State v. KnightÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1015
Filed: 16 February 2016
Wake County, No. 12 CRS 223242
STATE OF NORTH CAROLINA
v.
THOMAS D. KNIGHT
Appeal by defendant from judgment entered 7 February 2014 by Judge Kendra
D. Hill in Wake County Superior Court. Heard in the Court of Appeals 22 April 2015.
Attorney General Roy Cooper, by Assistant Attorney General Amy Kunstling
Irene, for the State.
Cooley Law Office, by Craig M. Cooley, for defendant.
CALABRIA, Judge.
Defendant Thomas D. Knight (“defendant”) appeals from judgment entered
upon a jury verdict finding him guilty of second degree rape and first degree
kidnapping. We conclude that defendant’s trial was free from prejudicial error.
I. Background
In October 2012, forty-six-year-old victim T.H., a divorced mother of two adult
children, resided in Fuquay-Varina. She had a boyfriend but lived alone. T.H. and
defendant—who lived with his girlfriend, Leslie Leicht (“Leicht”)—were neighbors
and had known each other for approximately one year. Over the course of that year,
T.H. and defendant “hung out” at T.H.’s home about ten to fifteen times, mainly to
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Opinion of the Court
talk, drink alcohol, and smoke marijuana. T.H. also allowed defendant to drive her
car on certain occasions. Whenever they got together, T.H. usually drank three to
four beers, while defendant preferred vodka.
Although T.H. had a boyfriend and lived alone, she and defendant enjoyed a
light-hearted, platonic relationship. However, defendant occasionally made sexually
suggestive comments such as “once you go black you’ll never go back,” to which T.H.
dismissively replied that she had “made it this far without that so [she would] be
fine.” T.H. felt that defendant was “[j]ust talking junk” and she did not take his
innuendos seriously. But in T.H.’s words, defendant “crossed the line” during an
August 2012 incident.
On 23 August 2012, defendant came to T.H.’s home and brought her a kitten;
he then “took off.” Nearly an hour later, defendant suddenly entered T.H.’s home
through an open back door, threw her on the bedroom floor, and positioned himself
on top of her. After T.H. asked defendant “[w]hat in the fu**” he was doing[,]”
defendant answered, “[y]ou want this, Bit**.” In response, T.H. hit defendant in the
face and told him to leave her home immediately, which he did. Soon after the
incident, defendant texted T.H. and apologized for scaring her. He also promised that
“it” would never happen again. T.H. accepted defendant’s apology and got together
with him two or three times between August and October of 2012.
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In the late afternoon of 12 October 2012, T.H. texted defendant and asked him
to get her some marijuana, something he had done for her on several prior occasions.
Defendant agreed, and the two traveled to Angier in T.H.’s car to get the marijuana.
After they returned to T.H.’s residence around 6:30 p.m., T.H. and defendant sat on
the living room couch while drinking, getting high, watching TV, and talking about
their respective relationships. During the course of the evening, defendant drank
vodka straight from the bottle and T.H. consumed five beers along with two shots of
vodka.
Sometime before 9:30 p.m., defendant abruptly picked T.H. up off the couch,
pinned her arms against her body, and carried her to the bedroom. T.H. screamed at
defendant and asked what he was doing, but he did not respond. Once in the
bedroom, defendant threw T.H. on the bed, held her down, and proceeded to remove
her jeans and underwear as she continued to yell and scream. After unfastening his
pants, defendant vaginally penetrated T.H. for approximately ten minutes before
pausing to proclaim, “now you’re a real woman because you’ve been fu**ed by a black
man,” to which T.H. replied, “well, now you have HIV.” Angered by that reply and
believing that he might contract AIDS, defendant ceased penetrating T.H. and began
hitting her face. Defendant then put his penis in T.H.’s mouth, prompting her to bite
it. Somewhat stunned, defendant backed away, which allowed T.H. to get away from
defendant and run out of the home.
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Wearing only a sweater, T.H. eventually made it to the home of a neighbor,
Beth Branham (“Branham”), who noticed blood on T.H.’s lower lip. After giving
T.H.—who was distraught and crying—some sweatpants to wear, Branham called
the police. Several officers with the Fuquay-Varina Police Department (“FVPD”)
arrived at Branham’s home, and T.H. told them what happened.
The officers then proceeded to T.H.’s home, where they found defendant’s white
t-shirt in the front yard. Inside the bedroom, the bed covers were in disarray and
T.H.’s pants and panties were inside out on the floor. In addition, fresh red blood and
hair that seemed to have come from T.H.’s scalp were found on the bedding.
Meanwhile, defendant had gone to a friend’s house, where Leicht picked him
up in her car. As the two drove home, defendant noticed police cars in the area and
had Leicht drop him off at a nearby gas station. FVPD officers apprehended
defendant at the gas station shortly thereafter. At that time, defendant was carrying
two cell phones, one of which belonged to T.H., and he claimed to be waiting for
someone to bring him money. After defendant was transported to the FVPD,
Detective Jeff Wenhart questioned him regarding T.H.’s allegations. Detective
Wenhart noticed scratches on defendant’s nose and cheek as well as fresh blood on
his shirt. A long, reddish head hair consistent with that of T.H. was found on
defendant’s face. During the videotaped interview, defendant acknowledged
spending time with T.H. and agreeing to purchase marijuana for her on the night in
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question, but he denied having sex with her. He also explained that either his dog or
T.H.’s cat had scratched his face and that he had recently bit his tongue, which caused
the blood stain on his shirt.
On 27 November 2012, defendant was indicted on one count each of second
degree forcible rape, second degree sexual offense, and first degree kidnapping. In a
separate indictment, defendant was also charged with assault on a female, common
law robbery, and interfering with an emergency communication.
2013 Trial
On 5 August 2013, defendant was tried in Wake County Criminal Superior
Court before the Honorable Reuben F. Young. During trial, defendant moved to
suppress his statement to Detective Wenhart. After viewing the videotape of
defendant’s interview and hearing arguments on the issue, Judge Young ruled that
the questions Detective Wenhart asked violated Miranda v. Arizona, 384 U.S. 436,
16 L. Ed. 2d 694 (1966), and ordered that defendant’s statement be suppressed. At
the close of all evidence, Judge Young dismissed the charges of common law robbery
and interfering with an emergency communication. On 8 August 2013, the jury found
defendant guilty of assault on a female, but was unable to reach a unanimous verdict
as to the kidnapping, rape, and sexual assault charges, prompting Judge Young to
declare a mistrial on those three charges.
