. He pled not guilty and proceeded to jury
             trial. Before trial, defendant filed a motion to suppress
             statements he made to police. He argued that he had been
             unconstitutionally seized and that he was subjected to
             custodial interrogation without the benefit of Miranda
             warnings. The trial court denied defendant’s motion by
             order entered 17 January 2013.
                    At trial, the State’s evidence tended to show that on
             the evening of 23 June 2011, defendant (also known as
             “Sponge Bob”), Alex Walton (also known as “Biz” or “Mr.
             Business”), and Floyd Creecy (also known as “Bruno” or
             “Big Bs”) got together to hang out and smoke marijuana.
             All three men were involved in a local gang named “Bounty
             Hunters,” which was affiliated with the larger “Crips”




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               gang.[1] The three men went to a store on Poole Road in
               east Raleigh to buy some cigars to make “blunts.” They all
               rode together in the black Chrysler Pacifica owned by Mr.
               Creecy’s wife.
                      After buying what they needed from the store, the
               three men got back into Mr. Creecy’s car and drove back
               down Poole Road. Mr. Creecy was driving, defendant was
               in the passenger seat, and Mr. Walton was sitting in the
               back. As they were riding down Poole Road, defendant
               said, “There’s Polo,” and told Mr. Creecy to pull over. There
               were three individuals walking down the sidewalk—
               Darius Johnson (also known as “Polo”), Damal [O’Neal],
               and Kyonatai Cleveland. Mr. Creecy pulled into a church
               parking lot behind them. Defendant exited the car and
               approached the three; Mr. Walton then got out and
               followed defendant.
                      As defendant and Mr. Walton approached, Mr.
               Johnson took out what he had in his pockets, including his
               cell phone, and gave it to Ms. Cleveland. He also took out
               a wine opener that he had in his pocket, opened a small
               knife at the end of the opener, then closed the knife and put
               the opener back in his pocket. Defendant said to Mr.
               Johnson, “Why didn’t you get back to us?” Mr. Johnson
               responded, “I don’t know.” Defendant then said, “Well, I
               gave you more than enough time.” At that point, defendant
               said to Mr. Walton, “Watch out, Biz,” pulled out a black
               revolver and began shooting at Mr. Johnson.
                      During this encounter, Ms. Cleveland called 911.
               However, she was unable to tell the operator what was
               happening because when they saw the gun, Mr. Johnson
               and his two friends tried to run. Mr. Johnson was hit by
               one bullet in his front left abdomen. The forensic evidence
               suggested that the bullet was fired from a close distance—
               perhaps less than two feet. After shooting Mr. Johnson,
               defendant and Mr. Walton ran back to the black Pacifica,
               which Mr. Creecy had pulled around to the next street. The
               gun was still in defendant’s hand when he got back into Mr.

       1   This Court added a footnote here that “Mr. Creecy denied being in a gang, but Mr. Walton
testified that Mr. Creecy was [a] ‘mentor’ to the two younger men in the ‘Bounty Hunters.’ ” Taylor,
___ N.C. App. ___, 763 S.E.2d 928, slip op. at 2 n.1.

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             Creecy’s car.
                      At trial, Mr. [O’Neal], Ms. Cleveland, Mr. Walton,
             and Mr. Creecy all testified to the events of that night. The
             three men all positively identified defendant as the
             shooter.      Mr. Walton and Mr. Creecy testified that
             defendant and Mr. Johnson had an argument
             approximately a week before the shooting. Mr. Johnson
             had been asking defendant about joining the Bounty
             Hunters. Defendant told Mr. Johnson to call him. When
             Mr. Johnson failed to call him, defendant said that he was
             going to “bang,” i.e. shoot, Mr. Johnson.
                      Defendant was asked to come to the police station to
             be interviewed by detectives. He initially denied knowing
             anything about the shooting, but later admitted that he
             was in the SUV. He said that the shooter was someone
             named “Chuck.” He later conceded that there was no one
             named Chuck but continued to deny that he was the
             shooter. Defendant claimed that after the shooting, he
             brought the gun back to his house. The detectives went to
             defendant’s grandmother’s house, where he was living.
             When they arrived, defendant’s grandmother informed
             them that she had found a gun in her grandson’s room,
             under his bed. She explained that she did not want the gun
             in her house, so she took it outside and hid it in her
             backyard. The police recovered the gun—a black .38
             caliber revolver. Four spent shell casings were found in the
             revolver. Once the gun was recovered and the interview
             was complete, defendant was placed under arrest. Upon
             being transported to the jail, two deputies searched
             defendant’s pockets and found two .38 caliber bullets.
                      The jury found defendant guilty of first degree
             murder. The trial court accordingly sentenced defendant
             to life in prison without the possibility of parole. Defendant
             gave notice of appeal in open court.

