Opinion
No. COA12–162.
2012-10-2
STATE of North Carolina, Plaintiff, v. Collel Barion STEELE, Defendant.
Roy Cooper, Attorney General, by Assistant Attorney General John P. Barkley, N.C. Department of Justice, for plaintiff. James N. Freeman, Jr., for defendant.
Appeal by defendant from judgment entered 20 April 2011 by Judge Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 August 2012. Roy Cooper, Attorney General, by Assistant Attorney General John P. Barkley, N.C. Department of Justice, for plaintiff. James N. Freeman, Jr., for defendant.
ELMORE, Judge.
Collel Barion Steele (defendant) was found guilty of larceny after breaking and entering and of felonious possession of stolen goods. Defendant then admitted his status as a habitual felon. The trial court arrested judgment on the larceny after breaking and entering conviction and sentenced defendant to a minimum of 146 months to a maximum of 185 months for felonious possession of stolen goods, enhanced by his habitual felon status. Defendant appeals these convictions.
I. Background
The State's evidence tended to show that on 20 May 2010 defendant went into Cash America Pawn with his friend Tiffany Northern (Northern). The two approached the customer service representative (the representative) with a Dell computer to pawn. The representative asked for an ID to match the computer. Northern provided hers, which was not a match. The manager of Cash America Pawn recognized defendant and/or Northern and quietly instructed the representative to stall the two from leaving the premises. The representative offered defendant $25.00 for the Dell computer. Defendant instructed Northern to retrieve a camera from his vehicle, which she did. He then asked Northern to return to his vehicle once more to retrieve a DVD player.
Around 9:30 am on 20 May 2010, Detective Yvonne Galloway (Detective Galloway) went to Cash America Pawn to view a surveillance video which was thought to contain footage of a breaking and entering suspect. Later that afternoon, the manager at Cash America Pawn called Detective Galloway to inform her that a subject of interest in the surveillance video was presently in the pawn shop. Detective Galloway called for backup at Cash America Pawn in order to assist her in detaining and arresting defendant and Northern as breaking and entering suspects.
By the time Detective Galloway arrived, defendant and Northern had been secured in separate police cars. Detective Galloway approached defendant, informed him that he was under arrest, and asked if he wanted to speak with her. She did the same with Northern.
Detective Galloway then noticed several officers searching a vehicle in the parking lot. The officers told Detective Galloway that Northern consented to a search of the vehicle. Officer Galloway ran the tags to the vehicle and learned that defendant owned the vehicle. As defendant had not consented to a search of his vehicle, Officer Galloway instructed the officers to cease the search. Shortly thereafter, the manager of Cash America Pawn told Officer Patricia Edwards (Officer Edwards) that he intended to tow defendant's vehicle. Detective Galloway resumed the search of defendant's vehicle and recovered a basket filled with various CDs. The Dell computer, the camera, and the DVD player that defendant attempted to sell were also confiscated. The items were identified on 20 April 2010 as belonging to breaking and entering victim Audrey Hughes.
II. Motion to Suppress
Defendant first argues that the trial court erred in denying his motion to suppress the evidence obtained from the unconstitutional search of his vehicle. We disagree.
This Court's review of a trial court's denial of a motion to suppress evidence is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).
In considering whether the search of defendant's vehicle violated his Fourth Amendment rights, we must first begin with a discussion of Arizona v. Gant, 556 U.S. 332, 173 L.Ed.2d 485 (2009). In Gant, the defendant was arrested for a traffic offense. He was then handcuffed and locked in the back of a patrol car, thus having no access to his vehicle. The arresting officers had no apparent reason to believe that the defendant's vehicle contained contraband; however, they searched it anyway and found cocaine and a weapon in the car. Id. at 332, 173 L.Ed.2d at 489. The defendant moved to suppress the evidence seized from his car on the grounds that the warrantless search violated his Fourth Amendment rights. The Supreme Court set out a two prong test whereby police may search a vehicle incident to a recent occupant's arrest only if “[1] [the] arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 351, 173 L.Ed.2d at 485. Given the particular circumstances in Gant, the Supreme Court held that prong 2 was applicable and that it was reasonable to search the passenger compartment of the defendant's vehicle.
In State v. Mbacke, the North Carolina Supreme Court further interpreted Gant with the specific aim of clarifying the term “reasonable to believe” as applied to the second prong of the Gant test. See ––– N.C. ––––, 721 S.E.2d 218, 222 (2012). In Mbacke, the defendant's vehicle was searched following his arrest for carrying a concealed weapon. Our Supreme Court held that the search was reasonable under the second prong of Gant, concluding that when investigators have a “reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect's vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.” Id. Our Supreme Court also noted that the “reasonable to believe” standard in Gant established a threshold less than probable cause, concluding that it was on par with the objective “reasonable suspicion” standard used to justify a Terry stop. Id.; See also Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). Additionally, our Supreme Court held that the “reasonable to believe” standard as set out in Gant is not dependent on the nature or type of the offense of arrest; instead, the circumstances of each case must determine the propriety of any vehicular searches conducted incident to an arrest. See Id. at ––––, 721 S.E.2d at 223.
