1. Search and Seizure--Terry stop--motion to suppress--probable cause--detention of
passenger of car
The trial court did not err in an assault on a governmental officer with a deadly weapon
and reckless driving case by denying defendant passenger's motion to suppress evidence of an
alleged unlawful stop and detention by a police officer on 10 September 2002, because: (1) the
trial court properly concluded that there was probable cause to stop the vehicle when the officer
observed that the driver was not wearing a seatbelt in violation of N.C.G.S. § 20-135.2A(a); (2)
although defendant had not been observed violating any laws at the time of the stop, it is not
unreasonable under the Fourth Amendment of the United States Constitution to detain a
passenger when a vehicle has been stopped due to a traffic violation committed by the driver of
the car; (3) once the original purpose of the stop had been addressed, the trial court correctly
determined that there was a reasonable articulable suspicion to require defendant to remain at the
scene when defendant's behavior, combined with the discovery of narcotics on the driver during
a consensual pat-down search, created a reasonable articulable suspicion which permitted the
officer to detain defendant passenger to address the deputy's concerns; and (4) the police had
probable cause to search the car based upon the discovery of illegal narcotics upon the driver's
person, and even assuming the deputy did not have any authority to detain defendant at the scene,
he possessed authority to detain the car at the scene.
2. Criminal Law--instruction--right to resist unlawful arrest
The trial court did not err in an assault on a governmental officer with a deadly weapon
and reckless driving case by denying defendant's request for a jury instruction on the right to
resist an unlawful arrest, because: (1) upon discovering illegal narcotics on the driver's person,
the police had probable cause to search the stopped vehicle in which defendant was a passenger;
and (2) at the moment defendant slid into the driver's seat of the stopped vehicle, tried to start the
car, and ignored the officer's command to stop, a violation of N.C.G.S. § 14-223 occurred and
defendant was subject to arrest.
3. Assault--assault on governmental officer with deadly weapon_-motion to dismiss--
sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of assault
on a governmental officer with a deadly weapon even though defendant contends he was
unlawfully seized by the officer and rightfully asserted his right to resist such a seizure, because
the officer had authority to arrest defendant when defendant's actions constituted a violation of
N.C.G.S. § 14-223, a class 2 misdemeanor.
4. Criminal Law--instruction--defendant not arrested as a matter of law--plain error
analysis
The trial court did not commit plain error in an assault on a governmental officer with a
deadly weapon and reckless driving case by instructing the jury that defendant had not been
arrested as a matter of law, because: (1) an arrest requires either physical force or, where that is
absent, submission to the assertion of authority; and (2) neither occurred in this case.
5. Criminal Law--instruction--self-defense--failure to instruct on lawfulness of arrest
or defendant's right to resist arrest
The trial court did not err by instructing the jury on the law of self-defense without
instructing on the lawfulness of defendant's arrest and his right to resist it, because: (1) defendant
was not arrested as he did not submit to the officer's show of authority and any physical force
applied did not restrain defendant's liberty; (2) as the officer was being dragged by the car
defendant was driving, the officer hit defendant with the butt of his gun in his attempt to free
himself; and (3) defendant was not resisting an unlawful arrest as his attempt to remove the
driver's vehicle from the scene was a violation of N.C.G.S. § 14-223.
6. Criminal Law--instructions--no expression of opinion by trial court
The trial court in a prosecution for assaulting a government officer with a deadly weapon
did not impermissibly explain the application of the law to the jury or express an opinion on the
evidence in violation of N.C.G.S. § 15A-1232 by instructing the jury that the law was violated if
a driver was not wearing a seatbelt while driving on a public street, that a deputy would have a
right to detain the car for a search if he found cocaine on the driver, and that defendant contended
that he acted in self-defense.
7. Evidence--prior crimes or bad acts--warrant for arrest from another state for
probation violation
The trial court did not err in an assault on a governmental officer with a deadly weapon
and reckless driving case by admitting evidence of a warrant for defendant's arrest from the State
of Virginia for a probation violation, because: (1) the outstanding warrant was admissible under
N.C.G.S. § 8C-1, Rule 404(b) since it provided a possible explanation or motive for defendant's
actions on 10 September 2001; and (2) although defendant contends the trial court did not
instruct the jury that the evidence was admitted for a limited purpose only, defendant did not
request a limiting instruction.
8. Evidence--prior crimes or bad acts--traffic stop for possession of drug
paraphernalia
The trial court did not err in an assault on a governmental officer with a deadly weapon
and reckless driving case by allowing an Ohio police officer to testify regarding a traffic stop that
occurred about one month after the incident in this case, during which defendant was arrested for
the possession of drug paraphernalia, because: (1) the officer's testimony that a substance found
during the stop was similar to cocaine was properly allowed even though the officer was not
qualified as an expert because the officer did not testify that the substance was definitely cocaine,
and the officer clarified that he was expressing an opinion satisfactory to himself based upon his
training and experience in law enforcement; (2) evidence of the circumstances surrounding the
stop was admissible under N.C.G.S. § 8C-1, Rule 404(b) since it was evidence of defendant's
modus operandi, i.e., he fled a crime scene in another person's car since he was involved in a
drug offense, defendant's actions were substantially similar in both cases, and the evidence
showed defendant's motive or intentions in this case to flee the scene in order to avoid arrest on
outstanding warrants or to prevent the discovery of drugs or drug paraphernalia in the car or on
his person; (3) even assuming the admission of the circumstances regarding defendant's arrest in
Ohio was erroneous, the evidence that defendant was arrested on the outstanding warrant in Ohio
and extradited to North Carolina was relevant and admissible; and (4) the admission of
defendant's actions during the Ohio traffic stop was nonprejudicial error as the State presented
evidence that defendant assaulted a New Hanover deputy by dragging the officer with his car.