Taylor, ___ N.C. App. ___, 763 S.E.2d 928, slip op. at 1-5 (footnote omitted).

                                  II.    Discussion

      Defendant argues that the trial court erred in denying his motion to suppress


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because he invoked his Fifth Amendment right to counsel during a custodial

interrogation.

A.    Standard of Review

                    The standard of review in evaluating the denial of a
             motion to suppress is whether competent evidence
             supports the trial court’s findings of fact and whether the
             findings of fact support the conclusions of law. However,
             when . . . the trial court’s findings of fact are not challenged
             on appeal, they are deemed to be supported by competent
             evidence and are binding on appeal. Conclusions of law are
             reviewed de novo and are subject to full review. Under a
             de novo review, the court considers the matter anew and
             freely substitutes its own judgment for that of the lower
             tribunal.

State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and

quotation marks omitted).

B.    Analysis

      In Edwards v. Arizona, the U.S. Supreme Court held that “it is inconsistent

with Miranda and its progeny for the authorities, at their instance, to reinterrogate

an accused in custody if he has clearly asserted his right to counsel.” Edwards v.

Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 387 (1981) (discussing Miranda v.

Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966)). In Edwards, the police interrogated

the petitioner on the evening of January 19 but ceased their questioning when the

petitioner invoked his right to counsel. Id. at 486-87, 68 L. Ed. 2d at 387. The

following day, the police returned and advised the petitioner of his Miranda rights



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but did not provide access to counsel. Id. at 487, 68 L. Ed. 2d at 387-88. The

petitioner “stated that he would talk, but what prompted this action does not appear.”

Id., 68 L. Ed. 2d at 388. During this interrogation, the petitioner made a self-

incriminating statement. Id., 68 L. Ed. 2d at 388. The U.S. Supreme Court held that

the petitioner’s “statement, made without having had access to counsel, did not

amount to a valid waiver and hence was inadmissible.” Id., 68 L. Ed. 2d at 388.

      In Davis v. United States, the U.S. Supreme Court reiterated its holding in

Edwards that “law enforcement officers must immediately cease questioning a

suspect who has clearly asserted his right to have counsel present during custodial

interrogation” and addressed the question of “how law enforcement officers should

respond when a suspect makes a reference to counsel that is insufficiently clear to

invoke the Edwards prohibition on further questioning.” Davis v. United States, 512

U.S. 452, 454, 129 L. Ed. 2d 362, 368 (1994).

                    The applicability of the rigid prophylactic rule of
             Edwards requires courts to determine whether the accused
             actually invoked his right to counsel. To avoid difficulties
             of proof and to provide guidance to officers conducting
             interrogations, this is an objective inquiry. Invocation of
             the Miranda right to counsel requires, at a minimum, some
             statement that can reasonably be construed to be an
             expression of a desire for the assistance of an attorney. But
             if a suspect makes a reference to an attorney that is
             ambiguous or equivocal in that a reasonable officer in light
             of the circumstances would have understood only that the
             suspect might be invoking the right to counsel, our
             precedents do not require the cessation of questioning.
                    Rather, the suspect must unambiguously request


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             counsel. As we have observed, a statement either is such
             an assertion of the right to counsel or it is not. Although a
             suspect need not speak with the discrimination of an
             Oxford don, . . . he must articulate his desire to have
             counsel present sufficiently clearly that a reasonable police
             officer in the circumstances would understand the
             statement to be a request for an attorney. If the statement
             fails to meet the requisite level of clarity, Edwards does not
             require that the officers stop questioning the suspect.
                     We decline petitioner’s invitation to extend Edwards
             and require law enforcement officers to cease questioning
             immediately upon the making of an ambiguous or
             equivocal reference to an attorney. . . . [I]f a suspect is
             indecisive in his request for counsel, the officers need not
             always cease questioning.
                     ....
                     Of course, when a suspect makes an ambiguous or
             equivocal statement it will often be good police practice for
             the interviewing officers to clarify whether or not he
             actually wants an attorney. . . . But we decline to adopt a
             rule requiring officers to ask clarifying questions. If the
             suspect’s statement is not an unambiguous or unequivocal
             request for counsel, the officers have no obligation to stop
             questioning him.

