State v Parker and Boone, (02-386) 05/06/2003

Appeal by defendants from judgments entered 3 October 2001 by Judge Dwight L. Cranford in Martin County Superior Court. Heard in the Court of Appeals 14 April 2003.

Attorney General Roy Cooper, by Assistant Attorney General Amy C. Kunstling, for the State.

Benjamin M. Turnage for defendant-appellant Linda P. Parker.

Peter Wood for defendant-appellant Aleah P. Boone.

MARTIN, Judge.

    Defendants Linda P. Parker and Aleah P. Boone appeal from judgments entered upon jury verdicts finding them guilty of misdemeanor resisting a public officer. The State's evidence tended to show that at about 8:30 p.m. on 21 April 2000, Parker and Boone, and Parker's husband were observed by Donald Barber, a manager of the Piggly Wiggly grocery in Williamston, North Carolina, walking down the street with a Piggly Wiggly grocery cart containing ferns, large geraniums, and bags of groceries. Barber noticed the three because the group was more than a half of a mile away from the grocery store with a cart that was not supposed toleave the store's parking lot. Moreover, Barber thought it unusual for someone to buy so many plants at one time. Barber called the manager on duty at Piggly Wiggly to inquire as to whether the group had actually purchased the plants. Upon discovering that no such purchase had occurred, Barber instructed the manager to call law enforcement to report a possible larceny. Barber then approached the three assailants and asked if they had a receipt for the plants. While Parker insisted that she did have a receipt for the plants, she failed to produce one. All three cursed at Barber, and Parker's husband ran away. Parker and Boone walked away, pushing the plants in the grocery cart. In response, Barber got back into his car and began blowing the horn to attract attention. Parker and Boone then threw the plants into a nearby ditch and began to walk away carrying the grocery bags.
    When Williamston Police Officers Scott McDougal and Lisa White arrived on the scene, they saw Parker and Boone walking down the street carrying grocery bags. Barber was slowly driving his vehicle behind the two women. Barber told the officers that Parker and Boone had taken plants from Piggly Wiggly without paying for them, whereupon the officer approached the two women. When asked about the plants, Parker and Boone denied knowledge of any plants. Instead, Parker insisted that she had a receipt for the groceries that she was carrying. When Parker attempted to go into her purse for a receipt for the groceries, Officer McDougal explained that they were investigating the theft of plants, not groceries and asked Parker to keep her hands in the open. During this exchange,Parker and Boone kept attempting to walk away. The officers, not knowing the women's names or addresses, decided to detain them for further questioning. However, when the officers tried to handcuff the two, they resisted-- pushing the officers, trying to pull away from them, and using profane language toward them. The officers had to push Parker and Boone against the patrol car to put handcuffs on them. The officers then arrested the two women for delaying and obstructing an officer. A subsequent pat down of Boone revealed a box cutter in her back pocket. The damaged plants, which had an estimated value of $100, were found in a ditch adjacent to the roadway. The evidence showed that Piggly Wiggly had not received payment for the plants.
    Defendants did not present any evidence at trial.
    Defendants' appeals have been consolidated and their arguments are essentially the same: (1) that the trial court erred in denying their motion to dismiss based upon insufficient evidence; and (2) they received ineffective assistance of counsel in that trial counsel represented both defendants. We reject both contentions.
    Defendants argue that the court should have granted their motion to dismiss because Officers McDougal and White did not lawfully stop them. They contend, therefore, that their resistence to the officers was lawful. We disagree.
    A defendant's motion to dismiss based upon the insufficiency of the evidence is properly denied, and the matter of defendant's guilt is properly submitted to the jury, when the evidence in thelight most favorable to the State and giving the State every reasonable inference to be drawn therefrom tends to show that the offense was committed and defendant committed said offense. State v. Brooks, 136 N.C. App. 124, 523 S.E.2d 704 (1999), disc. review denied, 351 N.C. 475, 543 S.E.2d 496 (2000). Substantial evidence is “'that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” State v. Carrilo, 149 N.C. App. 543, 548, 562 S.E.2d 47, 50 (2002) (quoting State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981)).
    To be convicted of resisting, obstructing, and delaying a public officer in violation of G.S. § 14-223, the State must prove that the defendant “willfully and unlawfully resist[ed], delay[ed] or obstruct[ed] a public officer in discharging or attempting to discharge a duty of his office.” N.C. Gen. Stat. § 14-223 (2003). An officer must have a reasonable, articulable suspicion based upon attendant facts and circumstances to justify an investigatory stop to determine an individual's identity or gather further information. State v. Swift, 105 N.C. App. 550, 414 S.E.2d 65 (1992). Otherwise, that stop may not be constitutionally valid.