9. Sentencing--habitual felon--evidentiary hearing without motion from either party-
_not an advisory opinion
The trial court did not issue an impermissible advisory opinion or commit plain error by
conducting an evidentiary hearing prior to the beginning of the habitual felon phase when no
motion for such a hearing had been properly made before the court, because: (1) the trial courthas the inherent authority to conduct an evidentiary hearing outside the presence of a jury sua
sponte to clarify questions of admissibility and to prevent undue delay in the proceedings; and (2)
by conducting the hearing out of the presence of the jury and prior to the presentation of evidence
during the habitual felon phase, the trial court was able to resolve any arguments and concerns
regarding the evidence and the habitual felon proceedings before the jury proceeded without any
delay.
10. Sentencing--habitual felon--felonious possession of cocaine
The trial court did not commit plain error by allowing a felonious possession of cocaine
charge to be a predicate felony for the habitual felon indictment, because the possession of
cocaine under N.C.G.S. § 90-95(d)(2) is a felony and a proper basis for an habitual felon
indictment.
11. Sentencing--habitual felon indictment--sufficiency of evidence--facsimile copy of
prior conviction
The trial court did not err by failing to dismiss the habitual felon indictment even though
defendant contends the State allegedly failed to produce sufficient evidence of the third felony
listed in the habitual felon indictment when the State submitted a facsimile of the prior crime
indicating that defendant was found guilty of unarmed robbery in a federal court in Ohio,
because: (1) a faxed, certified copy of a court record is a reliable source of a defendant's prior
conviction for habitual felon purposes; (2) regardless of the fact that the possibility of receiving
an unconditional discharge and having the underlying conviction set aside was part of the
sentence imposed upon defendant for his felonious unarmed bank robbery conviction, defendant
was convicted of a felony for habitual felon purposes; and (3) although defendant makes an
argument that he may have received an unconditional discharge under 19 U.S.C.A. § 5021, thus
meaning his unarmed robbery conviction was set aside, he did not present any evidence proving
with any certainty that the conviction has been set aside.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David J. Adinolfi II, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Kirby H. Smith, III, for defendant-appellant.
HUNTER, Judge.
Hermal
(See footnote 1)
Ellis Brewington (“defendant”) presents the following
issues for our consideration: Did the trial court erroneously (I)
deny his motion to suppress evidence of an unlawful stop and
detention by the police; (II) deny a request for a jury instruction
on the right to resist an unlawful arrest; (III) admit evidence of
other wrong acts and crimes in violation of Rule 404(b); and (IV)
deny his motion to dismiss all charges. Defendant also presents
three issues arising from the habitual felon phase of his trial:
(I) Should the habitual felon indictment have been dismissed by the
trial court because one of the alleged felonies was possession of
cocaine; (II) did the trial court erroneously conduct an
evidentiary hearing without a motion from either party; and (III)
did the State produce competent evidence to prove his prior felony
convictions listed in the habitual felon indictment. After careful
review, we find no prejudicial error occurred in defendant's trial.
The evidence tends to indicate that at approximately noon on
10 September 2001, Deputy Michael Howe (“Deputy Howe”), a member of
the New Hanover County Sheriff's Department Emergency Response
Team, observed a car in which the driver was not wearing his
seatbelt. Defendant was a passenger in this car. Deputy Howe
initiated a traffic stop and the car pulled into a driveway. Deputy Howe parked his police vehicle on the street in a manner
that blocked the driveway. Deputy Howe approached the car and told
the driver that he had been stopped due to a seatbelt violation.
The driver acknowledged he was not wearing his seatbelt and
produced his driver's license and registration.
Deputy Howe looked at the passenger while talking to the
driver. Deputy Howe testified the passenger was vigorously chewing
on a straw, starting to sweat, making jerking and quick movements
with his neck and hand, and attempting to go into his left front
pocket. Deputy Howe observed a bulge in that pocket and became
concerned that it could be a weapon. After observing the
passenger's actions, Deputy Howe asked the driver to exit the
vehicle. He did not remove the passenger from the car; rather, he
instructed the passenger to remain calm, to not go into his
pockets, and asked the passenger his name. The passenger gave the
fictitious name of Michael Allen; however, it was later determined
the passenger was Hermal Brewington, the defendant in this case.
After removing the driver from the car, Deputy Howe and the
driver walked to the police vehicle at the end of the driveway on
the street. Deputy Howe conducted a consensual pat-down frisk of
the driver to determine if he had any weapons and discovered a
user's amount of crack cocaine. Intending to place the driver
under arrest, he placed handcuffs on the driver and called for
police back-up. He placed the evidence on the trunk of the police
vehicle, placed the driver into the passenger seat of the police
vehicle, and began placing a seatbelt on the driver. The defendant
was still sitting on the passenger side of the driver's car. However, as Deputy Howe was placing the seatbelt on the driver, he
saw defendant slide into the driver's seat of the stopped car.
