Opinion
NO. COA10-1417
08-02-2011
STATE OF NORTH CAROLINA v. BRIAN GEOFFREY HULSE
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. The Robinson Law Firm, P.A., by Leslie S. Robinson, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Wayne County
No. 08 CRS 51023
Appeal by defendant from judgment entered 14 May 2010 by Judge Forrest D. Bridges in Wayne County Superior Court. Heard in the Court of Appeals 14 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for defendant-appellant.
CALABRIA, Judge.
Brian Geoffrey Hulse ("defendant") appeals the trial court's judgment for the offense of driving while impaired ("DWI"). More specifically, defendant challenges the trial court's denial of his motion to suppress evidence. We affirm in part and dismiss in part.
I. BACKGROUND
At 10:00 p.m. 9 February 2008, Officer J.L. Arnette ("Officer Arnette") of the Goldsboro Police Department ("GPD") was on patrol in a GPD police car on John Street in downtown Goldsboro, North Carolina, when he received a communications dispatch asking him to respond to a suspected impaired driver ("the suspect"). The dispatcher told Officer Arnette that the suspect was in the central downtown Goldsboro area near Torero's restaurant ("Torero's"). The dispatcher also told Officer Arnette that the suspect was driving a gray-colored Ford Crown Victoria with a license plate number of SPK-6261, traveling south on John Street and turning right on Walnut Street. Officer Arnette asked the dispatcher to determine the owner, and the dispatcher found that Lee Hulse was the owner.
Officer Arnette then turned his patrol vehicle onto Walnut Street, but did not see the Crown Victoria. While on Walnut Street, Officer Arnette received a call from Officer B.J. Gillstrap ("Officer Gillstrap") (collectively, "the officers") of the GPD. Officer Gillstrap informed Officer Arnette that he was proceeding toward Torero's to speak with the witnesses who reported the suspect to the dispatcher. After Officer Arnette spoke to Officer Gillstrap, Officer Arnette turned onto Center Street to see if the Crown Victoria was located there.
Immediately after Officer Arnette turned onto Center Street, Officer Arnette observed a "Carolina blue" Mercury Grand Marquis ("the vehicle"), license plate number SPK-6261, parked in front of a restaurant that served alcohol. Officer Arnette noticed that the vehicle's tail lights were illuminated, so he parked his patrol vehicle "a couple of spaces" away from the vehicle, exited his patrol vehicle and began walking toward the vehicle. As Officer Arnette approached the vehicle, he noticed that it was unoccupied and the vehicle tail lights suddenly turned off, causing Officer Arnette to assume they were on a time-delay mechanism. There were no occupants in the vehicle when Officer Arnette felt the hood, and it was warm to the touch. After observing the outside and inside of the restaurant, but seeing "no activity . . . that struck him as noteworthy," he reentered his patrol vehicle and told the dispatcher that the vehicle was unoccupied.
Officer Arnette then proceeded south on Center Street and parked outside Waynesboro House in a location where he could observe the vehicle. While Officer Arnette was parked, Officer Gillstrap contacted him and stated that he spoke with the witnesses who initially reported the suspect. Officer Gillstrap told Officer Arnette that two men "preaching" outside an "Irish pub" were harassed by a male, who exited the pub and appeared "extremely intoxicated." The Irish pub was located across the street from Torero's. The witnesses observed that the male fumbled for his keys and stumbled toward his vehicle, which was parked in a "no parking" zone. The witnesses further stated that they observed the male enter the vehicle and drive south on John Street. Officer Arnette then informed Officer Gillstrap that he had located the suspect's vehicle.
Approximately three to five minutes later, Officer Arnette observed the tail lights on the vehicle illuminate, followed by the brake lights. The brake lights had been illuminated for approximately 30 seconds when Officer Arnette observed the reverse lights illuminated and the vehicle backed out of the parking space. The vehicle proceeded north on Center Street at a slow rate of speed. Officer Arnette then pursued the vehicle at a high rate of speed and activated the emergency lights on his patrol vehicle.
