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State v. Rivera

Court of Appeals of North Carolina

March 19, 2019


          Heard in the Court of Appeals 14 January 2017.

          Appeal by Defendant from judgment entered 18 August 2017 by Judge Paul C. Ridgeway in Superior Court, Wake County. No. 15 CRS 221297

          Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Aaron Thomas Johnson, for Defendant.


         Jose Israel Rivera ("Defendant") appeals from his 18 August 2017 conviction for taking indecent liberties with a child. For the reasons stated below, we dismiss his appeal.

         I. Factual Basis and Procedure

         In the early fall of 2015, Defendant was living in Raleigh with his wife, his wife's parents, and his minor children. Defendant's nine-year-old daughter ("daughter") was a close friend of a ten-year-old girl ("G.") who lived nearby. G. was a regular visitor at Defendant's house, and also had a close relationship with Defendant. On 22 September 2015, Defendant's birthday, he came home from work between 4:30 p.m. and 5:00 p.m. Defendant celebrated his birthday at home with his family and G. by having dinner and watching a movie together. During the movie, Defendant's daughter and G. sat on the arms of an oversized armchair while Defendant sat in the seat of the chair-a blanket covered their laps. According to G., while they were watching the movie, Defendant moved his left hand under the blanket to her genital region, and touched her genitals both over and under her underwear. The touching continued for five to ten minutes, until Defendant's wife announced that Defendant's birthday cake was ready to eat and everyone went into the kitchen to eat cake. G. went home after eating the cake, but did not report the alleged touching to anyone that evening.

         Defendant's daughter went to G.'s house the next morning, 23 September 2015, and G. told her what had happened the night before. G. testified that Defendant's daughter told G. "to tell [G.'s] parents about what happened[, ]" so they both went to G.'s parents' bedroom to report the alleged abuse. G. first told her father, and he then told her mother. G.'s parents immediately walked over to Defendant's house, where they encountered Defendant's wife and told her what G. had told them. G.'s parents called the police, and officers were dispatched to investigate the accusations. Detective Kevin Hubard ("Detective Hubard") of the Raleigh Police Department's Juvenile Unit interviewed G. at the police station later that day.

         After interviewing G., Detective Hubard and two additional officers went to Defendant's house, between 6:00 p.m. and 7:00 p.m. on 23 September 2015, to question Defendant about the allegations. After Detective Hubard talked to Defendant, and explained the accusations, Defendant and his wife agreed to drive to the police station in order to be interviewed. Once they arrived at the police station, Detective Hubard interviewed Defendant in one room, while another detective talked with Defendant's wife in another room. Detective Hubard again informed Defendant that the interview was voluntary, and Defendant again agreed to be interviewed. The interview, which was recorded on video, began at approximately 8:00 p.m. on 23 September 2015, and lasted "at least an hour."

         Approximately forty minutes into the interview, Defendant began to indicate that he "guess[ed] it [was] possible" that he had improperly touched G. the night before. Defendant stated: "I don't remember, I guess I must have because she says, it must have happened," "she's too close to me," "I want to move on from this[.]" However, Defendant vacillated between indicating that he had, or possibly could have, sexually assaulted G.; stating that he did not remember doing anything; and stating that he "would never" do something like that. At approximately 8:39 p.m., Detective Hubard suggested Defendant write an "apology" to G.'s parents, and Defendant agreed to do so. Detective Hubard gave Defendant paper and a pen, and left the interview room around 8:42 p.m. to allow Defendant to write the "apology." Defendant wrote a short statement in which he indicated that he was sorry for having hurt G. However, while he was alone in the interview room writing the "apology," he also made conflicting verbal statements concerning his culpability. Detective Hubard returned to the interview room and read the "apology" aloud. Defendant still continued to give conflicting statements concerning whether he did, or could have, molested G. Defendant asked to speak with his wife, and she was brought into the interview room and left alone with Defendant. Defendant's vacillation continued in his conversation with his wife. Defendant's wife left the interview room, and Defendant was then arrested at approximately 9:26 p.m. on 23 September 2015.