Deputy Howe testified that he ran to the stopped car in order
to detain the car as he did not want defendant to flee the area or
drive away with the car. By the time Deputy Howe got to the front
of the stopped car, defendant had started the car. The driver's
side window was open. Deputy Howe told defendant “[d]on't do it”
several times, meaning don't flee the scene. He then called police
dispatch for further assistance and drew his weapon with his right
hand. Prior to this, Deputy Howe had not drawn his weapon. He
continued to give defendant verbal commands to turn the vehicle
off; however, defendant continued trying to move the gear shift
from park. As a result, Deputy Howe reached into the car with his
left hand and reached in between the steering wheel to grab the
key. Defendant turned the steering wheel, lifting Deputy Howe's
arm and body into the air. Deputy Howe's arm was stuck in the
vehicle. Deputy Howe continued to request defendant to stop the
car; however, defendant placed the car in reverse and started going
backwards. The car hit the police vehicle. Defendant then put the
car into drive and started going forward. Deputy Howe's arm
remained stuck in the steering wheel and he was forced to move with
the car. Deputy Howe regained his footing and began running
alongside the car. Deputy Howe took his pistol, pressed it against
defendant's left cheek, and told defendant he was going to shoot
him. Deputy Howe then hit defendant with the gun, and after he
felt like he was going under the car, he started firing his pistol.
After he started shooting, his arm was freed from the car, but he
continued firing his weapon. Deputy Howe fired five rounds fromhis pistol in approximately two seconds. Defendant was able to
drive away from the scene. The testimony of two Wilmington Police
Department officers that responded to the scene corroborated Deputy
Howe's testimony that he was dragged by the car.
Jonathan Barfield (“Barfield”), a former New Hanover County
Commissioner, was across the street showing a home for a possible
rental on the day of the incident. In regards to what transpired
between defendant and Deputy Howe, Barfield testified that Deputy
Howe did not have his weapon drawn as he ran to the car. When he
got to the side of the car, he drew his weapon and said “[g]et out
from under that wheel[.]” While at the side of the car, Deputy
Howe stated “[t]urn the engine off. Turn the engine off. Get out
of the car. If you don't get out of the car, I'm going to shoot
you.” After Deputy Howe threatened to shoot defendant, the car
backed up, hit Deputy Howe, and knocked him into a bush. The car
hit the police vehicle, traveled between a bush and the sidewalk,
and then traveled down the street. As the car was traveling
between the bush and the sidewalk, Deputy Howe began firing his
weapon. According to Barfield, Deputy Howe had both of his hands
on the gun and never leaned into the car. Barfield also testified
that he never saw Deputy Howe dragged by the car and that Deputy
Howe was not in the path of the car. According to Barfield, no
other officers were present when Deputy Howe was shooting.
After defendant left the scene, he attempted to sell the car
at a local junkyard. The junkyard owner testified the car was
“shot up” and the man was bleeding. The junkyard owner told
defendant to leave and he later identified defendant from a
photographic lineup. The car was located a few days later on ahighway south of Brunswick County. Analysis of the car revealed a
large amount of blood saturating the front area of the car, dents
on the driver's side, a broken back window, and a bullet hole in
the driver's seat headrest. A trajectory expert testified that the
four shots fired were consistent with a shooter firing as he was
falling down.
Defendant was arrested on 10 October 2001 in Ottawa Hills,
Ohio. Defendant informed the arresting officer that he had a
gunshot injury that had not been treated. The officer observed an
area on defendant's left shoulder that appeared to be healing and
X-rays revealed defendant had a broken left arm. Defendant
received medical treatment and was taken to jail. He was indicted
on 25 February 2002 for felony larceny, reckless driving, driving
with a revoked license, injury to personal property, and assault on
a governmental officer with a deadly weapon. The State also
indicted defendant as being a habitual felon. Defendant was found
guilty of assault on a governmental officer with a deadly weapon
and reckless driving. A mistrial was entered as to the larceny of
a motor vehicle charge because the jury was unable to reach a
unanimous verdict. After defendant was found guilty of having
attained habitual felon status, he was sentenced to a minimum of
100 and a maximum of 129 months on the assault charge. He was
sentenced to forty-five days in jail for reckless driving to run
concurrently with the assault sentence. Defendant appeals.
[1] Defendant first contends the trial court erroneously
denied his motion to suppress evidence of his stop and detention by
Deputy Howe on 10 September 2002. Defendant argues Deputy Howe did
not properly keep and detain him during his investigative stop ofthe driver and that defendant was free to leave the scene without
interference from Deputy Howe.
“In reviewing a trial judge's ruling on a suppression motion,
we determine only whether the trial court's findings of fact are
supported by competent evidence, and whether these findings of fact
support the court's conclusions of law.” State v. Pulliam, 139
N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000). “Further, 'the
trial court's ruling on a motion to suppress is afforded great
deference upon appellate review as it has the duty to hear
testimony and weigh the evidence.'” State v. Castellon, 151 N.C.
App. 675, 677, 566 S.E.2d 696, 697 (2002) (citation omitted).
Defendant does not challenge the trial court's findings of fact in
the suppression order. Thus, we review the trial court's
conclusions of law.