The driver of the vehicle, later identified as defendant, suddenly applied his brakes, causing Officer Arnette to apply his brakes. The two vehicles were only a few feet apart. Officer Arnette then observed the vehicle proceed forward, touching the "white dotted line." The vehicle then "jerked" back to the right, veered left again, and entered another parking space, approximately 10 spaces farther up the street from the original parking space. Officer Arnette then exited his patrol vehicle and approached defendant.
At 10:09 p.m., defendant was arrested and charged with DWI in violation of N.C. Gen. Stat. § 20-138.1. A subsequent chemical analysis of defendant determined that his blood alcohol content was 0.24. On 14 August 2008, defendant was found guilty of DWI in Wayne County District Court. The court sentenced defendant as a Level Four offender to a term of thirty days in the custody of the North Carolina Department of Correction. The court suspended the sentence and placed defendant on supervised probation for twelve months. Defendant appealed to Superior Court for a trial de novo.
On 16 November 2009, defendant filed a motion to suppress evidence in Wayne County Superior Court. Following a hearing, the trial court denied defendant's motion. Defendant pled guilty to DWI on 14 May 2010, and reserved his right to appeal the denial of his motion to suppress. The trial court then sentenced defendant as a Level Five offender to a term of sixty days in the custody of the North Carolina Department of Correction. The court suspended the sentence, placed defendant on unsupervised probation for twelve months, and ordered him to complete 24 hours of community service within 120 days. Defendant gave notice of appeal to this Court and filed his brief on 20 January 2011. The State filed its brief on 15 February 2011.
On 18 February 2011, defendant filed a Motion for Appropriate Relief ("MAR") with this Court. Defendant asked this Court for appropriate relief "as it relates to the recent discovery that testimony involving cell phone communications given by law enforcement officers to the trial court to induce it to deny defendant's motion to suppress the stop of his vehicle and the seizure of his person." Defendant contended the officers' testimony regarding cell phone communications was fabricated, that the officers knew their testimony was fabricated, and that the officers "conspired and/or agreed to provide false testimony to the trial court about a material issue against defendant." On 24 February 2 011, defendant filed an addendum to his MAR with this Court to correct clerical errors and mistakes as to the attachment of transcript pages from the suppression hearing.
II. MOTION TO SUPPRESS
Defendant argues that the trial court erred by denying his motion to suppress because the court's findings of fact are not supported by competent evidence, and do not support the conclusions of law. More specifically, he argues that certain findings are unsupported by competent evidence because "Arnette gave contradictory testimony under oath," "[Arnette] changed his testimony three (3) times about the cell phone conversation," "his five page type-written report did not mention any such conversation," and "counsel for the State advised the trial court that testimony given by Gillstrap about the cell phone conversation was not true." We disagree.
The standard of review for 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. [] The trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. [] However, its conclusions of law regarding whether the officer had reasonable suspicion to detain a defendant are reviewable de novo.State v. Hudson, __ N.C. App. __, __, 696 S.E.2d 577, 580 (2010) (internal quotations, citations, brackets, and ellipsis omitted).
The trial court determines the credibility of the witnesses who testify, weighs theState v. Icard, 363 N.C. 303, 312, 677 S.E.2d 822, 828-29 (2009) (citations omitted). "An appellate court accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence." State v. Battle, _ N.C. App. _, _, 688 S.E.2d 805, 811 (internal quotations and citation omitted), disc. rev. denied, 364 N.C. 327, 700 S.E.2d 926 (2010).
evidence, and determines the reasonable inferences to be drawn therefrom. [] If different inferences may be drawn from the evidence, the trial court decides which inferences to draw and which to reject. [] Appellate courts are bound by the trial court's findings if there is some evidence to support them, and may not substitute their own judgment for that of the trial court even when there is evidence which could sustain findings to the contrary.
