State v Tart, (02-675) 04/15/2003

Appeal by defendant from judgment entered 8 November 2001 by Judge Evelyn W. Hill in Alamance County Superior Court. Heard in the Court of Appeals 13 March 2003.

Attorney General Roy Cooper, by Assistant Attorney General William W. Stewart, Jr., for the State.

Jarvis John Edgerton, IV, for defendant-appellant.

    STEELMAN, Judge.

    Defendant was indicted for felonious possession of cocaine on 5 September 2000, and for being an habitual felon on 5 March 2001. A jury found defendant guilty of possession of cocaine, and defendant pled guilty to being an habitual felon. The trial court found defendant to have a prior record level VI for felony sentencing and sentenced him to a minimum term of 135 months and a maximum term of 171 months.
    On 24 August 2000, defendant filed a request for voluntary disclosure for all statements or summaries of statements made by defendant. On 24 August 2001, defendant filed a motion in limine to preclude the State from introducing statements attributed to defendant other than those disclosed by the State up to the date ofthe motion. This motion was not brought before the trial court.
    On 28 August 2001, defendant filed a motion to suppress “all evidence seized by virtue of an illegal stop, search and seizure” of defendant on the day of his arrest and “any statements made after this illegal seizure.” A hearing was held on the motion to suppress on 29 August 2001 before Judge James C. Spencer, Jr. At the hearing on this motion, Deputies David Farris and Robert Parks, both of the Alamance County Sheriff's Department, testified as to the events resulting in defendant's arrest for possession of cocaine.
    On 11 August 2000, Deputies Farris and Parks were conducting drug surveillance of Faucette Street, a location known for high drug activity. They observed a white four-door vehicle occupied by two males drive up Faucette Street and stop on the side of the street. A black male then approached the vehicle, walked back into a residence and returned to the vehicle after a short time. The black male leaned into the driver's side window of the vehicle and made “a quick exchange” where the driver passed something out of the window and took something else from the black male. Both Deputy Farris and Deputy Parks were of the opinion that a drug transaction had taken place between the driver of the white vehicle and the black male.
    Deputies Farris and Parks returned to their patrol vehicle and proceeded to follow the white vehicle into a grocery store parking lot without activating the blue lights or siren. Although the deputies lost sight of the white vehicle for a brief period whenreturning to their patrol vehicle, Deputy Parks testified there was “no doubt” that the white vehicle they had observed on Faucette Street was the same white vehicle the deputies followed into the parking lot.
    After reaching the grocery store parking lot, the deputies observed defendant and his son exit the white vehicle and begin walking toward the store. Deputy Farris asked defendant and his son to return to their vehicle so that the deputies could speak with them. Deputy Farris testified that after the two men returned, he asked them where they had been, and “[t]hey hesitated, started telling me they had been up the street to see a friend. I asked them what street they went to. They tried to tell me, and turns out that they were lying to me because I was sitting there watching the same vehicle in the drug area.”
    Deputy Parks testified that he then asked defendant and his son “if they had any problem with us patting them down, searching them” and that he “asked them if they had any guns, drugs...about their person.” He testified that both defendant and his son “consented to myself and Deputy Farris patting [them] down, checking their person.” Deputy Parks also testified that defendant and his son “said that's fine. They said they didn't have a problem with [the search].”
    Deputy Farris testified that he asked defendant and his son if they had any drugs or weapons but did not recall their response. He stated that he told the two men that he was going to pat them down, and he then proceeded to search defendant. On cross-examination at the suppression hearing, Deputy Farris testified that he patted defendant down for officer safety.
    While searching defendant, Deputy Farris asked him to remove a pair of glasses from his t-shirt pocket and “pulled his shirt [pocket] open a little bit and looked in it, saw what I believed to be a crack rock.” Deputy Farris then removed the rock of crack cocaine, advised defendant he was under arrest for possession of cocaine and handcuffed him. During transportation to the Sheriff's Department, defendant voluntarily stated “I want to do something for you, try to get myself out of trouble.” He further stated “he'd be willing to do whatever he could to work with the Sheriff[']s Department to bust other drug dealers or users.” Defendant did not object during the suppression hearing to the deputies' testimony about these statements made after his arrest.
    After hearing this testimony and arguments from the State and defendant, the trial court denied defendant's motion to suppress and dictated its order into the record. During his trial, defendant made a continuing objection to the admission of any testimony regarding his statements made after the search, which the trial court overruled.

    Defendant first contends the trial court erred in denying his motion to suppress the rock of crack cocaine discovered by Deputy Farris because it was obtained by a warrantless search which exceeded the scope of a permissible pat-down search and was conducted without consent or probable cause.     Our review of the trial court's denial of a motion to suppress is limited to whether its findings are supported by competent evidence and whether the findings support the trial court's ultimate conclusions. State v. Allison, 148 N.C. App. 702, 559 S.E.2d 828 (2002). “'If there is a conflict between the [S]tate's evidence and defendant's evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal.'” State v. Braxton, 344 N.C. 702, 709, 477 S.E.2d 172, 176 (1996) (quoting State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982)); see also State v. Johnston, 115 N.C. App. 711, 446 S.E.2d 135 (1994).
    The trial court specifically made the following finding:
        Although Deputy Farris did not recall having requested consent to search the defendant's person, Deputy Parks testified[,] and the Court finds[,] that consent to search both the defendant and his son was had and obtained by the deputies prior to Deputy Parks['] conducting a pat[-]down search of the son and Deputy Farris[']conducting a pat[-]down search of the defendant.

