Opinion
No. COA15–551.
01-05-2016
STATE of North Carolina, v. Ahking Kaliek WILLIAMS, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Whitney Hendrix Belich, for the State. Charlotte Gail Blake for defendant.
Attorney General Roy Cooper, by Assistant Attorney General Whitney Hendrix Belich, for the State.
Charlotte Gail Blake for defendant.
Opinion
Appeal by defendant from Judgment entered 13 December 2013 by Judge David L. Hall in Forsyth County Superior Court. Heard in the Court of Appeals 19 October 2015.
ELMORE, Judge.
Ahking Kaliek Williams (defendant) was sentenced to twenty-four months' imprisonment for driving while impaired and 100 to 129 months' imprisonment for felony fleeing to elude arrest with a motor vehicle, reckless driving to endanger, and driving while license revoked. After careful consideration, we find no error in part, arrest judgment in part, and remand for resentencing.
I. Background
On 10 January 2011, Sergeant Edward Branshaw of the Winston–Salem Police Department witnessed a four-door white Cadillac swerve in its lane and then later swerve into the oncoming traffic lane. Branshaw followed the car and turned on his patrol car's blue lights. Because it was a snowy evening and there was accumulation on the car's back window, Branshaw was uncertain if the driver of the car would notice his flashing blue lights. As the driver of the car stopped at a red light, Branshaw tried to block the car in by pulling in front of it. The driver then turned right, and Branshaw saw the driver talking on a cellphone and laughing. Branshaw made eye contact with the driver and recognized him from prior encounters. Branshaw decided not to follow the car, believing it would not fall within the “chase policy” of the department. Branshaw called in a report for a speeding to elude charge and identified the driver as Ahking Williams. At trial, Branshaw identified defendant as the driver of the car.
Sergeant Kevan Sawyer later witnessed a white vehicle slide down a hill on what is now Rams Drive and make contact with a curb. He testified that he saw a black male run from the car and get into and then quickly out of a dark vehicle in the street. Sawyer radioed other officers regarding the possibility of a carjacking. Sawyer stated the abandoned white vehicle was still running with the key in the ignition and the driver's door was open.
Officer Guillermo Gomez, Jr. was near the location when he heard Sawyer's radio broadcast. Gomez “heard something to the effect of he was between the residences,” and then he saw a person, later identified as defendant, “run between the homes.” Gomez ordered the subject to stop but he kept running, and Gomez took him down and placed him in custody. Corporal Stephen Grinnell transferred defendant to the magistrate's office. When defendant refused to consent to a breathalyzer test, Branshaw asked Officer Christoffel to apply for a search warrant. The magistrate signed the warrant, and the officers transported defendant to Forsyth Hospital to obtain a blood test. The results of the blood test indicated that defendant had an alcohol concentration of 0.28.
Defendant was indicted on one count each of driving while impaired, felony speeding or fleeing to elude arrest, reckless driving to endanger, driving while license revoked, resisting a public officer, leaving a vehicle on the right-of-way of a highway, transporting an open container of spirituous liquor in a vehicle, possession of marijuana up to one-half ounce, possession of drug paraphernalia, and obtaining habitual felon status. On 1 August 2013, defendant filed a motion to suppress evidence obtained pursuant to the search warrant. Defendant's first trial was on 12 August 2013 in Forsyth County Criminal Superior Court. The court denied defendant's motion to suppress on 14 August 2013, finding the following:
6. That Officer Christoffel did not observe any of the driving indicated on the face of the search warrant;
7. That Officer Christoffel intended her written annotation regarding Sergeant Ed Branshaw would explain that she did not personally observe the driving;
8. That paragraph 2h on the AOC–CR–155 form provides an opportunity for officers to list other reliable persons providing the basis for probable cause;
9. That Officer Christoffel neglected to used [sic] paragraph 2h of the AOC–CR–155 form;
....
11. That Officer Christoffel's failure to accurately use the AOC–CR–155 form was not in bad faith;
12. That her failure to accurately fill out the form was at most carelessness[.]
The trial court concluded as a matter of law as follows: “1. That Officer Christoffel did not knowingly or intentionally provide untruthful testimony to Magistrate Kelly; [and] 2. That Officer Christoffel did not act with reckless disregard for the truth in providing probable cause to Magistrate Kelly[.]”
