An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 September 2005
STATE OF NORTH CAROLINA
No. 99 CRS 16034
WESLEY LAMONT HINSON
Appeal by defendant from judgment entered 20 August 2003 by
Judge E. Lynn Johnson in Robeson County Superior Court. Heard in
the Court of Appeals 15 June 2005.
Attorney General Roy Cooper, by Special Deputy Attorney
General R. Marcus Lodge, for the State.
Jarvis John Edgerton, IV for defendant-appellant.
Wesley Lamont Hinson (defendant) appeals from his conviction
of assault on a government official with a deadly weapon, in
violation of N.C. Gen. Stat. § 14-34.5. Defendant argues 1) that
the trial court erred in denying his motion to dismiss because the
arresting officer was not in the performance of his duties when the
defendant assaulted him; and 2) that the trial court erred in
allowing the State to cross-examine defense witnesses regarding
highly prejudicial facts not in evidence.
In the light most favorable to the State, the following
evidence was presented at trial. On 8 July 1999, an anonymous
caller informed the Fairmont Police Department that the smell ofmarijuana smoke was emanating from one of two apartments, each
located in separate buildings. Two uniformed officers, including
Sergeant Justin Reed (Sgt. Reed), arrived at the scene and knocked
on the door of one of the apartments. The apartment Sgt. Reed
responded to was owned by Cecilia Moody (Moody), who stepped away
from the open door without speaking. Sgt. Reed then entered and
stated the police had received a call reporting marijuana smoke.
Once entering the apartment, Sgt. Reed smelled marijuana and
quickly moved toward a back room from which loud music and the
smell were emanating.
Sgt. Reed testified that upon entering the room, he saw five
men, one of whom was smoking marijuana. Sgt. Reed drew his weapon,
but holstered it shortly thereafter when he did not feel
threatened. While standing in the doorway to the room, Sgt. Reed
testified defendant lunged at him, and then they fell into the
hallway in a scuffle. During the altercation, a gun fell to the
floor that defendant seized and attempted to fire at Sgt. Reed.
The gun did not fire, and when presented at trial was rusted to the
point that it could not be broken down. Sgt. Reed noticed during
the struggle that a bag of marijuana had fallen to the floor, and
he recovered it. Defendant then escaped out a window, later
turning himself in.
At trial, after presentation of the State's case-in-chief,
the State cross-examined defendant and another defense witness
about access to additional guns within the room. Defense counsel
properly objected to the assumption of facts not in evidence, butthese objections were overruled. After subsequent repetitions of
this pattern of questioning by the State, the trial court sustained
defendant's continued objections and gave a limiting instruction
stating: [l]adies and gentlemen of the jury, if pre-condition is
whether he had knowledge about the weapons, I'll let [the State]
ask questions about those, but _ and then he can establish whether
the defendant has a tie to those weapons.
Defendant first argues that the trial court erred in denying
his motion to dismiss when the State failed to offer substantial
evidence of each element of assault with a firearm on a law
enforcement officer. In order to prove defendant violated N.C.
Gen. Stat. § 14-34.5(a) the State must establish: (1) an assault;
(2) with a firearm; (3) on a law enforcement officer; (4) while the
officer is engaged in the performance of his or her duties. State
v. Childers, 154 N.C. App. 375, 382, 572 S.E.2d 207, 212 (2002).
An assault is 'an overt act or attempt, with force and violence,
to do some immediate physical injury to the person of another,
which show of force or violence must be sufficient to put a person
of reasonable firmness in fear of immediate physical injury.' Id.
(quoting State v. Haynesworth, 146 N.C. App. 523, 529, 553 S.E.2d
103, 108 (2001)). Defendant only disputes the last element of
section 14-34.5(a) here; specifically, he argues that the State
failed to show that Sgt. Reed was legally in the apartment at the
time the assault occurred and therefore could not be in
performance of his or her duties as the statutory offenserequires. Relevant to the circumstances of this case, this
argument is appealing at first, but we cannot ultimately hold that
the trial court erred in dismissing defendant's motion.