Having determined there was sufficient evidence to support a finding that defendant voluntarily consented to the search, the trial court further concluded that “[t]he search of defendant was conducted after consent [was] had and obtained[,] which by the evidence presented was not a limited consent nor coerced in any way, and was a valid consent, sufficient to allow the search as conducted by Deputy Farris of the defendant.” (emphasis added).
    The trial court weighed the deputies' testimony and other evidence before it and resolved inconsistencies and conflicts as itwas required to do. Deputy Parks' testimony is competent evidence providing the basis for the trial court's finding of consent. This finding supports the trial court's ultimate conclusion that defendant gave unlimited and uncoerced consent to the search as conducted by Deputy Farris. Therefore, we hold the trial court did not err in denying defendant's motion to suppress.

    Defendant next contends the trial court abused its discretion by failing to impose sanctions under N.C. Gen. Stat. § 15A-910 (2001) to prevent the State from introducing defendant's statements regarding his consent to a search and his previous whereabouts.
    It is within the trial court's sound discretion whether to impose sanctions for a failure to comply with discovery requirements, including whether to admit or exclude evidence, and the trial court's decision will not be reversed by this Court absent an abuse of discretion. State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). If a defendant does not request sanctions for a discovery violation under N.C. Gen. Stat. § 15A-910 or inform the trial court of any potential unfair surprise, he cannot contend the trial court's failure to impose sanctions constitutes an abuse of discretion. State v. Alston, 307 N.C. 321, 331, 298 S.E.2d 631, 639 (1983); see also State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978) (holding no abuse of discretion when the trial court denied defendant's motion to strike evidence of his statements where defendant failed to indicate surprise or move for alternate sanctions under N.C. Gen. Stat. § 15A-910).     Defendant filed a request for voluntary disclosure pursuant to N.C. Gen. Stat. § 15A-902(a) (2001). In response, the State disclosed that defendant “advised [the deputies] that he wanted to help vice units in busting more drug dealers.” One year after the discovery request, defendant made a motion in limine seeking a trial court order to preclude the State from introducing any of defendant's statements other than the one previously disclosed.
    Without bringing the motion in limine before the trial court for a hearing, defendant filed a motion to suppress pursuant to N.C. Gen. Stat. § 15A-974 (2001) for suppression of all evidence seized through the allegedly illegal search of defendant and any statements defendant made following the seizure. When Deputy Parks testified at the hearing on this motion that defendant and his son consented to a search, defendant objected but did not state the grounds for his objection. Defendant did not object to any other testimony by either Deputies Parks or Farris regarding statements attributed to defendant.
    Defendant argued at the suppression hearing that all evidence obtained through or after the allegedly illegal seizure of the rock of crack cocaine must be suppressed. The trial court specifically asked defendant's counsel about statements attributed to defendant, and counsel limited the suppression motion to defendant's statements made after the seizure, as stated in the 28 August 2001 motion to suppress. However, the only statement attributed to defendant which followed the seizure was the one disclosed to defendant through voluntary disclosure before either defendant'smotion in limine or motion to suppress was filed.
    At no time during the suppression hearing, or the trial, did defendant argue that the State had failed to comply with his voluntary disclosure request or that he had been subjected to unfair surprise by the admission of his statements at the hearing. Defendant did not move the trial court to impose sanctions on the State pursuant to N.C. Gen. Stat. § 15A-910. Under Alston, defendant cannot now contend the trial court abused its discretion in declining to exclude his statements not previously disclosed or to impose other sanctions under N.C. Gen. Stat. § 15A-910. We, therefore, overrule this assignment of error.

    Finally, defendant argues his conviction, enhanced by his status as an habitual felon, must be vacated because his habitual felon indictment failed to allege three prior non-overlapping felonies as required by N.C. Gen. Stat. § 14-7.1 (2001). Specifically, defendant contends that the habitual driving while impaired (“DWI”) offense listed on his habitual felon indictment was a “continuing offense” committed from 27 February 1986, the date of his first DWI conviction, through 4 March 1991, the date of his fourth DWI offense within seven years. Because the forgery and felony escape offenses in his habitual felon indictment occurred in 1988 and 1989 respectively, he argues these felonies overlap with the habitual DWI offense and, therefore, cannot provide a basis for habitual felon status.
    N.C. Gen. Stat. § 14-7.1 provides that “[t]he commission of athird felony shall not fall within the purview of [the habitual felon statutes] unless it is committed after the conviction of or plea of guilty to the second felony.” (emphasis added). N.C. Gen. Stat. § 20-138.5(a) (2001) provides that “[a] person commits the offense of habitual impaired driving if he drives while impaired...and has been convicted of three or more offenses involving impaired driving...within seven years of the date of this offense.” (emphasis added).
    Here, the State listed three felonies which served as the basis for defendant's habitual felon indictment: forgery, committed on 27 February 1988, convicted on 20 October 1988; felony escape, committed on 15 June 1989, convicted on 6 September 1989; and habitual DWI, committed on 4 March 1991, convicted on 31 May 1991. On 4 March 1991, when defendant was arrested for habitual DWI, he had “committed” the offense as defined by N.C. Gen. Stat. § 20- 138.5(a) because on that date he was driving while impaired and previously had been convicted of three or more impaired driving offenses, all within seven years. Since defendant committed habitual DWI in 1991, this offense does not overlap with the forgery and felony escape offenses occurring in 1988 and 1989, respectively. We find defendant's habitual felon indictment properly alleged three prior non-overlapping felonies as required by statute, and we overrule this assignment of error.
    NO ERROR
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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