At the close of trial, and after around thirty minutes of jury deliberations, the trial court declared a mistrial. Subsequently, the State obtained superseding indictments against defendant and retried him in superior court on 9 December 2013. The court applied the ruling on the motion to suppress from the first trial and admitted the blood test results. On 12 December 2013, the jury found defendant guilty of driving while impaired, felony fleeing to elude arrest with a motor vehicle, reckless driving to endanger, driving while license revoked, resisting a public officer, and possessing an open container of spirituous liquor in a motor vehicle. Additionally, on 13 December 2013, the jury found defendant guilty of being an habitual felon. The trial court sentenced defendant to twenty-four months' imprisonment for driving while impaired. It consolidated the reckless driving to endanger and driving while license revoked counts with fleeing to elude arrest with a motor vehicle, and it sentenced defendant to a term of 100 to 129 months' imprisonment.
II. Analysis
A. Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress evidence seized as a result of the search warrant because Officer Christoffel's affidavit contained false statements and omissions made in reckless disregard for the truth. Defendant claims, “Christoffel made admittedly false sworn statements to the Magistrate that she personally observed [defendant] driving on January 10, 2011 and personally observed him violating various driving laws while driving[.]”
“The 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. Goodman, 165 N.C.App. 865, 867, 600 S.E.2d 28, 30 (2004) (citing State v. Smith, 160 N.C.App. 107, 114, 584 S.E.2d 830, 835 (2003)). “If the trial court's conclusions of law are supported by its factual findings, we will not disturb those conclusions.” Id. (citing State v. Logner, 148 N.C.App. 135, 138, 557 S.E.2d 191, 193–94 (2001)).
“There is a presumption of validity with respect to the affidavit supporting the search warrant.” State v. Fernandez, 346 N.C. 1, 14, 484 S.E.2d 350, 358 (1997) (citing Franks v. Delaware, 438 U.S. 154, 171, 57 L.Ed.2d 667, 682 (1978)). “Before a defendant is entitled to a hearing on the issue of the veracity of the facts contained in the affidavit, he must make a preliminary showing that the affiant knowingly, or with reckless disregard for the truth, made a false statement in the affidavit.” Id. (citing Franks, 438 U.S. at 155–56, 57 L.Ed.2d at 672). “A claim under Franks is not established merely by evidence that contradicts assertions contained in the affidavit, or even that shows the affidavit contains false statements. Rather, the evidence must establish facts from which the finder of fact might conclude that the affiant alleged the facts in bad faith.” Id. (citing State v. Winfrey, 40 N.C.App. 266, 269, 252 S.E.2d 248, 249 (1979)).
Here, Christoffel filled out a preprinted form—AOC–CR–155—and she checked box (a), which stated, “I observed the above named individual operating the above-described vehicle.” Immediately after that sentence, Christoffel wrote by hand, “WITNESS: SGT ED BRANSHAW.” She did not check box (h), which stated, “Other reliable persons stated to me the following facts: (Note: Name officer or witness(es) and list facts related to impairment, vehicle operation, etc.).”
During the second trial on 11 December 2013, the trial court incorporated the findings of fact and ruling from the first trial and stated the following:
[T]he Court found, based upon Officer Christoffel's testimony, that there was no deliberately false statements in the search warrant or statements made in reckless disregard for the truth pursuant to Franks v. Delaware, 438 U.S. 154, also pursuant to State v. Barnes, 333 [N.C.] 666, and State [v.] Creason, ... 313 [N.C.] 1202; and thus, the Court denied the defendant's motion to suppress[.]
The findings of fact from the first trial stated that Christoffel “intended her written annotation regarding Sergeant Ed Branshaw would explain that she did not personally observe the driving[,]” and that her “failure to accurately use the AOC–CR–155 form was not in bad faith[ ]” and “was at most carelessness.” During Christoffel's testimony at the first trial, when asked why she wrote “Witness: Sgt. E.D. Branshaw,” she stated, “Because he was the witness that observed the information that is included in that box area.” When asked why she did not check box (h), she replied, “I didn't because I felt as though when I put witness, it was sufficient enough.” When looking at it now, she agreed, “I should have marked h and put the information that's ... on the other side of the piece of paper.”
There was competent evidence to support the trial court's finding that Christoffel's failure to accurately fill out the application for the search warrant was not in bad faith. This finding, in turn, supports the trial court's conclusion that “Christoffel did not knowingly or intentionally provide untruthful testimony to Magistrate Kelly[,]” and Christoffel “did not act with reckless disregard for the truth in providing probable cause to Magistrate Kelly.” The trial court did not err in denying defendant's motion to suppress.
B. Double Jeopardy
Defendant next argues he was convicted of multiple sentences for the same offense because reckless driving to endanger and driving with a revoked license are elements of felony fleeing to elude arrest with a motor vehicle. Defendant admits that he did not raise the issue at trial of whether the consolidated sentence constitutes double jeopardy, and he requests that we review this issue pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to avoid manifest injustice. The State argues that defendant waived this issue, and the trial court's failure to arrest judgment on two of defendant's misdemeanor convictions does not constitute a “manifest injustice” under Rule 2.
