STATE OF NORTH CAROLINA
v
.
Lincoln County
No. 99 CRS 6076
AARON STUART VANCAMP
Attorney General Roy Cooper, by Special Deputy Attorney
General John J. Aldridge, III, for the State.
Lewis & Shuford, P.A., by Meredith A. Shuford, for the
defendant-appellant.
WYNN, Judge.
Aaron Stuart VanCamp presents the following issues on appeal
of his conviction for trafficking cocaine: (I) Did the trial court
err in admitting evidence of 30.7 grams of cocaine seized from a
vehicle in which defendant was a passenger? (II) Was defendant
entitled to a mistrial after a juror saw him in the custody of a
sheriff's deputy? and (III) Did the trial judge err in conducting
a private unrecorded conference with the juror who saw defendant in
custody? For the reasons stated below, we conclude that defendant
received a fair trial, free from prejudicial error.
----------------------------------------------------
The evidence at trial tended to show that on 4 August 1999,Lincoln County Deputy Sheriff Brian Huffstickler assisted in
conducting a systematic license check of all vehicles at a
checkpoint intersection in Lincoln County. This case concerns his
nighttime checking of an automobile driven by David Cook and
containing defendant as a passenger. Apparently, on approaching
the checkpoint, Cook ignored the officer's admonition to stop the
vehicle; instead, he continued to drive through the checkpoint
while he and defendant nervously talked and looked at each other.
After the officer yelled six times for the vehicle to stop, Cook
slowed and eventually stopped the vehicle approximately 60 feet
past the checkpoint. As the vehicle slowed, the officer looked
inside the vehicle with his flashlight and saw the corner of a
plastic bag sticking out from the passenger seat occupied by
defendant. The officer testified that he knew that plastic
baggies, such as the one he observed, were often used as a method
for transporting illegal drugs.
When defendant rolled down the window at Officer
Huffstickler's request, the officer smelled a strong odor of
alcohol coming from the vehicle. Thereafter, the officer asked
defendant to step from the vehicle; patted down defendant for
weapons; felt what he recognized to be a pair of brass knuckles in
defendant's front pants pocket; and arrested defendant for carrying
a concealed weapon. The officer then conducted a search of the
center console, dash compartment, and passenger seat of the
vehicle. His search of the baggie that he had seen earlier,
revealed nothing; however, he found a yellow envelope thatcontained two plastic baggies in the center console which later
testing revealed to contain 30.7 grams of crack cocaine.
Cook testified at the trial, without a limiting agreement with
the State, implicating defendant as the owner of the crack cocaine.
He stated that he agreed to drive defendant to a house in Denver,
North Carolina in exchange for $50 and a gram of cocaine. Cook saw
defendant put the crack cocaine in his car. He stated that on
nearing the checkpoint, he told defendant to throw the drugs out of
the vehicle but defendant refused. Cook admitted using cocaine
daily and having prior convictions for numerous criminal offenses
including possession of cocaine.
At the close of the evidence and before the jury charge, a
juror privately revealed to the trial judge that he had
inadvertently seen defendant in an orange jumpsuit. Ultimately,
the trial judge informed defendant and his counsel as well as the
district attorney, and allowed them an opportunity to question the
juror further; but, they all declined to do so. Thereafter,
without objection, the trial court sua sponte substituted the juror
with an alternative juror.
Following defendant's conviction of trafficking in cocaine by
possessing 28 grams or more, the trial judge sentenced him to a
minimum term of 35 months and a maximum term of 42 months
imprisonment and to pay a $50,000 fine. Defendant appealed.
----------------------------------------------------
(I) Did the trial court err in admitting evidence of 30.7 grams of
cocaine seized from the vehicle in which defendant was a
passenger?
We answer: No, because defendant had no standing to challenge
the search of the vehicle, and even if he did, his constitutional
rights were not violated.
