Opinion
No. 04-1672.
Filed 4 October 2005.
Richmond County No. 03CRS054170.
Appeal by defendant from judgment entered 24 August 2004 by Judge Chris Collier in Richmond County Superior Court. Heard in the Court of Appeals 19 September 2005.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Scott T. Stroud, for the State. Paul Pooley for defendant-appellant.
Aaron Mitchell Davis ("defendant") appeals his conviction of two counts of trafficking in methamphetamine. Defendant alleges: (1) the trial court erred in not granting his motion to suppress; (2) that defendant was denied his right to self representation; and (3) that the case should be remanded to correct clerical errors. We find no error in defendant's first two contentions, and we remand the case for correction of clerical errors.
Defendant filed a motion to suppress evidence seized as a result of an allegedly invalid traffic stop. At the suppression hearing, Deputy Sheriff Philip Edward Sweatt, Jr. ("Deputy Sweatt"), of the Richmond County Sheriff's Office, testified on behalf of the State to the following: On 13 October 2003, Deputy Sweatt received information from a confidential informant that a red Ford Mustang convertible would be traveling into Richmond County with a quantity of methamphetamine in the trunk. The informant told Deputy Sweatt that the Mustang would be occupied by a white male and white female and that the Mustang would be traveling on Highway 220 and then turn onto Crawford Road. The informant had previously given Deputy Sweatt information that led to valid arrests and convictions.
Deputy Sweatt subsequently drove to the vicinity of Highway 220 and Crawford Road. Around noon, Deputy Sweatt observed a red Mustang convertible travel down Highway 220 and turn onto Crawford Road. At Deputy Sweatt's direction, other deputies positioned themselves in the middle of Crawford Road, as if conducting a license check point, to stop the Mustang. Deputy Sweatt testified that check point was a "diversionary thing" to prevent exposing the identity of his confidential informant and to prevent the occupants of the vehicle from having an opportunity to throw evidence from the Mustang. Deputy Sweatt followed the Mustang on Crawford Road in his unmarked vehicle until the Mustang was stopped by the other deputies.
Once the Mustang stopped, Deputy Sweatt observed a white female driver, a white male sitting in the front passenger seat, and another white male, later identified as defendant, sitting in the back. The driver, who was the owner of the Mustang, gave Deputy Sweatt permission to search the vehicle. Defendant told the deputies that "they had drugs in the trunk." The deputies subsequently took concealed weapons from defendant and the other male. After hearing arguments from the State and defense counsel, the trial court orally denied the motion to suppress and stated that it would enter a detailed order later.
At trial, Deputy Sweatt testified that a red Mustang convertible was stopped during a drug investigation on Crawford Road; that upon searching the Mustang, he found methamphetamine in the trunk of the Mustang and under the front passenger seat; and testified that defendant admitted "the drugs were all his[.]" An agent for the State Bureau of Investigation testified that the chemical analysis of the material seized revealed over 211.5 grams of methamphetamine. Defendant did not present any evidence.
During jury deliberations, the trial court stated that it "need[ed] to put this order on the record" with respect to the denial of defendant's motion to suppress. The trial court then stated that it found that Deputy Sweatt received information from a reliable confidential informant that a red Mustang convertible, occupied by one white female and one white male, would be entering Richmond County on Highway 220 with controlled substances located in the vehicle; that although the Mustang was occupied by three white individuals, rather than the reported two, Deputy Sweatt independently corroborated the informant's information; that Deputy Sweatt radioed ahead to have the other deputies stop the vehicle in a pretextual license checking station; and that the "checking station procedure was done to protect the confidentiality of the informant, as well as the safety of the officers." Based on these findings, the trial court concluded that "the officer did have reasonable suspicion to conduct an investigatory stop; that he personally corroborated information received from the informant; [and] that he had specific and articulable facts which warranted the stop[,]" and denied the motion to suppress.
The jury returned guilty verdicts against defendant for trafficking in methamphetamine by transporting and trafficking in methamphetamine by possession. The trial court sentenced defendant to 90 to 117 months imprisonment. Defendant appeals.
Defendant assigns error to the denial of his motion to suppress, arguing that his stop and detention violated his Fourth Amendment right to be free from unreasonable search and seizure, and therefore, any evidence recovered as a result must be suppressed. We disagree, and affirm the trial court's denial of defendant's motion.
"`[T]he standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact "`are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'"'" State v. Earwood, 155 N.C. App. 698, 702, 574 S.E.2d 707, 710 (2003) (citations omitted). The trial court's conclusions of law, however, are fully reviewable. Id. We note that defendant argues the trial court failed to enter an order containing findings of fact and conclusions of law, thereby precluding a meaningful appellate review. Although the trial court did not enter a written order, the trial court orally entered an order on the record consisting of adequate findings of fact and conclusions of law, allowing for appellate review.
The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibits unreasonable searches and seizures. State v. Garner, 331 N.C. 491, 506-07, 417 S.E.2d 502, 509-10 (1992). They apply "to seizures of the person, including brief investigatory detentions such as those involved in the stopping of a vehicle." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994). An investigatory stop must be justified by "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979). "A court must consider `the totality of the circumstances — the whole picture' in determining whether a reasonable suspicion to make an investigatory stop exists." Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (citations omitted).
