Opinion
No. COA07-1208
Filed 1 April 2008
Appeal by defendant from judgments entered 24 April 2007 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 17 March 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Harriet F. Worley, for the State. William D. Spence for defendant-appellant.
Halifax County Nos. 06CRS055679-80.
Detrick Devonne Williams ("defendant") appeals from judgments entered upon jury verdicts finding him guilty of possession of a firearm by a felon and of carrying a concealed weapon. For the reasons stated below, we find no error.
On 16 October 2006, the Halifax County grand jury indicted defendant on charges of possession of a firearm by a felon and carrying a concealed weapon. At trial, the State introduced evidence tending to show the following: Officer Glenn Teal testified that he was dispatched to investigate a report of suspicious activity at a Bojangles restaurant on the evening of 28 August 2006. Officer Josh Clark also responded, and he spoke with the employees while Officer Teal looked for the man described in the dispatch. Upon seeing a man whom he said "matched the description to a T[,]" Officer Teal approached the man in his vehicle. After getting out of his vehicle and introducing himself, Officer Teal told the man why he was there and what his concerns were. When the State asked if Officer Teal was "able to make any observations other than matching the description . . . about the person [he] saw there in the parking lot[,]" defendant objected and asked for a voir dire.
During the voir dire, Officer Teal testified to receiving a report at approximately 9:30 p.m. that a black male had entered Bojangles and purchased some chicken. The man left, but then returned several minutes later. He was not in line or asking for assistance, but was simply there wandering around for about twenty to twenty-five minutes. Employees were concerned because they noticed that the man had large bulges in his front pockets and was just standing there for several minutes.
As Officer Teal was approaching the location, he saw Officer Clark speaking with the employees who had called 911. He said they were standing at the door, and the employees were pointing at a man walking across the mall parking lot. Officer Teal stated there were no other individuals or vehicles in the area. While he had not included the description of the suspicious individual in his report, Officer Teal had testified earlier that the man whom he saw matched the dispatcher's description to a "T." He did remember that the description referred to dark-colored baggy jeans, boots, a light jacket and carrying a box of chicken. Officer Teal said he noticed the extremely large bulges in the man's pockets while he was still in his vehicle driving toward the man.
Officer Teal pulled around in front of the man and got out of his vehicle. After introducing himself to the man and telling him that he was investigating a report of a suspicious person, Officer Teal asked the man what his name was. Officer Teal described the man as very cooperative. When the man said his name was Derrick Williams, however, Officer Teal recognized him as Detrick Williams. Officer Teal testified at that point he was going to detain defendant, "if nothing else for lying to me about who he was when I knew different."
While hearing argument from counsel, the trial court stated that it did not believe that a seizure took place when Officer Teal pulled his vehicle in front of defendant. The trial court also noted that defendant's misrepresentation of who he was would arouse suspicion in a reasonable person's mind. After counsel concluded their arguments, the trial court stated it was "going to overrule your objection but [would] note it for the record" and would note defense counsel's continuing objection.
Officer Teal resumed testifying before the jury about the events leading up to defendant's arrest on the night in question. He identified defendant in open court as the man whom he stopped. Officer Teal's vehicle was within fifteen feet of defendant, and its headlights were shining on him. He explained that he did so for reasons of officer safety in that he wanted to be able to seethe individual in front of him and the individual would be able to see him.
Officer Teal got out of his vehicle and introduced himself, and he then asked defendant what his name was. After defendant misidentified himself as Derrick rather than Detrick, Officer Teal asked defendant about what was in his pockets. When defendant said "nothing[,]" Officer Teal asked for and received permission to search defendant's pockets. He found large wads of money and a full roll of masking tape in one pocket and an unloaded handgun in the other pocket. Officer Teal then placed defendant under arrest for providing fictitious information and for carrying a concealed weapon. Upon later reviewing defendant's criminal record, Officer Teal also charged defendant with possession of a firearm by a convicted felon.
Defendant asked to renew his earlier objection after Officer Teal concluded his testimony, and he referred to it as a motion to suppress. Both counsel presented additional arguments, and the trial court again denied defendant's motion. The State then concluded the presentation of its evidence by having an assistant clerk of court testify regarding a court record of a 1995 judgment entered against defendant for the felony of possession with intent to sell and deliver cocaine.
