STATE OF NORTH CAROLINA
v. Richmond County
No. 03CRS054170
AARON MITCHELL DAVIS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Scott T. Stroud, for the State.
Paul Pooley for defendant-appellant.
HUNTER, Judge.
Aaron Mitchell Davis (“defendant”) appeals his conviction of
two counts of trafficking in methamphetamine. Defendant alleges:
(1) the trial court erred in not granting his motion to suppress;
(2) that defendant was denied his right to self representation; and
(3) that the case should be remanded to correct clerical errors.
We find no error in defendant's first two contentions, and we
remand the case for correction of clerical errors.
Defendant filed a motion to suppress evidence seized as a
result of an allegedly invalid traffic stop. At the suppression
hearing, Deputy Sheriff Philip Edward Sweatt, Jr. (“Deputy
Sweatt”), of the Richmond County Sheriff's Office, testified onbehalf of the State to the following: On 13 October 2003, Deputy
Sweatt received information from a confidential informant that a
red Ford Mustang convertible would be traveling into Richmond
County with a quantity of methamphetamine in the trunk. The
informant told Deputy Sweatt that the Mustang would be occupied by
a white male and white female and that the Mustang would be
traveling on Highway 220 and then turn onto Crawford Road. The
informant had previously given Deputy Sweatt information that led
to valid arrests and convictions.
Deputy Sweatt subsequently drove to the vicinity of Highway
220 and Crawford Road. Around noon, Deputy Sweatt observed a red
Mustang convertible travel down Highway 220 and turn onto Crawford
Road. At Deputy Sweatt's direction, other deputies positioned
themselves in the middle of Crawford Road, as if conducting a
license check point, to stop the Mustang. Deputy Sweatt testified
that check point was a “diversionary thing” to prevent exposing the
identity of his confidential informant and to prevent the occupants
of the vehicle from having an opportunity to throw evidence from
the Mustang. Deputy Sweatt followed the Mustang on Crawford Road
in his unmarked vehicle until the Mustang was stopped by the other
deputies.
Once the Mustang stopped, Deputy Sweatt observed a white
female driver, a white male sitting in the front passenger seat,
and another white male, later identified as defendant, sitting in
the back. The driver, who was the owner of the Mustang, gave
Deputy Sweatt permission to search the vehicle. Defendant told thedeputies that “they had drugs in the trunk.” The deputies
subsequently took concealed weapons from defendant and the other
male. After hearing arguments from the State and defense counsel,
the trial court orally denied the motion to suppress and stated
that it would enter a detailed order later.
At trial, Deputy Sweatt testified that a red Mustang
convertible was stopped during a drug investigation on Crawford
Road; that upon searching the Mustang, he found methamphetamine in
the trunk of the Mustang and under the front passenger seat; and
testified that defendant admitted “the drugs were all his[.]” An
agent for the State Bureau of Investigation testified that the
chemical analysis of the material seized revealed over 211.5 grams
of methamphetamine. Defendant did not present any evidence.
During jury deliberations, the trial court stated that it
“need[ed] to put this order on the record[]” with respect to the
denial of defendant's motion to suppress. The trial court then
stated that it found that Deputy Sweatt received information from
a reliable confidential informant that a red Mustang convertible,
occupied by one white female and one white male, would be entering
Richmond County on Highway 220 with controlled substances located
in the vehicle; that although the Mustang was occupied by three
white individuals, rather than the reported two, Deputy Sweatt
independently corroborated the informant's information; that Deputy
Sweatt radioed ahead to have the other deputies stop the vehicle in
a pretextual license checking station; and that the “checking
station procedure was done to protect the confidentiality of theinformant, as well as the safety of the officers.” Based on these
findings, the trial court concluded that “the officer did have
reasonable suspicion to conduct an investigatory stop; that he
personally corroborated information received from the informant;
[and] that he had specific and articulable facts which warranted
the stop[,]” and denied the motion to suppress.
