STATE OF NORTH CAROLINA
No. 01 CRS 54637
DRELLCO LAMONT HUNTER 05 CRS 55219
Attorney General Roy Cooper, by Assistant Attorney General
Joan M. Cunningham, for the State.
Parish & Cooke, by James R. Parish, for defendant.
Drellco Lamont Hunter (defendant) appeals judgments entered upon his convictions for second degree murder and possession of a handgun by a felon. We find no error.
The pertinent facts may be summarized as follows: On 23 May 2001 defendant searched for Jarvis McKinley Thompson (Thompson) because he believed that Thompson had broken into his home and stolen money from his girlfriend's purse. Between 3:30 p.m. and 4:30 p.m. the same day, defendant drove to the residence of Patricia McFadden Barnes (Barnes). He stopped his vehicle; left the driver side door open and the car in the middle of the street; and asked to speak to the lady of the house. Barnes asked him to step inside of her home. Barnes knew defendant only as Poo. Ina loud voice, spitting as he talked, defendant told Barnes that [Thompson] was going to get dealt with because somebody broke into his house. Defendant also stated that if Barnes continued to have Thompson at her house, someone there could get hurt.
Later the same day, defendant picked up Chris Southern (Southern), Laron Branham (Branham) and another individual known as Baby in his Isuzu Rodeo vehicle and asked Southern to take him to Thompson's house. When they arrived at Thompson's house, Southern went to the door and asked for Thompson. When Thompson came to the door, Southern told him Poo wanted to give him some work, meaning to buy narcotics. Thompson went back into the house; returned outside; and got in the car. The group drove to another section of Charlotte and pulled behind Lil Ron's house. Everyone exited the vehicle except Thompson. Southern observed defendant retrieve a gun from behind the back seat of the Rodeo. Defendant and Thompson then left in the Rodeo. Defendant later returned by himself, and told Southern he had left him [Thompson] leaking, meaning he had killed him.
Quentin Dozier testified that he was selling drugs on 21 May 2001 when defendant pulled up with Thompson, Southern and Baby. Defendant approached Dozier and said he was fixing to handle his business. The men shook hands, and defendant left in the Rodeo. When defendant returned a couple hours thereafter, he told Dozier he shot and killed Thompson. Dozier further testified that defendant told him no one would find the body and that there was no blood that linked him to the killing. Two days later, on 25 May 2001, the Charlotte-Mecklenburg Police Department received an anonymous call regarding a body located on railroad tracks. Detective Henson discovered a body, later identified as Thompson, lying to the right of the railroad tracks in a weeded area.
On 26 May 2001, Dr. James Michael Sullivan (Sullivan), forensic pathologist and medical examiner for Mecklenburg County,
conducted an autopsy on Thompson. Sullivan discovered three gunshot wounds to Thompson, one in each wrist and one to his head. The shot to the head was the cause of death. Sullivan estimated he had been dead for one to three days.
Henson determined that Carita Evans Gist's name appeared with defendant's name on the title for the Rodeo. On 30 May 2001 between 10:00 p.m. - 11:00 p.m., Henson put out an all points bulletin (APB) for the Rodeo. At 11:25 p.m. on the same evening, the vehicle was observed by an officer on a public street; it was being driven by defendant. The vehicle was seized at that time and towed to the police department. A later search of the vehicle revealed a .38 revolver in a compartment behind the driver's seat; this revolver was the firearm used in the killing of Thompson.
Defendant was convicted of second degree murder and possession of a firearm by a felon. Defendant now appeals.
Defendant first contends that the trial court erred by proceeding to trial on the charge of possession of a handgun by a felon during the same week in which he was arraigned, in violation of N.C. Gen. Stat. § 15A-943(b) (2005). He asserts that the trialcourt committed reversible error per se because it arraigned defendant on 31 October 2005 on the charge of possession of a firearm by a felon and then, over his objection, proceeded to trial on that charge on 1 November 2005. In response, the State argues that defendant waived his right not to be tried on 1 November 2005 by failing to request a formal arraignment within 21 days after service of the bill of indictment. See N.C. Gen. Stat. § 15A-941(d)(2005) (If the defendant does not file a written request for arraignment, then the court shall enter a not guilty plea on behalf of the defendant.). These specific facts and arguments were addressed by this Court in State v. Lane, 163 N.C. App. 495, 594 S.E.2d 107 (2004). Consistent with this binding precedent, we overrule this assignment of error.
