STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 02 CRS 31746
LAMONT ALEXANDER WAGNER 02 CRS 31747
Attorney General Roy Cooper, by Assistant Attorney General
Joseph E. Herrin, for the State.
David Childers for defendant-appellant.
STEELMAN, Judge.
At approximately 1:15 a.m. on 28 August 2001, Detective
Michael Poe was on patrol in the Bethabra area of Winston-Salem.
This was a largely Hispanic area. He was assigned to the robbery
section of the Criminal Investigation Division. Heavy patrols were
being conducted at Hispanic apartment complexes because of a series
of robberies of Hispanics by a group of 3-4 black males. There had
been two robberies that very night. As he approached the Apple
Creek Apartments, he observed a vehicle occupied by 4 black males
moving very slowly through the parking lot. The vehicle turned
onto Bethabra Road going north, then onto a side street that ended
in a circle. At that point, Detective Poe began to follow the
vehicle, and observed the two passengers in the back seat “slumpeddown.” The vehicle drove back out of the side street and proceeded
south on Bethabra Road. Detective Poe believed that the passengers
were attempting to hide from him. After calling for backup
officers, he activated his blue light and stopped the vehicle.
As Detective Poe approached the vehicle, Officer Gomez advised
him that the passenger in the right rear seat had a gun. That
passenger was removed from the vehicle and was disarmed. Defendant
was seated in the front passenger seat and was taken out of the
vehicle. When frisked, he was found to have a 9 mm pistol in his
waistband. Defendant was taken to the Public Safety Center, and
advised of his Miranda rights by Detective Flynn. After waiving
his Miranda rights, defendant confessed to two robberies that had
taken place on the night of the stop, as well as to a robbery of a
Food Lion grocery store that took place on 22 June 2001. Defendant
was indicted for robbery with a dangerous weapon and possession of
a firearm by a felon arising out of the 22 June 2001 incident.
Prior to trial, defendant filed a motion to suppress the
evidence of the stop of the vehicle on 28 August 2001, and his
subsequent confession. This motion was heard by Judge Walker on 19
February 2003, and was denied. Defendant was tried before a jury
and was found guilty of both charges on 20 February 2003. Judge
Walker consolidated the two charges for sentencing and imposed an
active term of 117 to 150 months in prison. Defendant appeals.
In his first assignment of error, defendant argues that the
trial court erred in overruling his objection to Detective Poeexpressing an opinion that the two passengers were attempting to
hide from him. We disagree.
During the hearing on defendant's motion to suppress,
Detective Poe testified on two separate occasions as follows:
[Detective Poe:] I saw two subjects in the
backseat, slumped down in the backseat like
they were trying _ _ _ trying to hide from _
_ _
Mr. Mauney: Object to the characterization.
THE COURT: Overruled.
And:
[Detective Poe:] Two people in the backseat
tried to hide from me, in my opinion_ _
Mr. Mauney: Object to the characterization.
THE COURT: Overruled.
_ _ slumped down.
Defendant contends that it was improper for Detective Poe to
give his opinion of the intent of the two backseat passengers in
the vehicle to hide from him, citing State v. Brower, 289 N.C. 644,
224 S.E.2d 551 (1976). In Brower, a witness testified that one
robber went over “to assist” the other robber. Defendants
contended that this was testimony of the robber's intent, and was
impermissible. Our Supreme Court held that the statement was
simply a narration of the sequence of events, a shorthand statement
of fact. Similarly, the first portion of Detective Poe's testimony
in this case was simply a statement of his observation of the
events. In the second portion of his testimony, Detective Poe did
utilize the word “opinion.” Rule 701 of the North Carolina Rules
of Evidence does permit a lay witness to testify in the form of an
opinion limited to those “which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding
of his testimony or the determination of a fact in issue.” Rule
701. Further, “[o]pinion evidence as to the demeanor of a criminal
defendant is admissible into evidence.” State v. Stager, 329 N.C.
278, 321, 406 S.E.2d 876, 900 (1991).
In the instant case, Detective Poe had an opportunity to
observe the vehicle, and the manner in which the backseat
passengers “slumped down.” This was a rationally based perception
which was helpful to the trial court in understanding why Detective
Poe subsequently stopped the vehicle. This assignment of error is
without merit.
In defendant's third assignment of error, he contends that the
trial court erred in denying his motion to suppress evidence of the
stop of the vehicle. We disagree.
Defendant did not assign error to any of the findings of fact
made by the trial court. In the absence of an exception to the
findings of fact, they are assumed to be supported by competent
evidence and are binding on appeal. State v. Pendleton, 339 N.C.
379, 389, 451 S.E.2d 274, 280 (1994). Our review of this
assignment of error is thus limited to whether the trial court's
conclusions of law are supported by the findings of fact. See State
v. McKinney, 153 N.C. App. 369, 372, 570 S.E.2d 238, 242 (2002). The Fourth Amendment of the Constitution of the United States
of America and Article I, Section 20 of the North Carolina
Constitution prohibit unreasonable searches and seizures. These
constitutional provisions apply to “brief investigatory detentions
such as those involved in the stopping of a vehicle.” State v.
Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994)(citation
omitted). An investigatory stop must be based upon a reasonable
articulable suspicion the person is, was or will be involved in
criminal activity. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889
(1968), State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert.
denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979). In determining the
validity of the stop, the reviewing court must consider the
totality of the circumstances known to the officer at the time of
the stop, and determine whether a “reasonable and cautious” police
officer would have had a reasonable articulable suspicion that
criminal activity was afoot. State v. Jones, 96 N.C. App. 389, 395,
386 S.E.2d 217 221 (1989). The experience and training of the
officer is a factor to be considered in determining the
reasonableness of the stop. Thompson, 296 N.C. at 706, 252 S.E.2d
at 779. “[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S.
119, 124, 145 L. Ed. 2d 570, 576 (2000). Other relevant factors
include: “activity at an unusual hour, . . . [activity in a] high
crime area, and unprovoked flight. None of these factors,
standing alone, are sufficient to justify a finding of reasonable
suspicion, but must be considered in context.” State v. Roberts,142 N.C. App. 424, 429, 542 S.E.2d 703, 708 (2001)(citations
omitted).
In this case, the trial court made the following findings of
fact:
1. That preceding the night of August 28,
2002, Winton-Salem police officers were
investigating a series of robberies involving
Hispanic victims and black assailants;
2. That on this occasion, Officer Poe, in a
marked police vehicle, was patrolling
apartment complexes on Bethabra Road which
were primarily inhabited by Hispanic persons;
3. That Officer Poe observed a vehicle
carrying four black males driving slowly in
and out of the parking lots of apartment
complexes in the area;
4. That when Officer Poe began to follow them,
the two males in the back seat appeared to
slump down to hide themselves;
5. That Officer Poe was aware that earlier
that evening two armed robberies of Hispanics
had been reported in the area;
6. That the number and race of the occupants
of the vehicle and the manner in which it was
being operated raised a reasonable suspicion
in Officer Poe's mind that this vehicle and
its occupants might be involved in those
robberies;
7. That acting upon that reasonable suspicion,
Officer Poe stopped the motor vehicle and
called for assistance[.]
The trial court then concluded that the stop of the vehicle was
based upon a reasonable articulable suspicion.
While none of the factors relied upon by Detective Poe in
stopping the vehicle would, by itself, support a reasonable
articulable suspicion of criminal activity, taken together andviewed in the totality of the circumstances, they do support the
trial court's conclusion that the stop of the vehicle was proper.
State v. Blackstock, __ N.C. App. __, __ S.E.2d __ (2004). This
was an investigatory stop and not an arrest. This Court must
therefore review the case under the lesser “reasonable articulable
suspicion” standard and not under the “probable cause” standard
applicable to arrest situations.
The trial court properly denied the motion to suppress the
stop of the vehicle in which defendant was a passenger. This
assignment of error is without merit.
In defendant's second assignment of error, he contends that
the trial court erred in overruling his objection to the
presentation of evidence of what occurred after the stop of the
vehicle, at the hearing on his motion to suppress. We disagree.
At the hearing of defendant's motion to suppress, the court
received evidence of the events leading up to the stop of the
vehicle, the arrest of the defendant and defendant's confession.
We note that the trial court's second conclusion of law
stated: “That the evidence discovered upon stopping the vehicle and
searching its occupants confirms the reasonableness of that
suspicion.” This is not a correct statement of the law. The fact
that incriminating evidence is found cannot be a basis to validate
an unlawful search. United States v. Jacobsen, 466 U.S. 109, 114,
80 L. Ed. 2d 85, 95 (1984).
However, we find this second conclusion of law to be
surplusage in light of our discussion of defendant's thirdassignment of error. The trial court's conclusion that the stop of
the vehicle was based upon a reasonable articulable suspicion was
supported by its findings of fact. Any evidence received of the
events following the stop was not necessary to support the ruling
of the trial court. This assignment of error is without merit.
In his fourth assignment of error, defendant contends that the
trial court erred in not giving defendant credit for time served
awaiting trial. We disagree.
N.C. Gen. Stat. § 15-196.1 (emphasis added) provides that:
“The minimum and maximum term of a sentence shall be credited with
and diminished by the total amount of time a defendant has spent,
committed to or in confinement in any State or local correctional
... institution as a result of the charge that culminated in the
sentence.” At the sentencing hearing, the trial judge directed:
“Give him credit for the time he's been held awaiting trial.” The
judgment in these cases, signed by the trial judge, stated:
“Defendant receives no credit in this case. He has been held on
other charges. Credit will be given in those cases.”
The record in this case shows that defendant was indicted for
the charges on 7 October 2002 and tried on 19-20 February 2003. It
does not contain an arrest warrant, any documents pertaining to the
setting of conditions of pretrial release, or anything showing that
defendant was incarcerated awaiting trial on these charges. It is
incumbent upon a defendant to present a proper record on appeal for
this court to review. State v. Alston, 307 N.C. 321, 341, 298
S.E.2d 631, 644 (1983). An appellate court will not presume errorwhere none appears in the record. Id. at 341, 298 S.E.2d at 645.
This Court will not engage in speculation as to whether the
defendant was held in custody awaiting trial on the charges that
are the subject of this appeal. This assignment of error is
without merit.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C.R. App. P. Rule
28(b)(6) (2003).
NO ERROR.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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