The trial court concluded that (1) there was probable cause to
stop the vehicle, (2) defendant, a passenger in the vehicle, could
be detained as the driver had been lawfully stopped for a traffic
violation, and (3) Deputy Howe had a reasonable articulable
suspicion to require defendant to remain at the scene and not
remove the vehicle after narcotics had been found on the driver.
First, the trial court correctly concluded there was probable
cause to stop the vehicle. “'A traffic stop made on the basis of
a readily observed traffic violation such as speeding or running a
red light is governed by probable cause.'” State v. Wilson, 155
N.C. App. 89, 94, 574 S.E.2d 93, 97 (2002) (citation omitted),
disc. review denied, 356 N.C. 693, 579 S.E.2d 98 (2003). Prior to
stopping the vehicle, Deputy Howe observed the driver not wearing
a seatbelt, a violation of N.C. Gen. Stat. § 20-135.2A(a) (2003). Although defendant had not been observed violating any laws at the
time of the stop, it is not unreasonable under the Fourth Amendment
of the United States Constitution to detain a passenger when a
vehicle has been stopped due to a traffic violation committed by
the driver of the car. See Maryland v. Wilson, 519 U.S. 408, 415,
137 L. Ed. 2d 41, 48 (1997) (footnote omitted) (stating “an officer
making a traffic stop may order passengers to get out of the car
pending completion of the stop”). However, a passenger may not be
detained indefinitely. “'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.'”
Castellon, 151 N.C. App. at 680, 566 S.E.2d at 699 (citation
omitted).
We conclude the trial court correctly determined there was a
reasonable articulable suspicion to require defendant to remain at
the scene. Based upon Deputy Howe's testimony during the voir dire
hearing, the trial court found defendant was “acting in a
suspicious manner. The defendant was obsessively chewing on a
straw and aggressively rubbing his leg and moving his hands toward
a bulge near his pants pocket. Deputy Howe asked the defendant
several times for the defendant to put his hands where he could see
them.” Defendant's behavior combined with the discovery of
narcotics on the driver during a consensual pat-down search created
a reasonable articulable suspicion which permitted Deputy Howe to
detain defendant to address the deputy's concerns. See State v
McClendon, 350 N.C. 630, 636-38, 517 S.E.2d 128, 132-34 (1999)
(stating “nervousness is an appropriate factor to consider when
determining whether a basis for a reasonable suspicion exists” andthat “[a]fter a lawful stop, an officer may ask the detainee
questions in order to obtain information confirming or dispelling
the officer's suspicions”).
Additionally, the police had probable cause to search the car
based upon the discovery of illegal narcotics upon the driver's
person. See State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d 573,
576-77 (1987) (stating “no exigent circumstances other than the
motor vehicle itself are required in order to justify a warrantless
search of a motor vehicle if there is probable cause to believe
that it contains the instrumentality of a crime or evidence
pertaining to a crime and the vehicle is in a public place”).
“[W]here probable cause exists to search an automobile, it is
reasonable (1) to seize and hold the automobile before presenting
probable cause issue to a magistrate or (2) to carry out an
immediate search without a warrant.” State v. Jordan, 277 N.C.
341, 344, 177 S.E.2d 289, 291 (1970) (discussing Chambers v.
Maroney, 399 U.S. 42, 26 L. Ed. 2d 419 (1970)). Thus, even
assuming Deputy Howe did not have any authority to detain defendant
at the scene, he possessed authority to detain the car at the
scene, as there was probable cause to search the car. Accordingly,
we conclude the trial court properly denied defendant's motion to
suppress.
[2] Defendant next contends the trial court erroneously denied
his request for a jury instruction regarding his right to resist an
unlawful arrest. As stated, upon discovering illegal narcotics on
the driver's person, the police had probable cause to search the
stopped vehicle. After seeing the driver being placed under arrest
after the discovery of the narcotics, defendant attempted to removethe driver's vehicle from the scene by sliding into the driver's
seat and trying to start the engine. Deputy Howe commanded
defendant to stop, however, defendant proceeded to start the car
and began driving the car while dragging Deputy Howe. Defendant
drove the car away from the scene. Defendant's actions were in
violation of N.C. Gen. Stat. § 14-223 (2003), which states: “If
any person shall willfully and unlawfully resist, delay or obstruct
a public officer in discharging or attempting to discharge a duty
of his office, he shall be guilty of a Class 2 misdemeanor.” At
the moment defendant slid into the driver's seat of the stopped
vehicle, tried to start the car, and ignored Deputy Howe's command
to stop, a violation of N.C. Gen. Stat. § 14-223 occurred and
defendant was subject to arrest. Therefore, defendant was not
resisting an unlawful arrest, and the trial court properly declined
to instruct the jury as to this defense.
[3] Defendant also contends the trial court should have
dismissed the felonious assault on a governmental officer charge
because he was unlawfully seized by Deputy Howe and rightfully
asserted his right to resist such a seizure. As previously stated,
Deputy Howe had authority to arrest defendant because defendant's
actions constituted a violation of N.C. Gen. Stat. § 14-223, a
class 2 misdemeanor. Therefore, the trial court did not
erroneously deny defendant's motion to dismiss on this basis.