Defendant argues that Sgt. Reed did not have a warrant, or
meet any criteria for an exception thereto, when he entered Moody's
apartment; and therefore exceeded the scope of his legal authority
to enter the home. If forced by the posture of this case to
determine the legitimacy of defendant's argument on this point, we
would likely agree. Sgt. Reed was responding to an anonymous call
reporting possible marijuana use in an apartment complex. The
caller identified the smell as coming from one of two apartments,
each in separate apartment buildings. Further, Sgt. Reed testified
it was not until he stepped inside the apartment, and thus needed
to have previously established his legal authority to enter, that
he clearly smelled marijuana. And it is equally questionable
whether Moody's actions established consent. Cf. State v. Harper,
158 N.C. App. 595, 582 S.E.2d 62 (after initially blocking or
denying officers' entry into the room, additional conversation and
a request to enter from the officers yielded defendant's opening
the door wide and standing clear of the officers' entry), disc.
review denied, 357 N.C. 509, 588 S.E.2d 372 (2003); State v.
Graham, 149 N.C. App. 215, 562 S.E.2d 286 (2002) (after being asked
to allow a search of his pockets defendant stood up and raised his
hands away from his body accompanied by a gesture which [the
officer] took to mean consent.), disc. review denied, 356 N.C.
685, 578 S.E.2d 315 (2003). Here, the record reflects that beforeSgt. Reed entered the apartment he simply knocked, the door was
answered, and she stepped back; notably, no conversation
occurred, much less a verbal request for a search as in Harper and
Nonetheless, despite our hesitancy to say that Sgt. Reed's
actions were legal under Fourth Amendment jurisprudence, we do not
agree with defendant that the duty element of N.C. Gen. Stat. §
14-34.5 requires such a stringent assessment of Sgt. Reed's
presence in the house. Defendant concedes that he is unable to
cite any authority for his characterization; indeed, there is
little authority interpreting this element of section 14-34.5.
The crime of assault on a law enforcement officer was enacted
on 1 July 1995, see 1995 N.C. Sess. Laws ch. 507, § 28.13, and
codified at section 14-34.5 of our General Statutes. 1995 N.C.
Sess. Laws ch. 507, § 19.5(j). At the time it was proposed it
read: [a]ny person who commits an assault with a firearm upon a
law enforcement officer in the performance of his or her duties is
guilty of a Class E felony. Id. Later, in an Act passed to make
various technical amendments the General Assembly added the phrase
while the law enforcement officer is in between officer and
in. 1995 N.C. Sess. Laws ch. 742, § 10. Various other
amendments have altered the statute, but the language regarding the
duties has not changed.
Any person who commits an assault with a
firearm upon a law enforcement officer,
probation officer, or parole officer while the
officer is in the performance of his or her
duties is guilty of a Class E felony.
N.C. Gen. Stat. § 14-34.5(a) (2003). Prior to enacting this
separate statute, the use of a firearm in an assault on an officer
was covered by N.C. Gen. Stat. § 14-34.2 (2003) and, absent a
deadly weapon or firearm, by N.C. Gen. Stat. § 14-33 (2003). See
1995 N.C. Sess. Laws ch. 507, § 19.5(i) and (j); 1991 Sess. Laws
ch. 525, §§ 1 and 2.
With each alteration, the General Assembly made an assault on
a law enforcement officer with a firearm a more severe crime, but
never substantially altered the composition of the crime itself.
Previously, N.C. Gen. Stat. § 14-33(b)(4) stated it was a crime to
assault an officer while the officer . . . is discharging or
attempting to discharge a duty of his office[.] 1991 Sess. Laws
ch. 525, § 1. Section 14-34.2, although no longer applicable
specifically to law enforcement officers, uses the language in the
performance of his duties. N.C. Gen. Stat. § 14-34.2 (2003).
Also, it presently is a class F felony to inflict serious injury
during an assault on an officer while the officer is discharging
or attempting to discharge his or her official duties. N.C. Gen.