         Defendant was indicted for sexual offense with a child and taking indecent liberties with a child. Defendant's trial began on 14 August 2017, and pretrial motions were heard that morning before jury selection. At this pretrial motions hearing, Defendant's attorney informed the trial court that he wanted to move to suppress the inculpatory statements Defendant had made in his interview with Detective Hubard. The State objected, informing the trial court that Defendant had not filed a motion to suppress and that it had received no notice that Defendant was intending to move to suppress this evidence. Based upon Defendant's violation of the statutes governing motions to suppress, the trial court ruled that it would not consider Defendant's purported pretrial "motion to suppress," and the proceedings continued to trial.

         During the direct questioning of Detective Hubard, the State sought to introduce the video recording of Defendant's interview with Detective Hubard at the police station. Defendant's attorney informed the trial court that he would like to be heard, and the jury was sent out of the courtroom. Defendant asked the trial court's

permission to voir dire [Detective Hubard] on the question of the last thing he said on direct examination about his decision to arrest, and this relates to my earlier motion to suppress. I believe in the context of this interview, [Detective Hubard] had made a decision to arrest and it occurred sometime before his final decision to put my client in custody.

         Defendant's attorney stated: "I would submit to the Court that [Detective Hubard] had made a decision to arrest [Defendant] at about 8:40 -- 8:40 p.m., where my client had decided to make an apology." The trial court stated that, in its opinion, it did not make "any difference what subjective decisions [Detective Hubard] made about arresting or not arresting" until those decisions were expressed to Defendant; the trial court then overruled Defendant's objection. Defendant's attorney responded: "Fair enough," and the trial proceeded. The video of Defendant's inculpatory statements was admitted into evidence and published to the jury. When asked if he had any further objections, Defendant's attorney stated that he did not, and the trial continued. Defendant was found not guilty of a sex offense with a child, but was convicted on 18 August 2017 of taking indecent liberties with a child. Defendant appeals.

         II. Analysis

         Defendant argues that the "trial court erred, and committed plain error, by admitting [Defendant's] statements [because Defendant] did not receive Miranda warnings[, ]" and because Defendant's "statements were involuntary." Defendant has waived any right of appellate review of these arguments, and we dismiss.

         A. Waiver of Right of Appeal

         Defendant's arguments are based upon alleged violations of the Fifth and Fourteenth Amendments of the Constitution of the United States. Article 53, Chapter 15A of the North Carolina General Statutes, N.C. Gen. Stat. § 15A-971, et seq. ("Article 53"), "governs the suppression of unlawfully obtained evidence in our trial courts." State v. Miller, __ N.C. __, __, 814 S.E.2d 81, 83 (2018). As our Supreme Court said:

N.C. G.S. § 15A-974(a)(1) states that, "[u]pon timely motion, evidence must be suppressed if . . . [i]ts exclusion is required by the Constitution of the United States [.]" And N.C. G.S. § 15A-979(d) specifies that "[a] motion to suppress evidence made pursuant to this Article is the exclusive method of challenging the admissibility of evidence" on constitutional grounds. (Emphasis added.) A defendant generally "may move to suppress evidence only prior to trial," N.C. G.S. § 15A-975(a) (2017), subject to a few, narrow exceptions that permit a defendant to move during trial, see id. § 15A-975(b), (c) (2017).
In other words, the governing statutory framework requires a defendant to move to suppress at some point during the proceedings of his criminal trial. Whether he moves to suppress before trial or instead moves to suppress during trial because an exception to the pretrial motion requirement applies, a defendant cannot move to suppress for the first time after trial. . . . . When a defendant files a motion to suppress before or at trial in a manner that is consistent with N.C. G.S. § 15A-975, that motion gives rise to a suppression hearing and hence to an evidentiary record pertaining to that defendant's suppression arguments. But when a defendant, such as defendant here, does not file a ...

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