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2014 Trial
In February 2014, defendant was retried on the charges of second degree rape,
second degree sexual offense, and first degree kidnapping in Wake County Superior
Court before the Honorable Kendra D. Hill. During trial, the State revisited the issue
of Judge Young’s suppression ruling in the 2013 trial and argued that Judge Hill had
the authority to overrule it. Judge Hill felt the issue presented a “close question[,]”
but she eventually ruled that defendant’s statement to Detective Wenhart was
admissible. At the close of all evidence, defendant moved that the kidnapping charge
be dismissed, arguing that there was insufficient evidence of “a separate . . . act
independent and apart from the potential two underlying felonies” (second degree
rape and second degree sexual offense). Judge Hill denied the motion.
Defendant testified in his own defense as to what happened at T.H’s home
during the evening of 12 October 2012. According to defendant, while he and T.H.
were sitting on the living room couch, T.H. leaned in and kissed him. At one point in
the evening, T.H. got up to use the bathroom and, upon her return, she was wearing
nothing but her sweater and underwear. T.H. asked defendant to “[c]ome here.” In
response, defendant resumed kissing T.H. before eventually moving her to the
bedroom. Once there, defendant fell backwards onto the bed with T.H. on top of him.
Eventually, defendant rolled T.H. over and got on top of her, but upon his doing so,
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Opinion of the Court
she “freaked out,” hit and “flicked” him in the face, began screaming, and ran out the
front door. Defendant denied having sex with T.H., and claimed that he neither
removed her clothes nor attempted to put his penis in her mouth.
The jury found defendant guilty of second degree rape and first degree
kidnapping, but acquitted him on the second degree sexual offense charge. Judge
Hill then consolidated the two convictions, sentencing defendant to a minimum of 90
and a maximum of 168 months in the custody of the North Carolina Department of
Public Safety, Division of Adult Correction. Defendant appeals.
II. Analysis
A. Judge Young’s Ruling
1. Law of the Case
Defendant first argues that because Judge Young suppressed defendant’s
videotaped statement in the 2013 trial, Judge Hill was bound by that ruling in the
2014 trial. This argument is partially premised on the law of the case doctrine.
According to the law of the case doctrine, “ ‘once an appellate court has ruled
on a question, that decision becomes the law of the case and governs the question
both in subsequent proceedings in a trial court and on subsequent appeal.’ ” State v.
Boyd, 148 N.C. App. 304, 308, 559 S.E.2d 1, 3 (2002) (quoting Weston v. Carolina
Medicorp, Inc., 113 N.C. App. 415, 417, 438 S.E.2d 751, 753 (1994)). From the outset,
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we note that this legal principle does not apply here because there has been no prior
appeal in this case.
Even so, another version of the doctrine, which is relevant here, provides that
“when a party fails to appeal from a tribunal’s decision that is not interlocutory, the
decision below becomes the law of the case and cannot be challenged in subsequent
proceedings in the same case.” Boje v. D.W.I.T., 195 N.C. App. 118, 122, 670 S.E.2d
910, 912 (2009) (internal quotation mark omitted).
Defendant contends that once Judge Young ruled on defendant’s motion to
suppress, the State had the right to appeal pursuant to N.C. Gen. Stat. § 15A-979(c),
which provides that “[a]n order by the superior court granting a motion to suppress
prior to trial is appealable to the appellate division of the General Court of Justice
prior to trial. . . . ” According to defendant, by failing to appeal the ruling, “the State
waived its right to challenge [the] order and its waiver made Judge Young’s
suppression decision . . . binding in future proceedings.” Defendant also makes a
separate, but related, argument1 based on the rule “that one Superior Court judge
may not correct another's errors of law; and that ordinarily one judge may not modify,
overrule, or change the judgment of another Superior Court judge previously made
in the same action.” State v. Macon, 227 N.C. App. 152, 156, 741 S.E.2d 688, 690
1 We note that defendant cites this rule in his discussion on res judicata and collateral estoppel,
but we find it more appropriate to discuss it in the context of the law of the case doctrine. The essence
of all defendant’s arguments on the suppression issue is that Judge Young’s ruling was absolutely
binding on Judge Hill.
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(internal quotations and citations omitted), review denied, 367 N.C. 238, 748 S.E.2d
545 (2013). Both arguments are without merit.
To begin, subsection 15A-979(c) applies only when a pretrial order granting a
motion to suppress has been entered. Notably, the comment to section 15A-979
provides that “[t]he phrase ‘prior to trial’ unquestionably will be interpreted to mean
prior to the attachment of jeopardy.” N.C. Gen. Stat. § 15A-979 cmt. 1 (2013).
Jeopardy attaches when “a competent jury has been empaneled and sworn.” State v.
Priddy, 115 N.C. App. 547, 550, 445 S.E.2d 610, 613 (1994). In the instant case,
because Judge Young’s suppression ruling was entered during defendant’s 2013 trial,
the State had no right to appeal it pursuant to subsection 15A-979(c). Consequently,
Judge Young’s ruling was not conclusive and did not become the law of the case in
future proceedings.
Moreover, when a defendant is retried following a mistrial, prior evidentiary
rulings are not binding. State v. Harris, 198 N.C. App. 371, 376, 679 S.E.2d 464, 468
(2009). Indeed, once a mistrial has been declared, “in legal contemplation there has
been no trial.” State v. Sanders, 347 N.C. 587, 599, 496 S.E.2d 568, 576 (1998)
(quoting State v. Tyson, 138 N.C. 627, 629, 50 S.E. 456, 456 (1905)). “When a
defendant’s trial results in a hung jury and a new trial is ordered, the new trial is ‘[a]
trial de novo, unaffected by rulings made therein during the [original] trial.’ ” Harris,
198 N.C. App. at 376, 679 S.E.2d at 468 (quoting Burchette v. Lynch, 139 N.C. App.
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756, 760, 535 S.E.2d 77, 80 (2000) (“[A] ‘mistrial results in nullification of a pending
jury trial.’ ” (citation omitted)).
Here, when Judge Young declared a mistrial on the kidnapping, rape, and
sexual assault charges, his ruling on defendant’s motion to suppress “no longer had
[any] legal effect.” Id. at 376, 679 S.E.2d at 468. Indeed, the rule that one Superior
Court judge may not overrule another never came into play. Accordingly, Judge Hill’s
discretion was not limited at defendant’s retrial, and she was free to rule anew on his
motion to suppress.
