Opinion
No. COA08-1210.
Filed June 2, 2009.
Forsyth County Nos. 06CRS13215; 06CRS54935-36.
Appeal by defendant from judgments entered 6 March 2008 by Judge Edgar B. Gregory in Forsyth County Superior Court. Heard in the Court of Appeals 7 April 2009.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Marc Bernstein, for the State. Anne Bleyman, for defendant-appellant.
William Raynard Fulton ("defendant") appeals his 6 March 2008 conviction for possession with intent to sell or deliver cocaine, fleeing in a motor vehicle to elude arrest, and habitual felon. For the reasons stated below, we hold no error.
On 19 and 20 April 2006, several officers with the Winston-Salem Police Department were conducting surveillance at the Motel 6 on North Patterson Avenue. Officers had made numerous narcotics arrests at the Motel 6 in the past. Their operation began at approximately 10:00 or 11:00 p.m. on 19 April 2006 and continued until approximately noon the next day. Although initially officers were not focusing their investigation on any given room, particular rooms drew their attention because they had "an unusual amount of foot traffic, people coming and going from rooms, staying for short periods of time, [and] conversations taking place . . . within the doorway[.]" This activity was indicative of narcotics sales. One of the rooms that drew their attention was Room 239.
As part of their investigation, officers conducted an undercover purchase of crack cocaine in front of Room 242. Officers then obtained a search warrant for that room. While executing that warrant, the person with whom the officers had arranged the drug purchase gave them information about Room 239. Based upon that information and their own observations with respect to Room 239, officers obtained a search warrant for Room 239.
On several occasions that evening, officers had observed a white Mercury Cougar. Its occupants would park and go into Room 239. In the early morning hours of 20 April 2006, Officer Chad N. Kiser ("Officer Kiser") again saw the white Cougar drive into the motel parking lot, slow down, and stop. Officer Kiser approached the vehicle, identified himself as a police officer, and asked the driver why he was coming to the motel. The driver identified himself as Chris Smith. He stated that he was going to Room 239 to visit a woman named Jessica. The driver later was identified as defendant.
During their conversation, defendant avoided eye contact, not simply looking at Officer Kiser then glancing away, but rather looking down and out the passenger side window toward Room 239. Defendant also repeated every question asked of him, as though he were being evasive or searching for answers. He appeared very nervous. As Officer Kiser was asking defendant questions, defendant drove away. Officer Kiser contacted Corporal Rick Newnum ("Corporal Newnum") — who was stationed in a marked police vehicle on the outskirts of the area — and asked him to stop the vehicle for a narcotics investigation.
Corporal Newnum subsequently was promoted to Sergeant approximately one year prior to trial. We refer to him as Corporal Newnum because that was his rank at the time of the events in question.
When Corporal Newnum first saw the white Cougar, it was leaving the Motel 6 "at a high rate of speed." It was extremely foggy that early morning. Although driving the speed limit, Corporal Newnum thought the Cougar was "traveling entirely too fast for the conditions[.]" Corporal Newnum got behind the Cougar in order to initiate a traffic stop. The Cougar pulled over and Corporal Newnum got out of his patrol car and began to approach the driver's side of the Cougar. Before Corporal Newnum could get past the left rear tire, defendant "floored it, spraying gravel" all over him.
Corporal Newnum got back into his patrol car and attempted to re-engage the Cougar. After he located the Cougar, Corporal Newnum again activated his blue lights. Defendant sped up to more than fifteen miles per hour faster than the posted speed limit and ran a red light. Due to the dense fog, Corporal Newnum thought it was not safe to chase defendant, so disengaged his emergency equipment. Corporal Newnum eventually lost sight of defendant and returned to the Motel 6.
While officers were executing the search warrant on Room 239, the room's telephone rang. Officer Chris Diamont ("Officer Diamont") answered the telephone. The male voice on the other end identified himself as "Little Ray." Officer Diamont was able to arrange a narcotics sale with the caller. It was to occur on Patterson Avenue between the Little Red Caboose restaurant and the King's Inn Motel.