In the instant case, defendant argued that the suppression and exclusion of evidence was required by the United States and North Carolina constitutions, and that the evidence obtained as a result of the search and seizure of his person was obtained in violation of the United States and North Carolina constitutions, North Carolina statutory law, and North Carolina and United States case law. Defendant objects only to the trial court's findings of fact 4, 8, 10, 13 and 14; therefore, all other findings are "presumed to be supported by competent evidence and are binding on appeal." State v. Phillips, 151 N.C. App. 185, 190, 565 S.E.2d 697, 701 (2002) (reviewing the sole finding of fact objected to by the defendant on appeal from a motion to suppress) (citations omitted); see State v. Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994) (findings of fact not excepted to on appeal from a motion to suppress are not reviewable).
Defendant contests only the following findings:
4. Approximately 30 seconds after the first communication concerning the incident, Arnett[e] arrived at the intersection of John Street and Walnut Street. After turning left onto Walnut [S]treet, the officer did not see the suspect's vehicle but then took a right onto Center Street. Officer Arnett[e] then heard a radio communication from Officer Gil[l]strap, who said that he was headed toward Torero's to speak with the witnesses who made the report.
. . .
8. While parked near the Waynesboro House, Officer Arnett[e] received a telephone call from Officer Gil[l]strap. Gil[l]strap told Arnett[e] that he had talked with the witnesses concerning the initial report. Gil[l]strap said that two guys were standing in front of the Irish Pub when a white male walked out and began harassing them. The white male fumbled for his keys, appearing to have trouble locating the
keys, and then stumbled toward his car, which was parked in a no parking zone. He then got into the vehicle and drove south on John Street. The witnesses described the white male as extremely intoxicated. Arnett[e] also told Gil[l]strap that he had located the car.
. . .
10. The Grand Marquis backed out of the parking space and began to travel north at a slow rate of speed. As Officer Arnett[e] approached, the driver of the Grand Marquis slammed on his brakes and the patrol vehicle nearly struck the suspect vehicle. Then the Grand Marquis started forward again, slowly moving slightly left of the centerline, jerking back to the right, veering left again and then pulled into another angled parking space, no more than ten spaces further up the street from its original location.
. . .
13. The witnesses told Officer Gil[l]strap that a white male came stumbling out of the Irish Pub, came over to their location and harassed them, had trouble finding his keys, then got into his car and drove away. They gave Gil[l]strap a license plate number of SPK-6261 and told him that the white male left in the vehicle traveling south on John Street and that he was intoxicated. Officer Gil[l]strap took the names of the witnesses but did not get contact information from them. At that point, Officer Gil[l]strap received a call from Officer Arnett[e] saying that he had located the vehicle.
14. Officer Gil[l]strap testified he told Officer Arnett[e] that the witnesses told him the white male came out of the
Irish Pub, approached them and harassed them, stumbled, had trouble finding his keys, then got into his car and drove south on John Street.
Defendant does not identify any specific factual determinations which he argues are unsupported by competent evidence. Instead, he asks this Court to substitute its judgment regarding the credibility of the witnesses and the weight to be given their testimony. This we cannot do.
In the instant case, Officers Arnette and Gillstrap offered testimony which supports the challenged findings. In addition, the trial court was aware of defendant's allegations that Officers Arnette and Gillstrap were untruthful in their testimony, and the grounds upon which defendant's allegations were made. In its order denying defendant's motion to suppress, the trial court stated, "In making the findings and conclusions herein contained, the Court has viewed the manner and demeanor of each witness and has determined the credibility of testimony of each witness as well as the weight to be afforded to the evidence received." Therefore, the trial court clearly considered the credibility of all the witnesses, including Officers Arnette and Gillstrap, in light of defendant's concerns, and gave appropriate weight to such evidence. Defendant's issue on appeal is overruled.
III. REASONABLE SUSPICION
Defendant also argues that the trial court erred by concluding that Officer Arnette had reasonable suspicion to stop his vehicle. We disagree.
