STATE OF NORTH CAROLINA
v
.
ANTONE LAMONT BELL
Attorney General Roy Cooper, by Special Deputy Attorney
General J. Allen Jernigan, for the State.
William B. Gibson, for defendant-appellant.
CALABRIA, Judge.
On 4 April 1998, at approximately 5:45 a.m., State Trooper Jim
Knotts (“Officer Knotts”) stopped a white Pontiac Grand Am
proceeding southbound on I-95 for traveling 73 mph in a work zone
that had a posted speed limit of 55 mph. Two males were in the
vehicle, Christopher Bell (“Christopher”) in the driver's seat of
the Pontiac and his brother, Antone Lamont Bell (“defendant”), in
the front passenger's seat. Numerous personal belongings filled
the back seat of the vehicle. State Trooper Robert Reeves
(“Officer Reeves”) drove by, and Officer Knotts asked him for
assistance with the stop. When Christopher offered a New York
learner's permit along with a rental car agreement for the Pontiac,
Officer Knotts asked Christopher to accompany him back to the
patrol car to check the tag and permit. Officer Knotts issuedChristopher a citation for speeding in a work zone and returned his
learner's permit.
Meanwhile, Officer Reeves, at the request of Officer Knotts,
questioned defendant, who was alone in the Pontiac. Defendant
stated he was moving to Georgia and his brother was coming along to
attend a funeral for a male cousin who died of a heart attack.
Christopher told Officer Knotts they were going to Georgia for a
funeral for an aunt who died of diabetes and that his brother was
planning to stay in Georgia for one month. Officer Reeves noted
that, as they conversed, defendant's eyes wandered.
Upon considering that the back seat was filled with personal
belongings, including stereo equipment, indicating that the trunk
was full, and that the men told inconsistent stories, Officer
Knotts became suspicious of the possible involvement of drugs. His
suspicions were based on his past experiences as well as police
training in drug intervention. Officer Knotts asked Officer Reeves
to request defendant's consent to search the vehicle since
defendant's name appeared on the rental agreement for the Pontiac.
Officer Reeves testified that defendant understood what it
meant to search the vehicle and freely consented to the search.
Defendant testified that he refused to give consent to search the
vehicle until Officer Reeves threatened to impound it and get a
search warrant.
When Officer Reeves searched the trunk of the vehicle, he
found several plastic bags that contained clothes, additional
stereo components, and a wooden box resembling a speaker. Thewooden box did not match the other speakers and no wires were
attached to it. When Officer Reeves noticed the screws on the
speaker appeared to have been recently turned, he became
increasingly suspicious and removed the panel on the box. Wrapped
in a blue towel were 742.8 grams of cocaine. Defendant stated that
the drugs belonged to him.
Defendant was indicted by a grand jury in Robeson County on 14
December 1998 for possession of drug paraphernalia in violation of
N.C. Gen. Stat. § 90-113.22 (2001), possession with intent to sell
and deliver cocaine in violation of N.C. Gen. Stat. § 90-95 (2001),
trafficking [more than 400 grams of] cocaine by possession in
violation of N.C. Gen. Stat. § 90-95(h) (2001), and trafficking
[more than 400 grams of] cocaine by transport in violation of N.C.
Gen. Stat. § 90-95(h) (2001). Defendant pled not guilty to all
charges.
Testimony at both the suppression hearing and trial conflicted
as to whether defendant was speeding, whether Officer Reeves
threatened to impound the vehicle and get a search warrant, whether
the answers given by defendant and Christopher differed, and,
whether consent was procured. The trial court denied defendant's
motion to suppress the evidence from the search of the vehicle,
finding in relevant part: (1) defendant was observed traveling
through an area posted 55 mph at a speed registering 73 mph on
Officer Knotts' radar; (2) defendant's answers to Officer Reeves'
questions differed significantly from those provided by
Christopher; (3) Officer Reeves asked defendant for consent tosearch the vehicle; and (4) defendant did freely and voluntarily
consent to a search of the vehicle. This case came to trial in the
Superior Court of Robeson County, during the 22 October 2001
session, the Honorable Judge D. Jack Hooks, Jr. presiding. The
jury returned a verdict of guilty on all four charged offenses on
25 October 2001. Defendant appeals.
Defendant asserts the trial court erred by: (I) denying
defendant's motion to suppress; (II) denying defendant's motion to
dismiss; and (III) permitting defendant to be tried despite the
fact that the cases against defendant had been dismissed with leave
at the time of the arraignment.