An informant's tip may provide the reasonable suspicion necessary for a Terry stop. See Alabama v. White, 496 U.S. 325, 328, 110 L. Ed. 2d 301, 307 (1990). "Although reasonable suspicion is less stringent than probable cause, it nevertheless requires that statements from tipsters carry some `indicia of reliability.'" State v. Watkins, 120 N.C. App. 804, 809, 463 S.E.2d 802, 805 (1995) (citation omitted). There must also exist sufficient police corroboration of the tip before the stop is made. "If reasonable suspicion for the stop exists before the stop is made, there is noviolation of the Fourth Amendment." State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000).
Here, the facts established that the tip provided by the informant was sufficiently reliable to create reasonable suspicion to justify the stop. The uncontested findings of fact show: (1) a confidential informant told Deputy Sweatt that a quantity of metheampheta mine would be transported in a red Mustang convertible into Richmond County that day; (2) Deputy Sweatt had relied on information provided by the confidential informant in the past; (3) Deputy Sweatt observed a vehicle matching the description given by the informant traveling on the suspected route for drug transportation; and (4) defendant was a passenger in the observed vehicle. Based on the information and corroboration, the police had reasonable grounds to believe the tip was accurate and reliable, and that the investigatory stop of the vehicle was justified. Therefore, the vehicle stop did not violate defendant's federal or state constitutional rights and the trial court properly denied defendant's motion to suppress.
Defendant next contends the trial court violated his right to proceed pro se by failing to conduct a hearing pursuant to N.C. Gen. Stat. § 15A-1242 to determine whether defendant wished to represent himself after defendant stated to the court that he wanted to fire his attorney. We disagree.
"A criminal defendant has a [federal] constitutional right to the assistance of counsel in his defense, which implicitly includes the right to refuse the assistance of counsel and conduct his owndefense." State v. Johnson, 341 N.C. 104, 110, 459 S.E.2d 246, 249 (1995). In North Carolina, this right of self-representation is also guaranteed by Article I, Section 23 of the North Carolina Constitution and by N.C. Gen. Stat. § 15A-1242. State v. LeGrande, 346 N.C. 718, 725, 487 S.E.2d 727, 730 (1997). N.C. Gen. Stat. § 15A-1242 sets forth the prerequisites necessary before a defendant may waive his constitutional right to counsel and represent himself at trial. A defendant's waiver of the right to counsel and concomitant election to proceed pro se must be clearly and unequivocally expressed. See State v. Thomas, 331 N.C. 671, 417 S.E.2d 473 (1992). In the absence of a clear expression of desire to have counsel removed and proceed pro se, the trial court need not make an inquiry under N.C. Gen. Stat. § 15A-1242 to determine if the defendant understands the consequences of his election and voluntarily and intelligently waives his right to representation. Johnson, 341 N.C. at 111, 459 S.E.2d at 250. In the absence of a clear expression by the defendant of a desire to proceed pro se, a trial judge faced with a claim of conflict between defendant and his attorney "must determine only that the defendant's present counsel is able to render competent assistance and that the nature of the conflict will not render such assistance ineffective." Id.
The record discloses that after the jury returned its verdict and before sentencing, defendant asked through his counsel if he could see his family before going to prison. After the trial court rejected that request, the following colloquy took place: DEFENDANT: Can I fire this lawyer right here, because I don't think he did me a good job. . . .
. . .
I asked him to file — Yesterday you admitted the motion to suppress — you admitted to it. And then you denied it. . . . And he let you do that. . . .
. . .
THE COURT: I agreed with one point he made. But the motion was denied on other grounds.
Your lawyer did a good job for you.
DEFENDANT: He did do a good job. I just — I don't understand why you won't let me see my kids and my old lady.
THE COURT: I can't argue with you any more about that. I'm sorry.
. . .
THE COURT: Are you going to be able to hire your own lawyer on appeal?
DEFENDANT: I want to keep him. I'm sorry; I just wanted to see my kids, man, you know.
THE COURT: Well, with respect to your appeal, you can hire your own attorney. If you can't afford to do that —
DEFENDANT: I'm going to keep him. I'm sorry; I apologize. I want to keep him.
Here, defendant never requested that he be allowed to represent himself at trial. Although defendant expressed his dissatisfaction with his attorney after the jury returned its verdict, at no time did he request that his attorney be removed from his case and that he be allowed to represent himself. Basedon the record, we conclude that defendant did not clearly and unequivocally request to proceed pro se. Thus, the trial court's determination that defendant's counsel had provided competent assistance was sufficient and no further inquiry was necessary. Having failed to properly assert the right to represent himself, defendant cannot successfully claim that he was denied that right. Accordingly, defendant's assignment of error is without merit.
Defendant finally contends, and the State agrees, his case should be remanded to the trial court to correct clerical errors in his judgment and commitment. See State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (citations omitted) ("`a court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein'"). Because the record clearly reflects these clerical errors, we agree, and remand the case to the trial court for the following corrections to the written judgment and commitment entered 24 August 2004: (1) the punishment class of offense for the trafficking offenses should state "E," instead of "D"; and (2) Block 1 subsection (d) should be checked to reflect that the trial court made no findings of fact because the prison term imposed is "for drug trafficking," and not because the prison term was within the presumptive range under subsection (a).
No error in the trial. Remanded for corrections.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).