The “[r]ights assured by the Fourth Amendment are personal
rights, [which] . . . may be enforced by exclusion of evidence only
at the instance of one whose own protection was infringed by the
search and seizure.” Simmons v. United States, 390 U.S. 377, 389,
19 L. Ed. 2d 1247, 1256 (1968). Standing to claim the protection
of the Fourth Amendment guaranty of freedom from unreasonable
governmental searches and seizures is based upon the legitimate
expectations of privacy of the individual asserting that right in
the place which has allegedly been unreasonably invaded. See Rakas
v. Illinois, 439 U.S. 128, 138, 58 L. Ed. 2d 387, 398 (1978); Katz
v. U.S., 389 U.S. 347, 19 L. Ed. 2d 576 (1967).
In this case, defendant who claims an infringement of his
rights, asserts neither an ownership nor a possessory interest in
the automobile which was searched. The evidence presented at the
pretrial hearing established that defendant did not own the car in
which he rode nor was he driving the car. In its order denying
defendant's motion to suppress, the trial court correctly concluded
as a matter of law that defendant “as a mere passenger in the 1989
Acura, claiming no ownership or possessory interest therein, had no
legitimate expectation of privacy in the center console of the
vehicle, and therefore, has no standing to assert any allegedillegality of the search thereof.”
Even assuming arguendo, that defendant possessed a justiciable
expectation of privacy in the vehicle, the trial court's decision
to deny defendant's motion to suppress is based on findings of fact
that are supported by competent evidence. “The scope of review on
appeal of the denial of a defendant's motion to suppress is
strictly limited to determining whether the trial court's findings
of fact are supported by competent evidence, in which case they are
binding on appeal, and in turn, whether those findings support the
trial court's conclusions of law.” State v. Corpening, 109 N.C.
App. 586, 587-588, 427 S.E.2d 892, 893 (1993).
Defendant argues that whether the standard is reasonable
suspicion or probable cause, the factual circumstances did not
justify his seizure by removal from the vehicle, which led to a
search of the vehicle that was not consented to by the driver.
“[A]n investigative stop and detention leading to a pat down search
must be based on an officer's reasonable suspicion of criminal
activity. . . . However, an investigative stop at a traffic check
point is constitutional, without regard to any such suspicion, if
law enforcement officers systematically stop all oncoming traffic.”
State v. Briggs, 140 N.C. App. 484, 487, 536 S.E.2d 858, 860
(2000) (citations omitted); see also Delaware v. Prouse, 440 U.S.
648, 59 L. Ed. 2d 660 (1979). In the present case, the officers
were conducting a systematic stop of vehicles to check licenses and
registrations. All vehicles going through this checkpoint were
stopped; thus, the checkpoint was constitutional. Id. Defendant also challenges his frisk by Officer Huckstickler.
“[W]here a police officer observes unusual
conduct which leads him reasonably to conclude
in light of his experience that criminal
activity may be afoot and that the persons
with whom he is dealing may be armed and
presently dangerous, where in the course of
investigating this behavior he identifies
himself as a policeman and makes reasonable
inquiries, and where nothing in the initial
stages of the encounter serves to dispel his
reasonable fear for his own or others' safety,
he is entitled for the protection of himself
and others in the area to conduct a carefully
limited search of the outer clothing of such
person in an attempt to discover weapons which
might be used to assault him.”
State v. Streeter, 283 N.C. 203, 209-10, 195 S.E.2d 502, 506-07,
affirmed, 283 N.C. 203, 195 S.E.2d 502 (1973) (quoting Terry v.
Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
“Although a routine traffic stop does not justify a protective
search for weapons in every instance, once the defendant is outside
the automobile, an officer is permitted to conduct a limited pat
down search for weapons if he has a reasonable suspicion based on
articulable facts under the circumstances that defendant may be
armed and dangerous.” State v. Briggs, 140 N.C. App. at 488, 536
S.E.2d at 860. When a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience
that criminal activity may be afoot and that the persons with whom
he is dealing may be armed and presently dangerous, he is entitled
for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such person in an
attempt to discover weapons which might be used to assault him.
State v. Sanders, 112 N.C. App.477, 481, 435 S.E.2d 842, 845(1993).
In determining whether the findings of fact sustain the trial
court's conclusions of law, we must provide “due weight to
inferences drawn from those facts by resident judges and law
enforcement officers.” Ornelas v. U.S, 517 U.S. 690, 699, 134 L.