[4] Defendant also contends the trial court committed plain
error in instructing the jury that defendant had not been arrested
as a matter of law. Specifically, the trial court instructed:
[T]he United States Supreme Court has ruled as
a matter of constitutional law -- they did
that in 1991 -- that a police officer only
arrests or seizes a person when, one, anofficer has applied actual physical force to
the person, that is, by touching or tackling a
person by way of examples; or two, that person
actually submits to the officer's show of
authority.
So an arrest does not occur, for example,
when an officer shouts “Stop in the name of
the law” and the person flees on. Whereas an
arrest or seizure would occur if the person
submitted or stopped as a result of the
officer's verbal command.
This instruction by the trial court is a correct statement of the
United States Supreme Court's holding in California v. Hodari D.,
499 U.S. 621, 626, 113 L. Ed. 2d 690, 697 (1991). In Hodari D.,
the United States Supreme Court held: “An arrest requires either
physical force . . . or, where that is absent, submission to the
assertion of authority.” Id. The holding in Hodari D. has not
been overruled. Thus, the trial court did not commit plain error
in instructing in accordance with United States Supreme Court
precedent.
[5] Defendant also argues the trial court erroneously
instructed the jury on the law of self-defense, without instructing
on the lawfulness of defendant's arrest and his right to resist it.
First, under the United States Supreme Court's holding in Hodari
D., defendant was not arrested as he did not submit to Deputy
Howe's show of authority and any physical force applied did not
restrain defendant's liberty. Id. at 625-26, 113 L. Ed. 2d at 696-
97. Rather, as Deputy Howe was being dragged by the car defendant
was driving, Deputy Howe hit defendant with the butt of his gun in
his attempt to free himself. Moreover, as previously explained,
defendant was not resisting an unlawful arrest as his attempt to
remove the driver's vehicle from the scene was a violation of N.C.
Gen. Stat. § 14-223. [6] Next, defendant contends the trial court committed plain
error by summarizing the evidence and applying the law to the facts
of the case. Specifically, defendant contends the trial court
impermissibly explained the application of the law to the jury or
expressed an opinion regarding a fact by stating (1) the law
authorized Deputy Howe to stop the driver's car and to detain his
car, (2) that as a matter of constitutional law, a person cannot be
arrested until he has actually submitted to a police officer's show
of authority, and (3) that it was defendant's contention that he
was using self-defense in this matter.
“The plain error rule applies only in
truly exceptional cases. Before deciding that
an error by the trial court amounts to 'plain
error,' the appellate court must be convinced
that absent the error the jury probably would
have reached a different verdict. In other
words, the appellate court must determine that
the error in question 'tilted the scales' and
caused the jury to reach its verdict
convicting the defendant.”
State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d 75, 80 (1986)
(citations omitted). N.C. Gen. Stat. § 15A-1232 (2003) provides:
“In instructing the jury, the judge shall not express an opinion as
to whether or not a fact has been proved and shall not be required
to state, summarize or recapitulate the evidence, or to explain the
application of the law to the evidence.”
Regarding the traffic stop for the seatbelt violation, the
trial court instructed:
On September 10th, 2001, if Officer
Michael Howe saw [the driver] operating a
motor vehicle on a public street in Wilmington
without wearing a seat belt, then that, not
wearing the seat belt, would be a violation of
the North Carolina motor vehicle law, and the
officer would have had the full legal right to
stop the vehicle and give a citation to the
driver.
The officer would thereafter have had the
right to have a conversation with the driver
and to have further roadside involvement with
him. If Officer Howe found what, in his
opinion, based on his training and experience,
was the controlled substance cocaine, the
officer would have had full legal right to
arrest, that is, to take into custody the
driver, Nathaniel Williams, for possession of
cocaine.
At that time point, the officer would
have had the legal right to detain the driver
[sic], Nathaniel William's automobile, . . . ,
and he could do that in order to secure the
car for a full law enforcement search as part
of investigating a controlled substance act
violation which would be a duty of his office
as a law enforcement officer.
(Emphasis added.) This jury instruction neither expresses an
opinion as to whether or not a fact has been proven nor summarizes
the evidence. Indeed, the trial court gave conditional
instructions, i.e., if the driver was not wearing a seatbelt while
driving on a public street, then a motor vehicle law would have
been violated and, i.e., if Deputy Howe found the controlled
substance cocaine on the driver, then he would have a right to
detain the car for a search. Moreover the trial court's
instruction was a correct statement of the law. Second, merely
stating that defendant's contention was that he acted in self-
defense is not an expression of an opinion and does not summarize
the evidence. Furthermore, no plain error was committed because
the self-defense jury instruction would not “tilt the scales” and
lead to a guilty verdict. Third, we have already addressed
defendant's contentions in reference to the trial court's
instructions regarding when an arrest has been effectuated. The
trial court's explanation of the law of arrest did not violate N.C.Gen. Stat. § 15A-1232. Accordingly, we conclude the trial court
did not commit plain error in its jury instructions.
[7] Next, defendant argues the trial court erroneously allowed
the State to present evidence of a warrant for his arrest from the
State of Virginia for a probation violation. N.C. Gen. Stat. § 8C-
1, Rule 404(b) (2003) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
Id.
This rule is “a clear general rule of
inclusion of relevant evidence of other
crimes, wrongs or acts by a defendant, subject
to but one exception requiring its exclusion
if its only probative value is to show that
the defendant has the propensity or
disposition to commit an offense of the nature
of the crime charged.” The list of
permissible purposes for admission of “other
crimes” evidence is not exclusive, and such
evidence is admissible as long as it is
relevant to any fact or issue other than the
defendant's propensity to commit the crime.