In the current case, defendant was arrested, restrained in handcuffs, and secured in the back of a police car before the police searched his vehicle. Therefore, he did not have access to the passenger compartment of his vehicle and the first prong of the Gant test is inapplicable. However, the second prong of Gant applies here. Defendant was arrested at a pawn shop on charges of breaking and entering and felonious possession of stolen goods. The evidence shows that defendant attempted to sell a Dell computer for which he had no identification match. Furthermore, while overseeing negotiations with the representative, he instructed Northern to retrieve a camera and DVD player from his vehicle. Additionally, a basket of CDs covered by a sheet was found in defendant's vehicle. Given the particular circumstances, we believe that the search of defendant's vehicle was in keeping with Gant and Mbacke. Accordingly, we conclude that the trial court did not err in denying defendant's motion to suppress.
III. Admission of Testimony
Defendant next argues that his constitutional rights were violated by the admission of testimony that he invoked his right to remain silent after his arrest. Specifically, he asserts that (1) Detective Galloway's statement that defendant declined to speak with her after his arrest was prejudicial and improperly admitted by the court and (2) that Officer Edwards' statement that defendant “pled the fifth” when asked if he was a Wynonna Judd fan was so highly prejudicial that its effect could not be erased from the mind of the jurors even after the trial court instructed the jury to disregard the statement. We disagree.
A defendant's exercise of his constitutionally protected right to remain silent “may not be used against him at trial. However, such a constitutional error will not warrant a new trial where it was harmless beyond a reasonable doubt.” State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994). (citations omitted). “Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial .” State v. Ferguson, 145 N.C.App. 302, 307, 549 S.E.2d 889, 893 (2001).
At trial, Detective Galloway testified that she “walked up to the police car [defendant] was located in and informed him he was under arrest and asked him if he wanted to speak with [her].” The trial court overruled defendant's objection to the statement. The State next asked whether Detective Galloway could identify defendant in the courtroom. The record reflects that at no time did Detective Galloway actually state that defendant declined to speak with her. Therefore, as no improper comment was ever specifically made regarding defendant's decision to remain silent, defendant's argument in this instance is without merit.
Defendant next directs our attention to a statement made by Officer Edwards during her testimony regarding the CDs that were recovered from defendant's vehicle. On direct examination Officer Edwards stated, “I remember asking, are you [defendant] a Wynonna Judd fan?” Defendant's counsel objected and the court overruled the objection. Officer Edwards then stated that defendant responded by saying “I plead the fifth.” The trial court sustained defendant's objection to Officer Edwards' testimony and instructed the jury to disregard it in their deliberations.
Here, any prejudice defendant may have suffered from Officer Edwards' statement was removed when the trial court struck the unsolicited statement and issued limiting instructions to the jury to disregard the statement in their deliberations. Moreover, there is no evidence of further testimony by any witness regarding whether defendant agreed to speak and the State never emphasized the fact that defendant invoked his right to remain silent. For the foregoing reasons, we conclude that the trial court neither erred in its treatment of Officer Edwards' statement nor was defendant in any way harmed by it.
IV. Acting in Concert
Finally, defendant argues that the trial court erred by improperly instructing the jury on the theory of acting in concert as it applied to his felonious larceny charge.
First we note that defendant's argument is moot given that the trial court arrested judgment on the conviction of larceny after breaking and entering. Additionally, because defendant has failed to persuade us on the two above-mentioned issues, we deem it unnecessary to address defendant's remaining argument as the issue will not arise again at retrial.
However, assuming arguendo that defendant's argument is not moot, we disagree with defendant's final argument.
“The purposes of the trial judge's charge to the jury are to clarify the issues, eliminate extraneous matters and declare and explain the law arising on the evidence.” State v. Barnes, 297 N.C. 442, 445, 255 S.E.2d 386, 389 (1979). Our Supreme Court has held that a conviction under an acting in concert theory requires a defendant to “have been at the scene of the crime and the evidence must be sufficient to show he [was] acting together with another who [did] the acts necessary to constitute the crime pursuant to a common plan [.]” State v. Bray, 321 N.C. 663, 671–72, 365 S.E.2d 571, 576 (1988) (citations and quotations omitted). Moreover, neither simultaneous action nor equal participation in the commission of a crime by two persons is a prerequisite for the application of the theory of acting in concert. State v. Whiteside, 325 N.C. 389, 405, 383 S.E.2d 911, 920 (1989).
Defendant argues that because the State failed to present any evidence that defendant was assisted by another person in the commission of the felonious breaking and entering coupled with the fact that he maintained control of all negotiations at Cash America Pawn, the trial court had no grounds on which to instruct the jury on the theory of acting in concert.
We reject defendant's argument. Here, the State presented evidence that Northern and defendant arrived together at Cash America Pawn. While in the store, Northern retrieved a camera and DVD player from defendant's vehicle as per defendant's request. Additionally, Northern provided her license when the representative asked for identification to match the Dell computer. Taken as a whole, the evidence presented at trial is sufficient to warrant the instruction of acting in concert. Accordingly, we conclude that the trial court did not err.
V. Conclusion
We conclude the trial court properly denied defendant's motion to suppress evidence. The trial court sufficiently protected defendant from undue prejudice by properly instructing the jury to disregard, in their deliberations, the statements made by Detective Galloway and Officer Edwards in the course of their investigation to which the defendant objected. Finally, the trial court properly instructed the jury on the theory of acting in concert. We conclude that defendant received a fair trial free of prejudicial error.
No error.
Report per Rule 30(e).