2. Res Judicata and Collateral Estoppel
Defendant also argues the doctrines of res judicata and collateral estoppel
barred the State from re-litigating the suppression of his statement. Specifically
defendant contends that, since Judge Young made factual findings to support his
suppression ruling, and since the jury reached a verdict on one relevant issue, i.e.,
the assault on a female conviction, the admissibility of defendant’s statement was
conclusively determined at the 2013 trial. We disagree.
First off, although defendant’s brief mentions res judicata in passing, he makes
no cognizable argument as to how the doctrine applies in this case. Therefore, this
argument has been abandoned. N.C.R. App. P. 28(b)(6) (“Issues not presented in a
party’s brief, or in support of which no reason or argument is stated, will be taken as
abandoned.”).
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We now turn to defendant’s collateral estoppel argument. “Under the doctrine
of collateral estoppel, an issue of ultimate fact, once determined by a valid and final
judgment, cannot again be litigated between the same parties in any future lawsuit.”
State v. Edwards, 310 N.C. 142, 145, 310 S.E.2d 610, 613 (1984).
Judge Young appropriately made factual findings to support his ruling on
defendant’s motion to suppress. But that evidentiary ruling involved a question of
law based on largely undisputed facts; the admissibility of defendant’s statement
turned on whether he had knowingly and voluntarily waived his Miranda rights.
Indeed, no issues of “ultimate fact” were determined as to the kidnapping, rape, and
sexual assault charges because no “valid and final judgment” was entered on them.
“[T]he doctrine of collateral estoppel applies only to an issue of ultimate fact
determined by a final judgment.” Macon, 227 N.C. App. at 157, 741 S.E.2d at 691.
When Judge Young declared a mistrial on those charges, his ruling granting
defendant’s motion to suppress was vacated and had no enduring legal effect. Harris,
198 N.C. App. at 376, 679 S.E.2d at 468. Accordingly, Judge Hill was not bound by
any of Judge Young’s prior rulings and the doctrine of collateral estoppel is
inapplicable to this case.
B. Judge Hill’s Suppression Ruling at Defendant’s 2014 Trial
Defendant next argues the trial court erred in denying his motion to suppress
the statement he made to Detective Wenhart during a recorded interview at the
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FVPD. We agree, but ultimately conclude that defendant was not prejudiced by the
error.
According to the interview transcript, the following exchange occurred between
defendant and Detective Wenhart:
[Det. Wenhart]: Okay. As officer (Inaudible) was getting
ready to explain to you -- had mentioned to you, obviously,
we’re investigating what has been alleged as a sexual
offense crime. Okay?
...
This is your opportunity, should you so desire, to put your
side of the story --
[defendant]: No -- I don’t --
[Det. Wenhart]: -- You know, to tell your side of the story
so that we can get to the bottom of what happened.
[defendant]: Man, I don’t have no side --
[Det. Wenhart]: So before -- before I ask you any questions
you must understand your rights.
You have the right to remain silent and not make any
statement.
[defendant]: So now, I’m under arrest?
[Det. Wenhart]: Anything you -- well --
[defendant]: I’m under arrest.
[Det. Wenhart]: Okay.
[defendant]: If you’re reading me my rights, I’m under
arrest.
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...
[Det. Wenhart]: [W]ell, first off, relax, because when we
read somebody their rights it doesn’t necessarily mean
they’re under arrest.
...
[Det. Wenhart]: You are in custody, hence the handcuffs.
[defendant]: Yeah. For what? For what? I --
...
Det. Wenhart: Right. Well, here’s the thing, is you are
detained, which means that you are in custody. It does not
necessarily mean arrest, it just means in custody. And the
reason you’re in custody is because you have been
identified, you do have some injuries that are consistent
with what’s went on --
[defendant]: What injuries?
...
[Det. Wenhart]: Okay. Well, you got some scratches. You
got some blood on you. You got some other -- so anyway.
So there is some allegations of that. So this is your
opportunity to tell your side of the story.
...
[defendant]: [W]hat the hell do you want me to say?
...
[Det. Wenhart]: [W]ell, we’ll get to that. But you got to let
me finish explaining what’s going on, okay?
...
[Det. Wenhart]: This is what I have to do. I have to advise
[you of] your rights. And then I’m gonna ask you some
questions.
[defendant]: Man, I --
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[Det. Wenhart]: Listen -- listen -- listen -- listen -- listen to
me.
[defendant]: I’m intoxicated. I’m -- I’m just --
[Det. Wenhart]: Mr. Knight. Mr. Knight. Mr. Knight.
[defendant]: Some bullshit, bro.
...
[Det. Wenhart]: If I were taking one person at their word,
would I need to sit here and talk to you and find out what–
[defendant]: Why are you even talking to me?
...
[Det. Wenhart]: Because I want your side of the story as to
what happened tonight.
...
[defendant]: I have no story to tell.
...
[defendant]: See, that’s the thing right there I don’t
understand. What the hell am I doing in these damn cuffs,
man?
[Det. Wenhart]: Well, if you want me to explain that, you
got to allow me to get through here. Okay?
...
[Det. Wenhart]: You must understand your rights.
At this point in the interrogation, Detective Wenhart Mirandized defendant. When
asked if he understood each of the rights that were explained to him, defendant went
on the following rant:
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[defendant]: I -- not really. I’m --
[Det. Wenhart]: Well --
[defendant]: I’m -- I’m not gonna lie to you, man. I’m -- I’m
-- I’m -- I’m serious. See, this is where I’m at now.
[Det. Wenhart]: Uh-huh?
[defendant]: (Inaudible) I’m gonna be frank with you. This
is exactly where I’m at. I haven’t did anything wrong, man.
[Det. Wenhart]: Uh-huh.
[defendant]: Not a damn thing. You see what you see. I
don’t care. But I haven’t did any damn thing wrong. I
haven’t harmed anybody, I haven’t did anything to
anybody. . . .
[Det. Wenhart]: Okay.
[defendant]: Other than that right there, I don’t know what
the hell you talking about.
Defendant then proceeded to answer Detective Wenhart’s questions regarding, inter
alia, the sexual assault under investigation, the scratches on defendant’s nose and
cheek, and the nature of his relationship with T.H. Throughout the interview,
defendant denied having any sexual contact with T.H., stating at one point, “Bro, it
never happened.”