Officers entered an unmarked minivan and proceeded north on Patterson Avenue. As dawn was breaking, the officers saw an African-American male with dread locks walking north on Patterson Avenue with a white jacket draped over his shoulder, "just as the transaction had been set up." He was the only person the officers had seen walking along the road. Corporal Newnum noted that the location was near where the Cougar had fled from him earlier that morning. The individual proved to be defendant.
The officers identified themselves and informed defendant that he was being detained for a narcotics investigation. Defendant struggled, but eventually was handcuffed, and later taken back to the Motel 6. Back at the Motel 6, Officer Kiser confirmed that defendant was the driver of the white Mercury Cougar with whom he had spoken earlier that morning.
Before officers took defendant from the scene, Corporal Newnum recovered three baggies from the ground near where defendant was apprehended: one contained what proved to be rocks of crackcocaine, the other two contained what proved to be powder cocaine. The grass was wet with dew; other than the portions of the baggies that had come into contact with the grass, the baggies were dry. Although Corporal Newnum had not said anything about recovering what appeared to be narcotics, defendant began shouting, "You can't take my money. You didn't find the dope on me." Defendant had in his possession $564.00, a cell phone, a King's Inn room key, and keys to a Mercury vehicle.
On 5 March 2008, a jury found defendant guilty of misdemeanor operation of a motor vehicle to elude arrest and felony possession of cocaine with intent to sell and deliver. On 6 March 2008, the jury found defendant guilty of attaining habitual felon status. For sentencing purposes, defendant was determined to have attained Prior Record Level V. The three offenses were consolidated into a single judgment of 135 to 171 months imprisonment in the custody of the Department of Correction. Defendant appeals. Defendant first argues that the trial court abused its discretion in denying his motion for a mistrial. We disagree.
The decision to grant or deny a motion for a mistrial rests within the sound discretion of the trial court "and will not be disturbed on appeal absent a showing of an abuse of discretion." State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992). "Abuse of discretion occurs only where the trial court's ruling is `manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.'" State v. Gray, 337 N.C. 772, 776, 448 S.E.2d 794, 797 (1994) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988)).
Here, during a break in the jury's deliberations, the jury foreman saw defendant in restraints outside the courtroom. Defendant contends he was denied his constitutional right to a fair and impartial trial by the trial court's failure to grant him a mistrial.
There is a "general rule that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary instances." State v. Tolley, 290 N.C. 349, 365, 226 S.E.2d 353, 366 (1976) (emphasis added). Defendant contends that he was prejudiced notwithstanding the fact that he was not seen in restraints in the courtroom itself.
Defendant concedes that not all incidents of a defendant's having been seen in handcuffs outside the courtroom merit a mistrial. However, he reasons that the trial court in his case failed to protect his rights adequately by conducting an extensive hearing on the matter or dismissing the juror in question. See, e.g., State v. Perry, 316 N.C. 87, 109, 340 S.E.2d 450, 463 (1986) (no prejudice when judge conducted extensive hearing); State v. Riley, 154 N.C. App. 692, 696, 572 S.E.2d 857, 860 (2002) (juror's dismissal cured any prejudice). We are not persuaded.
Here, after the trial court was made aware of the incident, it asked the bailiff to explain. The bailiff was moving defendant during lunch; he had checked the hallways and seen no one. Then, as they were getting on the elevator, the jury foreman "walked up." The bailiff was unsure whether the juror had seen defendant, but conceded that defendant was "in custody."
After hearing from the bailiff, the trial court asked defense counsel how he would prefer to proceed, indicating that the trial court could do nothing, or question the juror and instruct him not to consider the incident in weighing the evidence or determining the issue of guilt. After consulting with defendant, defense counsel requested that the trial court question the juror and properly instruct him. The trial court did as defendant requested.
The juror admitted he had seen defendant in restraints, agreed not to consider that fact in weighing the evidence or determining guilt, and agreed not to discuss the matter with the other jurors. When asked if there were any objections or requests for additional instructions, defense counsel objected to the curative effect of the instructions, "at least, for the record[,]" and requested a mistrial, which the trial court denied.
