Appeal by defendant from judgments entered 17 July 1998 by
Judge Narley L. Cashwell in Wake County Superior Court. Heard in
the Court of Appeals 21 February 2000.
On 3 March 1997, in response to a "911" telephone call,
officers went to a home in Zebulon, North Carolina, where they
found a 36-year-old black male, Dewayne Rogers, and a 37-year-old
white female, Robin Watkins, lying facedown on the living room
floor in pools of blood. Both victims died as the result of
gunshot wounds to the back of their heads. In a bedroom of the
home, officers found the dead body of a 14-year-old youth named
Dameon Armstrong. Young Armstrong had been shot five times; the
fatal wound was made by a bullet which penetrated his lung.
Tildren Hunter, Marcus Mitchell, Antonio Mitchell, and DurronBurnnun Ray (the defendant) were indicted for the triple murders.
Defendant was tried by a jury at the 22 June 1998 Session of
Wake County Superior Court. One of his codefendants, Tildren
Hunter, testified for the State and implicated defendant in the
murders. The State also introduced defendant's confession to his
involvement in the crimes. Defendant was convicted of first-degree
murder in each case. After a sentencing hearing, the jury
recommended in each case that a sentence of life imprisonment
without parole be imposed, and the trial court entered three
consecutive sentences of life imprisonment from which defendant
appealed.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Thomas F. Moffitt, for the State.
John T. Hall for defendant appellant.
HORTON, Judge.
Defendant contends the trial court erred in (I) denying his
motion to suppress evidence linking him to his involvement in the
crimes, and (II) denying his motion for allocution at the
sentencing hearing. We disagree and affirm the rulings of the
trial court.
On the early morning of 8 March 1997, prior to defendant's
arrest for murder in this case, he was riding as a passenger in a
light blue Nissan Stanza automobile driven by Damien Mitchell. Twouniformed officers of the Raleigh Police Department were patrolling
an area of Raleigh where the Nissan was located. The officers
noticed that one of the automobile's headlights was burned out, and
signaled Mr. Mitchell to stop. After Mr. Mitchell pulled over, the
officers approached the vehicle and conducted a standard traffic
stop.
As the uniformed officers were preparing to give the driver a
warning ticket, officers in the Selective Enforcement Unit (SEU) ofthe Raleigh Police Department arrived on the scene. The SEU
officers searched the Nissan automobile with the consent of the
driver, and located a pistol under the floor mat in the rear
passenger area where defendant was sitting when the Nissan was
stopped. While the search was in progress, the SEU officers
received additional information from detectives who were
investigating three armed robberies committed earlier in the
evening. The SEU officers concluded that they had probable cause
to arrest the three occupants of the Nissan automobile, including
the defendant. The occupants were arrested and taken to the police
station. While defendant was in police custody, he confessed to
his role in various armed robberies and his role in the triple
slayings in Zebulon. At trial, defendant moved to suppress his
confession and various items taken from his person. After a
lengthy voir dire, the trial court denied defendant's motion to
suppress, and defendant assigns error to that denial.
I.
[1]Defendant argues that his arrest was not based on probable
cause, and that his confession, as well as the items seized from
him, must be suppressed in accordance with the decisions of North
Carolina Courts and the United States Supreme Court.
See, for
example, State v. Freeman, 307 N.C. 357, 359-60, 298 S.E.2d 331,
332-33 (1983), and
Wong Sun v. United States, 371 U.S. 471, 9
L. Ed. 2d 441 (1963). Our Supreme Court has explained that a
"'warrantless arrest is based upon probable cause if the facts and
circumstances known to the arresting officer warrant a prudent manin believing that a felony has been committed and the person to be
arrested is the felon.'"
State v. Medlin, 333 N.C. 280, 289, 426
S.E.2d 402, 406 (1993) (citation omitted).