I. Motion to Suppress
Defendant first assigns error to the denial of the motion to
suppress evidence seized by law enforcement officers on the grounds
that the officers violated defendant's rights to be free from
unreasonable searches and seizures as guaranteed by the Fourth and
Fourteenth Amendments to the United States Constitution and Article
I, Section 20 of the North Carolina Constitution.
“[T]he scope of appellate review of an order [concerning
suppression of 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).
[G]reat deference [is given to the trial
court] because it is entrusted with the dutyto hear testimony, weigh and resolve any
conflicts in the evidence, find the facts,
and, then based upon those findings, render a
legal decision, in the first instance, as to
whether or not a constitutional violation of
some kind has occurred.
Cooke, 306 N.C. at 134, 291 S.E.2d at 619-620. “The appellate
court is much less favored because it sees only a cold, written
record. Hence the findings of the trial judge are, and properly
should be, conclusive on appeal if they are supported by the
evidence.” State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601
(1971).
Despite evidentiary conflict on the issues of the vehicle's
speed, statements concerning impounding the vehicle, inconsistent
information procured during questions, and consent, the trial court
found in favor of the State on each of these matters.
Specifically, the trial court found as fact that “Mr. Antone Lamont
Bell, did freely, voluntarily, consent to a search of the vehicle
. . . [and] there were no threats made or coercion, no use of
force.”
The trial court's findings are supported by competent
evidence. Both officers testified that defendant voluntarily
consented to a search of the Pontiac. Both officers stated that
defendant was very cooperative in granting consent and that
defendant had not been drinking. Officer Reeves further testified
that consent was never withdrawn. Defendant testified that he had
not been drinking, had finished high school, and had two or three
semesters of college studies. The trial court considered the
evidence and found that defendant lawfully consented; this findingis supported by the evidence. Since the trial court determined the
search was consensual, the trial court correctly concluded that the
motion to suppress should be denied.
Defendant asserts that even if the search was consensual, the
consent is ineffective because it was given after the speeding
citation was issued. “Once the original purpose of the stop has
been addressed, there must be grounds which provide a reasonable
and articulable suspicion in order to justify further delay.”
State v. Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358, 360 (1998)
(citing Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968)). The
State asserts that even if, as defendant asserts, the traffic stop
had concluded, the detention here was justified because the
officers possessed reasonable and articulable suspicion of criminal
activity. We agree.
To determine reasonable articulable suspicion, courts “view
the facts 'through the eyes of a reasonable, cautious officer,
guided by his experience and training' at the time he determined to
detain defendant.” State v. Munoz, 141 N.C. App. 675, 682, 541
S.E.2d 218, 222 (2001) (citations omitted). Recently, our Supreme
Court dealt with the issue of detention after a ticket had been
issued in a case where the defendant was held for an additional 15-
20 minutes until a canine unit arrived. State v. McClendon, 350
N.C. 630, 517 S.E.2d 128 (1999). Reasonable, articulable suspicion
justifying the detention was found because the defendant could not
produce the registration for the vehicle, provided inconsistent
information as to whose vehicle he was driving and where he lived,gave vague travel information and acted nervous. Id. In
McClendon, as in the present case, there were particularized
objective factors that caused the officers, based on their
experience and training, to suspect illegal activity.
Officer Reeves had been a State Trooper at the time of this
incident for approximately five years. During his career, he had
previously found drugs in stereo equipment. Officer Knotts had
been a State Trooper for over seven years and testified as to his
personal involvement in numerous drug cases arising from vehicle
stops. His prior experience prompted him to be suspicious of
people with inconsistent stories, back seats full of personal
belongings (thereby indicating that the trunk might be full), and
indirect eye contact. Here, because the stories were directly in
conflict, the back seat was filled with personal belongings, and
defendant resisted eye contact, the officers were alerted to
possible criminal activity. These factors, coupled with the
specific experience and training of the officers at the scene, gave
rise to reasonable, articulable suspicion.
