An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1310


Filed: 3 August 2004


     v .                                 Caswell County
                                        No. 01 CRS 1153

    Appeal by defendant from judgment entered 31 October 2002 by Judge W. Osmond Smith, III in Caswell County Superior Court. Heard in the Court of Appeals 9 June 2004.

    Attorney General Roy Cooper, by Assistant Attorney General, Kevin L. Anderson, for the State.

    Irving Joyner for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Stephen Lamar Brown appeals his conviction of the charge of robbery with a dangerous weapon. The State's evidence tended to show that on 8 May 2001, defendant and John Trent entered a convenience store owned by Sayed Rawi. Rawi had seen the men in his store on numerous other occasions. On this date, the men were wearing masks that were too big, and Rawi could easily see their faces. At first, Rawi thought it was a practical joke because he knew the men, and they knew him. However, defendant was carrying a shotgun, and Trent was carrying a pistol. The men pointed their guns at Rawi and demanded money. After Rawi gave the men some money, defendant took the barrel of his shotgun and hit Rawi on the head. As defendant and Trent left the store, Rawi called 911.     The police arrived shortly thereafter. Deputy Sheriff Patrolman John Loftus arrived first. Patrol Sergeant Eugene Riddick and Trooper Robert Pearson arrived a few minutes later. Rawi told the officers that two males, one black and one white, had committed armed robbery and fled. He also mentioned that “Brown” and “John” robbed him.
    Riddick and Pearson attempted to locate the suspects while Loftus stayed with Rawi. While Pearson was driving on a road near the store, one vehicle caught his attention. Pearson had been driving south, and this vehicle was moving in the opposite direction. As the vehicle got closer to Pearson, it appeared to be moving slower and slower. When Pearson slowed down, the driver of the vehicle stopped right beside him. At that point, Pearson rolled down his window, but the other motorist drove away. After a short distance, the driver moved to the shoulder of the road and stopped. Pearson pulled behind it and turned on his blue lights.     Shortly thereafter, Riddick pulled beside Pearson's patrol vehicle. Both officers noticed that the two men matched the description of the robbers. Pearson also noticed that defendant was sweating profusely, even though it was not warm that evening. Loftus brought Rawi, the victim, to the scene for a possible identification. Rawi identified defendant and Trent as the men who robbed his store.
    After the identification, Loftus asked defendant for consent to search the vehicle; defendant gave his consent. Loftus found ablack ski mask, a white surgical mask, and the money from the robbery.
    Officers placed defendant and Trent in custody. The men were handcuffed and placed under arrest. Loftus read the men their Miranda rights, and both signed waiver forms indicating that they had been read their rights.
    Loftus allowed defendant to talk to defendant's father when he arrived. Trent's mother also arrived at the scene and told Loftus that there were two guns on Trent's bed at the house. She also told Loftus that she was not “taking up for him [Trent] any longer.” After this exchange, Trent told Loftus that he and defendant robbed Rawi and that defendant had hit Rawi.
    Investigator Ronnie Markham interviewed defendant the morning after the arrest. Defendant signed a second waiver indicating that his Miranda rights had been read to him. Defendant then admitted that he robbed the store and signed a written statement confessing to the crime.
    Loftus and Markham testified that defendant's confession was not coerced. Similarly, they stated that defendant never requested an attorney.
    At the hearing on the motion to suppress, defendant testified that he originally pulled over the vehicle so he could ask Pearson what happened. He also testified that he asked for an attorney on several occasions. Finally, defendant contended that his confessions resulted from the coercion of law enforcement officers.     The trial court denied defendant's motion to suppress and made findings of fact and conclusions of law. The trial court found that defendant did not request an attorney from the time he was stopped and apprehended on 8 May 2001 through the time of his statement to Markham on 9 May 2001. Additionally, the court concluded that the searches of the vehicle were proper, defendant's confession was voluntary, and none of defendant's constitutional rights were violated.
    The jury found defendant guilty of robbery with a dangerous weapon. Defendant appeals. On appeal, defendant argues that the trial court erred by (1) allowing defendant's out-of-court statements in violation of defendant's rights, (2) permitting the introduction of an out-of-court statement by a codefendant, and (3) improperly conducting a jury poll. We disagree and conclude that defendant received a fair trial free from reversible error.

I. Defendant's Out-of-Court Statements
    Defendant contends that the trial court erred in allowing defendant's out-of-court statements. He makes a number of arguments related to this issue, and we will consider each in turn.
    First, defendant suggests that the trial court's order permitting the introduction of defendant's statement was not timely filed. Defendant did not cite any legal authority in support of this argument. Therefore, this assignment of error is abandoned. N.C.R. App. P. 28(b)(6) (2004).
    Defendant next contends that law enforcement officers stopped the vehicle defendant was driving without reasonable suspicion. Apolice officer may stop an individual if he has a reasonable suspicion that the individual is involved in criminal activity. State v. Watson, 119 N.C. App. 395, 397, 458 S.E.2d 519, 521-22 (1995). Our courts have described the reasonable suspicion standard in this way:
        “A court must consider 'the totality of the circumstances -- the whole picture' in determining whether a reasonable suspicion to make an investigatory stop exists. The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. The only requirement is a minimum level of objective justification, something more than an 'unparticularized suspicion or hunch.'”