Here, the trial court conducted a lengthy
voir dire hearing
and concluded that there was probable cause for defendant's arrest,
and that his confession and items taken from his person were
admissible into evidence. The trial court supported its
determination with detailed findings of fact and conclusions of
law. It is axiomatic that we are bound by the findings of the
trial court if such findings are supported by competent evidence in
the record, but the conclusions of law are for our
de novo review.
State v. Smith, 346 N.C. 794, 797, 488 S.E.2d 210, 212 (1997).
Here, there was competent evidence to support the trial
court's findings of fact, and the findings also support the court's
conclusions of law. During the
voir dire hearing on defendant's
motion to suppress, the State introduced evidence which tended to
show the following: that in the fall of 1996, there were a number
of armed robberies in Wake County carried out by three or four
black males armed with guns and wearing ski masks, gloves, and
baggy clothing; that a task force had been organized to apprehend
the robbers; that on 7 March 1997, police received information from
a confidential informant that Antonio Mitchell, Marcus Mitchell,
and Tildren Hunter were committing the robberies and Antonio
Mitchell was renting a motel room at the Capital Inn in Raleigh;
that members of the task force verified that Antonio Mitchell had
a room at the Capital Inn and the task force began surveillance ofthe room; that about 10:30 p.m. that evening, officers received a
report of an armed robbery near Lizard Lick, followed by a report
of a grocery store robbery, and then a report that a fast food
restaurant had been robbed; that all three robberies were carried
out by two or three young black males armed with handguns and
wearing dark clothing and gloves; that a witness reported that the
robbers were driving a light blue automobile; that soon after the
third robbery, Antonio Mitchell drove into the Capital Inn parking
lot and was arrested.
The State's evidence also tended to show that shortly after
Antonio Mitchell's arrest, a light blue Nissan Stanza drove through
the parking lot and left; that after the Nissan left the scene, a
van occupied by two young black males pulled into the parking lot
and stopped; that the two van occupants knocked on Antonio
Mitchell's motel room door, but received no response; the two young
men looked into Antonio Mitchell's vehicle, then got back into the
van and left the scene; SEU officers followed the van a short
distance and had uniformed patrol officers stop it; one of the van
occupants, David Crummel, told police that he had been in Antonio
Mitchell's motel room at the Capital Inn earlier that day, and had
smoked marijuana with Antonio Mitchell, Marcus Mitchell, and
Tildren Hunter; that the Mitchells and Hunter had bragged about the
robberies they were carrying out, and stated that they were going
to commit more robberies that night [7 March 1997]; that he,
Crummel, knew that Antonio Mitchell, Marcus Mitchell, Tildren
Hunter, and Durron Ray, committed the robbery of Byrd's grocerystore.
The State offered additional evidence at the
voir dire hearing
of the events which occurred on the early morning of 8 March 1997.
We have summarized the events earlier in the opinion, and do not
repeat them here. In a detailed order, the trial court found the
facts summarized above to be true, and concluded, in pertinent
part, that "at the time Sergeant Shermer seized the Defendant[,]
Sergeant Shermer had, under the totality of his knowledge and
reliable circumstances, probable cause to believe that the
Defendant, acting alone or together with others, had committed one
or more armed robberies and, therefore, had probable cause to
arrest the defendant." A "reasonable man acting in good faith,"
armed with the information Sergeant Shermer possessed when he
arrested defendant during the early morning hours of 8 March 1997,
would have ample probable cause to believe that defendant and the
other occupants of the Nissan Stanza had been involved in armed
robberies earlier that same evening.
Defendant argues, however, that he was actually arrested prior
to the formal arrest by Sergeant Shermer. Defendant contends that,
when the uniformed patrol officers had him sit on the ground
together with the other occupants of the Nissan automobile, cross
his ankles, and place his hands on his knees, he was "in custody,"
and that the uniformed police officers had no probable cause to
arrest him at that time. We disagree.
In
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), the
United States Supreme Court set forth a standard for testing theconduct of police officers who have effected a warrantless
"seizure" of an individual: "the police officer must be able to
point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant [the]
intrusion."