Id. at 458-62, 129 L. Ed. 2d at 371-73 (citations and quotation marks omitted). “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.”

State v. Hyatt, 355 N.C. 642, 655, 566 S.E.2d 61, 70 (2002), cert. denied, 537 U.S.

1133, 154 L. Ed. 2d 823 (2003). In Davis, the U.S Supreme Court held that the

petitioner’s remark—“Maybe I should talk to a lawyer”—was not a request for counsel

and thus the Naval Investigative Service agents were not required to cease

questioning the petitioner. Id. at 462, 129 L. Ed. 2d at 373.


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                                 Opinion of the Court



      The U.S. Supreme Court had previously explained the difference between

invocation and waiver and held that courts must not examine a defendant’s

statements made after his invocation of the right to counsel in determining whether

his invocation was ambiguous:

            First, courts must determine whether the accused actually
            invoked his right to counsel. Second, if the accused invoked
            his right to counsel, courts may admit his responses to
            further questioning only on finding that he (a) initiated
            further discussions with the police, and (b) knowingly and
            intelligently waived the right he had invoked.
                   ....
            Where nothing about the request for counsel or the
            circumstances leading up to the request would render it
            ambiguous, all questioning must cease.             In these
            circumstances, an accused’s subsequent statements are
            relevant only to the question whether the accused waived
            the right he had invoked. Invocation and waiver are
            entirely distinct inquires, and the two must not be blurred
            by merging them together.
                   The importance of keeping the two inquiries distinct
            is manifest. Edwards set forth a “bright-line rule” that all
            questioning must cease after an accused requests counsel.
            In the absence of such a bright-line prohibition, the
            authorities through badgering or overreaching—explicit or
            subtle, deliberate or unintentional—might otherwise wear
            down the accused and persuade him to incriminate himself
            notwithstanding his earlier request for counsel’s
            assistance. With respect to the waiver inquiry, we
            accordingly have emphasized that a valid waiver cannot be
            established by showing that the accused responded to
            further police-initiated custodial interrogation. Using an
            accused’s subsequent responses to cast doubt on the
            adequacy of the initial request itself is even more
            intolerable. No authority, and no logic, permits the
            interrogator to proceed on his own terms and as if the
            defendant had requested nothing, in the hope that the


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             defendant might be induced to say something casting
             retrospective doubt on his initial statement that he wished
             to speak through an attorney or not at all.
                    ....
             [A]n accused’s postrequest responses to further
             interrogation may not be used to cast retrospective doubt
             on the clarity of the initial request itself. Such subsequent
             statements are relevant only to the distinct question of
             waiver.

Smith v. Illinois, 469 U.S. 91, 95-100, 83 L. Ed. 2d 488, 493-96 (1984) (per curiam)

(citations, quotation marks, brackets, footnote, and ellipsis omitted).

      In evaluating whether a defendant’s request for counsel is unambiguous, the

Seventh Circuit Court of Appeals has held that the questions—“Can I have a

lawyer?”—and—“I mean, but can I call [a lawyer] now?”—and—“Can you call my

attorney?”—were unambiguous requests for an attorney. U.S. v. Lee, 413 F.3d 622,

626 (7th Cir. 2005); U.S. v. Wysinger, 683 F.3d 784, 795-96 (7th Cir. 2012); U.S. v.

Hunter, 708 F.3d 938, 943-44 (7th Cir. 2013). In Hunter, the Court explained that

             [i]nstead of using a word like “should” or “might,” which
             would suggest that the defendants were still undecided
             about whether they wanted a lawyer, all three defendants
             used the word “can.” The defendants’ choice of the word
             “can,” by definition, means that they were inquiring into
             their present ability to be “able to” obtain a lawyer or to
             “have the opportunity or possibility to” obtain a lawyer. In
             sum, given the text of the previous statements that our
             circuit has found sufficient to invoke the right to counsel,
             the text of [the defendant’s] request was sufficient to have
             put a reasonable officer on notice that [the defendant] was
             invoking his right to counsel.

Hunter, 708 F.3d at 943-44 (citation omitted). Similarly, in Sessoms v. Grounds, the


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Ninth Circuit Court of Appeals held that the question—“There wouldn’t be any

possible way that I could have a—a lawyer present while we do this?”—was an

unambiguous request for an attorney. Sessoms v. Grounds, 776 F.3d 615, 626 (9th

Cir. 2015), cert. denied, ___ U.S. ___, 193 L. Ed. 2d 207 (2015). In contrast, the Eighth

Circuit Court of Appeals held that a state court was not unreasonable in determining

that the question—“Could I call my lawyer?”—was not an unambiguous request for

counsel. Dormire v. Wilkinson, 249 F.3d 801, 805 (8th Cir. 2001), cert. denied, 534

U.S. 962, 151 L. Ed. 2d 281 (2001).