As noted above, both parties revisited issues regarding the interview’s
admissibility before the State called Detective Wenhart to testify at defendant’s
second trial. Consequently, Judge Hill conducted a voir dire hearing on defendant’s
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motion to suppress the video. After considering the arguments of counsel and
reviewing the video, the trial court determined that the central issues of contention
were whether defendant understood his Miranda rights and whether his conduct
during the interview established an implied waiver of those rights. In regards to
those issues, the trial court made the following oral findings of fact:
Defendant immediately said are you arresting me? At that
time defendant was . . . handcuffed to the wall, was clearly
detained, and yet the reading of the rights triggered in the
defendant’s mind that this was an arrest, which to the
Court provides some indication of [defendant’s knowledge
about] Miranda. . . .
Defendant has a prior [felony] criminal history . . ., so [he
has] some knowledge and familiarity with the criminal
justice system. . . . Clear language was used here. . . .
[D]efendant’s statement was not equivocal in saying no, I
do not, really in response to whether he understood his
rights. . . . [T]he nature of the discussion prior to the full
reading of the rights made it clear that . . . defendant was
seeking information about what had happened here and
wanted to provide information with regard to . . . what had
been done here, indicating . . . defendant[’s willingness] to
[talk] and actually [say] to [Detective Wenhart] I want to
be frank with you, I want to explain this to you.
Judge Hill also found that defendant was an adult in his thirties with no indication
of cognitive problems. Based on these findings, Judge Hill concluded as a matter of
law that defendant “understood his [Miranda] rights” and that “through his
continued discussion [with law enforcement,]” he voluntarily and impliedly waived
those rights in providing a statement to Detective Wenhart.
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On appeal, defendant challenges the trial court’s legal conclusion that he
knowingly and impliedly waived his Miranda rights. The essence of this argument
is that Judge Hill’s findings do not support her conclusion that defendant understood
his rights.
“Our review of a trial court’s denial of a motion to suppress is strictly limited
to determining whether the trial court’s underlying findings of fact are supported by
competent evidence, and whether those factual findings in turn support the trial
court’s ultimate conclusions of law.” State v. Robinson, 221 N.C. App. 509, 517-18,
729 S.E.2d 88, 96 (2012) (citation omitted). “[T]he trial court’s findings of fact after a
voir dire hearing concerning the admissibility of a [defendant’s custodial statement]
are conclusive and binding on [this Court] if supported by competent evidence.” State
v. Simpson, 314 N.C. 359, 368, 334 S.E.2d 53, 59 (1985) (citations omitted). However,
the trial court’s legal conclusion that defendant’s statement was knowingly,
intelligently, and voluntarily made is fully reviewable on appeal. Id.
The Fifth Amendment to the United States Constitution protects a person from
being compelled to be a witness against himself in a criminal case. U.S. Const.
amend. V. This privilege against self-incrimination “is made applicable to the states
by the Fourteenth Amendment.” State v. Richardson, 226 N.C. App. 292, 299, 741
S.E.2d 434, 440 (2013). In Miranda, the United States Supreme Court decreed that
statements obtained from a suspect during custodial interrogation are presumed to
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be compelled in violation of the Fifth Amendment’s Self-Incrimination Clause and are
thus inadmissible in the State’s case-in-chief. 384 U.S. 436, 457-58, 16 L. Ed. 2d 694,
713-14 (1966). Under Miranda, “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.” Id. at 444, 16 L. Ed. 2d at 706. These
safeguards include warning a criminal suspect being questioned that he “has the
right to remain silent, that anything he says can be used against him in a court of
law, [and] that he has the right to the presence of an attorney,” either retained or
appointed. Id. at 479, 16 L. Ed. 2d at 726.
However, since Miranda’s main protection lies in advising defendants of their
rights[,]” Berghuis v. Thompkins, 560 U.S. 370, 385, 176 L. Ed. 2d 1098, 1113 (2010),
once its procedural safeguards are properly in place, a statement is not presumptively
compelled if the suspect voluntarily, knowingly, and intelligently waives his privilege
against self-incrimination. State v. Simpson, 314 N.C. 359, 367, 334 S.E.2d 53, 59
(1985); Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 707. A valid waiver of Miranda
rights involves two distinct components: the waiver (1) must be given voluntarily and
(2) must be knowingly and intelligently made. Colorado v. Spring, 479 U.S. 564, 573,
93 L. Ed. 2d 954, 965 (1987). In assessing voluntariness, the issue is whether the
defendant’s statement “was the product of a free and deliberate choice rather than
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intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed.
2d 410, 421 (1986). In assessing the knowing and intelligent requirements, “the
waiver must have been made with a full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.” Id. When a
suspect makes a statement after the required warnings have been given, the State
bears the burden of demonstrating by a preponderance of the evidence that the
suspect knowingly and intelligently waived his Fifth Amendment privilege. State v.
Thibodeaux, 341 N.C. 53, 58, 459 S.E.2d 501, 505 (1995). “Whether a waiver is
knowingly and intelligently made depends on the specific facts and circumstances of
each case, including the background, experience, and conduct of the accused.”
Simpson, 314 N.C. at 367, 334 S.E.2d at 59. “Only if the ‘totality of the circumstances
surrounding the interrogation’ reveal both an uncoerced choice and the requisite level
of comprehension may a court properly conclude that the Miranda rights have been
waived.” Moran, 475 U.S. at 421, 89 L. Ed. 2d at 421 (citations omitted) (italics
added).
“To effectuate a waiver of one’s Miranda rights, a suspect need not utter any
particular words.” Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (citation
omitted). A waiver can be expressly made or implied, based on the words and actions
of the person interrogated. Berghuis, 560 U.S. at 384, 176 L. Ed. 2d at 1112 (“[A]
waiver of Miranda rights may be implied through “the defendant’s silence, coupled
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with an understanding of his rights and a course of conduct indicating waiver.”
(citation omitted)).
The voluntariness of the waiver is not at issue here. Instead, defendant argues
that the State’s failure to prove he understood his rights fatally undermined any
waiver he may have given.
Some of the circumstances established by the evidence indicate that defendant
understood and properly waived his Miranda rights. At the time of questioning,
defendant was thirty-eight years old. There was nothing particularly unusual about
defendant’s behavior. He was alert. Defendant appeared to understand the questions
posed by Detective Wenhart, and as a general matter, he responded appropriately.