Accordingly, this assignment of error is overruled.
II. Motion to Dismiss
Defendant's appeal concerning the Motion to Dismiss is
predicated upon our finding that the Motion to Suppress should have
been granted. Accordingly, this assignment of error is overruled.
III. Due Process Claim
Finally, defendant assigns plain error to the trial court's
decision to permit defendant to be tried on charges that had beendismissed with leave at the time of his arraignment. Defendant
failed to object on these grounds at trial. “In order to preserve
a question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context.” N.C.
App. R. 10(b)(1) (2003).
In criminal cases, a question which was not
preserved by objection noted at trial and
which is not deemed preserved by rule or law
without any such action, nevertheless 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.
N.C. App. R. 10(c)(4) (2003). Plain error is “'fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done . . . grave error which amounts to a
denial of a fundamental right . . . a miscarriage of justice or .
. . the denial to appellant of a fair trial[.]'” State v. Odom,
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (emphasis
in original).
Defendant argues deprivation of statutory rights under N.C.
Gen. Stat. §§ 15A-932 and 941 and his constitutional rights to dueprocess of law under the Fifth and Fourteenth Amendments. North
Carolina General Statute § 15A-932(b) (2001) provides:
Dismissal with leave for nonappearance or
pursuant to a deferred prosecution agreement
results in removal of the case from the docket
of the court, but all process outstanding
retains its validity, and all necessary
actions to apprehend the defendant,
investigate the case, or otherwise further its
prosecution may be taken, including the
issuance of non-testimonial identification
orders, search warrants, new process,
initiation of extradition proceedings, and the
like.
“Under subsection (b) . . . dismissal [with leave] results in
removal of the case from the court's docket, but the criminal
proceeding under the indictment is not terminated.” State v. Lamb,
321 N.C. 633, 641, 365 S.E.2d 600, 604 (1988) (emphasis in
original). This procedure is used by a prosecutor when a defendant
“[f]ails to appear at a criminal proceeding at which his attendance
is required, and the prosecutor believes the defendant cannot be
readily found.” N.C. Gen. Stat. § 15A-932(a)(2) (2001). “[A]
prosecutor may reinstate the proceedings by filing written notice
with the clerk.” N.C. Gen. Stat. § 15A-932(d) (2001). Our Supreme
Court has characterized dismissal with leave as a “procedural
calendaring device.” State v. Patterson, 332 N.C. 409, 421, 420
S.E.2d 98, 105 (1992). Moreover, our Supreme Court held that
failure to conduct a formal arraignment altogether, where the
defendant was fully aware of the charges against him, was not
reversible error. State v. Smith, 300 N.C. 761, 265 S.E.2d 164
(1980) (citing State v. McCotter, 288 N.C. 227, 217 S.E.2d 525
(1975)). Defendant was not prejudiced by this “procedural calendaring
device” intended not to suspend or hamper prosecution of a case,
but rather to facilitate its continuance during a period of time
when a defendant is absent. Accordingly, we hold that arraigning
defendant, who was fully aware of the charges against him, though
the charges had been dismissed with leave and had not yet been
reinstated, does not amount to the denial of a fair trial;
therefore, we find no plain error.
Defendant argues, alternatively, that a defective arraignment
gives rise to a jurisdictional defect challengeable at any time
under N.C. Gen. Stat. § 15A-952(d) (2001). “N.C.G.S. § 15A-932(d),
which provides for reinstatement of an indictment after a dismissal
with leave is taken, is not 'jurisdictional' in nature, nor does
failure to strictly comply with its requirements result in the
'failure of the pleading to charge an offense' within the meaning
of N.C.G.S. § 15A-952(d).” Patterson, 332 N.C. at 421-22, 420
S.E.2d at 105. Accordingly, this assignment of error is overruled.
No error.
Judges McGEE and HUNTER concur.
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