    Here, in the light most favorable to the State, the evidence tends to show that Officers McDougal and White stopped both defendants after receiving a call regarding a possible theft of plants from Piggly Wiggly. When the officers arrived on the scene they observed Donald Barber following the defendants in his vehicle. Barber explained to Officers McDougal and White thatdefendants had taken some plants from the store without paying for them. Based upon this information, the officers approached Parker and Boone, and asked them about the stolen plants. Defendants denied any knowledge of the plants, walked away, and began to resist the officers when they attempted to detain defendants.
    On this evidence, we conclude that the officers had the requisite “reasonable, articulable suspicion” to make their investigatory stop of defendants lawful, and therefore, defendants' resistance was not lawful.
    Defendants also contend their arrest was unlawful because grocery store manager Donald Barber unlawfully detained them. G.S. § 15A-404 sets forth those instances in which a private citizen may detain another person. See N.C. Gen. Stat. § 15A-404 (2001). Our Supreme Court has interpreted the term “detain” in G.S. 15A-404 to mean “'[t]o hold or keep in or as if in custody.'” State v. Wall, 304 N.C. 609, 615-16, 286 S.E.2d 68, 72 (1982) (quoting Webster's Third New International Dictionary 616 (1976)).
    The evidence in the light most favorable to the State tends to show that Barber approached defendants and spoke with them about the plants; and when defendants walked away, throwing the plants into a ditch, Barber followed defendants in his vehicle to keep them in sight until police officers arrived. Barber never took any action to restrict defendants' freedom of movement. Defendants were at all times free to leave the scene, and in fact, were walking away when police officers arrived. These actions simply do not meet the definition of “detain,” so as to support a violationof G.S. § 15A-404. See Wall, 304 N.C. at 615-16, 286 S.E.2d at 72.
    In sum, as there was sufficient evidence to show that defendants did unlawfully resist the officers as they tried to investigate the larceny of plants from Piggly Wiggly, we conclude that the trial court did not err in denying defendants' motion to dismiss. Further, since there was no evidence to show that defendants' arrest was unlawful, we also conclude the trial court properly denied defendant's request for an instruction on their right to resist an unlawful arrest. State v. Exxum, 338 N.C. 297, 300, 449 S.E.2d 554, 555 (1994) (citation omitted) (“It is 'an elementary rule of law that a trial judge is required to declare and explain the law arising on the evidence and to instruct according to the evidence.'”).
    Defendants next argue that the trial court erred in failing to inquire sua sponte into an alleged conflict of interest where trial counsel was appointed to joint representation of co-defendants. Defendant Boone also contends that the joint representation in this case constituted ineffective assistance of counsel in that counsel failed to move to withdraw as counsel of record based upon the conflict of interest. Again, we disagree.
    It is well settled that “[a] criminal defendant has a constitutional right to effective assistance of counsel, which includes the '“right to representation that is free from conflicts of interest.”'” State v. Hardison, 143 N.C. App. 114, 120, 545 S.E.2d 223, 237 (2001) (quoting State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996) (citation omitted)). However, where, asin this instance, there is no objection to joint representation raised at trial, the trial court is not required to inquire into any potential conflict of interest unless the court knows or reasonably should know that a conflict exists. Mickens v. Taylor, 535 U.S. 162, 152 L. Ed. 2d 291, reh'g denied, 535 U.S. 1074, 152 L. Ed. 2d 856 (2002); Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333 (1980), affirmed, 723 F.2d 1077 (3d. Cir. 1983). Moreover, to establish a violation to the right to effective assistance of counsel, in cases where no objection is made to joint representation at trial, a defendant “must demonstrate that an actual conflict of interest adversely affected [her] lawyer's performance.” Cuyler, 446 U.S. at 348, 64 L. Ed. 2d at 346-47. In State v. Bruton, 344 N.C. 381, 391, 474 S.E.2d 336, 343 (1996), our Supreme Court held, “[p]ermitting a single attorney to represent two or more codefendants in the same trial is not a per se violation of the right to effective assistance of counsel.”
    In the present case, none of the parties raised any objection to defense counsel's dual representation. In addition, neither Parker nor Boone testified; therefore, defense counsel was not put into the position of one client's testimony being of benefit or detriment to another. Nor did counsel's questioning of the State's witnesses present any conflict to either defendant's interests. Finally, the evidence against both defendants was overwhelming. Accordingly, neither defendant can show an actual conflict of interest which adversely affected counsel's performance so as to establish a Sixth Amendment violation. See Bruton, 344 N.C. at392, 474 S.E.2d at 344; State v. Winslow, 97 N.C. App. 551, 389 S.E.2d 436 (1990).
    Defendants received a fair trial, free from prejudicial error.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***