The jury returned guilty verdicts against defendant for
trafficking in methamphetamine by transporting and trafficking in
methamphetamine by possession. The trial court sentenced defendant
to 90 to 117 months imprisonment. Defendant appeals.
Defendant assigns error to the denial of his motion to
suppress, arguing that his stop and detention violated his Fourth
Amendment right to be free from unreasonable search and seizure,
and therefore, any evidence recovered as a result must be
suppressed. We disagree, and affirm the trial court's denial of
defendant's motion.
“'[T]he standard of review in evaluating a trial court's
ruling on a motion to suppress is that the trial court's findings
of fact “'are conclusive on appeal if supported by competent
evidence, even if the evidence is conflicting.'”'” State v.
Earwood, 155 N.C. App. 698, 702, 574 S.E.2d 707, 710 (2003)
(citations omitted). The trial court's conclusions of law,
however, are fully reviewable. Id. We note that defendant argues
the trial court failed to enter an order containing findings of
fact and conclusions of law, thereby precluding a meaningful
appellate review. Although the trial court did not enter a writtenorder, the trial court orally entered an order on the record
consisting of adequate findings of fact and conclusions of law,
allowing for appellate review.
The Fourth Amendment to the Constitution of the United States
and Section 20 of Article I of the North Carolina Constitution
prohibits unreasonable searches and seizures. State v. Garner, 331
N.C. 491, 506-07, 417 S.E.2d 502, 509-10 (1992). They apply “to
seizures of the person, including 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, 69-70 (1994). An
investigatory stop must be justified by “a reasonable suspicion,
based on objective facts, that the individual is involved in
criminal activity.” Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d
357, 362 (1979). “A court must consider 'the totality of the
circumstances -- the whole picture' in determining whether a
reasonable suspicion to make an investigatory stop exists.”
Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (citations omitted).
An informant's tip may provide the reasonable suspicion
necessary for a Terry stop. See Alabama v. White, 496 U.S. 325,
328, 110 L. Ed. 2d 301, 307 (1990). “Although reasonable suspicion
is less stringent than probable cause, it nevertheless requires
that statements from tipsters carry some 'indicia of reliability.'”
State v. Watkins, 120 N.C. App. 804, 809, 463 S.E.2d 802, 805
(1995) (citation omitted). There must also exist sufficient police
corroboration of the tip before the stop is made. “If reasonable
suspicion for the stop exists before the stop is made, there is noviolation of the Fourth Amendment.” State v. Hughes, 353 N.C. 200,
207, 539 S.E.2d 625, 630 (2000).
Here, the facts established that the tip provided by the
informant was sufficiently reliable to create reasonable suspicion
to justify the stop. The uncontested findings of fact show: (1)
a confidential informant told Deputy Sweatt that a quantity of
metheamphetamine would be transported in a red Mustang convertible
into Richmond County that day; (2) Deputy Sweatt had relied on
information provided by the confidential informant in the past; (3)
Deputy Sweatt observed a vehicle matching the description given by
the informant traveling on the suspected route for drug
transportation; and (4) defendant was a passenger in the observed
vehicle. Based on the information and corroboration, the police
had reasonable grounds to believe the tip was accurate and
reliable, and that the investigatory stop of the vehicle was
justified. Therefore, the vehicle stop did not violate defendant's
federal or state constitutional rights and the trial court properly
denied defendant's motion to suppress.
Defendant next contends the trial court violated his right to
proceed pro se by failing to conduct a hearing pursuant to N.C.
Gen. Stat. § 15A-1242 to determine whether defendant wished to
represent himself after defendant stated to the court that he
wanted to fire his attorney. We disagree.