Even after stating he was “intoxicated,” defendant responded to questioning
coherently and logically. Despite aggressively contesting all charges against him,
defendant never appeared confused by the questions asked. Although defendant
specified that he did not understand “what the hell [he] was doing in these damn
cuffs,” that statement was apparently made to support his proclamation of innocence.
Throughout the interview, defendant was unintimidated and responsive; and he
never requested that the interview be stopped.
Defendant had also been previously convicted of numerous misdemeanor
charges. In terms of defendant’s general awareness regarding the import of his
detention, he interrupted Detective Wenhart’s first attempt to Mirandize him,
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stating, “If you’re reading my rights, I’m under arrest.” Detective Wenhart then
clearly explained to defendant that “when we read somebody their rights it doesn’t
mean they’re under arrest.” In most cases, these facts would support findings that
defendant understood his Miranda rights, and knowingly and intelligently waived
them. However, given the circumstances of this case, the aforementioned facts do not
suffice.
Specifically, there is no persuasive evidence that defendant actually
understood his Miranda rights. Once a Miranda warning has been given and a
suspect makes an uncoerced statement, “[t]he prosecution must make the additional
showing that the accused understood these rights” in order to establish a valid
waiver. Berghuis, 560 U.S. at 384, 176 L. Ed. 2d at 1112. An understanding of rights
and an intention to waive them, therefore, are two entirely different matters, and the
former must be proven before the latter can be properly established.
We recognize that “[p]rior experience with the criminal justice system is an
important factor in determining whether . . . defendant made a knowing and
intelligent waiver.” State v. Brown, 112 N.C. App. 390, 396-97, 436 S.E.2d 163, 167
(1993). However, while defendant had been arrested many times previously, there is
no direct evidence that he was Mirandized on those occasions. Even assuming
defendant received Miranda warnings during prior arrests, the record contains no
evidence that he demonstrated an understanding of his rights on previous occasions.
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STATE V. KNIGHT
Opinion of the Court
Prior experience with the criminal justice system is relevant, but it is not sufficient
to prove that defendant previously received Miranda warnings and understood them.
In addition, the trial court’s findings that defendant had no cognitive
impairment and that Detective Wenhart issued the Miranda warnings using “clear
language” do not support its ruling. Just because defendant appeared to have no
mental disabilities does not mean he understood the warnings expressly mandated
by Miranda. As to the “clear language” finding, defendant argues “understanding
your Miranda rights requires not just knowing each right individually, but knowing
how the invocation of one right can impact your ability to exercise another right.” To
the extent defendant argues that suspects must have plenary knowledge of their
Miranda rights before waiving them, he is simply wrong. “The Constitution does not
require that a criminal suspect know and understand every possible consequence of
a waiver of the Fifth Amendment privilege.” Spring, 479 U.S. at 574, 93 L. Ed. 2d at
966. Even so, defendant correctly asserts that the State failed to prove he had a basic
understanding of the Miranda warnings, the principal purpose of which “is to ensure
that an accused is advised of and understands the right to remain silent and the right
to counsel.” Berghuis, 560 U.S. at 383, 176 L. Ed. 2d at 1112. We find no indication
that defendant understood he did not have to speak with Detective Wenhart, and that
he could request counsel.
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STATE V. KNIGHT
Opinion of the Court
Finally, when asked if he understood his rights, defendant replied, “I -- not
really. I’m -- I’m not going to lie to you, man. I’m -- I’m -- I’m -- I’m serious. See this
is where I’m at now. I’m gonna be frank with you. This is exactly where I’m at. I
haven’t did anything wrong, man.” We agree with the trial court that defendant was
not indicating confusion as to his rights. Rather, taken in context, defendant’s
response showed that he was indignant about being hauled into the police station
because, in his view, he had not done anything wrong. Nonetheless, there is no
evidence that defendant ever acknowledged understanding his rights. Though
Detective Wenhart repeatedly stressed that defendant had to “understand [his]
rights,” defendant never made any kind of affirmative response to those admonitions.
In order for the State to prevail on the waiver issue, little was required to
demonstrate an acknowledgment of understanding. Defendants have used the
colloquialism “MmMumm,” Yang v. Cate, 2011 WL 3503211, at *13 (E.D. Cal.), and
even a nod of the head, People v. Crane, 145 Ill. 2d 520, 530, 585 N.E.2d 99, 103
(1991), to acknowledge their rights and give intelligent waivers. The Seventh Circuit
has held that a defendant’s “experience and eagerness to strike a deal” with law
enforcement after answering a few questions made it clear that he “understood his
rights and thought he might benefit from waiving them.” United States v. Brown,
664 F.3d 1115, 1118 (7th Cir. 2011). And in Burket, the Fourth Circuit held that a
defendant’s willingness “to speak with [law enforcement], coupled with his
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STATE V. KNIGHT
Opinion of the Court
acknowledgment that he understood his Miranda rights, constituted an implied
waiver of [those] rights.” 208 F.3d at 198 (emphasis added) (citing United States v.
Frankson, 83 F.3d 79, 82 (4th Cir. 1996)) (“[A] defendant’s subsequent willingness to
answer questions after acknowledging his Miranda rights is sufficient to constitute
an implied waiver.” (citation and internal quotation marks omitted)). As a
constitutional minimum, the State had to show that defendant intelligently
relinquished a known and understood right. Patterson v. Illinois, 487 U.S. 285, 292,
101 L. Ed. 2d 261, 272 (1988). Here, defendant exhibited a willingness to answer
questions after being Mirandized, but he never acknowledged his rights; nor did he
engage in behavior that demonstrated a true awareness of them. As such, there is no
persuasive evidence that defendant actually understood his right to remain silent and
right to counsel.
All told, the “knowing and intelligent” waiver requirement implies that a
choice to abandon one’s rights must be based upon some appreciation of that
decision’s consequences. In other words, a factual understanding of the rights at
issue must come together with an appreciation of the relevance of those rights in the
context of an unfolding interrogation. The Constitution does not require that a
suspect understand the full import of custodial interrogation, but before a waiver of
rights can be intelligently made, one must understand both the basic privilege
guaranteed by the Fifth Amendment and the consequences of speaking freely to law
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STATE V. KNIGHT
Opinion of the Court
enforcement officials. In the instant case, the State presented sufficient evidence of
an implied waiver, but it did not show that defendant had a meaningful awareness
of his Miranda rights and the consequences of waiving them. Because the State failed
to make “the additional showing” by a preponderance of the evidence that defendant
understood his rights, we conclude that he did not waive them intelligently.