Stat. § 14-34.7 (2003).
Since all of these assault statutes are interrelated based on
one having more applicability to the circumstances than another, we
cannot perceive that the legislature intended a part of that
variance to depend on what the officer was doing at the time. For
instance, N.C. Gen. Stat. § 14-34.7 involves the infliction of
serious bodily injury, making that crime a class F felony.
However, if a person uses a firearm in the assault, regardless ofany injury, it is a class E felony. See N.C. Gen. Stat. § 14-34.5
(2003). Although the language regarding duty differs marginally
between each, we determine the legislature intended the escalation
of the crime to be commensurate with the use of a firearm, not
necessarily whether the performance or discharge of the officer's
duties was different. Accordingly, despite scant authority
regarding the performance element in section 14-34.5, we are guided
by other appellate opinions interpreting the same or similar
This Court discussed the now repealed language in N.C. Gen.
Stat. § 14-33 regarding an officer's duties in State v. Kirby, 15
N.C. App. 480, 487-88, 190 S.E.2d 320, 325 (1972). In Kirby, the
defendant argued that the State needed to show the specific duty
the officer was performing when he was assaulted, similar to the
crime of resisting arrest where the State was required to show the
specific duty the officer was carrying out when the resistance
occurred. Id. After noting that the legislative intent of the
assault statute was to provide greater punishment for those who
place themselves in open defiance of duly constituted authority by
assaulting public officers who are on duty, we rejected
defendant's argument. Id. (emphasis added).
In the offense of resisting an officer, the
resisting of the public officer in the
performance of some duty is the primary
conduct proscribed by that statute and the
particular duty that the officer is performing
while being resisted is of paramount
importance and is very material to the
preparation of the defendant's defense, while
in the offense of assaulting a public officer
in the performance of some day, the assault onthe officer is the primary conduct proscribed
by the statute and the particular duty that
the officer is performing while being
assaulted is of secondary importance. The
legislative intent appears to be that if a
public officer is assaulted in performing or
attempting to perform any duty of his office,
the provision of G.S. § 14-33(c)(4) is
Id. (emphasis in original). Reading the officer's duty broadly
here, to even include actions that are potentially in violation of
the Fourth Amendment, is seemingly more in line with legislative
intent than, as defendant suggests, only allowing the charge in
circumstances where the officer is assaulted in a location he had
a legal right to be.
Sgt. Reed was on duty, called to investigate a potential
crime, and was assaulted while in the course of investigating the
crime. Sgt. Reed was not in plain clothes barging into defendant's
home unexpectedly, such that defendant may have mistaken him for a
criminal. He was in uniform, investigating a crime, and in the
light most favorable to the State, walked passed the apartment
owner and her guests before arriving at the room where defendant
and his friends were. While the fruits of his potentially illegal
search might have been excluded, the increased punishment for
defendant's defiant and reprehensible actions in aiming a gun at
Sgt. Reed should not be so excluded because the assault took place
in Moody's residence rather than outside her door. See Keziah v.
Bostic, 452 F. Supp. 912, 916 (W.D.N.C. 1978) (interpreting section
14-33's former applicability to officers and although determining
the officer's search of defendant was unconstitutional, defendantwas not entitled to invoke self-help against what was, at the
time, an arguably lawful arrest.).
We are further persuaded by our Supreme Court's discussion of
the exclusionary rule in State v. Guevara, 349 N.C. 243, 249-50,
506 S.E.2d 711, 716 (1998), which was raised by defendant to
exclude testimony of a witness regarding the death of an officer
who may or may not have been in the home legally.
[T]his Court has further held that the
exclusionary rule 'must be discerned in light
of the facts in each case. When so
considered, it is apparent that the rule does
not require the exclusion of evidence obtained
after an illegal entry when that evidence is
offered to prove the murder of one of the
officers making the entry.' State v. Miller,
282 N.C. 633, 641, 194 S.E.2d 353, 358 (1973).
As we noted in Miller, application of the
exclusionary rule to exclude evidence of
crimes directed against the person of
trespassing officers 'would in effect give the
victims of illegal searches a license to
assault and murder the officers involved_a
result manifestly unacceptable.' Id.