State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53 (1995)
(emphasis omitted) (citations omitted). In this case, the
outstanding warrant for defendant's arrest due to a probation
violation was admissible under Rule 404(b) because it provided a
possible explanation or motive for defendant's actions on 10
September 2001. Indeed, the testimony indicated defendant was
acting nervous, gave the officer a fictitious name, and then fled
the scene upon seeing the driver's arrest. Defendant also stated
the trial court did not instruct the jury that the evidence of the
outstanding arrest warrant was admitted for a limited purpose only. However, defendant did not request a limiting instruction. “'[T]he
admission of evidence, competent for a restricted purpose, will not
be held error in the absence of a request by defendant for a
limiting instruction. Such an instruction is not required to be
given unless specifically requested by counsel.'” State v.
Williams, 355 N.C. 501, 562, 565 S.E.2d 609, 645 (2002) (citation
omitted).
[8] Next, defendant argues the trial court erroneously allowed
an Ohio police officer to testify regarding a traffic stop during
which defendant was arrested for the possession of drug
paraphernalia. Officer John Wenzlick (“Officer Wenzlick”) of the
Ottawa Hills, Ohio Police Department testified that defendant was
a passenger in a car that was stopped for window tint and
registration violations one month after the incident with Deputy
Howe. The two police officers removed the driver from the stopped
car and asked defendant to exit the vehicle as they were going to
tow the car. As defendant exited the vehicle, Officer Wenzlick
observed on the passenger's floorboard a short red straw that had
one end cut at a forty-five degree angle which contained a white
powdery substance similar to cocaine on one end. Defendant gave
the officer a false name, date of birth, and social security
number, and was arrested for falsification, giving a false name to
a police officer while the police officer is conducting his
official duties. Defendant was also arrested for possession of
drug paraphernalia.
Defendant contends this testimony was erroneously allowed
under Rule 404(b) and that Officer Wenzlick was erroneously allowed
to testify that the substance was cocaine without having beenqualified as an expert. First, we note that Officer Wenzlick did
not testify that the substance was definitely cocaine; rather, he
only testified that it was similar to cocaine. Moreover, the
officer clarified that he was expressing an opinion satisfactory to
himself based upon his training and experience in law enforcement.
Thus, under these facts, we find no error in this portion of
Officer Wenzlick's testimony.
As to defendant's argument that the circumstances surrounding
the Ohio traffic stop and arrest should not have been admitted
under Rule 404(b), the State contends the testimony was evidence of
defendant's modus operandi, i.e., defendant fled a crime scene in
another person's car because he was involved in a drug offense.
As previously stated, N.C. Gen. Stat. § 8C-1, Rule 404(b)
governs the admissibility of evidence regarding “'other crimes,
wrongs, or acts[.]'” State v. Haskins, 104 N.C. App. 675, 679, 411
S.E.2d 376, 380 (1991). “That is, the evidence must be offered for
a proper purpose, must be relevant, must have probative value that
is not substantially outweighed by the danger of unfair prejudice
to the defendant, and, if requested, must be coupled with a
limiting instruction.” Id. N.C.R. Evid. 404(b) provides that
relevant evidence of other crimes, wrongs or acts may be admissible
for other purposes, such as proof of “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.” Id. To be relevant in a particular case,
evidence of prior bad acts must be sufficiently similar to the
crime charged and be temporally proximate to that crime. See State
v. Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002).
This Court has, however, noted “[t]he similarities between thecrime charged and the prior acts . . . need not '“rise to the level
of the unique or bizarre”' in order to be admissible.” State v.
Brothers, 151 N.C. App. 71, 76, 564 S.E.2d 603, 607 (2002)
(citations omitted).
In this case, we conclude the circumstances surrounding the
traffic stop and defendant's actions in Ohio were substantially
similar to defendant's actions in this case, and therefore
admissible. In both traffic stops, defendant was a passenger in a
car, gave fictitious information to the police, had outstanding
arrest warrants at the time of each traffic stop, and the police
officers noticed a straw in close proximity to defendant. In this
case, defendant was observed vigorously chewing on a straw and had
a large bulge in his pants pocket. Defendant was also acting
nervously. In the Ohio traffic stop, the officer observed a red
straw on the passenger floor that contained a white powdery
substance similar to cocaine. Unlike this case, defendant neither
attempted to flee nor assaulted an officer. However, the presence
of two officers during the Ohio traffic stop and the untreated
gunshot wound in defendant's arm may have created a situation
conducive to cooperation, and not flight. Thus, the evidence of
the circumstances surrounding the Ohio traffic stop was admissible
under Rule 404(b) as it was evidence of defendant's motive or
intentions in this case, i.e., to flee the scene in order to avoid
arrest on outstanding warrants or to prevent the discovery of drugs
or drug paraphernalia in the car or on his person.
Moreover, even assuming the admission of the circumstances
regarding defendant's arrest in Ohio was erroneous, the evidence
that defendant was arrested on the outstanding warrant in Ohio andextradited to North Carolina to face the charges in this case was
relevant and admissible. We also conclude the admission of
defendant's actions during the Ohio traffic stop was non-
prejudicial error. Under N.C. Gen. Stat. § 15A-1443(a) (2003):
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when there
is a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
the trial out of which the appeal arises. The
burden of showing such prejudice under this
subsection is upon the defendant. . . .