At the conclusion of the State's evidence, defendant again renewed his motion to suppress, and the trial court again denied it. While the trial court allowed defendant's motion to dismiss as to the charge of giving fictitious information to an officer, it denied that motion as to the remaining two charges.
Defendant presented evidence through the jail administrator that the list of clothing taken from him during processing did not include boots, dark pants, dark clothing or a jacket. Testifying on his own behalf, defendant gave a different version of the events leading up to his arrest and denied having any prior felony convictions. Defendant renewed his motion to dismiss at the close of all the evidence and again renewed his motion to suppress. The trial court then denied both motions. After receiving the trial court's instructions, the jury deliberated and found defendant to be guilty of possession of a firearm by a felon and of carrying a concealed weapon on 24 April 2007. The trial court subsequently imposed concurrent sentences of sixteen to twenty months and of sixty days for the respective convictions. From the trial court's judgments, defendant appeals.
In his first argument, defendant contends the trial court erred by failing to make sufficient written or oral findings of fact and conclusions of law on his motion to suppress following the voir dire. We disagree.
As an initial matter, the trial court could have summarily denied defendant's motion to suppress due to his failure to allege a legal basis for the motion as required by N.C. Gen. Stat. § 15A-977(c) (2007). The trial court instead exercised its discretion to hear the motion. See State v. Colbert, 146 N.C. App. 506, 508, 553 S.E.2d 221, 223 (2001). Because defendant failed to present any testimony during the voir dire which refuted Officer Teal's testimony establishing the admissibility of the evidence, there was no factual dispute for the trial court to resolve. "[W]here evidence is uncontroverted and the facts not in dispute, a trial court is not required to make findings of fact, even when provided for by statute or case law." State v. Futrell, 112 N.C. App. 651, 665, 436 S.E.2d 884, 891 (1993). "[T]he necessary findings are implied from the admission of the challenged evidence." State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980). While the trial court did not make formal conclusions of law, it did indicate that a seizure did not occur when Officer Teal pulled his vehicle in front of defendant and that a reasonable person's suspicion would have been aroused when defendant misrepresented his identity. This assignment of error is overruled.
Defendant next contends the trial court erred by denying his motion to suppress evidence of the handgun because there were insufficient grounds for Officer Teal to stop and search him. Defendant's argument is not persuasive.
"[T]he test of an unconstitutional seizure involves a determination of whether a reasonable person, in view of all the surrounding circumstances, would feel at liberty to decline law enforcement officials' requests and to withdraw from their presence." State v. James, 118 N.C. App. 221, 229, 454 S.E.2d 858, 863 (1995). "In [United States v.] Mendenhall, [ 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, rehearing denied, 448 U.S. 908, 65 L. Ed. 2d 1138 (1980),] the following factors were listed as examples of circumstances which might indicate a seizure: (a) the threatening presence of several officers, (b) the display of a weapon by an officer, (c) some physical touching of the person, and (d) the use of language or tone of voice indicating that compliance with the officer's request might be compelled." State v. Coffey, 65 N.C. App. 751, 755, 310 S.E.2d 123, 126-27 (1984). None of these factors were present in Officer Teal's encounter with defendant. Merely stopping his vehicle in front of defendant and getting out to ask questions in this context is not a circumstance that might indicate a seizure. See State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 505-06 (1973); see also State v. Rinck, 303 N.C. 551, 560-61, 280 S.E.2d 912, 920 (1981). Officer Teal's subsequent search was pursuant to defendant's consent. This assignment of error is overruled.
In his final argument, defendant contends the trial court committed plain error by denying his motion to suppress evidence of the handgun because there were insufficient grounds for stopping and searching him. Given that defense counsel clearly objected to the admission of the handgun on several occasions, a "plain error" argument is inapplicable. See N.C.R. App. P. 10(c)(4) ("[i]n criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error"). Defendant has also expressly abandoned his fourth assignment of error. See N.C.R. App. P. 28(b)(6). For the reasons stated above, we find no error.
No error.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).