      In Hyatt, our Supreme Court held that the defendant’s statement “to the effect

that his father wanted him to have a lawyer present during the interrogation was

insufficient to constitute an invocation of [the] defendant’s Fifth Amendment right to

counsel[,]” because the “statement did not unambiguously convey [the] defendant’s

desire to receive the assistance of counsel.” Hyatt, 355 N.C. at 656-57, 566 S.E.2d at

71. The Court also noted that the detective “made no attempt to dissuade [the]

defendant from exercising his Fifth Amendment right” but “clarified that [the]

defendant, and not his father, must be the one to decide whether to seek the

assistance of counsel.” Id. at 657, 566 S.E.2d at 71.

      Here, during the police interview, after defendant asked to speak to his

grandmother, Detective Morse called defendant’s grandmother from his phone and

then handed his phone to defendant.         While on the phone, defendant told his



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grandmother that he called her to “let [her] know that [he] was alright.” From

defendant’s responses on the phone, it appears that his grandmother asked him if the

police had informed him of his right to speak to an attorney. Defendant responded,

“An attorney? No, not yet. They didn’t give me a chance yet.” Defendant then

responds, “Alright,” as if he is listening to his grandmother’s advice. Defendant then

looked up at Detective Morse and asked, “Can I speak to an attorney?” Detective

Morse responded: “You can call one, absolutely.” Defendant then relayed Detective

Morse’s answer to his grandmother: “Yeah, they said I could call one.” Defendant

then told his grandmother that the police had not yet made any charges against him,

listened to his grandmother for several more seconds, and then hung up the phone.

      Detective Morse then filled out a Miranda waiver form and advised defendant

of his Miranda rights. Defendant refused to sign the form and explained that his

grandmother told him not to sign anything. Detective Morse than responded: “Okay.

Are you willing to talk to me today?”      Defendant responded:    “I will. But [my

grandmother] said—um—that I need an attorney or a lawyer present.” Detective

Morse responded: “Okay. Well you’re nineteen. You’re an adult. Um—that’s really

your decision whether or not you want to talk to me and kind-of clear your name or—

” Defendant then interrupted: “But I didn’t do anything, so I’m willing to talk to

you.” Defendant then orally waived his Miranda rights.

      Because defendant asked Detective Morse the question—“Can I speak to an



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attorney?”—during his telephone conversation with his grandmother after she raised

the issue of his right to counsel, it is ambiguous whether defendant was conveying

his own desire to receive the assistance of counsel or whether he was merely relaying

a question from his grandmother to Detective Morse. In the case of the latter,

defendant’s question would not constitute an invocation, because a defendant’s

statement that a family member would like for him to have the assistance of counsel

does not “unambiguously convey [the] defendant’s desire to receive the assistance of

counsel.” See Hyatt, 355 N.C. at 656-57, 566 S.E.2d at 71. Under Davis, defendant’s

ambiguous remark did not require Detective Morse to cease questioning. Davis, 512

U.S. at 461-62, 129 L. Ed. 2d at 373 (“If the suspect’s statement is not an

unambiguous or unequivocal request for counsel, the officers have no obligation to

stop questioning him.”). Defendant’s later statement—“But [my grandmother] said—

um—that I need an attorney or a lawyer present.”—is also not an invocation since it

does not “unambiguously convey defendant’s desire to receive the assistance of

counsel.” See Hyatt, 355 N.C. at 656-57, 566 S.E.2d at 71.

      A few minutes later, after Detective Morse advised defendant of his Miranda

rights, he properly clarified that the decision to invoke the right to counsel was

defendant’s decision, not his grandmother’s. See Davis, 512 U.S. at 461, 129 L. Ed.

2d at 373 (“Of course, when a suspect makes an ambiguous or equivocal statement it

will often be good police practice for the interviewing officers to clarify whether or not



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he actually wants an attorney.”); Hyatt, 355 N.C. at 657, 566 S.E.2d at 71 (noting

with approval that the detective “clarified that [the] defendant, and not his father,

must be the one to decide whether to seek the assistance of counsel”).