Id. at 397-98, 458 S.E.2d at 522 (citations omitted).
    In this case, Pearson had a reasonable suspicion to approach the vehicle. Pearson was patrolling the area near the scene of the crime. He observed a vehicle that was driving in an erratic manner. The driver slowed down next to Pearson, but drove away when Pearson rolled down his window to speak to him. At that point, Pearson became suspicious. Pearson then saw the vehicle slow down near the shoulder of the road before coming to a complete stop.
    We conclude that Pearson's approach of the vehicle at this point was appropriate under the totality of the circumstances. An officer who observes erratic driving near the scene of the crime and shortly after a crime has been committed has reasonablesuspicion to make an investigatory stop. Therefore, defendant's argument is without merit.
    Finally, defendant contends that law enforcement officers violated defendant's right to counsel. We disagree. “Our review of a denial of a motion to suppress by the trial court is '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. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
    In its order on the motion to suppress, the trial court made a finding of fact which determined that defendant did not request an attorney from the time of being stopped and apprehended on 8 May 2001 through the time of his statement on 9 May 2001. Competent evidence in the record supports this finding because several law enforcement officers testified that defendant's rights were read to him, defendant never exercised these rights, and defendant never requested an attorney. Since competent evidence supports this finding, it is binding on appeal, and defendant's assignment of error is rejected.
II. Codefendant's Out-of-Court Statement
    Defendant contends that the trial court erred by allowing the State to introduce evidence of a codefendant's out-of-court statement. Defendant further suggests that this violated hisconstitutional right to confront witnesses. We consider this argument unavailing.
    “A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.” N.C. Gen. Stat. § 15A-1443(b) (2003). “The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.” Id. “Overwhelming evidence of a defendant's guilt may render a constitutional error harmless beyond a reasonable doubt.” State v. Roope, 130 N.C. App. 356, 367, 503 S.E.2d 118, 126, disc. review denied, 349 N.C. 374, 525 S.E.2d 189 (1998).
    Even if we assume arguendo that the trial court erred in admitting the out-of-court statement of a non-testifying codefendant, the State has met its burden of showing that such an error was harmless beyond a reasonable doubt. The State presented overwhelming evidence of defendant's guilt. The victim of the robbery, Sayed Rawi, knew the perpetrators because they had been in his store on many occasions. Rawi testified that on the date in question, the men entered his store wearing masks that were too big for their faces. The men robbed Rawi with weapons, and defendant hit Rawi's head with the barrel of his shotgun. Rawi mentioned that “Brown” and “John” robbed him, and after the men were apprehended, he was able to identify them. The police were also able to find the money from the robbery and two masks. Finally, defendant confessed that he robbed the store. Because there was overwhelming evidence of defendant's guilt from sources other thanthe codefendant's out-of-court statement, we conclude that any possible error in admitting the evidence would be harmless beyond a reasonable doubt. State v. Harris, 136 N.C. App. 611, 614-15, 525 S.E.2d 208, 210, appeal dismissed, disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000) (noting that admitting a codefendant's statement was not prejudicial error since evidence against defendant was overwhelming even without the admission of codefendant's statement). Therefore, this assignment of error is dismissed.
    III. Jury Poll
    Defendant argues that the trial court erred in allowing jurors to collectively raise their hands during the jury poll. We disagree.
    “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.R. App. P. 10(b)(1)(2004). “It is also necessary for the complaining party to obtain a ruling upon the party's request, objection or motion.” Id. In the present case, defendant acknowledges that he failed to object at trial, but argues that the trial court committed plain error. This argument is not persuasive.
    The plain error rule does not waive the requirement of N.C.R. App. P. 10(a) which limits the scope of review to those assignments of error set out in the record on appeal. State v. Lovett, 119N.C. App. 689, 693-94, 460 S.E.2d 177, 181 (1995). If a defendant fails to assert plain error in an assignment of error, this Court will not conduct plain error review. Id. Our review of the record indicates that defendant did not allege plain error in his assignment of error alleging an improper jury poll.
    Defendant is not entitled to plain error review for another reason: the North Carolina Supreme Court has limited plain error review to instructional errors or evidentiary matters. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999), motion denied, cert. denied, 353 N.C. 382, 547 S.E.2d 443 (2001). Since contesting the jury poll does not involve an instructional error or evidentiary matter, plain error review is not available. For these reasons, this assignment of error is unconvincing.
    After a careful review of the record, transcript, and the parties' arguments, we conclude that defendant received a fair trial free from reversible error.
    No error.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

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