Ed. 2d 911, 920 (1996). A court must consider “the totality of the
circumstances--the whole picture” in determining whether a
reasonable suspicion to make an investigatory stop exists. U.S. v.
Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981).
In the present case, the evidence shows that: 1)The vehicle
slowed and eventually stopped only after the officer repeatedly
yelled for the driver to do so; 2) the vehicle stopped
approximately 60 feet beyond the checkpoint and before doing so,
the officer observed defendant and the driver nervously talking and
making eye contact with each other; 3) at the stopped vehicle, the
officer saw, with a flashlight, a plastic baggie which he believed
to be the kind typically used to transport illegal drugs; and, when
defendant rolled down his window, the officer smelled a strong odor
of alcohol. Moreover, the record shows that after exiting from the
vehicle, the officer conducted a limited pat down of defendant and
discovered brass knuckles in his pants pocket resulting in
defendant's arrest for carrying a concealed weapon in violation of
N.C. Gen. Stat. § 14-269.
Since the stop and frisk was lawful, the officer was justified
in conducting a search incident to that arrest of the interior of
the vehicle. Our appellate courts recognize the authority of anofficer to search, incident to an arrest, the entire interior of
the vehicle, including the glove compartment, console, or other
interior compartments. See New York v. Belton, 453 U.S. 454, 69 L.
Ed. 2d 768 (1981) (holding that when an officer makes a lawful
custodial arrest of the occupants of an automobile he may, as
incident of that arrest, search the passenger compartment of the
vehicle and may also examine the contents of any container found
within the passenger compartment. Container here denotes any
object capable of holding another object. It thus includes closed
or open glove compartments, consoles, or other receptacles located
anywhere within the passenger compartment.); see also U.S. v. Ross,
456 U.S. 798, 72 L. Ed. 2d 572 (1982) (holding that where police
officers have probable cause to search a vehicle, they may conduct
a warrantless search of every part of the vehicle, including all
containers and packages within it, that may conceal the object of
the search); State v. Massenburg, 66 N.C. App. 127, 310 S.E.2d 619
(1984) (holding that warrantless search of defendant's locked glove
compartment pursuant to lawful arrest was proper). Accordingly, we
hold that the trial court properly admitted the cocaine seized from
the console compartment.
(II) Was defendant entitled to a mistrial after a juror saw him in
the custody of a sheriff's deputy?
We answer: No, because defendant has shown no abuse of
discretion by the trial judge, and no evidence of serious
improprieties that would have made it impossible for defendant to
receive a fair and impartial verdict.
“The judge must declare a mistrial upon the defendant's motionif there occurs during the trial an error or legal defect in the
proceedings, or conduct inside or outside the courtroom, resulting
in substantial and irreparable prejudice to the defendant's case.”
N.C. Gen. Stat. § 15A-1061 (2001). However, the decision to order
a mistrial lies within the discretion of the trial judge,
reviewable only for gross abuse of discretion. See State v.
Pakulski, 319 N.C. 562, 568, 356 S.E.2d 319, 323 (1987), decision
reversed on other grounds, 326 N.C. 434, 390 S.E.2d 129 (1990);
State v. Darden, 48 N.C. App. 128, 268 S.E.2d 225 (1980). A
mistrial is generally granted where there have been improprieties
in the trial of such a serious nature, that defendant cannot
receive a fair and impartial verdict. State v. Davis, 130 N.C.
App. 675, 679, 505 S.E.2d 138, 140 (1998); State v. Cagle, 346 N.C.
497, 516, 488 S.E.2d 535, 548 (1997).
The evidence in this case shows that during a lunch break,
juror number five informed the trial judge that he had
inadvertently seen defendant in the custody of a deputy. The trial
judge immediately inquired of the juror whether he had in any way
discussed his observations with other jurors. The juror answered
that he did not. The trial judge, outside the presence of the
jury, informed defendant, defendant's counsel and the assistant
district attorney of what juror number five told him. Defendant's
counsel asked the trial judge if she could question the remaining
jurors to see if they had any contact with defendant. On
questioning by the trial judge, the remaining jurors denied having
observed defendant or having any discussions with juror numberfive. No objections were raised by defendant's counsel as to the
nature or extent of the questioning by the trial court. After the
trial court denied defendant's motion for a mistrial, the trial
court sua sponte substituted an alternative juror for juror number
five.