"The handcuffing of defendants, as they are transferred between the courtroom and the jail, is a common practice well known by the general public. Thus, a defendant's right to a fair and impartial trial is not impaired when jurors observe him outside the courtroom in handcuffs." State v. Elliott, 137 N.C. App. 282, 284-85, 528 S.E.2d 32, 34-35 (citing State v. Montgomery, 291 N.C. 235, 249-52, 229 S.E.2d 904, 912-13 (1976) (holding that the court committed no error when the defendant "was handcuffed and he passed within three or four feet of jurors who were standing beside the courthouse steps")), rev'd on other grounds, 352 N.C. 663, 535 S.E.2d 32 (2000).
We cannot say that under these circumstances the trial court abused its discretion. Upon being made aware of the situation, the trial court sought counsel's input and acted accordingly. Far from being arbitrary, the trial court made a reasoned decision. Therefore, this argument is without merit.
Defendant also argues that the trial court erred in denying his motion to suppress evidence. We disagree.
This Court reviews a ruling on a motion to suppress to "determine only whether the trial court's findings of fact are supported by competent evidence, and whether these findings of fact support the court's conclusions of law." State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000) (citing State v. Rhyne, 124 N.C. App. 84, 88-89, 478 S.E.2d 789, 791 (1996)). However, when — as here — no objection has been made at trial, we are limited to reviewing the matter for plain error. See N.C. R. App. P. 10(c) (2007). Plain error is "` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (emphasis in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.) (citation omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).
Defendant contends that the trial court should have suppressed (1) Sergeant Newnum's identification, (2) Officer Kiser's identification, and (3) the cocaine seized and related testimony. We note that no assignments of error with respect to the identification testimony of Sergeant Newnum and Officer Kiser were raised in defendant's brief. Pursuant to the North Carolina Rules of Appellate Procedure, any argument on these points is deemed abandoned. See N.C. R. App. P. 10 (2007) ("[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal[.]"); N.C. R. App. P. 28(b)(6) (2007) ("Assignments of error not set out in the appellant's brief . . . will be taken as abandoned."). Further, defendant failed to object to the introduction of the cocaine seized and related testimony; therefore, our review is limited to one for plain error.
Defendant contends that the cocaine was seized pursuant to an illegal search and seizure; therefore, it was inadmissible as "fruits of the poisonous tree." He asserts that there was no probable cause to arrest him.
"Probable cause refers to those facts and circumstances within an officer's knowledge and of which he had reasonably trust-worthy information which are sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." State v. Williams, 314 N.C. 337, 343, 333 S.E.2d 708, 713 (1985) (citing Beck v. Ohio, 379 U.S. 89, 13 L. Ed. 2d 142 (1964); State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984)). "`To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith.'" State v. Bone, 354 N.C. 1, 10, 550 S.E.2d 482, 488 (2001) (quoting State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971)), cert. denied, 535 U.S. 940, 152 L. Ed. 2d 231 (2002).
Here, officers suspected that illegal drug sales were emanating from Room 239. A caller to Room 239 identified himself as "Little Ray," and indicated that he had the "stuff." He then arranged a meeting to complete a transaction, stating that he would be walking from the Little Red Caboose to the King's Inn with a white jacket over his shoulder. Upon driving to the arranged meeting location, officers observed an African-American male walking from the Little Red Caboose to the King's Inn with a white jacket over his shoulder. He was the only person seen walking this route. This information was reasonable to establish probable cause to believe that defendant, the male seen walking with the white jacket over his shoulder, presently was in possession of narcotics with the intent to sell and deliver them. Because probable cause existed, the trial court did not err in denying the motion to suppress.
We note that defendant raised 111 assignments of error constituting forty pages in the record on appeal. Of those, only twenty-one assignments of error were brought forward in his brief. Pursuant to the North Carolina Rules of Appellate Procedure, the remaining ninety assignments of error are deemed abandoned. N.C. R. App. P. 28(b)(6) (2008). Of the twenty-one assignments of error brought forward in the brief, several were not argued. "Assignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned." Id.
No error.
Judges WYNN and Robert N. HUNTER, Jr. concur.
Report per Rule 30(e).