Id. Under the facts of this case, in order to convict defendant of
N.C. Gen. Stat. § 14-34.2 (2003), assault upon a governmental
officer with a deadly weapon, the State only had to prove assault
with a deadly weapon upon an officer of a political subdivision of
this State. Id. Defendant's motive in fleeing the scene was not
an element of the crime. As the State presented evidence that
defendant assaulted a New Hanover deputy sheriff by dragging the
officer with his car, any error committed in admitting the Ohio
traffic stop evidence would have been non-prejudicial error.
[9] Next, defendant contends the trial court committed plain
error by conducting an evidentiary hearing prior to the beginning
of the habitual felon phase as no motion for such a hearing had
been properly made before the court. Thus, defendant contends the
trial court's actions constituted an impermissible advisory
opinion.
Under N.C. Gen. Stat. § 8C-1, Rule 104(a) (2003),
“[p]reliminary questions concerning . . . the admissibility of
evidence shall be determined by the court[.]” Id. Any hearings
concerning the admissibility of evidence shall be conducted outsidethe hearing of the jury when the interests of justice require. See
N.C. Gen. Stat. § 8C-1, Rule 104(c). Furthermore, the Rules of
Evidence “shall be construed to secure fairness in administration
[and the] elimination of unjustifiable expense and delay . . . .”
N.C. Gen. Stat. § 8C-1, Rule 102(a) (2003). Therefore, based upon
these rules of evidence, we conclude the trial court has the
inherent authority to conduct an evidentiary hearing outside the
presence of a jury sua sponte to clarify questions of admissibility
and to prevent undue delay in the proceedings.
In this case, none of the convictions listed in the habitual
felon indictment were from the State of North Carolina. Two of the
convictions were from the State of Virginia and the third
conviction was a federal conviction from the Northern District of
Ohio. During the evidentiary hearing, the State called several
witnesses to present proof of the prior convictions to the trial
court. These witnesses explained how they obtained the documents,
testified regarding corroborating evidence, and the attorneys for
the State and defendant made arguments to the trial court regarding
the competency of the proffered evidence. By conducting this
hearing out of the presence of the jury and prior to the
presentation of evidence during the habitual felon phase, the trial
court was able to resolve any arguments and concerns regarding the
evidence and the habitual felon proceedings before the jury
proceeded without any delay. Moreover, it should be noted that the
habitual felon phase began on the seventh day of trial. Under
these facts, we conclude the trial court did not commit plain error
in conducting an evidentiary hearing prior to the beginning of thehabitual felon phase of defendant's trial in order to expedite the
proceedings.
[10] Next, defendant contends the trial court committed plain
error by allowing a felonious possession of cocaine charge to be a
predicate felony for the habitual felon indictment in light of this
Court's opinions in State v. Sneed, 161 N.C. App. 331, 588 S.E.2d
74 (2003), and State v. Jones, 161 N.C. App. 60, 588 S.E.2d 5
(2003). However, the holdings in Sneed and Jones were reversed by
our Supreme Court in State v. Jones, 358 N.C. 473, 598 S.E.2d 125
(2004), and State v. Sneed, 358 N.C. 538, 599 S.E.2d 365 (2004), in
which our Supreme Court held the possession of cocaine under N.C.
Gen. Stat. § 90-95(d)(2) is a felony and a proper basis for a
habitual felon indictment.
[11] Finally, defendant contends the habitual felon indictment
should have been dismissed because the State failed to produce
sufficient evidence of the third felony listed in the habitual
felon indictment. N.C. Gen. Stat. § 14-7.4 (2003) states:
In all cases where a person is charged
under the provisions of this Article with
being an habitual felon, the record or records
of prior convictions of felony offenses shall
be admissible in evidence, but only for the
purpose of proving that said person has been
convicted of former felony offenses. A prior
conviction may be proved by stipulation of the
parties or by the original or a certified copy
of the court record of the prior conviction.
The original or certified copy of the court
record, bearing the same name as that by which
the defendant is charged, shall be prima facie
evidence that the defendant named therein is
the same as the defendant before the court,
and shall be prima facie evidence of the facts
set out therein.
Id. In State v. Wall, 141 N.C. App. 529, 533, 539 S.E.2d 692, 695
(2000), this Court held that the terms of N.C. Gen. Stat. § 14-7.4were permissive and do not exclude other methods of proving prior
convictions for determining habitual felon status. Therefore, this
Court held that a faxed, certified copy of a court record was a
reliable source of a defendant's prior conviction for habitual
felon purposes. Id.
In the case sub judice, the habitual felon indictment listed
as the third felony: “On or about August 22, 1979 Hermal E.
Brewington did commit the felony of Armed Bank Robbery and that on
or about October 12, 1979 Hermal E. Brewington was convicted of the
felony of Armed Bank Robbery in the District Court of for [sic] the
Northern District of Ohio.”
(See footnote 2)
To prove this prior conviction, the
State submitted a facsimile of a judgment and probation order from
the United States District Court, Northern District of Ohio,
Western Division. The facsimile indicated that a defendant,
“Herman Brewington” pled guilty on 10/12/1979 to “unarmed bank
robbery,” a “violation of Title 18, Section 2113(a).”