In State v. Battle, the seminal case from our Court regarding an officer's reasonable suspicion to conduct a traffic stop based in part upon his communications with another law enforcement officer, we stated:
A police officer may conduct a brief investigatory stop of a vehicle, even though there is no probable cause for the stop, when justified by specific, articulable facts which would lead a police officer reasonably to conclude in light of his experience that criminal activity may be afoot. [] In determining whether an officer has the necessary reasonable suspicion of criminal activity, the court must examine both the articulable facts known to the officer at the time he determines to stop the vehicle and the rational inferences the officer was entitled to draw from those facts. [] These facts and inferences must yield the substantial possibility that criminal conduct has occurred, is occurring, or is about to occur in order for an investigatory stop to be valid. [] In determining whether there exists the requisite reasonable suspicion, the court must view the totality of the circumstances through the eyes of a reasonable and cautious police officer at the scene. []109 N.C. App. 367, 370-71, 427 S.E.2d 156, 158-59 (1993) (internal quotations and citations omitted).
If the officer making the investigatory stop (the second officer) does not have the necessary reasonable suspicion, the stop may
nonetheless be made if the second officer receives from another officer (the first officer) a request to stop the vehicle, and if, at the time the request is issued, the first officer possessed a reasonable suspicion that criminal conduct had occurred, was occurring, or was about to occur. []
Where there is no request from the first officer that the second officer stop a vehicle, the collective knowledge of both officers may form the basis for reasonable suspicion by the second officer, if and to the extent the knowledge possessed by the first officer is communicated to the second officer. []
In summary, an investigatory stop by a police officer is constitutional, under the principles of Terry, only if: (1) the officer making the stop has a reasonable suspicion, based on his personal observations, that criminal conduct has occurred, is occurring, or is about to occur; (2) the officer making the stop has received a request to stop the defendant from another officer, if that other officer had, prior to the issuance of the request, the necessary reasonable suspicion; (3) the officer making the stop received, prior to the stop, information from another officer, which, when combined with the observations made by the stopping officer, constitute the necessary reasonable suspicion. A Terry stop made outside the scope of these rules is an unconstitutional stop and any evidence obtained as a result of the stop is subject to exclusion. []
An informant's tip may provide the reasonable suspicion necessary for an investigative stop. [] However, in cases where an informant's tip supplies part of the basis for reasonable suspicion, we must ensure that the tip possesses sufficient indicia of reliability. [] In weighing the reliability of an informant's tip, the informant's veracity, reliability, and basis of knowledge must be considered. []State v. Hudgins, 195 N.C. App. 430, 434, 672 S.E.2d 717, 719 (2009) (internal citations omitted). "An anonymous tip can provide reasonable suspicion as long as it exhibits sufficient indicia of reliability." State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000) (citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)). "[A] tip that is somewhat lacking in reliability may still provide a basis for reasonable suspicion if it is buttressed by sufficient police corroboration." Id. The information known to an officer before making a stop is crucial in determining whether an anonymous tip was sufficiently reliable to justify a stop. Id. "In determining whether the informant was anonymous or confidential and reliable the Court has adopted a 'totality of the circumstances' test." Hudgins, 195 N.C. App. at 434, 672 S.E.2d at 720.
Where the informant is known or where the informant relays information to an officer face-to-face, an officer can judge the credibility of the tipster firsthand and thus confirm whether the tip is sufficiently reliable to support reasonable suspicion. []
In State v. Maready, a distraught driver of a minivan asked law enforcement officers to check on the driver of a silver Honda Civic which had been following the minivan. 362 N.C. 614, 617, 669 S.E.2d 564, 566 (2008). The driver of the minivan stated that the driver of the Honda had been driving erratically. Id. Officers then made an investigatory stop of the Honda and determined that the driver was impaired. Id. at 617-18, 669 S.E.2d at 566. On appeal, the driver of the Honda argued that the anonymous tip did not exhibit sufficient indicia of reliability to justify the stop. Id. at 618, 669 S.E.2d at 567. Our Supreme Court disagreed, holding that the anonymous tip possessed the following indicia of reliability: (1) the driver of the minivan was immediately in front of the Honda and provided a firsthand, eyewitness report; (2) the driver of the minivan was distressed over the actions of the driver of the Honda; (3) the driver of the minivan approached officers near the scene of the alleged violations and shortly after they occurred, giving little time for the minivan driver to fabricate her allegations; (4) the minivan driver was not completely anonymous to the officers because they had the opportunity to record her license plate number or detain her. Id. at 619-20, 669 S.E.2d at 567-68 .