Therefore, in the case sub judice, regardless
of whether Deputy West lawfully entered
defendant's home, Lieutenant Medlin's
eyewitness account of the events which
transpired subsequent thereto is not barred by
application of the exclusionary rule.
Also instructive is our Supreme Court's interpretation of N.C.
Gen. Stat. § 15A-2000(e)(8), a capital aggravating factor which
The capital felony was committed against a
law-enforcement officer, employee of the
Department of Correction, jailer, fireman,
judge or justice, former judge or justice,
prosecutor or former prosecutor, juror or
former juror, or witness or former witness
against the defendant, while engaged in theperformance of his official duties or because
of the exercise of his official duty.
N.C. Gen. Stat. § 15A-2000(e)(8) (2003) (emphasis added). In State
v. Gaines, 332 N.C. 461, 471, 421 S.E.2d 569, 574 (1992), the Court
With regard to the question of whether the
officer was engaged in the performance of his
official duties when he was murdered, it
appears the trial court ruled the officer was
not so engaged because he elected to eject the
defendants from the premises of the Red Roof
Inn instead of making an arrest. We find this
to be an unduly narrow and an unrealistically
restrictive interpretation of the term
'official duties' as it relates in actual
practice to law enforcement officers. Such an
interpretation would seem to require that a
law enforcement officer be actively and
aggressively focused upon a particular
criminal suspect, as in the case of actually
drawing or firing his weapon or engaging in
hot pursuit, in order for his public service
to fall within the realm of 'official duties.'
We find this to be an inordinately strained
and unnatural application of this term as it
is normally used with respect to the official
duties of all law enforcement officers, which
includes such duties as investigative work
(including stakeouts), crowd or traffic
control, and routine patrol by automobile.
Admittedly, these cases do not construe N.C. Gen. Stat. § 14-
34.5, the offense in this case, but we cannot overlook such
precedent reviewing the statutory language that is in question
here. Therefore, we hold that even though Sgt. Reed may have been
in Moody's apartment illegally, there was nonetheless substantial
evidence presented that he was assaulted while he was in the
performance of his or her duties. Thus, the trial court did not
err in denying defendant's motion to dismiss.
Defendant next assigns error to the trial court's decision to
allow the State to question defendant and one of defendant's
witnesses about the presence of other firearms in the room where
defendant was found by Sgt. Reed. He further argues that these
highly inflammatory questions ultimately prejudiced the jury by
suggesting that he had additional weapons. Based on the trial
court's ruling regarding these questions and its misleading and
confusing limiting instruction, we agree with defendant.
Generally, trial counsel is afforded wide latitude on
cross-examination, subject to discretionary limitations set by the
trial court and the requirement that each question asked be in good
faith. See State v. Dawson
, 302 N.C. 581, 585-86, 276 S.E.2d 348,
351-52 (1981) (discussing limitations on cross-examination
questions, including good faith basis requirement). In the case at
bar, the State asked one of defendant's witnesses, who was in the
room with defendant when Sgt. Reed came in, whether he knew there
were two guns underneath the mattress they were sitting on.
STATE: You were sitting on the bed there in
WITNESS: Yes, sir, when he walked in.
STATE: Which of the weapons under the mattress
belonged to you --
DEFENSE COUNSEL: Move to strike.
STATE: -- the .40 caliber or the .38 --
DEFENSE COUNSEL: Assuming facts not in
WITNESS: I didn't know there was a weapon in
THE COURT: Over --
WITNESS: -- because when they --
THE COURT: Wait a minute. Wait a minute.
THE COURT: Can I see counsel just on a good
. . . (unrecorded bench conference)
THE COURT: All right. The objection's been
overruled based on the bench conference.