Defendant next contends that the trial court violated his constitutional rights under the Fourteenth Amendment to the federal constitution and Article I of the North Carolina Constitution by denying his objections to three of the State's peremptory challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986). (See footnote 1) We disagree. Racial discrimination in the exercise of peremptory challenges is barred by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83. In Batson, the United States Supreme Court:
outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. . . . First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.
Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405 (1991) (citations omitted). In reviewing a court's determination that defendant failed to make out a prima facie case, this Court must evaluate numerous relevant factors, including:
(1) the characteristic in question of the
defendant, the victim and any key witnesses;
(2) questions and comments made by the prosecutor during jury selection which tend to support or contradict an inference of discrimination based upon the characteristic in question;
(3) the frequent exercise of peremptory challenges to prospective jurors with the characteristic in question that tends to establish a pattern, or the use of a disproportionate number of peremptorychallenges against venire members with the characteristic in question;
(4) whether the State exercised all of its peremptory challenges; and
(5) the ultimate makeup of the jury in light of the characteristic in question.
State v. Wiggins, 159 N.C. App. 252, 263, 584 S.E.2d 303, 312 (2003). Because the trial court is in the best position to determine whether circumstances support an inference of purposeful discrimination, this Court will not disturb its determination absent clear error. State v. Thomas, 350 N.C. 315, 332, 514 S.E.2d 486, 497 (1999). Moreover:
Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot. Therefore, the only issue for us to determine is whether the trial court correctly concluded that the prosecutor had not intentionally discriminated. Since the trial court is in the best position to assess the prosecutor's credibility, we will not overturn its determination absent clear error.
State v. Williams, 355 N.C. 501, 551, 565 S.E.2d 609, 638-39 (2002) (internal quotation marks omitted).
In the instant case, the record reveals that defense counsel argued that Jurors A, B and C were excluded from the jury pool solely on the basis of race in violation of Batson. We address these three prospective jurors in turn.
As to juror A, the trial court found no evidence of racial motivation to support a prima facie case of discrimination. Afterdefendant made his Batson motion, the trial court denied the same and noted that, [t]he Court does not see a pattern yet. The record reveals that, at the conclusion of the second day of voir dire, the State exercised its first peremptory challenges, removing from the jury panel two white jurors and one African-American female juror, Juror A. Two of the jurors the State passed to the defendant at the same time were African-American female jurors. Defendant objected to the excusal of Juror A, claiming this constituted a pattern and practice of excusing African-American jurors. The State responded that one [juror] is not a pattern and that he had excused twice as many whites as African-Americans. We conclude the trial court did not err by concluding defendant failed to show a prima facie case as required by Batson as regards Juror A. See, e.g., State v. Walls, 342 N.C. 1, 36, 463 S.E.2d 738, 755 (1995) (no prima facie showing where prosecution excused ten potential jurors, seven of whom were African American), and State v. Beach, 333 N.C. 733, 740, 430 S.E.2d 248, 252 (1993) (peremptory challenge of sixty three percent of African-American jurors does not by itself make a prima facie case of discrimination).
With respect to Jurors B and C, the trial court held that defendant made a prima facie showing of discrimination on the basis of race, but otherwise overruled defendant's objections to the State's exercise of peremptory challenges.
As regards Juror B, the prosecutor told the trial court that he was excused because he would be susceptible to believe that someof the State's witnesses might lie because, as Juror B explained, his son was falsely implicated by drug dealers. Defense counsel remarked that impeaching the testimony of State's witnesses by suggesting the testimony was given to garner favor was a primary defense tactic. We conclude, as to Juror B, that the court did not err by concluding that the State provided a race-neutral reason for its peremptory challenge, and that defendant did not prove purposeful discrimination.
As regards Juror C, the prosecutor informed the trial court that he was concerned that, at age 28, the juror relied on her mother to keep track of her jury summons, and that Juror C had contradicted herself on whether she could remain focused as a juror while also working a night shift. As the State's rationale for excusal of Juror C was based on race-neutral reasons that were clearly supported by the individual jurors' responses during voir dire[,] the relevant assignments of error are overruled. See State v. Robinson, 336 N.C. 78, 99, 443 S.E.2d 306, 315 (1994).