In Hudgins, a law enforcement officer "received a call from dispatch informing him that a man . . . was driving his car and being followed." 195 N.C. App. at 431, 672 S.E.2d at 718. "The caller did not identify himself to the dispatcher but stated that he was being followed by a man armed with a gun in the vicinity of Westover Terrace and Green Valley Drive in Greensboro." Id. The anonymous caller then "described the vehicle by make, model and color and provided various updates on his location[,]" information which was relayed to the officer. Id. The officer "proceeded to Market Street where he observed vehicles that matched the description given by the caller stopped at a red light." Id. The officer conducted an investigatory stop and after frisking the defendant for safety, the officer determined there was probable cause to arrest the defendant for driving while impaired. Id.
On appeal from the trial court's denial of his motion to suppress, the defendant argued that the anonymous tip did not possess sufficient indicia of reliability. Id. at 432, 672 S.E.2d at 719. We disagreed, finding that the anonymous tip possessed the following sufficient indicia of reliability: "the caller provided specific information about the vehicle . . . and [its] location[,]" "the caller remained on the scene long enough to identify [the] defendant to [the officer,]" and "by calling on a cell phone and remaining at the scene, [the] caller placed his anonymity at risk." Id. at 435, 672 S.E.2d at 720.
In the instant case, the witnesses outside the "Irish pub" called 911 and specifically described defendant's vehicle, including the make, model, color, and license plate number. Furthermore, the witnesses told the 911 dispatcher the direction and route defendant traveled when he left the pub, including street names and directions.
The witnesses placed their anonymity at risk when they spoke to Officer Gillstrap face-to-face and gave him their names. After speaking with the witnesses, Officer Gillstrap relayed to Officer Arnette the information he learned from the witnesses, i.e., the witnesses were outside an "Irish pub" when a male, later identified as defendant, exited the pub and harassed them. The man appeared "extremely intoxicated," and the Irish pub was across the street from Torero's. The witnesses also told Officer Gillstrap that they observed a male fumbling for his keys and stumbling toward his vehicle, which was parked in a "no parking" zone. The witnesses further stated that they observed a male enter the vehicle and drive south on John Street. Officer Arnette subsequently encountered the described vehicle in a location consistent with the witnesses' tip regarding defendant's direction of travel.
These facts show sufficient indicia of reliability for the witnesses' tip, in addition to sufficient police corroboration of the witnesses' tip. The trial court properly determined that Officer Arnette had reasonable suspicion to stop defendant's vehicle. Defendant's issue on appeal is overruled.
IV. MOTION FOR APPROPRIATE RELIEF
In his MAR, defendant asks this Court to strike certain findings of fact and conclusions of law in the trial court's order denying his motion to suppress and to direct the trial court to enter an order granting his motion to suppress. In the alternative, defendant asks this Court to enter an order dismissing the charge of DWI against him, or to enter an order directing the trial court to conduct a new hearing on his motion to suppress in light of the newly discovered cell phone records of Officer Gillstrap. In the addendum to his MAR, defendant asks this Court to correct clerical errors and mistakes as to the attachment of transcript pages from the suppression hearing.
On or about 1 March 2011, the State filed a response to defendant's MAR. The State asked this Court to stay the appeal and remand the MAR to the trial court or, in the alternative, dismiss defendant's MAR without prejudice and allow him to file it in the trial court upon completion of the appeal.