In North Carolina, absent the record reflecting otherwise, there is
a presumption that cross-examination questions asked by the State
are proposed in good faith. Id
. Here, the record reflects that
the trial court determined any issue of good faith in the State's
favor during an unrecorded bench conference. As such, no evidence
of bad faith appears in the record before us.
However, when the questioning resumed after the conference,
the trial court sustained defendant's objections to the continued
line of questioning dealing with the supposed guns in the room.
STATE: Are you denying that the .40 caliber
Glock belonged to you?
STATE: How about the .38 stuffed under the
mattress; did that belong to you?
DEFENSE COUNSEL: Object. Assuming facts not
in evidence. He hasn't said anything about --
THE COURT: Well, the preconditioned question
is did he know they were there, then you can
ask him about --
WITNESS: No, I didn't know they was there.
STATE: You were sitting on top of them and you
didn't know they were there?
WITNESS: Excuse me?
STATE: You were sitting on top of them and you
didn't know they were there?
DEFENSE COUNSEL: Assuming facts not in
THE COURT: Sustained. Sustained.
Still later at trial, the State reopened the same line of
questioning with defendant. This line of questioning was sustained
for a second time, and after this round defendant moved for a
[W]here the court sustains objection to
questions asked by the solicitor, no prejudice
results. . . . Ordinarily, merely asking the
question will not be held prejudicial. . . .
Furthermore, when all evidence of a particular
character is stricken and the jury is
instructed not to consider it, any prejudice
is ordinarily cured, . . . unless the evidence
stricken was so highly prejudicial that its
effect cannot be erased from the minds of the
jurors_in which event error in its admission
is not cured by its withdrawal and
instructions not to consider.
State v. Barrow
, 276 N.C. 381, 387-88, 172 S.E.2d 512, 516 (1970)
(internal citations omitted).
Here, however, we are not assured that any prejudice was
alleviated at trial by the trial court sustaining the objection and
offering a limiting instruction. Indeed, it is the limiting
instruction in this case that tends to invoke prejudice, not
alleviate it. The trial court stated: [l]adies and gentlemen ofthe jury, if pre-condition is whether he had knowledge about the
weapons, I'll let [the State] ask questions about those, but _ and
then he can establish whether the defendant has a tie to those
weapons. The limiting instruction here does not tell the jury
to disregard the evidence of other guns, nothing of which was ever
entered into evidence, nor does it instruct the jury on how they
should consider the questions and answers. See
N.C. Gen. Stat. §
8C-1, Rule 105 (2003) (the trial court shall restrict the evidence
to its proper scope and instruct the jury accordingly.). The
instruction is confusing, misleading, and evokes the unfounded
inference that there were guns in the room accessible to defendant.
89 C.J.S. Trial
§ 583 (2001) (It is error to give instructions
which tend to mislead or confuse the jury and the test for
correctness of an instruction is how it will be understood by the
average person composing juries.).
In the case at hand, defendant was on trial for assaulting an
officer with a firearm. The evidence presented by the State, and
in the light most favorable to it, was that Sgt. Reed, by himself,
encountered five men in a single bedroom, at least one of whom was
smoking marijuana. Sgt. Reed first drew his service weapon and
then holstered it. Next, during a scuffle with defendant just
outside the bedroom door, a gun fell onto the floor. Sgt. Reed
testified that defendant reacted by picking it up and attempting to
shoot it at him. The particular gun in question, exhibited at
trial, was apparently incapable of being fired. Defendant, on the
other hand, disputes the State's characterization of the events,claiming that he did not have a gun, it was someone else's in the
room; and that Sgt. Reed had his weapon drawn and aimed at them,
yelling that he was going to shoot them. There was no independent
evidence or testimony, and as a result the defendant's credibility
was at the forefront of the trial.
Based on these particular facts, coupled with the errant
limiting instruction to sustained questions about other guns in the
room, we conclude the jury was misled and defendant was prejudiced
thereby. Accordingly, we remand defendant's case for a new trial.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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