“A criminal defendant has a [federal] constitutional right to
the assistance of counsel in his defense, which implicitly includes
the right to refuse the assistance of counsel and conduct his owndefense.” State v. Johnson, 341 N.C. 104, 110, 459 S.E.2d 246, 249
(1995). In North Carolina, this right of self-representation is
also guaranteed by Article I, Section 23 of the North Carolina
Constitution and by N.C. Gen. Stat. § 15A-1242. State v. LeGrande,
346 N.C. 718, 725, 487 S.E.2d 727, 730 (1997). N.C. Gen. Stat. §
15A-1242 sets forth the prerequisites necessary before a defendant
may waive his constitutional right to counsel and represent himself
at trial. A defendant's waiver of the right to counsel and
concomitant election to proceed pro se must be clearly and
unequivocally expressed. See State v. Thomas, 331 N.C. 671, 417
S.E.2d 473 (1992). In the absence of a clear expression of desire
to have counsel removed and proceed pro se, the trial court need
not make an inquiry under N.C. Gen. Stat. § 15A-1242 to determine
if the defendant understands the consequences of his election and
voluntarily and intelligently waives his right to representation.
Johnson, 341 N.C. at 111, 459 S.E.2d at 250. In the absence of a
clear expression by the defendant of a desire to proceed pro se, a
trial judge faced with a claim of conflict between defendant and
his attorney “must determine only that the defendant's present
counsel is able to render competent assistance and that the nature
of the conflict will not render such assistance ineffective.” Id.
The record discloses that after the jury returned its verdict
and before sentencing, defendant asked through his counsel if he
could see his family before going to prison. After the trial court
rejected that request, the following colloquy took place: DEFENDANT: Can I fire this lawyer right
here, because I don't think he did me a good
job. . . .
. . .
I asked him to file -- Yesterday you admitted
the motion to suppress - you admitted to it.
And then you denied it. . . . And he let you
do that. . . .
. . .
THE COURT: I agreed with one point he
made. But the motion was denied on other
grounds.
Your lawyer did a good job for you.
DEFENDANT: He did do a good job. I just
- I don't understand why you won't let me see
my kids and my old lady.
THE COURT: I can't argue with you any
more about that. I'm sorry.
. . .
THE COURT: Are you going to be able to
hire your own lawyer on appeal?
DEFENDANT: I want to keep him. I'm
sorry; I just wanted to see my kids, man, you
know.
THE COURT: Well, with respect to your
appeal, you can hire your own attorney. If
you can't afford to do that --
DEFENDANT: I'm going to keep him. I'm
sorry; I apologize. I want to keep him.
Here, defendant never requested that he be allowed to
represent himself at trial. Although defendant expressed his
dissatisfaction with his attorney after the jury returned its
verdict, at no time did he request that his attorney be removed
from his case and that he be allowed to represent himself. Basedon the record, we conclude that defendant did not clearly and
unequivocally request to proceed pro se. Thus, the trial court's
determination that defendant's counsel had provided competent
assistance was sufficient and no further inquiry was necessary.
Having failed to properly assert the right to represent himself,
defendant cannot successfully claim that he was denied that right.
Accordingly, defendant's assignment of error is without merit.
Defendant finally contends, and the State agrees, his case
should be remanded to the trial court to correct clerical errors in
his judgment and commitment. See State v. Jarman, 140 N.C. App.
198, 202, 535 S.E.2d 875, 878 (2000) (citations omitted) (“'a court
of record has the inherent power to make its records speak the
truth and, to that end, to amend its records to correct clerical
mistakes or supply defects or omissions therein'”). Because the
record clearly reflects these clerical errors, we agree, and remand
the case to the trial court for the following corrections to the
written judgment and commitment entered 24 August 2004: (1) the
punishment class of offense for the trafficking offenses should
state “E,” instead of “D”; and (2) Block 1 subsection (d) should be
checked to reflect that the trial court made no findings of fact
because the prison term imposed is “for drug trafficking,” and not
because the prison term was within the presumptive range under
subsection (a).
No error in the trial. Remanded for corrections.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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