Defendant next contends that the trial court erred by refusing his request to elicit, on cross-examination of Carita Evans Gist, evidence of bias on her part, specifically that Gist was upset and angry when she learned defendant was unfaithful during a prior dating relationship. Defendant contends the evidence could have suggested a motive on her part to fabricate testimony that defendant made his living as a drug dealer and that he was accused of shooting somebody and that she was aware of a gun in hisIsuzu. We conclude any error in excluding Gist's examination, if any, did not prejudice the outcome of the trial.
The scope of cross-examination is within the discretion of the trial court. State v. Forte, 360 N.C. 427, 442-43, 629 S.E.2d 137, 147 (citing State v. Williams, 279 N.C. 663, 675, 185 S.E.2d 174, 181 (1971)), cert. denied, __ U.S. __, 166 L. Ed. 2d 413 (2006). Where [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. N.C. Gen. Stat. § 15A- 1443(a)(2005).
Here, defendant had a full opportunity to cross examine Gist notwithstanding the trial court's exclusion of certain questions that could have elicited testimony reflecting on her credibility. Moreover, defendant elicited testimony from Gist that suggested she could have had reasons to be untruthful, specifically that she was frustrated when her relationship with defendant ended, and was upset because of unpaid bills for the Rodeo. In addition, the evidence as regards the material facts showing defendant perpetrated the killing of Thompson were largely uncontradicted: defendant verbalized an intention to harm Thompson; numerous witnesses established that Thompson was last seen with defendant; the firearm in the Rodeo was used in the killing; the condition of the body confirmed that the killing could have occurred during the time when Thompson was last seen with defendant; and defendant madeinculpatory statements concerning the killing. Even assuming arguendo the trial court erred by prohibiting defendant from eliciting additional testimony that could have reflected on Gist's credibility, the jury would not have reached a different result. This assignment of error is therefore overruled.
Finally, defendant argues that the trial court erred by violating his rights under the Fourth Amendment to the United States Constitution by denying his motion to suppress the .38 revolver discovered in the Rodeo vehicle. Defendant asserts that, under Georgia v. Randolph, 547 U.S. 103, 164 L. Ed. 2d 208 (2006), valid consent to search had to be obtained from both he and the other individual who held title to the vehicle. (See footnote 2) Defendant reasons that, because he did not give consent, and only the other titled owner did, the .38 revolver discovered in the vehicle must be suppressed. We need not address defendant's argument, as the trial court's order must be sustained regardless of whether the principles set forth in Randolph apply to vehicles.
A warrant is not required to perform a lawful search of a vehicle on a public road when there is probable cause for the search. State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886 (1999). [T]here is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure. United States v. Johns, 469 U.S. 478, 484, 83 L. Ed. 2d 890, 896 (1985)([T]he officers acted permissibly by waiting until they returned to DEA headquarters before they searched the vehicles and removed their contents.). A search by law enforcement is therefore permissible even after a car has been seized and taken into police custody.
When evaluating a trial court's ruling on a motion to suppress, the standard of review is whether the court's findings of fact are supported by competent evidence and whether those findings of fact support the trial court's conclusions of law. State v. Downing, 169 N.C. App. 790, 793, 613 S.E.2d 35, 38 (2005). Findings of fact that are supported by competent evidence are conclusive on appeal, State v. Wilson, 155 N.C. App. 89, 93-94, 574 S.E.2d 93, 97 (2002), and conclusions of law 'must be legally correct, reflecting a correct application of applicable legal principles to the facts found,' State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 121 (2002)(quoting State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)).
Here, the trial court found, in pertinent part, that:
2. At 5:15 p.m. on Friday, May 25, 2001, Detective Henson was called to a homicide scene at 1500 Tarheel Road in Charlotte. A body was found lying near railroad tracks. Detective Henson arrived at the scene at 5:47 p.m. The victim was a male wearing blue jeans, tee shirt, and tennis shoes. The clothes were thoroughly wet, but not muddy. The body showed signs of early decomposition, suggesting to Detective Henson that the body had been in that location for 24-48 hours. There were wounds to the head and arm of the corpse. There were also tire marks at the location.
3. Once the body was turned over, the pockets were searched and a driver's license was found. The driver's license identified Jarvis McKinley Thompson. Detective Henson asked a uniformed officer to look into missing persons' reports. Mr. Thompson was listed as a missing person.
. . . .