In a similar case, State v. Boykin, our Court upheld the trial
court's denial of a motion for mistrial based on evidence that one
juror saw the defendant removed from the courtroom in handcuffs. 78
N.C. App. 572, 337 S.E.2d 678 (1985). In Boykin, the trial court
polled the jurors as to what they had seen, as in the present case,
the trial judge asked counsel if they had any questions and they
indicated that they did not have any. Likewise, the trial judge
excused the single juror. As in Boykin, because defendant has
shown no abuse of discretion by the trial judge and no serious
improprieties that would make it impossible for him to receive a
fair and impartial verdict, we reject this assignment of error.
See State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252
(1985).
(III) Did the trial judge err in conducting a private
unrecorded conference with the juror who saw defendant in
custody?
We answer: No, because defendant's failure to object in apt
time to alleged procedural irregularities or improprieties
constituted a waiver, and even if there was no waiver, defendant
has failed to show prejudice.
On the issue of waiver, our Supreme Court reached the same
result in State v. Tate, 294 N.C. 189, 198, 239 S.E.2d 821, 827(1978):
We are of the opinion that the trial court's
private conversations with jurors were
ill-advised. The practice is disapproved. At
least, the questions and the court's response
should be made in the presence of counsel. The
record indicates, however, that defendant did
not object to the procedure or request
disclosure of the substance of the
conversation. Failure to object in apt time to
alleged procedural irregularities or
improprieties constitutes a waiver.
Likewise, in this case, we disapprove of the
trial judge's private conversation with juror
number five; but, defendant did not object to
the procedure, and in this case, the trial
judge did disclose the substance of the
conversation. In fact, after immediately
conveying the substance of his conversation
with juror number five to defendant's attorney
and the assistant district attorney, the trial
judge gave both parties an opportunity to
inquire further of juror number five.
Defendant's attorney requested further
questioning of the other jurors but did not
object to the trial judge's conversation with
juror number five nor request further
questioning of that particular juror. Thus,
as in Tate, defendant's failure to object in
apt time to alleged procedural irregularities
or improprieties constituted a waiver.
Likewise, in this case, we disapprove of the trial judge's
private conversation with juror number five; but, defendant did not
object to the procedure, and in this case, the trial judge did
disclose the substance of the conversation. In fact, after
immediately conveying the substance of his conversation with juror
number five to defendant's attorney and the assistant district
attorney, the trial judge gave both parties an opportunity to
inquire further of juror number five. Defendant's attorney
requested further questioning of the other jurors but did not
object to the trial judge's conversation with juror number five norrequest further questioning of that particular juror. Thus, as in
Tate, defendant's failure to object in apt time to alleged
procedural irregularities or improprieties constituted a waiver.
Furthermore, the record shows that the trial judge questioned
the other jurors to find out if they knew about juror number five's
inadvertent observation; and subsequently, dismissed juror number
five and replaced him with an alternative juror. Thus, even
assuming arguendo, that such conversation between the trial judge
and juror number five constituted error, it was harmless error
because the proceedings could not in any manner affected the jury's
verdict. See State v. Hudson, 331 N.C. 122, 415 S.E.2d 732 (1992)
(a trial judge's chance encounter in a corridor with a juror during
a recess in a defendant's trial was not a “proceeding” within the
meaning of N.C. Gen. Stat. § 15A-1241, and therefore need not be
recorded); State v. Huff, 325 N.C. 1, 29, 381 S.E.2d 651 (1989)
(Our Supreme Court held that it was harmless error to permit the
defendant to be absent during a portion of the evidence because
defendant was not prejudiced by his absence.).
For the foregoing reasons, we find that defendant received a
fair trial, free from prejudicial error.
No prejudicial error.
Judges McCULLOUGH and BIGGS concur.
*** Converted from WordPerfect ***