Id. at 21, 20 L. Ed. 2d at 906. Our Supreme Court,
after discussing the holdings of
Terry and of
Adams v. Williams,
407 U.S. 143, 32 L. Ed. 2d 612 (1972), has stated that the standard
set out in
Terry and
Adams "clearly falls short of the traditional
notion of probable cause, which is required for an arrest. We
believe the standard set forth requires only that the officer have
a 'reasonable' or 'founded' suspicion as justification for a
limited investigative seizure."
State v. Thompson, 296 N.C. 703,
706, 252 S.E.2d 776, 779,
cert. denied, 444
U.S. 907, 62 L. Ed. 2d
143 (1979) (citations omitted).
Here, Officer Carswell testified that when Sergeant Shermer
arrived on the scene, the situation escalated from a traffic stop
to an "investigative detention." Prior to the stop of the Nissan,
the officers had heard a radio broadcast about several different
vehicles and suspects having the same description as the men in the
Nissan automobile. Before the uniformed officers could give the
driver of the Nissan a warning ticket, Sergeant Shermer and other
SEU officers arrived on the scene. The two groups of officers
exchanged information, and Sergeant Shermer had several
conversations with police headquarters. As a result of information
relayed to Sergeant Shermer by cell phone, the officers formed the
well-founded suspicion that the men who were detained were involvedin the series of robberies earlier that evening.
The officers asked for, and received, consent to search the
vehicle. We note that Officer Carswell testified that "[a]t that
point we had all three individuals exit the vehicle and have a seat
on the curb, cross their feet and put their hands on their knees,
which is standard procedure for conducting a traffic stop where
you're going to search a vehicle." When a handgun and suspicious
clothing were discovered in the vehicle, the occupants were placed
under arrest. From the time the Nissan vehicle was stopped by the
patrol officers in a clearly valid traffic stop, until the suspects
were handcuffed and transported to police headquarters for
questioning the elapsed time was at most 20 to 25 minutes.
Assuming that the traffic stop became an "investigative detention"
when the SEU officers arrived on the scene, we hold that the SEU
officers were justified under the facts of this case in making a
limited investigative seizure of the suspects. We note that the
seizure was no longer than necessary, that the defendant and other
suspects were not handcuffed during the investigative detention,
and that although the officers were armed, they did not draw their
weapons or menace the suspects with them. Defendant's assignment
of error is overruled.
II.
[2]Defendant also contends that the trial court erred during
the sentencing hearing in denying his motion for allocution.
Defendant wished to make an unsworn statement of fact to the jury
during the sentencing hearing, without being subjected to cross-examination. The trial court denied the motion for allocution, and
also denied a motion by counsel for defendant that he or co-counsel
be allowed to read a written statement from the defendant to the
jury. The trial court properly denied defendant's motions, based on
the holding of our Supreme Court in
State v. Green, 336 N.C. 142,
443 S.E.2d 14,
cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547
(1994). In
Green, the Supreme Court held "there is no common law,
statutory, or constitutional right to allocution in a capital
case."
Id. at 191, 443 S.E.2d at 42. Sentencing in capital cases
is governed by the provisions of N.C. Gen. Stat. § 15A-2000(a)(4)
(1999), which gives either the defendant or his counsel the right
to "present argument for or against sentence of death." That
statutory provision, however, does not give a defendant the right
"to testify without being subjected to cross-examination or to make
unsworn statements of fact during any such argument or otherwise."
Green, 336 N.C. at 192, 443 S.E.2d at 43. Further, defendant
concedes that he cannot show prejudice based on the ruling of the
trial court, since the jury in these cases did not recommend the
imposition of the death penalty. This assignment of error is
overruled.
We have carefully considered defendant's remaining assignments
of error and find them to be without merit. The record of the
proceedings below indicates that defendant was represented at all
times by competent counsel, and that he received a fair trial
before an able trial judge and jury. In that trial we find
No error.
Chief Judge EAGLES and Judge McGEE concur.
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