5. Ms. Stradford last saw the deceased on
Wednesday, May 23. They planned to meet again
later that day. She talked with him by phone
and was to come to his home around 5 p.m. She
did arrive in the late afternoon only to learn
from Walter Ray that Jarvis Thompson had left
just moments earlier. Mr. Ray said that
Jarvis left with someone and said he'd return
in about one hour. Mr. Thompson never returned
on Wednesday, May 23, 2001.
6. Mr. Ray lived in the same residence as Jarvis Thompson and his mother, Lydia Thompson. Mr. Ray returned from school on the afternoon of May 23 around 5:40 or 5:50 p.m. Jarvis was at home playing a video game. Mr. Ray went upstairs, put his books down, and used the bathroom. While in the bathroom, someone came to the apartment and talked to Jarvis. Jarvis left. Mr. Ray could not identify the person with whom he left.
7. Ms. Stradford told Detective Henson about rumors she'd heard of T.J.'s being shot somewhere off Highway 16 and that a person named Poo might be responsible. One of the people providing information was Shanta McFadden. Ms. Stradford and a friend, Kisha Hunter, took Detective Henson to Shanta McFadden's home.
8. Ms. McFadden, her mother, Patricia McFadden Barnes, and sister, Monique Beasley, each gave statements to police that a person they knew as Poo had come to Ms. Barnes' home at 608 Seldon Drive on May 23, 2001, in the afternoon between 4 and 5 p.m. Poo drove by the home several times that afternoon in a car, described as a red or burgundy Jeep Rodeo with tinted windows, before suddenly stopping and demanding to speak with the woman of the house (Ms. Barnes). This person known to them asPoo was identified by Ms. Barnes and Ms. Beasley from a photographic line-up as Drellco Hunter. Poo demanded to know where he could find J.T. He stated repeatedly that T.J would be dealt with. Poo accused J.T. of robbing Poo's girlfriend's home some weeks earlier.
9. Poo left after the residents at 608 Seldon Drive told him to leave.
10. A vehicle described as a burgundy Isuzu Rodeo with dark tinted windows was seen at the apartment complex where Jarvis Thompson lived on the afternoon of May 23, 2001, between 6 and 6:30 p.m. A man got out of the vehicle, went to an apartment, knocked, and a man came outside. The two went back to the vehicle and talked.
. . . .
12. At 10:47 p.m. on May 30, 2001, based on
the information gathered, police issued an APB
for the 1997 burgundy Isuzu Rodeo registered
to Drellco Hunter and Carita Evans. A vehicle
matching the description was stopped by a
uniformed officer at 11:25 p.m. the same
night. Drellco Hunter was driving the
vehicle. The vehicle was seized from Mr.
Hunter and he was permitted to leave.
These findings of fact are not challenged as unsupported by the evidence at the suppression hearing, and they are therefore binding on this Court. Additionally, we observe the following circumstances surrounding the stop, seizure and search of the Rodeo that were revealed during the suppression hearing: (1) defendant drove the Rodeo in front of Barnes' house on Seldon Drive before he stopped and insisted that Thompson would be dealt with; (2) several witnesses identified defendant as the person who drove the Rodeo, stopped at Barnes' house, and threatened to kill Thompson; (3) Thompson's body, discovered two days thereafter, wasdecomposing; and (4) Henson opined that Thompson was likely killed one to three days before the body was discovered.
On this record, we conclude the officers had probable cause to seize and search the vehicle. The facts and circumstances warranted an officer, acting with reasonable caution, to believe that evidence of criminal wrongdoing was likely inside the Rodeo. We observe that the trial court ruled that (1) the police had probable cause to seize and hold the vehicle until either consent was given or a warrant obtained; (2) there were no Constitutional violations because one of the two owners of the vehicle gave consent to search; and (3) there were no violations as a consequence of the stop of defendant or the seizure or search of the vehicle. Because the trial court reached the correct result in denying defendant's motion to suppress, we need not disturb the ruling even though we conclude there were no Constitutional violations on different grounds, specifically that the officers had probable cause to search the vehicle. See State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650 (1987) (A correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned. The question for review is whether the ruling of the trial court was correct and not whether the reason given therefor is sound or tenable.). Therefore, because we conclude that probable cause existed to search the automobile, we need not reach the issue of consent, which was relied upon by the trial court. This assignment of error is overruled. No error.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
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