Berghuis, 560 U.S. at 384, 176 L. Ed. 2d at 1112. Accordingly, the trial court’s
findings do not support its ruling that defendant gave a valid waiver of rights and the
court erred by denying his motion to suppress the videotaped interview. Our decision
is not based on any particular disagreement with Judge Hill as to the facts found, but
on a differing legal evaluation of them.
Because the trial court’s ruling infringed “upon . . . defendant’s constitutional
rights[, the error] is presumed to be prejudicial[.]” State v. Brown, 306 N.C. 151, 164,
293 S.E.2d 569, 578 (1982). Unless the State proves the trial court’s erroneous
admission of defendant’s custodial statement was harmless beyond a reasonable
doubt, he is entitled to a new trial. Id.; N.C. Gen. Stat. § 15A-1443(b) (2013). “The
test is whether, in the setting of this case, we can declare . . . that there is no
reasonable possibility the [erroneously admitted evidence] might have contributed to
the conviction.” State v. Castor, 285 N.C. 286, 292, 204 S.E.2d 848, 853 (1974). For
the following reasons, the State has met its burden.
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STATE V. KNIGHT
Opinion of the Court
In the videotape shown to the jury, defendant never confessed to the crimes
for which he was tried. Rather, he adamantly proclaimed his innocence and
belligerently contested T.H.’s allegations. In State v. Council, the trial court’s
erroneous admission of the defendant’s custodial statements was found to be
harmless beyond a reasonable doubt when the only “comments [he] made which could
be viewed as even possibly inculpatory were: (1) wondering whether he ‘might do 5 to
7’ years in prison (presumably a reference to the possible consequences of his arrest),
(2) an admission that he had seen and narrowly avoided police officers the night
before, (3) an expression that he had intended to stay ‘on the run’ as long as possible,
and (4) a question about why police had described him as ‘armed and dangerous.’ ”
___ N.C. App. ___, ___, 753 S.E.2d 223, 231, review denied, 367 N.C. 505, 759 S.E.2d
101 (2014). Similarly here, our review of the video and transcript of defendant’s
statement reveals few, if any, comments that could be viewed as inculpatory. If the
defendant’s statement in Council—which included references to potential jail time
and staying “on the run”—was not particularly prejudicial, the same holds true for
defendant’s statement in this case.
Moreover, there was overwhelming evidence of defendant’s guilt on the rape
charge. In addition to T.H.’s detailed testimony, the State presented evidence of prior
statements T.H. made to police officers and a sexual assault nurse examiner shortly
after the incident with defendant occurred. When he was arrested, defendant had
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STATE V. KNIGHT
Opinion of the Court
T.H.’s cell phone in his possession and he lied to law enforcement regarding the
reason he was at the gas station. Defendant had scratches on his nose and cheek,
fresh blood on his shirt, and a strand of hair consistent with the color of T.H.’s head
hair on his cheek. When officers entered T.H.’s home to investigate, they found her
bed covers in disarray, and her pants and panties were inside out on the bedroom
floor. Subsequent chemical testing revealed the presence of defendant’s DNA on
T.H.’s panties, bed sheet, and comforter. Significantly, while being detained in Wake
County jail, defendant made several phone calls to Leicht and another to Ryan Knight
(“Ryan”) in which he gave conflicting accounts about what happened with T.H.
Defendant told Leicht the charges against him were “bullsh**.” However, in his
conversation with Ryan, defendant stated that T.H was “fu**ing” with him all night;
he thought she was going to give him some “pu**y];]” and he was getting ready to put
his “d**k” in her when she decided to holler rape, prompting defendant to “let the
b**ch go.”
Despite the foregoing evidence, defendant insists that because the jury at his
2013 trial did not view his videotaped statement and “hung on the kidnapping, rape,
and sexual offense charges[,]” he was prejudiced when the jury at his 2014 trial
viewed the videotape and subsequently convicted him of rape and kidnapping.
Defendant also contends that when the videotape was erroneously admitted at his
2014 trial, he was “all but forced” to testify, something he did not do at his 2013 trial.
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STATE V. KNIGHT
Opinion of the Court
We view this as pure speculation. Although defendant asserts that he had to take
the stand at his retrial to “clarify any unresolved factual issues created by the
videotape[,]” he fails to state what those factual issues were. Quite simply, defendant
had a choice to either testify in his own defense during his 2014 retrial or simply
refuse to do so. He chose the former.
Nevertheless, the dissent agrees with defendant’s reasoning, and adds that
because defendant testified at his 2014 trial, the State was able to impeach him with
prior convictions, including an August 2013 conviction of assault on a female which
arose from the same incident with T.H. Defendant’s credibility, however, had already
been significantly impugned before the prior conviction evidence was presented.
Indeed, the State used defendant’s statement to Detective Wenhart to impeach
defendant’s trial testimony on several points. “A statement taken in violation of a
defendant’s Miranda rights may nonetheless be used to impeach the defendant’s
credibility if (1) the statement was not involuntary, and (2) the defendant testified at
trial.” State v. Purdie, 93 N.C. App. 269, 279, 377 S.E.2d 789, 795 (1989) (citing
Harris v. New York, 401 U.S. 222, 224, 28 L. Ed. 2d 1, 4 (1971)). Since the above
criteria were met in this case, the cross-examination questions of defendant regarding
his statement were proper. Id. at 279-80, 377 S.E.2d at 795; Harris, 401 U.S. at 225-
26, 28 L. Ed. 2d at 4-5; State v. Stokes, 357 N.C. 220, 226, 581 S.E.2d 51, 55 (2003).
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STATE V. KNIGHT
Opinion of the Court
Consequently, the State had already questioned and damaged defendant’s character
for truthfulness by the time it chose to utilize the prior conviction evidence.
