STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 03 CRS 53434
CHRISTINA SHEREE DAVIS,
Defendant.
HUDSON, Judge.
At the 21 February 2005 criminal session of superior court,
defendant Christina Sheree Davis was tried on charges of
trafficking cocaine by possession and by transportation. The jury
found defendant guilty of trafficking by possession and not guilty
of trafficking by transportation. The court sentenced defendant to
an active term of 35 to 42 months. Defendant appeals. As
discussed below, we conclude the trial was free from error.
The evidence tended to show the following: On 30 March 2003,
defendant was a passenger along with her boyfriend John-Morro Smith
in a truck driven by Franklin Ray Hutchins. When Sergeant
McMasters of the Winston-Salem police stopped the truck for aseatbelt infraction, Smith dropped a baggie of crack cocaine on
defendant's lap and told her to hide it. Defendant put the baggie
in her pants. Sgt. McMasters asked for and received permission to
search Hutchins and his truck, and the search revealed drug
paraphernalia. Corporal Trentini, a female police officer called
in by Sgt. McMasters, asked defendant to consent to a search of her
person. Defendant first responded that she didn't care, then
responded to a second request by saying “go ahead.” Cpl. Trentini
discovered the baggie in defendant's pants. Defendant gave a
statement explaining that Smith had given her the drugs and told
her to hide them. Defendant testified that she did so because she
feared Smith, who had previously assaulted her on numerous
occasions, though none of alleged assaults were ever reported to
police. Defendant acknowledged that she did not fear Smith would
immediately harm her, but rather worried about possible violence
from him at some later time.
Defendant argues that the trial court erred in failing to
include a verdict of not guilty due to acting under duress in its
final mandate.
“North Carolina case law recognizes the doctrine of duress or
coercion as a defense to criminal prosecutions other than
homicide.” State v. Henderson, 64 N.C. App. 536, 539, 307 S.E.2d
846, 849 (1983). “In order to have the court instruct the jury on
the defense, the defendant must present some credible evidence on
every element of the defense.” Id. at 540, 307 S.E.2d at 849. “It
is the general rule that in order to constitute a defense to acriminal charge other than taking the life of an innocent person,
the coercion or duress must be present, imminent or impending, and
of such a nature as to induce a well-grounded apprehension of death
or serious bodily harm if the act is not done.” State v. Kearns,
27 N.C. App. 354, 357, 219 S.E.2d 228, 230-31 (1975), disc. review
denied, 289 N.C. 300, 222 S.E.2d 700 (1976). Thus, fear of future
injury can be sufficient to support a duress instruction, if the
fear is of an imminent injury.
At the charge conference, defendant's trial counsel conceded
that defendant had no fear of immediate harm while the police
officers were present. In addition, defendant testified that she
hid the drugs first because she feared the police finding it and
only secondarily because she feared what Smith might do if she did
not. However, she also testified that she did not live with Smith
nor depend on him at the time of her arrest. There was no evidence
that Smith directly threatened to harm defendant if she did not
hide the drugs. In addition, defendant testified that she did not
fear harm from Smith while the police were present. After Smith
left the scene, defendant still did not tell police about the
drugs, even though she had a duty to surrender the drugs to the
police once free from duress or coercion. See Henderson, 64 N.C.
App. at 540, 307 S.E.2d at 849. Because she failed to present
credible evidence on every element of the defense, the trial court
did not err in failing to instruct the jury on duress at the final
mandate. This assignment of error is without merit. Defendant also argues that the court erred in adding language
to the pattern jury instruction on duress. We do not agree.
Defendant requested the pattern jury instruction on duress at
trial and objected to the insertion of the additional language. We
review the court's instruction for prejudicial error. “Prejudicial
error is defined as a question of whether '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.'” State v. Lanier, 165 N.C. App. 337, 354, 598
S.E.2d 596, 607, disc. review denied, 359 N.C. 195, 608 S.E.2d 59
(2004) (quoting N.C. Gen. Stat. § 15A-1443(a) (2003)).
Defendant contends that the court improperly added the phrase
“the threat of future injury is not enough” to the pattern jury
instruction on duress. This phrase is taken from State v. Borland,
21 N.C. App. 559, 564, 205 S.E.2d 340, 344 (1974). Borland
predates this Court's establishment of the general rule for
elements of duress in Kearns, supra. As discussed above,
defendant failed to present credible evidence of each element of
duress. Given that defendant was not entitled to an instruction on
duress, any error in inserting the language from Borland was not
prejudicial. We overrule this assignment of error.
Defendant also argues that the trial court erred in denying
her motion to suppress the drugs discovered on her person. We
disagree.
Defendant contends that she did not freely consent to the
search of her person because her response was not a clear andunequivocal assent and because her response was coerced by the
presence of four police officers. “The standard of review in
evaluating a trial court's ruling on a motion to suppress is
whether the court's findings of fact are supported by competent
evidence and if those findings of fact support the trial court's
conclusions of law.” State v. Price, 170 N.C. App. 57, 64, 611
S.E.2d 891, 896 (2005).
Consent searches
have long been recognized as a “special
situation excepted from the warrant
requirement, and a search is not unreasonable
within the meaning of the Fourth Amendment
when lawful consent to the search is given."”
State v. Smith, 346 N.C. App. 794, 799, 488
S.E.2d 210, 214 (1997). “Consent to search,
freely and intelligently given, renders
competent the evidence thus obtained.” State
v. Frank, 284 N.C. 137, 143, 200 S.E.2d 169,
174 (1973) (citations omitted). “The question
whether consent to a search was in fact
'voluntary' or was the product of duress or
coercion, expressed or implied, is a question
of fact to be determined from the totality of
all the circumstances.” Schneckloth v.
Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d
854, 862-63 (1973).
State v. Graham, 149 N.C. App. 215, 218-19, 562 S.E.2d 286, 288
(2002), disc. review denied, 356 N.C. 685, 578 S.E.2d 315 (2003).
N.C. Gen. Stat. § 15A-221(b) (2005) defines consent as “a statement
to the officer, made voluntarily and in accordance with the
requirements of G.S. 15A-222, giving the officer permission to make
a search.” Our courts have held that consent may be “'a verbal
assertion or nonverbal conduct intended as an assertion.'” Graham,
149 N.C. App. at 219, 562 S.E.2d at 288 (quoting Black's Law
Dictionary, 1416 (7th ed. 1999)). The Supreme Court has held thatresponding “I don't care” in response to an officer's request to
search constituted valid consent. State v. Sokolowski, 344 N.C.
428, 432-33, 474 S.E.2d 333, 336 (1996).
Here, defendant responded to Cpl. Trentini's first request by
stating “I don't care.” Cpl. Trentini asked again for permission
to search and defendant responded “Go ahead.” The second response
constitutes clear and unequivocal assent to the search. Further,
the evidence tends to show that defendant dealt only with Cpl.
Trentini and Officer Vanderport during the traffic stop, and that
Cpl. Trentini and defendant were alone when the search request was
made. No evidence at trial indicated that defendant felt coerced
into consenting to the search. This assignment of error is without
merit.
No error.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***