“As a general rule, ‘constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.’ “ State v. Mulder, ––– N.C.App. ––––, ––––, 755 S.E.2d 98, 101 (Mar. 18, 2014) (No. COA13–672) (quoting State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010)). “In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion [ .]” N.C.R.App. P. 10(a)(1) (2009).
Here, defendant admittedly failed to raise the issue of double jeopardy at trial and, therefore, has failed to preserve this issue for appeal. Nonetheless, this Court has reviewed unpreserved issues “pursuant to our ‘supervisory power over the trial divisions [and] Rule 2 of the North Carolina Rules of Appellate Procedure[.]’ “ Mulder, ––– N.C.App. at ––––, 755 S.E.2d at 101 (quoting State v. Dudley, 319 N.C. 656, 659, 356 S.E.2d 361, 364 (1987)); N.C.R.App. P. 2 (2009).
Rule 2 of the North Carolina Rules of Appellate Procedure states,
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
N.C.R.App. P. 2. “The decision to review an unpreserved argument relating to double jeopardy is entirely discretionary.” Mulder, ––– N.C.App. at ––––, 755 S.E.2d at 101 (citing State v. McLaughlin, 321 N.C. 267, 272, 362 S.E.2d 280, 283 (1987) (“declining to review the defendant's double jeopardy argument because the defendant failed to raise that issue at trial and thus waived appellate review”); Dudley, 319 N.C. at 659, 356 S.E.2d at 364 (“reviewing the defendant's double jeopardy argument even though it was waived”)).
Pursuant to Rule 2, we elect to suspend the rules and review this issue. Here, during sentencing, the trial court stated,
[D]efendant having been convicted in Count 1 of Felonious Fleeing to Elude Arrest, that ordinarily being a Class H felony, however, this jury having convicted the defendant in 12 CRS 6445 of having attained the status of an habitual felony, the Court having accepted those pleas and ordered them recorded, the Court will sentence appropriately for Count 1, Felonious Fleeing to Elude as enhanced to a Class C. The Court although finding the factor in mitigation has determined that punishment in the presumptive range is appropriate. I sentence the defendant to a minimum of 100 months, a maximum of 129 months in the North Carolina Division of Adult Correction. That, of course, being an active sentence.
....
With regard to Counts 2 and 3, the Reckless Driving to Endanger and the Driving While License Revoked, the Court consolidates those matters for purposes of sentencing into Count 1, the felonious fleeing to elude arrest.
Defendant cites to State v. Mulder in support of his position that “the trial court may well have considered the misdemeanor convictions in determining [the] sentence.” In Mulder, after permitting review pursuant to Rule 2, we held that the defendant “was unconstitutionally subjected to double jeopardy when he was convicted of speeding and reckless driving in addition to felony fleeing to elude arrest based on speeding and reckless driving.” Mulder, ––– N.C.App. at ––––, 755 S.E.2d at 106. We arrested judgment on the speeding and reckless driving convictions and we remanded for resentencing. In a footnote, we stated,
The speeding and reckless driving convictions were consolidated for sentencing purposes with other convictions, including felony speeding to elude arrest. As a result, Defendant was sentenced to 6 to 8 months in prison. This is within the presumptive range for felony speeding to elude arrest, alone, when the defendant has a prior record level II, as here. See N.C. Gen.Stat. §§ 15A–1340 .17, 20–141.5(b). Though the State does not argue that resentencing would be unnecessary in this case, we nonetheless point out that the judgment must be remanded because we cannot assume that the trial court's consideration of the speeding and reckless driving convictions had no effect on the sentence imposed. State v. Brown, 350 N.C. 193, 213, 513 S.E.2d 57, 69–70 (1999)[.]
Id. at n. 5.
Although the State maintains that “arresting judgment would not have any impact on [defendant's] sentence” because he “received no additional punishment for those two charges[,]” based on Mulder, we remand for resentencing as we cannot assume that the two misdemeanor convictions had no effect on the sentence imposed.
III. Conclusion
The trial court did not err in denying defendant's motion to suppress. We arrest judgment on the reckless driving to endanger and driving while license revoked convictions, and we remand for resentencing.
NO ERROR IN PART, JUDGMENT ARRESTED IN PART, AND REMANDED FOR RESENTENCING.
Chief Judge McGEE and Judge INMAN concur.
Report per Rule 30(e).