In sum, defendant essentially argues that “history repeats itself,” and he asks
us to assume that all other factors—the jury’s makeup, the effect of the testimony,
the lawyering, etc.—relevant to the outcome of his 2013 and 2014 trials were the
same except for the erroneous admission of his statement, which supposedly forced
him to testify the second time around. We reject this argument. Our Supreme Court
has noted that “[o]rdinarily, where a confession made by the defendant is erroneously
admitted into evidence, we cannot say beyond a reasonable doubt that the erroneous
admission of the confession did not materially affect the result of the trial to the
prejudice of the defendant.” State v. Siler, 292 N.C. 543, 552, 234 S.E.2d 733, 739
(1977). Here, there was no confession. Quite the opposite occurred. Since the
videotaped statement did not inculpate defendant on any charges, and the State
presented overwhelming evidence on the rape charge, we conclude, beyond a
reasonable doubt, that the outcome of defendant’s trial would have been the same
even if the videotape had been suppressed. See State v. Greene, 324 N.C. 1, 12, 376
S.E.2d 430, 438 (1989) (holding that, even assuming error, admission of the
defendant’s statement was harmless beyond a reasonable doubt because the
“statement d[id] nothing to inculpate [the] defendant and [was] not probative of his
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STATE V. KNIGHT
Opinion of the Court
guilt or innocence”), vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603
(1990).
C. Judge Hill’s Denial of Defendant’s Motion to Dismiss the First
Degree Kidnapping Charge
Finally, defendant argues the trial court erred by denying his motion to dismiss
the first degree kidnapping charge because there was insufficient evidence that the
confinement and restraint of T.H. was separate and apart from the rape. In making
this argument, defendant insists that, “because the indictment alleged that [he]
confined and restrained T.H. for the purpose of facilitating the forcible rape, the State
. . . had to prove both confinement and restraint” to support the kidnapping charge.
Once again, we disagree.
As an initial matter, we note that defendant incorrectly asserts the State bore
the burden of proving both confinement and restraint to support the kidnapping
charge. Kidnapping is a specific intent crime, and the State had to prove that
defendant unlawfully restrained, confined, or removed T.H. “for one of the specified
purposes outlined in the statute.” State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401,
404 (1986). “Since an indictment need only allege one statutory theory, an indictment
alleging all three theories is sufficient and puts the defendant on notice that the State
intends to show that the defendant committed kidnapping in any one of the three
theories.” State v. Lancaster, 137 N.C. App. 37, 48, 527 S.E.2d 61, 69 (2000). Here,
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STATE V. KNIGHT
Opinion of the Court
the indictment alleged that defendant restrained and confined T.H. to facilitate the
commission of a felony, forcible rape. As a result, either one of those theories—
restraint or confinement—could serve as the basis for the jury’s finding on the
kidnapping charge.
In terms of ruling on a motion to dismiss for insufficiency of the evidence, our
Supreme Court
has held that . . . the trial court must consider the evidence
in the light most favorable to the State and give the State
every reasonable inference to be drawn therefrom. The
State is required to present substantial evidence for each
element of the offense charged. The trial court must
consider all evidence presented that is favorable to the
State. If there is substantial evidence, either direct or
circumstantial, that the defendant committed the offense
charged, then a motion to dismiss is properly denied.
State v. Gainey, 355 N.C. 73, 89, 558 S.E.2d 463, 474 (2002) (citations omitted).
“Substantial evidence is relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d
655, 663 (1995).
Any person “who, without consent, unlawfully confines, restrains, or removes
someone sixteen years of age or older shall be guilty of kidnapping when it is done for
the purpose of facilitating commission of a felony.” State v. Parker, ____ N.C. App.
____, 768 S.E.2d 1, 2 (2014); N.C. Gen. Stat. § 14-39(a)(2) (2013). Kidnapping becomes
a first degree offense when a kidnapping victim is sexually assaulted. N.C. Gen. Stat.
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STATE V. KNIGHT
Opinion of the Court
§ 14–39(b) (2013). As used in subsection 14-39(a), the term “confine” means “some
form of imprisonment within a given area, such as a room, a house or a vehicle.” State
v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). The term “restraint”
includes confinement, but also means “restriction, by force, threat or fraud, without
a confinement. Thus, one who is physically seized and held . . . or who, by the
threatened use of a deadly weapon, is restricted in his freedom of motion, is restrained
within the meaning of this statute.” Id.
However, “[i]t is self-evident that certain felonies (e.g., forcible rape and armed
robbery) cannot be committed without some restraint of the victim.” Id. To support
a conviction on charges of both rape and kidnapping, “the restraint [or confinement],
which constitutes the kidnapping, [must be] a separate, complete act, independent of
and apart from the other felony.” Id. at 524, 243 S.E.2d at 352. “[A] person cannot
be convicted of kidnapping when the only evidence of restraint [or confinement] is
that ‘which is an inherent, inevitable feature’ of another felony such as [rape].” State
v. Beatty, 347 N.C. 555, 559, 495 S.E.2d 367, 369 (1998) (quoting Fulcher, 294 N.C.
at 523, 243 S.E.2d at 351).
In determining whether the restraint in a particular case is sufficient to
support a kidnapping charge,
[t]he court may consider whether the defendant’s acts place
the victim in greater danger than is inherent in the other
offense, or subject the victim to the kind of danger and
abuse that the kidnapping statute was designed to prevent.
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STATE V. KNIGHT
Opinion of the Court
The court also considers whether defendant's acts “cause
additional restraint of the victim or increase the victim's
helplessness and vulnerability.”
State v. Key, 180 N.C. App. 286, 290, 636 S.E.2d 816, 820 (2006) (citations omitted).
Here, “the commission of the underlying felony of rape did not require
[defendant] to separately restrain or remove” T.H. from her living room couch to her
bedroom. Key, 180 N.C. App. at 291, 636 S.E.2d at 821. T.H. demonstrated
defendant’s size relative to her own by describing him as “a body builder.” In addition,
when defendant abruptly picked T.H. up off of her couch, he immobilized her arms
and lifted her feet off the ground. By way of this restraint, defendant gained full
control of T.H. in her living room and could have raped her there, but instead, he
chose to carry T.H. through her home and commit the rape in her bedroom. See State
v. Blizzard, 169 N.C. App. 285, 290, 610 S.E.2d 245, 250 (2005) (“Asportation of a
rape victim is sufficient to support a charge of kidnapping if the defendant could have
perpetrated the offense when he first threatened the victim, and instead, took the
victim to a more secluded area to prevent others from witnessing or hindering the
rape.”). Such movement and restraint constituted “a separate and independent act”
not inherent to the rape in this case. Key, 180 N.C. App. at 291, 636 S.E.2d at 821.
When defendant removed T.H. from her living room to her bedroom, he also
“increase[d her] helplessness and vulnerability.” Id. at 290, 636 S.E.2d at 820.