N.C. Gen. Stat. § 15A-1418(a) "provides that a motion for appropriate relief on grounds found in section 15A-1415 may be made in the appellate division when a case is in the appellate division for review." State v. Thornton, 158 N.C. App. 645, 653, 582 S.E.2d 308, 313 (2003). One ground found in N.C. Gen. Stat. § 15A-1415(b), "[t]he conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina," includes defendant's claim that he was denied a fair trial and his right to due process due to the officers' alleged perjured testimony. Vester v. Stephenson, 465 F. Supp. 868, 869-70 (E.D.N.C. 1978). N.C. Gen. Stat. § 15A-1415(c) states:
Notwithstanding the time limitations herein, a defendant at any time after verdict may by a motion for appropriate relief, raise the ground that evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time, including recanted testimony, and which has a direct and material bearing upon the defendant'sN.C. Gen. Stat. § 15A-1415(c) (2010). N.C. Gen. Stat. § 15A-1418(b) provides:
eligibility for the death penalty or the defendant's guilt or innocence. A motion based upon such newly discovered evidence must be filed within a reasonable time of its discovery.
When a motion for appropriate relief is made in the appellate division, the appellate court must decide whether the motion may be determined on the basis of the materials before it, [or] whether it is necessary to remand the case to the trial division for taking evidence or conducting other proceedings . . . . If the appellate court does not remand the case for proceedings on the motion, it may determine the motion in conjunction with the appeal and enter its ruling on the motion with its determination of the case.N.C. Gen. Stat. § 15A-1418(b) (2010).
Although the statute authorizes the appellate court to initially determine a motion for appropriate relief, State v. Jolly, 332 N.C. 351, 420 S.E.2d 661 (1992), where the materials before the appellate court, as in this case, are insufficient to justify a ruling, the motion must be remanded to the trial court for the taking of evidence and a determination of the motion, State v. Wiggins, 334 N.C. 18, 431 S.E.2d 755 (1993).Thornton, 158 N.C. App. at 654, 582 S.E.2d at 313.
Defendant's only relevant request is that, in light of the new evidence, a new hearing on his motion to suppress should be ordered or that his motion to suppress be granted.
Our usual standard for evaluating motions for a new trial on the grounds of newly discovered evidence requires a defendant to establish seven prerequisites:State v. Britt, 320 N.C. 705, 712-13, 360 S.E.2d 660, 664 (1987).
(1) That the witness or witnesses will give newly discovered evidence.
(2) That such newly discovered evidence is probably true.
(3) That it is competent, material and relevant.
(4) That due diligence was used and proper means were employed to procure the testimony at the trial.
(5) That the newly discovered evidence is not merely cumulative.
(6) That it does not tend only to contradict a former witness or to impeach or discredit him.
(7) That it is of such a nature as to show that on another trial a different result will probably be reached and that the right will prevail.
In the instant case, Officer Arnette testified at the motion hearing as follows:
Q [the State]. And then while you were sitting at the Waynesboro House, tell the Court what happened next.
A [Officer Arnette]. I'm sitting there. I'm filling out my call sheet. I'm doing -I don't know what I was doing exactly, but I know I was doing some paperwork. It could have been an unrelated incident report, for all I know. But I'm sitting there with my interior light on, my headlights cut off, doing some paperwork.
Q. Okay. And at that point did you receive any communication -
A. Yes, ma'am.
Q. - from anybody?
A. Officer Gillstrap called me on the phone and spoke to me about what he had learned.
Q. All right. And what did Officer Gillstrap tell you?
THE COURT: Excuse me just a second. Now, you said "phone." Up to this point we've been talking about radio.
[Officer Arnette]: Yes, sir.
THE COURT: So this was not a radio call, this was a telephone call?
[Officer Arnette]: Yes, sir. He called me on the phone.
Officer Gillstrap then testified as follows:
Q [the State]. Do you recall the communication that you had with Officer
Arnette? How did you have that communication? What mode of communication did you use?
A [Officer Gillstrap]. I'm almost - I'm a hundred percent that it was on our cell phones.