      Defendant’s reliance on U.S. v. Lee and U.S. v. Hunter is misplaced, because

the defendants in those cases did not make their requests within the context of a

simultaneous conversation with a third-party. Lee, 413 F.3d at 624; Hunter, 708 F.3d

at 940. Had defendant asked the question—“Can I speak to an attorney?”—before or

after his phone conversation, Lee and Hunter would become much more factually

similar. But defendant asked this question during the phone conversation with his

grandmother after she raised the issue of his right to counsel.        The context of

defendant’s request creates ambiguity concerning whether he was conveying his own

desire to receive the assistance of counsel or whether he was merely relaying a

question from his grandmother to Detective Morse. We distinguish Wysinger and

Sessoms for the same reason. See Wysinger, 683 F.3d at 795-96; Sessoms, 776 F.3d

at 626. Following Davis and Hyatt, we hold that Detective Morse was not required

to cease questioning, because defendant did not unambiguously convey that he

desired to receive the assistance of counsel. See Davis, 512 U.S. at 461-62, 129 L. Ed.

2d at 373; Hyatt, 355 N.C. at 656-57, 566 S.E.2d at 71.

      Because defendant orally waived his Miranda rights before he made the

statements at issue on appeal, we need not address the issue of whether defendant



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was in custody for purposes of Miranda. We therefore hold that the trial court did

not err in denying defendant’s motion to suppress.

C.    Prejudice

      Even assuming arguendo that the trial court erred in denying defendant’s

motion to suppress, we hold that the State has shown that this alleged constitutional

error would have been harmless beyond a reasonable doubt. See N.C. Gen. Stat. §

15A-1443(b) (2013). We preliminarily note that defendant admitted to killing Mr.

Johnson (“the victim”) during an inquiry pursuant to State v. Harbison, 315 N.C. 175,

337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986); thus, the

central issue at trial was whether defendant acted with premeditation and

deliberation.   We also note that during the police interview, defendant never

confessed to shooting the victim; rather, he said Floyd Creecy shot the victim.

      Defendant argues that his following statements and omission during the police

interview prejudiced him: (1) defendant’s admission that he left the car with a gun

before approaching the victim; (2) defendant’s admission that he put four bullets in

the gun; (3) defendant’s admission that he warned Biz Walton immediately before the

shooting; and (4) defendant’s failure to mention that the victim brandished a knife.

Defendant argues that these statements and this omission tended to support the

State’s theory at trial that defendant shot the victim with premeditation and

deliberation rather than defendant’s theory at trial that he did not act with



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premeditation and deliberation and shot the victim only because the victim

brandished a knife.         Although defendant’s statements and omission do tend to

support a finding of premeditation and deliberation, any alleged error in their

admission would be harmless beyond a reasonable doubt given the overwhelming

evidence of defendant’s premeditation and deliberation.

      All three eyewitnesses, Mr. O’Neal, Ms. Cleveland, and Mr. Walton, testified

that defendant confronted the victim, shot the victim, and fired multiple shots.2 See

State v. Taylor, 362 N.C. 514, 531, 669 S.E.2d 239, 256 (2008) (holding that a jury

may infer premeditation and deliberation from a defendant’s conduct, including

“entering the site of the murder with a weapon, which indicates the defendant

anticipated a confrontation and was prepared to use deadly force to resolve it” and

“firing multiple shots, because some amount of time, however brief, for thought and

deliberation must elapse between each pull of the trigger”) (citation and quotation

marks omitted), cert. denied, 558 U.S. 851, 175 L. Ed. 2d 84 (2009).                       All three

witnesses also testified that the victim never threatened defendant with a knife. Biz

Walton testified that defendant continued to shoot at the victim while the victim was

running away. The State also proffered a recording of the 911 call in which defendant

says, “Watch out, Biz,” followed by four gunshots. Dr. Jonathan Privette opined that

the victim was shot from less than two feet away. Mr. Walton also testified that



      2   Mr. Creecy testified that he heard multiple gunshots but did not see the shooting.

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defendant had previously told him that he was going to “bang” the victim. In light of

this overwhelming evidence of defendant’s premeditation and deliberation, we hold

that the State has shown that any alleged constitutional error in denying defendant’s

motion to suppress would have been harmless beyond a reasonable doubt. See N.C.

Gen. Stat. § 15A-1443(b).

                                 III.   Conclusion

      For the foregoing reasons, we hold that the trial court committed no error.

      NO ERROR.

      Judges STEPHENS and McCULLOUGH concur.




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