Specifically, when defendant was carrying T.H. through the kitchen, she began
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STATE V. KNIGHT
Opinion of the Court
screaming, well-aware that both the front and back doors to her home were open.
Once in the bedroom, T.H.’s chance of successfully attracting the attention and help
of neighbors was significantly decreased. When viewed in the light most favorable to
the State, the evidence was sufficient to establish that defendant, by physically
seizing and restraining T.H. before carrying her away from open exterior doors and
into the bedroom, facilitated his ability to commit the rape and “exposed [T.H.] to a
greater degree of danger than that which is inherent in [rape].” State v. Ripley, 360
N.C. 333, 340, 626 S.E.2d 289, 294 (2006). Accordingly, the trial court properly denied
defendant’s motion to dismiss the kidnapping charge.
III. Conclusion
When Judge Young declared a mistrial on the charges of kidnapping, rape, and
sexual assault at defendant’s 2013 trial, his suppression ruling had no binding legal
effect. Neither the doctrine of collateral estoppel nor the rule that one Superior Court
judge cannot overrule another applied to this ruling. As such, Judge Hill was free to
rule anew on the suppression issue. Moreover, while the admission of defendant’s
videotaped statement at his 2014 trial was in violation of Miranda, the trial court’s
error did not prejudice defendant as it was harmless beyond a reasonable doubt.
Finally, there was sufficient evidence to support defendant’s conviction for first
degree kidnapping.
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STATE V. KNIGHT
Opinion of the Court
NO PREJUDICIAL ERROR.
Judge TYSON concurs.
Judge STROUD concurs in part and dissents in part.
-2-
No. COA14-1015 – State v. Knight
STROUD, Judge, concurring in part and dissenting in part.
I concur with the majority opinion on the first, second, and fourth issues
addressed but dissent based upon the third issue. Because I believe that the State
has failed to demonstrate that the erroneous admission of defendant’s videotaped
statement was harmless beyond a reasonable doubt, I would grant defendant a new
trial.
The majority found that the trial court erred in denying defendant’s motion to
suppress, and I agree. Yet the majority finds that this error was harmless beyond a
reasonable doubt based upon the fact that in the videotaped statement, defendant did
not “confess” to the crime and in light of the other evidence, including physical
evidence, of defendant’s guilt.
To find harmless error beyond a reasonable doubt,
we must be convinced that there is no reasonable
possibility that the admission of this evidence might have
contributed to the conviction. In deciding whether a
reasonable possibility exists that testimony regarding a
defendant’s request for counsel contributed to his
conviction, the lynchpin in our analysis is whether other
overwhelming evidence of guilt was presented against
defendant.
State v. Rashidi, 172 N.C. App. 628, 639, 617 S.E.2d 68, 76 (citations and quotation
marks omitted), aff’d per curiam, 360 N.C. 166, 622 S.E.2d 493 (2005).
I agree that the evidence against defendant is strong, but I am not convinced
that the State has demonstrated that the error was harmless beyond a reasonable
doubt. The first jury considered the same physical evidence, the same witnesses, and
STATE V. KNIGHT
STROUD, J., concurring in part and dissenting in part
the same jail phone conversations as the second jury but was unable to reach a verdict
on any charge other than the assault on a female charge, so they did have doubt as
to the other charges. The second jury considered the same evidence but also
considered the erroneously admitted videotape and defendant’s own testimony.
Defendant argues that he did not testify at the first trial, but was “all but forced” to
testify at the second trial “to clarify any unresolved factual issues created by the
videotape.” The majority views the effect of the erroneous admission of the
videotaped interview on defendant’s decision to testify as “pure speculation[,]” but
given the first jury’s inability to reach a verdict on the relevant charges, I disagree. I
also note that even the second jury did not convict defendant of all of the charges
against him, as they found him not guilty of the second-degree sexual offense, despite
the “overwhelming” evidence as to all of the charges. And because defendant testified
in the second trial, the State was able to impeach him with evidence of his prior
convictions. Only the second jury learned of these convictions, and although the jury
was instructed to consider them only as to defendant’s credibility, these convictions
had the potential to be particularly prejudicial. One of the prior convictions was
defendant’s 8 August 2013 conviction of assault on a female, which arose from the
same incident with T.H., since this was the one charge upon which the first jury was
able to reach a verdict. The second jury also learned that he had been convicted of
assault on a female on 30 June 2004 and driving while impaired on 3 June 2005.
2
STATE V. KNIGHT
STROUD, J., concurring in part and dissenting in part
The majority notes that at the second trial, defendant’s credibility had already
been “significantly impugned” even before the jury heard evidence of his prior
convictions, referring to his cross-examination regarding inconsistencies between
what he told Detective Wenhart and his trial testimony. To me, this argument seems
circular. Defendant would not have been testifying at all but for the erroneous
admission of the evidence, and he would not have been subject to cross-examination
upon the statement taken in violation of his Miranda rights if he had not testified. I
also disagree that this cross-examination “significantly impugned” defendant, since
the questioning simply pointed out minor variations between what defendant told
Detective Wenhart and what defendant said in court. Defendant also testified that
he was intoxicated when he was talking to the detective. In fact, defendant’s
apparent confusion and lack of demonstrated understanding of his Miranda rights—
perhaps arising at least in part from his intoxication—at this interview are part of
the reason that the majority holds that defendant did not understand or intelligently
waive his Miranda rights. Holding that the use of defendant’s statement, which
should have been suppressed, was not harmless beyond a reasonable doubt, and then
relying upon the very same evidence to demonstrate that defendant had already been
impeached, so that more impeaching evidence would not further harm him, seems
logically inconsistent to me. This impeachment came from the very statement to
Detective Wenhart that defendant had sought unsuccessfully before the trial court to
3
STATE V. KNIGHT
STROUD, J., concurring in part and dissenting in part
suppress—and the majority here has held should have been suppressed—and which
was the reason that defendant believed that he must testify in the second trial. In
other words, but for the erroneous admission of the statement evidence, none of the
impeaching evidence, neither the cross-examination upon defendant’s erroneously
admitted statement nor the prior convictions, would have been considered by the
second jury. In this situation, I am simply not “convinced” that “there is no
reasonable possibility that the admission of this evidence might have contributed to
the conviction[s].” See id., 617 S.E.2d at 76. I therefore concur in part and dissent in
part, and would grant defendant a new trial.
4