Q. Okay. Now, in district court you testified, didn't you, that it was over the radio?
A. Correct.
Q. How do you know now that it was on the cell phone?
A. I'm sure it started on the radio; but in order to not tie up radio traffic, I'm sure we switched to cell phones.
Q. Do you remember, as you're testifying today, having a conversation with Officer Arnette on your cell phone?
A. Yes.
Q. And in that conversation, it was prior to the time Officer Arnette had stopped the defendant; is that correct?
A. Correct.
Q. But after the time he had located the vehicle and confirmed the tag; is that correct?
A. Correct.
Q. And you heard Officer Arnette over the dispatch say that he had found the vehicle and read the tag number back, and he had found it with the right tag; is that correct?
A. Correct.
Q. And you recall talking to Officer Arnette on the cell phone now?
A. Correct.
Q. But now, in district court, you didn't say anything about the cell phone, did you?
A. I don't believe I did.
Q. And I didn't ask you anything about a cell phone, did I?
A. No, ma'am.
Upon cross-examination by defendant, Officer Gillstrap stated that he used a personal cell phone when he spoke with Officer Arnette. Officer Gillstrap then provided his personal cell phone number and the name of his wireless carrier to defendant's counsel.
The State recalled Officer Gillstrap to testify regarding any communications he may have had with Officer Arnette:
Q. Okay. You also previously testified that you did not have a - have any communication with Officer Arnette prior to your testimony today about a phone conversation?
A. That's correct. We never sat down and talked about a phone conversation.
Q. You've never sat down with Officer Arnette and had a conversation with him
- or maybe not sat down with him. Maybe it was on the phone, maybe it was some other kind of communication. Is it your testimony today that you have never had a conversation with Officer Arnette in the last couple of days, even, maybe, about how y'all communicated?
A. No. We have never had a conversation about that.
The court denied defendant's motion to suppress. However, prior to entering a guilty plea, defendant asked the trial court to issue a subpoena for the officers' cell phone records, and the trial court denied the request.
After defendant gave notice of appeal and filed his brief with this Court, he filed an MAR with this Court on 18 February 2 011. Attached to defendant's MAR are copies of what appear to be cell phone records for a "Benjamin J. Gillstrap" in Goldsboro, North Carolina. The cell phone records show that the phone to which the account belongs had activity at 9:11 p.m. and 11:10 p.m. on 9 February 2008. No other outgoing or incoming calls were shown for this cell phone during this time period. At 9:11 p.m., the phone received an incoming call from a specific phone number, which lasted sixteen minutes. At 11:10 p.m., the phone made an outgoing call to a different phone number, which lasted three minutes. The records reveal the phone number, but not the name, of the person or persons listed on the account of the number of the incoming phone call at 9:11 p.m. and the account of the number receiving the outgoing phone call at 11:10 p.m.
"Mindful that it is more within the province of a trial court rather than an appellate court to make factual determinations, we conclude that the materials in the instant case are insufficient to enable us to render a decision regarding defendant's motion." State v. Verrier, 173 N.C. App. 123, 132, 617 S.E.2d 675, 681 (2005). The record does not provide enough evidence to determine whether the Britt elements have been met. More specifically, we are unable to determine whether the cell phone records are competent evidence; whether defendant used due diligence to obtain the records; that the records do not tend only to contradict, impeach, or discredit the officers; and that if defendant introduced the records into evidence at the motion hearing, the trial court would have probably reached a different result. See Britt, 320 N.C. at 712-13, 360 S.E.2d at 664. "While the [pertinent] statute suggests that the motion be remanded to the trial court for hearing and determination, we think that the better procedure in this case is to dismiss the motion and permit defendant, if he so desires, to file a new motion for appropriate relief in the superior court." State v. Hurst, 304 N.C. 709, 712, 285 S.E.2d 808, 810 (1982).
V. CONCLUSION
The trial court properly denied defendant's motion to suppress; therefore, the trial court's decision is affirmed. Defendant's motion for appropriate relief is dismissed without prejudice with leave for defendant to file it in the trial court.
Affirmed; Motion for Appropriate Relief dismissed without
prejudice.
Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).