I further concur with the majority's holding with respect to defendant's motion to dismiss the charge of assault with a deadly weapon inflicting serious injury. However, I respectfully dissent from the assertion by the majority, relying on State v. Blackstock, 165 N.C.App. 50, 63, 598 S.E.2d 412, 420 (2004), that “we must still determine whether the non-testimonial statement had 'adequate indicia of reliability'” under Ohio v. Roberts, 448 U.S. 56, 65 L.Ed.2d 597 (1980), overruled on other grounds by Crawford, 541 U.S. 36, 158 L.Ed.2d 177 (2004). In Blackstock, the victim of a robbery and shooting made several statements to law enforcement officers and his wife and daughter following the crimes.
"When determining whether an officer had reasonable suspicion to conduct an investigative stop, the trial court may properly consider such factors as: (1) activity at an unusual hour; (2) nervousness of an individual; (3) an area's disposition toward criminal activity; and (4) unprovoked flight." State v. Blackstock, 165 N.C. App. 50, 58, 598 S.E.2d 412, 417 (2004) (citations omitted). In addition, an officer may consider the suspect's proximity to the crime scene.
In State v. Blackstock , officers were patrolling in an unmarked vehicle as part of a "Crime Abatement Team" in an area where "statistical data indicated [the] area had a problem with robberies and break-in enterings." 165 N.C. App. 50, 53, 598 S.E.2d 412, 414 (2004). Around 11:45 pm, the officers found two men walking along the front of closed businesses in a strip mall.
Generally, in determining whether an officer had reasonable suspicion to stop a suspect, a court may consider: "(1) activity at an unusual hour; (2) nervousness of an individual; (3) an area's disposition toward criminal activity; and (4) unprovoked flight." State v. Blackstock, 165 N.C. App. 50, 58, 598 S.E.2d 412, 417 (2004) (citations omitted). However, "'[n]one of these factors, standing alone, [is] sufficient to justify a finding of reasonable suspicion, but [they] must be considered in context.'"
(statements by victim to former gang-member indicating that he had been shot in the ankle during a gun battle at a particular location held nontestimonial because the victim "could not reasonably have anticipated" prosecutorial use of his statements); State v. Wilkinson (Vt. 2005), 879 A.2d 445, ¶ 10 (statements by victim to defendant's cousin indicating that defendant had pulled a gun on him and that he thought the defendant was going to kill him held nontestimonial; statements were "made to an individual who had no relationship to the prosecution" and not in the presence of police); Herrera-Vega v. State (Fla.Dist.Ct.App. 2004), 888 So.2d 66 (statement by victim to her parents describing how defendant sexually abused her held nontestimonial); State v. Staten (S.C.Ct.App. 2005), 610 S.E.2d 823, 836 (statements by murder victim, made a day prior to his murder, to his cousin indicating that the defendant had pulled a gun on him held nontestimonial under any of Crawford's formulations); State v. Blackstock (N.C.Ct.App. 2004), 598 S.E.2d 412, 420 (statements by hospitalized murder victim made to his daughter and wife before he died, describing in detail the armed robbery that culminated with the victim's being shot, held nontestimonial because "it is unlikely that [the victim] made the statements under a reasonable belief that they would later be used prosecutorially"); State v. Walker (Wash.Ct.App. 2005), 118 P.3d 935, ¶¶ 34-35 (statements by victim of sexual assault describing the incident, identifying the perpetrator and given in response to questioning by her mother held nontestimonial; "the exchange between [mother] and [daughter] was that of a conversation between a concerned parent and an upset child, nothing more"); State v. Moses (Wash.Ct.App. 2005), 119 P.3d 906, ¶ 22 (statements by victim of domestic abuse made to a treating physician and describing the beating and identifying the perpetrator held nontestimonial because victim did not have "reason to believe that her statements to Dr. Appleton would be used at a su
"The trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Blackstock, 165 N.C.App. 50, 55, 598 S.E.2d 412, 416 (2004). Conclusions of law, on the other hand, are fully reviewable on appeal.