(See footnote 3)
The
facsimile also contained a seal, which stated: “I hereby certify
that this instrument is a true and correct copy of the original.”
The seal was signed by a deputy clerk of the United States District
Court in the Northern District of Ohio. During the voir dire
proceeding, the State presented defendant's criminal record checkwhich indicated he had been convicted of the unarmed bank robbery
in 1979. In light of this Court's holding in State v. Wall, we
conclude the introduction of the facsimile copy of the judgment and
probation order, which was stamped as a true copy, to prove
defendant's third felony for habitual felon purposes was not error.
Defendant also argues the State could not use the 1979 federal
conviction for unarmed bank robbery for habitual felon purposes
because it is unclear whether this conviction was a final judgment.
Under the North Carolina Habitual Felons Act:
Any person who has been convicted of or
pled guilty to three felony offenses in any
federal court or state court in the United
States or combination thereof is declared to
be an habitual felon. For the purpose of this
Article, a felony offense is defined as an
offense which is a felony under the laws of
the State or other sovereign wherein a plea of
guilty was entered or a conviction was
returned regardless of the sentence actually
imposed. . . .
N.C. Gen. Stat. § 14-7.1 (2003). In the case sub judice, the
judgment and probation order indicates defendant pled guilty to
unarmed bank robbery, a felony. However, the judgment and
probation order also states defendant was placed in the custody of
the United States Attorney General “for treatment and supervision
pursuant to 18 U.S.C.A. Sec. 5010(b) until discharged by the
Federal Youth Correction Division of the Board of Parole as
provided in 18 U.S.C.A. Sec. 5017(c).” Therefore, defendant was
sentenced as a youth offender under 18 U.S.C.A. § 5005 et seq.
(repealed 12 October 1984). According to 18 U.S.C.A. § 5010(b)
(1982):
If the court shall find that a convicted
person is a youth offender, and the offense is
punishable by imprisonment under applicable
provisions of law other than this subsection,the court may, in lieu of the penalty of
imprisonment otherwise provided by law,
sentence the youth offender to the custody of
the Attorney General for treatment and
supervision pursuant to this chapter until
discharged by the Commission as provided in
section 5017(c) of this chapter[.]
Id. Pursuant to 18 U.S.C.A. § 5017(c) (1982):
A youth offender committed under section
5010(b) of this chapter shall be released
conditionally under supervision on or before
the expiration of four years from the date of
his conviction and shall be discharged
unconditionally on or before six years from
the date of his conviction.
Id. Under 18 U.S.C.A. § 5021(a) (1982),
Upon the unconditional discharge by the
Commission of a committed youth offender
before the expiration of the maximum sentence
imposed upon him, the conviction shall be
automatically set aside and the Commission
shall issue to the youth offender a
certificate to that effect.
Id. Pursuant to these provisions, if defendant was unconditionally
discharged on or before six years from the date of his conviction,
then his conviction would have been automatically set aside. The
United States Congress' purpose in providing for the automatic set
aside of the conviction under 18 U.S.C.A. § 5021 was to provide “a
substantial incentive for positive behavior while serving a
sentence under the [Youth Corrections Act].” Tuten v. United
States, 460 U.S. 660, 664, 75 L. Ed. 2d 359, 364 (1983) (footnote
omitted). The automatic set aside of a conviction “enables an
eligible youth offender to reenter society and conduct his life
free from the disabilities that accompany a criminal conviction[,]”
such as increased penalties for subsequent convictions. Id. at
665, 75 L. Ed. 2d at 364. According to the habitual felon indictment and the evidence
presented by the State in this case, defendant was convicted of
unarmed bank robbery on 12 October 1979 in Ohio. Four years later,
defendant was convicted of malicious wounding/maiming in Virginia
on 19 October 1983. Thus, defendant was in the State of Virginia
within six years of his federal conviction. Whether defendant
received an unconditional discharge is not clear from the record.
As stated under N.C. Gen. Stat. § 14-7.1, for habitual felon
purposes, “a felony offense is defined as an offense which is a
felony under the laws of the State or other sovereign wherein a
plea of guilty was entered or a conviction was returned regardless
of the sentence actually imposed.” (Emphasis added.) In this
case, the possibility of receiving an unconditional discharge and
having the underlying conviction set aside was part of the sentence
imposed upon defendant for his felonious unarmed bank robbery
conviction. For habitual felon purposes, defendant was convicted
of unarmed bank robbery, a felony.
However, if a conviction has been set aside, reversed, or
vacated, it is a defense to the State's allegation that a defendant
has attained habitual felon status. The burden of showing a
conviction has been set aside, vacated, or reversed is upon the
defendant. Cf. N.C. Gen. Stat. § 14-7.1 (stating the burden of
proving a felony offense has been pardoned shall rest with the
defendant and the State is not required to disprove a pardon).
Although defendant makes an argument that he may have received an
unconditional discharge under 18 U.S.C.A. § 5021, and therefore,
his unarmed robbery conviction had been set aside, he did notpresent any evidence proving with any certainty that the conviction
had been set aside.
(See footnote 4)
In sum, we conclude defendant received a trial free of
prejudicial error.
Affirmed.
Judges WYNN and McCULLOUGH concur.
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