First, it is well settled that a defendant's nervous behavior during a traffic stop, although relevant in the context of all circumstances, is insufficient by itself to establish reasonable suspicion that criminal activity is afoot. See, e.g., State v. Pearson, 348 N.C. 272, 276, 498 S.E.2d 599, 601 (1998) (suggesting that "[t]he nervousness of the defendant [was] not significant" to the determination of reasonable suspicion because "[m]any people become nervous when stopped by a state trooper"); State v. Blackstock, 165 N.C.App. 50, 58, 598 S.E.2d 412, 417–18 (2004) (holding nervousness, by itself, is not sufficient to establish reasonable suspicion). Moreover, as this Court has recognized, the nervousness needs to be "extreme" in order to "be taken into account in determining whether reasonable suspicion exists[.]"
As such, Crawford does not afford sixth amendment protection, and the statement is admissible under section 491.075. Herrera-Vega v. State, 888 So.2d 66 (Fla.Ct.App. 2004); Purvis v. State, 829 N.E.2d 572 (Ind.App. 2005); State v. Van Leonard, 910 So.2d 977 (La.App. 2005); State v. Blackstock, 165 N.C.App. 50, 598 S.E.2d 412 (2004); State v. Shafer, 156 Wash.2d 381, 128 P.3d 87 (2006). V. Conclusion
See, e.g., Ramirez v. Dretke, 398 F.3d 691, 695 n. 3 (5th Cir. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 51, 163 L.Ed.2d 82 (2005); United States v. Manfre, 368 F.3d 832, 838 n. 1 (8th Cir. 2004); People v. Butler, 127 Cal.App.4th 49, 25 Cal.Rptr.3d 154, 161-62 (2005); People v. Cervantes, 118 Cal.App.4th 162, 12 Cal.Rptr.3d 774, 783 (2004); Compan v. People, 121 P.3d 876, 880-81 (Colo. 2005); State v. Rivera, 268 Conn. 351, 844 A.2d 191, 201 (2004); Demons v. State, 277 Ga. 724, 595 S.E.2d 76, 80 (2004); Bray v. Kentucky, 177 S.W.3d 741 (Ky. 2005); State v. Blackstock, 165 N.C.App. 50, 598 S.E.2d 412, 420 (2004); Woods v. State, 152 S.W.3d 105, 114 (Tex.Crim.App. 2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005); State v. Orndorff, 122 Wash.App. 781, 95 P.3d 406, 408 (2004); State v. Ferguson, 216 W.Va. 420, 607 S.E.2d 526, 529 (2004), cert. denied, ___ U.S. ___, 126 S.Ct. 332, 163 L.Ed.2d 45 (2005). To determine whether statements made to police are testimonial, courts have adopted divergent approaches: (1) a per se approach and (2) a case-by-case approach.
541 U.S. 36, 124 S.Ct. 1354, 1367, 158 L.Ed.2d 177 (2004).See, e.g., Rios v. Lansing, 116 Fed.Appx. 983 (10th Cir. 2004); United States v. Guitierrez-Gonzales, 2004 U.S.App. LEXIS 21038 *5-6 (5th Cir. 2004); United States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004); Johnson v. Renico, 314 F.Supp.2d 700, 707 (E.D.Mich. 2004); United States v. Saner, 313 F.Supp.2d 896, 900 n. 1 (S.D.Ind. 2004); Perkins v. State, 897 So.2d 457, 464 (Ala.Crim.App. 2004); People v. Cervantes, 12 Cal.Rptr.3d 774, 118 Cal. App.4th 162, 12 Cal.Rptr.3d 774, 782 n. 5 (2004); People v. Schrek, 2004 Colo.App. LEXIS 1712 *34 (Colo.App. 2004); State v. Rivera, 268 Conn. 351, 844 A.2d 191, 202 n. 13 (2004); People v. Capellan, 6 Misc.3d 809, 791 N.Y.S.2d 315 (N.Y.Crim.Ct. 2004); People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401, 403 (N.Y. 2004); State v. Blackstock, 165 N.C.App. 50, 598 S.E.2d 412, 420 (2004); State v. McKinney, 2004 Ohio App. LEXIS 5033 *34 (Ohio App. 2004); State v. Mack, 2004 Ore. LEXIS 792 *9 n. 5 (Ore. 2004); Commonwealth v. Eichele, ___ A.3d ___, 2004 WL 2002212, 2004 Pa. D. C. LEXIS 39 *11 (Pa.Commw.Ct. 2004); Barela v. State, 2004 WL 2192604 at *7, 2004 Tex.App. LEXIS 8802 *17 (Tex.App.-El Paso 2004); Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555, 570 (2004); State v. Manuel, 275 Wis.2d 146, 685 N.W.2d 525, 532 n. 9 (App. 2004). 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).